Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00109
 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: January 2009
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00109
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.


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Volume 33, Number 1 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
January 2009

Audit shows noncompliance

TALLAHASSEE Forty-three percent
of government agencies failed to comply
with the Public Records Law, according
to a statewide audit.
During the Florida Society of
Newspaper Editors' audit, reporters and
student volunteers requested records from
163 school, administrative, and sheriff's
offices in 56 of Florida's 67 counties.
The individuals asked
each office to produce ACCE
copies of e-mails created
in preparing the 2008- RECORE
09 fiscal-year budgets.
If the agencies claimed there were no
e-mails on the issue, the individuals asked
for the latest correspondence or written
records on the budget.
The failing agencies either could not
produce a reasonable record, or they
required requestors to submit written
requests or give their names or reasons for
wanting the records.

Illinois governor
CHICAGO The FBI arrested Illinois
Gov. Rod R. Blagojevich and his Chief of
Staff, John Harris, on federal corruption
charges, in part for threatening staff at the
parent company of the ( /I,. .. Tribune.
Among other things, Blagojevich and
Harris allegedly threatened to withhold
Illinois Finance Authority support from
the Tribune Company in order to induce
the ( I,.. .. Tribune to fire editorial board
members who discussed the possible
impeachment of Blagojevich.
The Tribune Company, which owns
the Chicago Cubs, considered seeking
IFA support in order to sell the Cubs and
finance or sell Wrigley Field.
In a telephone conversation intercepted
by the FBI, Harris allegedly informed
Blagojevich that he told a Tribune
Company advisor the financial issues
"look like they could move ahead fine
but, you know, there is a risk that all
of this is going to get derailed by your

Sheriff's departments were the worst at
complying. Almost 60 percent failed.
One reporter even had her license plate
run after she requested records from the
Jefferson County School District.
"It's unacceptable," said Mark
Tomasik, editor of Scripps Treasure Coast
Newspapers and president of the FSNE,
according to the Bradenton Herald.
"Citizens are more and more
SS frustrated with government and
how it works and when they feel
S they're not going to have a smooth
process, it discourages them from
utilizing what is their right."
The audit would normally have been
conducted in March 2009 during Sunshine
Week, but it was moved to October 2008
because of Gov. Charlie Crist's open-
government commission's release of
recommendations for the 2009 session.
Source: Bradenton Herald, Naples
Daily News, and Orlando Sentinel

threatens paper
own editorial page," according to a U.S.
Attorney for the Northern District of
Illinois press release.
A Tribune Company financial advisor
allegedly assured Harris that the Tribune
would change the editorial board.
The conversations also allegedly show
Blagojevich conspired to obtain personal
benefits by leveraging his authority
to appoint a senator to President-elect
Barack Obama's recently vacated seat
and obtaining campaign contributions in
exchange for official actions.
Blagojevich and Harris were charged
with one count of conspiracy to commit
mail and wire fraud and one count of
solicitation of bribery. If convicted, they
face a maximum penalty of 20 years in
prison for conspiracy, 10 years in prison
for solicitation, and a maximum fine of
$250,000 per count.
Source: U.S. Attorney for the Northern
District ofIllinois Press Release

Rule could



PALM BEACH A Florida Bar
committee proposed a rule limiting the
public's access to recordings of court
The Commission on Trial Court
Performance and Accountability's
proposed rule would require judicial
approval and editing before release.
The public could still access transcripts
for up to $4.50 per page.
The rule's proponents say it keeps
inadvertent courtroom disclosures of
personal information from the public.
"These rules favor maintaining
confidences over public availability,"
said Circuit Judge and commission
member Jonathan Sjostrom, according
to the Palm Beach Post.
Some critics fear the rule is
overbroad. The new rule violates the
Florida Constitution and undermines
citizens' ability "to know what's going
on in their own court system," said
Carol LoCicero, a media lawyer and
partner at Thomas & LoCicero PL in
Tampa, according to The Reporters
Committee for Freedom of the Press.
"The idea of a judge having
discretion whether or not to give us a
public record is of great concern," said
Palm Beach County Public Defender
Carey Haughwout, according to the
Post. "This is a wholesale restriction
on access to a public event."
Critics also say Florida judges
will use the rule to keep regrettable
behavior from being broadcast on the
Internet or television.
"They don't want their public
behavior memorialized," said Miami
assistant public defender Tony Natale,
according to the Post.
Source: The Palm Beach Post and
The Reporters Committee for Freedom
of the Press


Board sued over comment time County attacks

PENSACOLA Two residents sued
the Community Maritime Park Associates,
a volunteer board, for allegedly violating
the Open Meetings Law by not allowing
public comment. The plaintiffs are part
of the Movement for Change group in
Byron Keesler and Leroy Boyd
requested the CMPA's decisions be voided
and the process restarted for about 30
meetings to allow public comment.
On Sept. 11, 2008, the Pensacola City
Council voted unanimously to direct the
CMPA to include an open public forum at
the beginning of its meetings.
The suit says the CMPA's allotted
comment period is unacceptable because

Audit finds documents in trash
CLEARWATER A Pinellas County medical information, child abuse records,
audit found confidential government and patient information.
documents are not being destroyed as "We found a lot of documents that
required by law. should have been confidential
Hundreds of documents A C C E S and not just put in the trash so
were found after the A anyone could pick them up," said
Internal Audit Division RECORDS county IAD director Bob Melton,
searched the trash of 13 according to the Tampa Tribune.
county buildings. Although the public had access to the
The documents included personal documents, the IAD is "not aware of any
information not intended to be public, instances where that may have occurred,"
Among the documents were juvenile said Melton, according to the Tribune.
defendant and criminal victim records, Source: Tampa Tribune

Google Trends
search engine utility that identifies the
geographic areas where people search
for the word "flu" has raised privacy
Google Flu Trends analyzes search
queries to find the places where people
search for the word
in the hopes of PRIVA
determining where
flu outbreaks are
likely to happen. Google then shares
the data with the Centers for Disease
Control and Prevention, part of the
U.S. Department of Health and Human
The users' search data including
Internet Protocol addresses, the data and
time of the search, and a unique cookie
ID are stored on Google's servers.

raises concerns
Although Google said it will
make the data anonymous, technical
experts say Google's technique may be
ineffective. Google retains the majority
of the user's IP address, and the unique
cookie ID could be used to identify
individual users.
Google maintains its data
Y analyses were two weeks
faster than the traditional
analysis by the CDC.
In a letter, the Electronic Privacy
Information Center warned Google
that linking searches to individuals is
historically dangerous and can lead to
EPIC also requested Google publish
its privacy protection techniques.
Source: Electronic Privacy
Information Center

Sunshine Law

it occurs before the CMPA discusses its
Further, the "public should have
been heard in the decision-making from
the inception," said Pensacola attorney
Sharon Barnett, who represents Keesler
and Boyd, according to the Pensacola
News Journal.
"I don't know what their complaint is
other than their typical ploy to sabotage
the Maritime Park," said federal judge
Lacey Collier, who chairs the CMPA
board, according to the Journal. "I am
convinced, having discussed these issues
with attorneys all over the state that there
is not, and never has been, a violation."
Source: Pensacola News Journal

2 The Brechner Report January 2009


County Commission passed a resolution
calling for the state legislature to operate
under the Open Meetings Law, but some
commissioners claimed the law impedes
government business.
The law "penalizes local governments
to the extent that it takes forever to get
anything done," said Commissioner Barry
Holloway, according to the Fernandina
Beach News-Leader.
That impediment "is why the state
legislature chose to exempt itself from the
restrictions," said Commissioner Mike
Boyle, according to the News-Leader.
Boyle said because commissioners
cannot discuss business outside an open
meeting, they have to make on-the-spot
decisions or delay making decisions at all.
"The bottom line with this resolution is
basically to say to the legislature, 'If you
truly in your hearts believe this is a good
idea, then you ought to do it yourselves,'"
said Boyle, according to the News-Leader.
Source: Fernandina Beach News-

Closed meeting

may violate law
Canvassing Board met briefly behind a
closed, locked door at the supervisor's
office during an elections recount.
The door was locked when members
closed it to block outside noise. It was
opened when a Tallahassee Democrat
reporter sought entrance.
"We didn't try to keep anyone out,"
said Supervisor of Elections Sherida
Crum, according to the Democrat.
The situation appears to have violated
the Open Meetings Law, said Sunshine
Law Attorney for the Office of the
Attorney General Alexis Lambert. "If you
wanted to sue and your attorney took this
to court, it would be a pretty strong case,"
said Lambert, according to the Democrat.
The Open Meetings Law applies to
any gathering of two or more members
of the same board or commission to take
action on public business, according to the
Attorney General Office's "Government-
in-the-Sunshine Manual."
Source: Tallahassee Democrat

Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida

Florida Supreme Court rejects false light tort

TALLAHASSEE Florida does not
recognize false light invasion of privacy
claims, according to a November 2008
Florida Supreme Court decision.
In a duo of cases,
the Court held PRIVA(
because aggrieved
individuals can sue
under libel and defamation laws, false light
claims are superfluous.
In a case against Jews for Jesus, Inc., the
court issued a 37-page opinion saying false
light could potentially chill free speech.
"Because the benefit of recognizing the
tort, which only offers a distinct remedy
in relatively few unique situations, is

outweighed by the danger of unreasonably
impeding constitutionally protected
speech, we decline to recognize a cause of
action for false light invasion of privacy,"
wrote Justice Barbara Pariente.
Y Edith Rapp, the stepmother of
a Jews for Jesus employee, sued
the group after it published an
article claiming she was affiliated with it.
A separate ruling upheld a lower court's
decision to throw out a case against the
Pensacola News Journal. Contractor Joe
Anderson sued after the Journal published
a story allegedly implying he murdered his
wife, whom he shot unintentionally while
hunting. Authorities ruled the shooting

was accidental. Anderson was awarded
$18 million by the lower court.
"Today the Court shut the courthouse
door to every Floridian who is falsely
accused by a newspaper when they publish
words that are literally true but carefully
crafted to include thinly veiled accusations
of wrongful conduct," said Anderson,
according to the Journal.
"It's a big deal to everybody in the
media, not only a victory for us," said
Journal President and Publisher Kevin
Doyle, according to the Journal.
Source: Pensacola News Journal and
The Reporters Committee for Freedom of
the Press

Attorneys general support federal shield law

WASHINGTON Forty-one attorneys
general, including Florida Attorney
General Bill McCollum, urged U.S.
senators to support an act creating a
qualified federal shield law.
The Free Flow of Information Act
gives journalists a qualified privilege from
disclosing sources to federal prosecutors,
defense attorneys, and civil litigants.
In a letter, the attorneys general
explained the FFIA would extend under
federal law the same protection already
provided in the laws of 49 states and the
District of Columbia.

Supreme Court
Court ruled that offering or seeking child
pornography is a federal crime, even
where no such pornography exists.
U.S. v. Williams, a

7-2 decision, upheld the
2003 PROTECT Act
and said the material is
not free speech.
Justice Antonin Scalia
"offers to provide or reque
child pornography are cate

The "lack of a corresponding federal media who provide that information, and
reporter's privilege law frustrates the this proposed legislation would protect
purposes of the state recognized privileges journalists who are attempting to preserve
and undercuts the benefit to the public that that freedom."
the states have sought to bestow through The FFIA, stalled in the Senate because
their shield laws," said the letter, it was not scheduled for a full vote,
The public P r O T > R S passed the Senate Judiciary
must "have VL Committee by a 15-4 vote.
access to PRIVILEGE The U.S. Justice Department
information objected that the FFIA would
pertaining to their government to hold interfere with law enforcement.
it accountable," said McCollum in a Source: St. Petersburg Times and The
statement obtained by the St. Petersburg Reporters Committee for Freedom of the
Times. "Often it is members of the Press

upholds pornography law

excluded from the First Amendment."
The law applies to simulated sci.\ullI
explicit conduct" where the actors
involved are real children, and
the "portrayal must cause a

FI R ST reasonable viewer to believe
that the actors actually
AMENDMENT engaged in that conduct."
One critic feared
vrote that prosecutors could still use the law to
sts to obtain punish innocent people. Such use would
gorically put people "through a terrible ordeal," said

National Coalition Against Censorship
executive director Joan Bertin, according
to the Pensacola News-Journal.
"Perhaps I am wrong, but without
some demonstration that juries have
been rendering exploitation of children
unpunishable, there is no excuse for
cutting back on the First Amendment,"
said Justice David Souter, joined by
Justice Ruth Bader Ginsburg, in dissent.
Source: The Palm Beach Post and the
Pensacola News-Journal
Annual FOIReport U 2008





Attorney general issues opinions
TALLAHASSEE Attorney General Care District is not a named party but a
Bill McCollum issued opinions in 2008 on non-profit holding company it created is?
open government issues ranging from city AGO 2008-17: Because the district is
council members participating on private a real party in interest in the litigation, it
Web sites to the release of emergency can hold private meetings for settlement
medical services records, negotiations or litigation expenditure

Relocating meetings temporarily:
May a city council temporarily relocate
its chambers for public meetings in an
adjacent municipality while a new city
hall is being built? If not, could the
city council enact an ordinance for a
referendum to amend the city charter
to allow the city
council to meet ATTOR
in an adjacent R
municipality? GENERAL
AGO 2008-
01: Based on the
Florida Constitution and Florida statutes,
the city council would be required to
seek legislative authorization to hold
the meetings extraterritorially. The city
council cannot grant itself extraterritorial
authority through local legislative action.

Private websites: What are the
guidelines for city council members
maintaining and contributing to a
privately-owned Web site for citizen
discussion of local political issues?
AGO 2008-07: City council
members can post comments on a private
electronic bulletin board or blog, and they
can also serve as webmasters of those
sites. However, board or commission
members cannot use Web site blogs or
message boards to exchange information
about issues that could foreseeably
come before the board. Any electronic
materials created or received regarding the
transaction of public business are subject
to the Public Records Law, whether they
are made on public or private computers.
A city council member's postings and
e-mails regarding his public duties would
also be subject to the Public Records Law.
The city council member who creates and
posts the comments on the website has
control over the records and must ensure
he maintains them in accordance with the
Public Records Law.

Closed sessions: May the Board
of Commissioners for the Health Care
District of Palm Beach County enter into
closed attorney-client sessions to discuss
settlement negotiations and litigation
expenditure strategies where the Health


strategy sessions. Any action to approve
the settlement or expenditures must be
voted on in a public meeting.

Police academy: Is a police academy
composed of citizens for the purpose of
involving citizens in the functions of the
police department subject to the Open
Meetings Law
NEY if two or more
Selected officials
DPINIONS enroll and attend?
AGO 2008-
18: The citizen
police academy is not subject to the Open
Meetings Law when two or more elected
officials participate. However, if more
than one city council member attends
the classes or programs at the academy,
the council members cannot engage
in discussion or debate about police
department functions.

Patient records: Can an emergency
medical services transportation licensee
release records of emergency calls, which
include the patient's name, address,
and medical information, to a local law
enforcement agency that does not have
regulatory or supervisory responsibility
over the licensee?
AGO 2008-20: The emergency
medical services licensee can release the
records. Florida statute 401.30(4) does
not limit the release of information to
only those agencies with regulatory or
supervisory authority.

Patrol trip sheets: Are patrol trip
sheets and the information on the sheets
the officer, the location and hours he or
she works, and the locations to which the
officer responded for emergency or non-
emergency reasons exempt from public
AGO 2008-23: Patrol trip sheets are
not generally exempt from disclosure
because they do not reveal surveillance
techniques, surveillance procedures,
or surveillance personnel. Entries on
the patrol trip sheets revealing such
confidential information would be exempt
from disclosure and may be redacted
before disclosure.

on access
School board records: Must the
school board disclose information exempt
from public inspection and copying to
certified bargaining representatives in a
defined "bargaining unit"?
AGO 2008-24: The school board need
not disclose to the certified bargaining
representatives exempt information such
as home addresses and other protected
personnel information of the spouses of
law enforcement personnel employed by
the school board.

Property Appraiser records: Must
the Property Appraiser provide a list of
the names of individuals who have made
written requests for protection of their
personal information and whose home
addresses are exempt from public records
AGO 2008-29: The Property
Appraiser must provide a copy of any list
it maintains of the names of individuals
whose home address is exempt from
disclosure under the Public Records Law.
The list must be provided in the format
in which it is ordinarily maintained.
However, the public records custodian
does not have to reformat any records to
comply with a request.

Correctional officers: Is a list of
law enforcement officers placed on
administrative duty subject to inspection
or copying, or is the information on the list
confidential, if it identifies the officers who
are subjects of an internal investigation?
AGO 2008-33: Public records
identifying correctional officers placed on
administrative duty are not confidential
and are subject to inspection and copying.
They do not constitute exempt complaints
filed against an officer or information
obtained pursuant to the investigation of
such a complaint.

Meetings in a private home: Does
holding public meetings in a private home
violate the Open Meetings Law?
Informal: Agencies should avoid
meeting in places not easily accessible to
the public. The choice of location also
must not chill the public's willingness
to attend. The meeting facility must be
large enough to accommodate the number
of members of the public reasonably
expected to attend. If the largest available
room cannot accommodate all expected
to attend, using video technology may
be appropriate. The meeting location

2Annual FOI Report U 2008



also must be accessible to the physically

Law enforcement officer exemption:
Who may disclose information about the
identity of a law enforcement officer?
Informal: Certain information about
a law enforcement officer and his or her
spouse and children typically is exempt
from disclosure. Agencies may release an
officer's name, but information such as his
or her home address or telephone number
is exempt. However, the exemption only
applies to records held by a public agency
or private entity acting on behalf of a
public agency. Private companies may
release information about law enforcement
officers unless they are acting on behalf of
a public agency.

Health plan records: Does the Public
Records Law preclude releasing health
insurance plan information identifying
school district employees and their

Informal: Information about an
insurance plan participant's medical
condition is exempt from disclosure.
However, the participant's name, address,
age and other non-medical information
should be disclosed. If there is doubt, the
Public Records Law should be resolved in
favor of access.

Value adjustment boards: Does the
Open Meetings Law apply to orientations
given by county officials for special
magistrates hired to hear value adjustment
board petitions?
AGO 2008-63: The Open Meetings
Law does not apply to training sessions
for special magistrates hired to hear value
adjustment board petitions because there
is no meeting of a board or commission
at which official business will be
conducted. Nothing precludes the county
from allowing the public to attend the
orientations, however.

Source: myfloridalegal.com

Annual FOI Report U 2008


recoups fees
Federal Emergency Management
Agency will pay 75 percent of the
South Florida Sun-Sentinel 's attorney
COUTRTS following a
OURlT 0 legal battle
for the
identities of disaster-aid recipients of
the 2004 Florida hurricane season.
FEMA agreed to pay more than
$146,000 to the newspaper, ending the
legal battle that began in March 2005
when FEMA refused to release the
names or addresses of aid recipients
because of privacy concerns.
In a related suit with The News-
Press (Fort Myers), FEMA agreed to
pay it more than $100,000 in attorney
Source: South Florida Sun-Sentinel

Access statutes receive additional exemptions
TALLAHASSEE The following five being accessible by the public. (Rich, & Tissue Donor Registry: Creates
bills enacted during the 2008 legislative D-Sunrise) Approved by Gov. Crist May exemption for donor-identifying
session create new exemptions or expand 28. information in the organ and tissue donor
existing exemptions to the state Public registry. Allows disclosure under certain
Records and Open Meetings laws. The CS/HB 863 Exemption/Direct- circumstances to organ, tissue, and eye
bills become law unless vetoed by Gov. Support Organization/DVA: Amends procurement agencies certified by the
Charlie Crist. Copies of the legislation s. 292.055, F. S., creating a public records Agency for Health Care Administration
are available at the Florida Legislature's exemption for the identities of, and or persons conducting research. (Oelrich,
Web site (www.leg.state.fl.us). Chief information about, certain donors and R-Gainesville) Approved by Gov. Crist
sponsors of the bills are in parentheses prospective donors to the direct-support June 23.
at the end of the summaries. SB=Senate organization of the Department of
Bill; HB=House Bill; CS = Committee Veterans' Affairs, including those parts of HB 7033 Exemption/Complaint of
Substitute. direct-support Discrimination: Amends s. 119.0711(1),
GT I' L E TG I A T ITV E organization F.S., expanding exemption for complaints
CS/SB 766 L G IJ L L meetings and other records about discrimination
Exemption/Judicial SESSION REPORT during which relating to race, color, religion, sex,
and Administrative the donors' national origin, age, handicap, or
Officials: Amends or potential marital status in connection with hiring
s. 119.071, F.S., creating a public donors' identities are discussed. (Reagan, preferences, position classifications,
record exemption for home addresses R-Sarasota) Approved by Gov. Crist May salary, benefits, discipline, discharge,
and telephone numbers of general 28. employee performance, evaluations,
magistrates, special magistrates, judges of or other related activities, to any
compensation claims, administrative law CS/HB 1141 Exemption/Sexual governmental agency as defined in ch.
judges of the Division of Administrative Violence Victim: Amends s. 741.313, 119, F.S., until a finding is made regarding
Hearings, and child support enforcement F.S., expanding exemption to include probable cause, the investigation about
hearing officers, and the home addresses, certain records and time sheets the complaint becomes inactive, or the
telephone numbers, places of employment, documenting leave due to acts of sexual complaint or record is made part of the
and/or schools and daycare facilities violence, submitted to an agency by an official record of any hearing or court
of the spouses and children of these employee who is the victim. (Jenne, proceeding. (H. Government Efficiency
officials, if the official provides a written D-Davie) Approved by Gov. Crist July 2. & Accountability Council and Gardiner,
statement that he has made reasonable R-Orlando) Approved by Gov. Crist June
efforts to protect the information from CS/SB 2610 Exemntion/Organ 10.

. . . 1l" . . . . . . . .


House and Senate approve bill

TALLAHASSEE Committees in
both the Florida House and Senate passed
separate versions of a bill to increase
access to records of the Department of
Children and Family Services.
Both bills passed without debate and
with virtually no questions, according to
the Pensacola News Journal.
The bills propose making it possible for
children and adults who have been through
DCF's child care system to obtain their
own records from the agency.
Many DCF records are confidential and

often contain sensitive medical histories,
but the blanket rule also prohibits people
from accessing their own records.
"When I found out people could not
even get their own records from DCF,
I couldn't believe it," said Sen. Paula
Dockery, R-Lakeland, according to the
Pensacola News Journal.
Dockery sponsored the Senate Bill,
SB 2762, and Rep. Will Weatherford,
R-Wesley Chapel, sponsored the House
Bill, HB 1467.
Source: Pensacola News Journal

Doctors' records made public

TALLAHASSEE Patients have a right
to check records on past mistakes made
by their doctors and hospitals regardless
of when the files were created, the Florida
Supreme Court ruled.
In a 4-3 opinion, the justices rejected the
hospitals' argument that patients only have
the right to inspect such records created
since November 2004, when voters adopted
a "patient's right to know" amendment.
The Court also held unconstitutional
parts of a law that aim to restrict access to
records created before the amendment's
The majority opinion held the
amendment applied to existing and future
records because it refers to "any" records

and "any" adverse medical incidents.
Florida Justice Association President
Frank Petosa said the Court's decision
reflected the voters' intent. "[Medical
mistakes] should not be swept under the
rug in a cloud of secrecy," Petosa said,
according to the Charlotte Sun.
In dissent, Justice Charles Wells wrote
the majority's view "is contrary to the law
and fundamental fairness."
Wells cited another state law keeping
hospital's peer review records secret
and prohibiting their use in civil cases,
an exemption intended to help medical
personnel speak in confidence about past
errors in order to prevent future mistakes.
Source: Charlotte Sun

SARASOTA-Florida doctors and
hospitals sued three state agencies in
federal court to keep records of medical
errors from the public.
Thirty-seven Florida hospital groups
and the Florida Medical Association sued
the Department of Health, the Agency
for Health Care Administration and the
Attorney General's Office, saying federal
medical privacy laws trump state law.
Amendment 7 to the Florida
Constitution lets patients access records
by any "health care facility or provider
relating to any adverse medical incident."
The medical groups said the law
conflicts with the 1986 federal Health
Care Quality Improvement Act, which
enabled hospitals to report malpractice
cases and hospital privilege revocations
to the National Practitioner Data Bank

The Attorney General's Office said
the HCQIA allows disclosure by parties
authorized under state law.
The groups also claimed satisfying
the over 400 requests already filed would
be costly and time-consuming because
HIPAA, the federal medical privacy law,
requires removing all patient-identifying
information before disclosure.
While supporters say enforcing the law
will reveal mistakes hidden by doctors
and insurers, the medical groups and
some safety advocates say the law will
discourage reporting errors and violate
standing confidentiality agreements.
"We feel strongly that it is not fair
to open up records that were held
confidential by previous court actions over
30 years," said Bill Bell, general counsel
for the Florida Hospital Association.
Source: Sarasota Herald-Tribune

Records audit

reveals flaws
released in March 2008 to coincide
with Sunshine Week, the Florida First
Amendment Foundation found only
50 percent of 34 state agencies passed
a four-part public records test.
Volunteers from the foundation,
who presented themselves as average
citizens, requested the same routine
record a copy of the most recent
travel reimbursement form filed by
the agency's chief administrative
The volunteers documented
whether they were asked to give their
name, present identification, provide
a reason or purpose for the request or
provide the request in writing all
things prohibited by Florida's Public
Records Law.
Thirty-two percent of the state
aACCES agencies
ACCESS audited
had one
RECORDS violation,
12 percent had two. Only the
Department of Transportation had
three violations.
The most common violation -
requesting the record requestor's
name occurred in one-third of the
state agencies. Just more than one
quarter of the agencies required the
request in writing. Only two agencies
required that the requestor provide a
reason for the request.
The only agency to fail the audit
completely was Visit Florida. The
agency denied the requestor access
to the agency's office because of
"renovations," according to the
First Amendment Foundation. The
requestor was unable to find anyone
to talk to about her public records
The audit also found that the
attitude of government employees
toward those making public record
requests has "dramatically improved,"
according to the foundation, which
cited the efforts of Gov. Charlie Crist
and his Office of Open Government
to facilitate transparency.
Source: The Ledger (Lakeland)

SAnnual FOI Report U 2008

Groups sue to prevent public

release of medical errors


DOJ releases FOIA guidance

WASHINGTON The Department of
Justice released guidance on Freedom of
Information Act changes that took effect
at the end of 2008.
One provision gives agencies 20
working days to process FOIA requests,
or they will forfeit search and copying
costs. Absent "unusual" or "exceptional"
circumstances, agencies can pause the
20 days once to ask the requestor for
clarification and settle any fee questions
they might have.
"Unusual" circumstances include the
need to gather documents from multiple
field agencies, dealing with a "voluminous
amount of records," or needing to consult
with other agencies to fulfill the FOIA

"Exceptional" circumstances are more
likely to cause distruptions. However,
agencies cannot claim "exceptional"
circumstances if they are handling a
predictable amount of requests unless that
agency can show "reasonable progress"
in reducing its backlog.
All agencies must now use a tracking
number system for requests that cannot
be filled within 10 days. Requestors must
have access to the number to call the
agency or check the status of the request
The agencies must now predict a
date when the request will be fulfilled,
according to the Justice Department.
Source: The Reporters Committee for
Freedom of the Press

Court orders DOJ to release

wiretapping memoranda
WASHINGTON A federal court former policy of conducting domestic
ordered the U.S. Department of Justice surveillance without prior approval by the
to turn over 10 Office of Legal Counsel Foreign Intelligence Surveillance Court.
memoranda relating to President Bush's The U.S. District Court for the District
domestic surveillance program. of Columbia will review the documents in
The Electronic Privacy Information private.
Center, American Civil Liberties Union, Judge Henry H. Kennedy's ruling
and National Security Archive filed a in the nearly three-year-old FOIA suit
lawsuit to obtain the documents in 2005 also kept 20 documents from the public
after the DOJ denied their Freedom of permanently because the documents
Information Act request. threaten national security.
The organizations sought documents Source: The Reporters Committee for
regarding the Bush Administration's Freedom of the Press

NARA updates

records system
Archives and Records Administration is
preparing to receive numerous documents
and electronic records from President
Bush's administration in January 2009.
Among the documents are an estimated
4,200 pages from the 9/11 Commission.
Archives staff members informed the
Public Interest Declassification Board that
the Archives is preparing an electronic
records management system for receipt.
The Archives also anticipates
President-elect Obama may make changes
to the current declassification order.
Source: The Reporters Committee for
Freedom of the Press

CIA to reverse

WASHINGTON A federal judge
ordered the CIA to treat the National
Security Archive as a member of the news
media and thus receive fee waivers
granted to all news media members for
Freedom of Information Act requests.
The CIA revoked the NSA's status as a
news media member in 2005.
The CIA said it erred in revoking the
status and would fix the issue but did not.
The CIA's conduct was illegal, and its
"extraordinary misbehavior can no longer
insulate it from accountability," wrote U.S.
District Judge Gladys Kessler. "The CIA's
requests that the Court not enter a formal
order to this effect after twice making
misrepresentations about its intentions is
truly hard to take seriously."
Source: The Reporters Committee for
Freedom of the Press

Student sues

over retaliation
graduate sued the Pembroke Pines Charter
High School principal for violating her
First Amendment rights by suspending her
for comments she made on the Internet.
In a lawsuit on behalf of former student
Katherine Evans, the American Civil
Liberties Union said principal Peter Bayer
violated "the free and unfettered exchange
of ideas and opinions in the public arena."
In November 2007, Evans left a
comment on her Facebook page calling
her Advanced Placement English teacher

I've ever
encouraged her friends to express similar
"feelings of hatred," but only three left
comments, all praising the teacher. Two
days later, Evans removed her comment.
Bayer suspended Evans for three
days for "bullying and cyber bullying
harassment towards a staff member."
Evans was removed from AP classes
and put in lesser-weighted honors courses.
Evans seeks to have the suspension
removed from her academic record,
according to the Miami Herald.
Source: The Miami Herald

The Brechner Report U January 2009

Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Kearston Wesner, Editor
Alana Kolifrath, Production Coordinator
The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
Foundation The BrechnerReport is a joint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Brechner Endowment


University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
January 2009

Non-Profit Organization
Permit No. 94
Gainesville, FL


Electronic access: The in
When I was first elected Manatee County Clerk of
Circuit Court and Comptroller over 30 years ago, we
were travelling down an "unpaved dirt road" definitely
not a superhighway.
We have come a long way with some dips and curves
in the road and a few traffic jams, but Manatee County
is close to paving the way for electronic access to all
Florida courts.
In 1994, we experimented with public access via
the Internet in our official records division, where R.B.
mortgages, deeds, judgments, and almost anything that Sh
affects real property are recorded. The experiment was a success.
It reduced courthouse foot traffic by almost 60% and costs by
almost as much as well.
In 2001, we began providing free Internet access to public
The court dockets and images,
B k Pand the reaction was
ack P ag e overwhelmingly positive.
SR.B. "Chips" e People no longer had to come
By R.B. Chips .r to the courthouse to check
records. Attorneys and title searchers could do their research from
their office or home, saving their clients the cost of courthouse
travel. Homeowners could check whether their contractor had
been sued. My administrative assistant even avoided a bad date
because she was able to look him up and discover the prospective
date had a criminal history.
The fear of terrorism and identity theft after September 11th
caused the Florida Legislature and Supreme Court to take action
to limit access to sensitive information. The legislature acted first,
enacting laws prohibiting public Internet access to court images
of family and probate cases and requiring clerks to redact Social
Security and bank numbers from records when requested and,
after January 2011, without request. The Supreme Court entered
a moratorium on electronic access to court records, prohibiting
any public electronic access to court images while the issue was
being studied.
After a series of public hearings on electronic access and
seeing the process stuck in a quagmire of issues, I wrote then-
Chief Justice Pariente and asked the Court to permit Manatee
County to be a pilot program. After I appeared before the
Supreme Court on several occasions, the Court then entered an

[formation superhighway?
Order approving my request and created a Committee to
review not only the pilot but also the Court's access rules.
There are over 1,000 confidentiality provisions in
Florida law. Some provisions apply to court records,
some do not, and sometimes it depends on the user who
wants access.
For example, injuvenile cases, the law allows access
only by parties, their attorneys, the Department of
Children and Families and law enforcement. We created
'Chips" different classes of users and then assigned separate
ore security levels to each class. In an effort to clarify which
exemptions apply to court records, the committee on access has
been working on revisions of the Court's public records rules to
define those confidential records which the clerks will have an
affirmative duty to protect and those records for which the filer
will be responsible.
Our job then became figuring out a way to make the
information public while preventing the release of private and
sensitive information. We accomplished this by requiring a
subscription and developing a security matrix program that
combined the user level with the type of case and type of
document thus determining whether a record was viewable or
not. This was step one of the pilot.
Our next step part two of the pilot is to make this
information available to the non-subscribing public. To do this,
we have had to employ an advanced redaction technology that
searches the images to remove the personal numbers and, on
especially sensitive documents, presents them to a clerk for
review. This class of document is called "viewable on request."
Once sanitized, it can then be released to the public.
The pilot so far has been a huge success. Nearly 3,000 users
have accessed over 400,000 court images. Our readers and
users tell us the program has improved the accountability of the
court system, heightened their awareness of what records are
confidential, and encouraged them to be proactive about ensuring
that personal information is protected in court records.
Hopefully this will begin Florida's smooth cruise down the
"information superhighway."

R.B. "Chips" Shore is the Manatee County Clerk of the
Circuit Court and Comptroller.

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