Volume 33, Number 2 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
New college programs planned a
TALLAHASSEE Nine Florida com- it was only advertised for one week in
munity colleges became eligible to offer a newspaper published 150 miles away
bachelor's degrees as part of a program from the meeting.
put together in part during In an e-mail obtained by the
a meeting allegedly held A CX (C E S S St. Petersburg Times, Richburg
without proper notice, allegedly told Sansom that the
House Speaker Ray MEETINGS meeting was "probably the only
Sansom, who recently way we can do it in privacy but
became the vice president of North- with a public notice here."
west Florida State College, and college The e-mail is "a fairly clear statement
president Bob Richburg met with college of intent to avoid, as much as possible,
trustees about the plan. The meeting was public attendance and/or oversight," said
scheduled for the day after Easter, and First Amendment Foundation president
Prop. 8 donors to close records
SACRAMENTO, Ca Supporters he or she votes," said James Bopp Jr.,
of Proposition 8, the California ballot an attorney representing the two groups
measure that banned gay marriage, sued to supporting Proposition 8, according to SF
shield campaign finance records from the Gate. "This lawsuit will protect the right
public because they allegedly have been of all people to help support causes they
harassed. agree with, without having to worry
Donors reportedly FIIt T about harassment or threats."
received threatening F "The problem with their
phone calls, e-mails AMENDMENT argument, of course, is that
and postcards, campaign finance laws, both at
and some even said their property was the state and federal level, have been
destroyed and negative flyers about them litigated endlessly now since Watergate
were distributed in their hometowns, and the argument has, in one form or
Supporters fear the harassment will another, been rejected," said First
hinder efforts to obtain future donations. Amendment Coalition Executive Director
"No one should have to worry about Peter Scheer, according to SF Gate.
getting a death threat because of the way Source: SF Gate
FREEDOM OF INFORMATION
Openness a priority for Obama
WASHINGTON, D.C. On his
first day as president, Barack Obama
kept transparency at the top of his
administration's priority list by issuing
two memoranda and an executive order
mandating openness and transparency.
With the decrees, Obama undid several
policies implemented during the Bush
administration designed to make access to
the executive branch more difficult.
The executive order allows only the
current president to block the release of
In the memos, the president gave
senior officials 120 days to provide
recommendations for an Open Govern-
ment Directive and directed the attorney
general to issue new guidelines governing
FOIA to heads of executive departments
Source: Los Angeles Times and
White House Press Office
it secret meeting
Barbara Petersen, according to the Times.
The connection between Sansom
and Richburg surfaced recently when
Sansom took the unadvertised $110,000
per year job at Northwest Florida State
College in November 2008. Sansom
obtained $35 million in public funding for
the college over the past two years.
Critics of the program say it was
put together hastily and interferes with
community colleges' mission to provide
open access to higher education.
Source: St. Petersburg Times
FORT COLLINS, Co. A Colo-
rado man was charged with criminal
libel after making disparaging com-
ments on Craigslist about his former
girlfriend and her attorney.
LIBEL November and
J.P Weichel allegedly posted on the
site's "Rants and Raves" section that
his former girlfriend traded sexual acts
for legal services and also stated child
services visited the woman about her
Police identified Weichel as the
suspect after obtaining warrants to
search several Web sites, including
Weichel was "just venting," accord-
ing to his statements in court records.
The criminal libel charge, how-
ever, could have a "chilling effect" on
free speech, said Denver-based First
Amendment attorney Steve Zansberg,
according to the Associated Press.
The law, as written, is unclear, said
Weichel faces up to 18 months in
Source: The Associated Press
Resident sues over commissioner's records
HIGHLANDS COUNTY- In an
effort to gain information about the
activities of certain Highlands County
officials, a citizen filed a lawsuit
demanding county records.
Preston Colby alleged County
Commissioner Guy Maxcy improperly
influenced staff to deny a proposed
rezoning of property from agricultural
The allegation is "ridiculous," said
Maxcy, according to Highlands Today.
"Absolutely, I have never, ever done that,
never have and never will. I have never
consulted with anybody with the county
to get something changed."
Colby also claimed that County
Administrator Michael Wright, who has
already turned over two e-mails about
the Central Florida Regional Planning
Council possibly helping the state answer
objections to plan amendments, has
additional e-mail communications that
should be disclosed.
Wright asserted the additional e-mails
were personal and exempt from public-
Colby also seeks reimbursement of his
Source: Highlands Today
Federal agencies limit public access to records
WASHINGTON, D.C. Several
federal agencies have taken initiatives
aimed at limiting disclosure of informa-
tion and public access in recent months.
In January, the Department of
Education broadened the Family
Education Rights and Privacy Act, known
as FERPA. The rule requires a redacted
record to remain confidential if a person's
identity can be determined by people in
In December, the Department of
Energy proposed a rule to eliminate the
agency's "public interest balancing test,"
AG calls for
Attorney General Bill McCollum urged
local governments, law enforcement
departments and school districts to
"make government transparency their
New Year's Resolution," in his Attorney
"Open government has always been a
top priority in the Sunshine State, but we
can do better," wrote McCollum.
McCollum offered some practical
guidance, including uploading infor-
mation to public Web sites and using
technology to speed up public records
McCollum indicated his office would
create an easily-accessible and free
"enhanced" Web site and online training
resources to help entities comply with
A McCollum spokesperson said that
McCollum's directive was not aimed at
any one particular city.
Source: The Florida Times-Union
and Pensacola News-Journal
which allowed the release of documents
otherwise exempt from disclosure. The
agency also more than doubled the copying
fee to 20 cents per page.
Also in December, the Securities and
Exchange Commission proposed a rule
that would increase fees for processing
Other efforts during the Bush
administration to limit disclosure of
information included the April 2003
adoption of guidelines by the Federal
Energy Regulatory Commission that gave
the agency discretion to decide which
DETROIT A reporter invoked
the Fifth Amendment in an attempt to
keep his sources confidential during a
deposition about official misconduct.
Detroit Free Press reporter David
Ashenfelter asserted his Fifth Amend-
ment right against self-incrimination
after failing to convince a federal
judge he had a First Amendment right
to keep his sources confidential.
During a deposition, former
federal prosecutor Richard Convertino
sought to question Ashenfelter about
confidential sources he used in a 2004
article on the Department of Justice's
investigation of Convertino's mis-
conduct. Convertino sued the DOJ
under the Privacy Act for publicizing
information about the investigation.
Ashenfelter asserted his Fifth
Amendment right after Convertino
alleged he was aiding the
original crime by refusing to disclose
requesters "need-to-know" information
and require them to sign non-disclosure
agreements, as well as the December
2006 Environmental Protection Agency
initiative that reduced the amount of
information reported under its Toxics
Release Inventory Program.
According to November 2007 report
by the Government Accountability
Office, the new rule resulted in more
than 3,500 facilities no longer being
required to report information about
"The First Amendment ought to
be enough to protect jouralists,"
said the Free Press in a statement.
"They should not have to fear
prosecution for serving the public's
right to know. They should not have
to disclose confidential sources who
risk retaliation to come forward with
Convertino's attorney, Steven M.
Kohn, said Ashenfelter has no basis
for asserting the Fifth Amendment,
and he may ask the judge to hold
Ashenfelter in contempt.
A Washington Times reporter,
William Gertz, successfully
asserted the Fifth Amendment
right in summer 2008 when he
was ordered to testify about his
Source: The Reporters Committee
for Freedom of the Press
2 The Brechner Report February 2009
Reporter protects sources
using Fifth Amendment
I Commissioners violate sunshine
NEW YORK CITY The
Department of Defense does
not have to release the names of
Guantanamo Bay detainees who
alleged military abuse and may
have abused other detainees,
according to the 2nd U.S Circuit
Court of Appeals.
The three-judge panel denied
The Associated Press' Freedom
of Information Act request for
the names and addresses of the
detainees' and their family
The court overturned a lower
court decision and ruled the
detainees' names should not be
released due to privacy concerns.
Public interest in the information
did not override the detainees'
Judge Peter Hall said the
detainees' rights were broader than
Detainees who abused other
detainees have greater privacy
interests because disclosure of the
information could embarrass and
humiliate them, he ruled.
Source: The Reporters
Committee for Freedom of the Press
DANIA Dania Beach city
commissioners allegedly communicated
over e-mail about city business, which
may have violated the Open Meetings
The Miami Herald obtained e-mails
showing the commissioners discussed
public business outside a noticed public
Commissioners Patricia Flury and
Anne Castro and Mayor Al Jones
discussed city business in the e-mails.
Commissioners Bob Anton and John
Bertino were copied on some of the
The commissioners' actions
comport with the law because the e-mail
New FERPA rule narrows access
WASHINGTON, D.C. A new U.S.
Department of Education rule threatens to
make obtaining public records harder.
Under the new rule, schools must deny
open records requests if they reasonably
believe the requester knows, or can figure
out, the identity of the person about whom
the information is requested. Schools and
colleges cannot circumvent this require-
ment just by redacting all personally-
identifying information. The published
rule is even broader than the one sent
around for public comment earlier in the
The original rule said redacted
documents were confidential if the
community could determine the
The published version, however, said
a record is confidential if people in the
school could determine the identity. Thus,
if an incident is well-known in the school
- but not to the public records about
it are nonetheless confidential under the
The new rule also has no exception for
records about individuals who voluntarily
reveal their identities to the media.
The rules also inform the DOE how
to interpret the Family Educational
Rights and Privacy Act. If a school
violates FERPA by failing to enact
policies to prevent disclosure of students'
information, it can lose federal funding.
Numerous associations, including the
Student Press Law Center, the Society
of Professional Journalists, and the
National Education Writers Association,
claim schools already abused FERPA by
concealing information such as athletic
teams' travel records or college program
The DOE implements FERPA, but
its interpretation can be overturned if it
conflicts with an act of Congress.
Source: Student Press Law Center
DHS calls for improvements
WASHINGTON, D.C. The
Department of Homeland Security issued
a Privacy Impact Assessment for the
State, Local, and Regional Fusion Center
Initiative, identifying a handful of privacy
risks presented by the centers.
According to the assessment, fusion
centers, which are intelligence data-
bases that collect information on citizens,
presented a number of privacy concerns
including ambiguous lines of authority,
rules and oversight, military and private
sector participation, data mining, exces-
sive secrecy, inaccurate and incomplete
information, and mission creep.
The assessment encouraged fusion
centers take steps such as establishing
oversight committees, appointing a privacy
officer and updating privacy training on
Source: Electronic Privacy
The Brechner Report U February 2009
only addressed minor issues that had
already come before the commission,
said Dania Beach City Attorney Tom
Ansbro. Nonetheless, Ansbro
instructed the commissioners to stop
"I would have suggested that
officials refrain from e-mail
communications among themselves,
as a matter of practice," said Ansbro,
according to The Herald.
Former City Manager Ivan Pato
claims the commissioners fired him a
week before he was set to retire, in part
in response to his concerns about pos-
sible Sunshine Law violations.
Source: The Miami Herald
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Permit No. 94
UF UNIVERSITY of
FOI worries no reason for
Barack Obama, so far as we know, has two addictions:
cigarettes and his BlackBerry cell phone. While his wife
leans on him to give up the cigarettes, his staff aides have
been insisting he retire the cell phone.
Obama during the presidential campaign was visibly
tethered to his BlackBerry, its text and e-mail functions
allowing him to receive news and advice unfiltered by
political handlers (much to their frustration). Obama's
BlackBerry was his means of piercing the communications Peter S
bubble that inevitably descends on presidents, insulating
them from unwelcome news and critical advice.
Since his BlackBerry addiction apparently helped keep Obama
grounded during the long slog to the presidency, why give it
up now? Not primarily for security reasons: while protecting
a president's cell from hackers and foreign intelligence services
would be difficult, it is doable. Rather, the BlackBerry had to
The go, according to The New York
B k Times, because the prodigious
B ack Page digital record it creates would be
By Peter Scheer subject to public scrutiny through
Freedom of Information Act
requests and other disclosure requirements.
The BlackBerry didn't pose such problems for Obama as a
U.S. Senator because Congress, characteristically, exempted
itself from the FOIA. Although the executive branch is often
and justly criticized for failing to comply with the FOIA, it is a
model of transparency compared to Congress. But back to the
president's BlackBerry ...
Obama will need all the help he can get in managing the
presidential workload. It hardly seems in the public interest to
deprive him of communications devices and productivity tools
that millions of Americans take for granted in their own lives.
Does Obama really have to give up his beloved BlackBerry? I
Legally speaking, the status of communications from or
to President Obama-that is, whether or not they will end up
in the public sector-must be decided on the basis of their
content, not the type of device used to send and receive them. If a
communication is determined to be a public record, that
conclusion will be the same whether the message was delivered
by e-mail from a desktop computer in the White House, by IM
Obama to lose BlackBerry
using a BlackBerry, or on parchment sealed with a wax
Conversely, presidential communications that needn't
be disclosed, either because they're personal and private
(e.g., an intimate message from Obama to his wife) or
because they are exempt from the FOIA and like laws
(e.g., confidential legal advice from the attorney general),
don't fall into the public domain just because the files
:heer happen to reside in a hand-held wireless device.
Giving up the BlackBerry gains Obama
protection only in the limited sense that he will create
fewer records than if he used it, and the records he creates will
be more likely to be vetted by aides and therefore cleansed of
potentially embarrassing content. Although both "gains" will
be lost if, like a smoker who switches to filter cigarettes, Obama
ends up merely replacing his BlackBerry with a laptop.
These putative benefits hardly seem worth it. If ever there was
a public official who doesn't need a censor, who is able to choose
his words carefully even in candid moments, who is acutely
aware of the potential impact of what he says and edits himself
accordingly-it is Obama.
Obama should reject the advice of his aides and resume use of
his BlackBerry for essentially all communications not requiring
a high degree of security. A further recommendation: He should
promise to make public all his communications on the Black-
Berry going forward.
Such a commitment would establish Obama's open-
government credentials while earning him considerable capital
with the news media. Moreover, the contrast with Capitol Hill
secrecy could be used to put pressure on Congress to repeal
its indefensible exemption from the FOIA. Shame can be a
powerful incentive for reform.
As addictions go, Obama's BlackBerry dependence is a pretty
Let's hope he stays hooked.
Peter Scheer, a lawyer andjournalist, is the executive
director of the California FirstAmendment Coalition.
*Editor's note- In late January, the White House announced
Obama will be able to keep his BlackBerry with only senior
staffers and close friends having access to his e-mail address.