Title: Brechner report
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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: March 2009
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Bibliographic ID: UF00090012
Volume ID: VID00111
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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THE


BRECHNER


REPORT

Volume 33, Number 3 m 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
March 2009

Report on Florida open government laws released


TALLAHASSEE The Commission report was the number of redundant
on Open Government Reform released exemptions within the laws, challenges to
its final report of recommendations for access posed by new technology and the
reforming Florida's open use of excessive fees under the
government laws. A C C E SS general fee provision of the
The nine-member records law for public records
commission was created by RECORDS requests.
Gov. Charlie Crist in June Among the
2007 to review, for the first time, the recommendations, the commission called
state's public records and public meetings on the legislature to create universal
laws in their entirety. exemptions that apply to all agencies and
Among the issues addressed in the repeal redundant exemptions.

Access to nursing homes limited


TALLAHASSEE The Florida
Supreme Court ruled that the "Patients'
Right to Know About Adverse Medical
Incidents" constitutional amendment
does not apply to nursing homes.
The six participating justices
unanimously ruled nursing homes are
exempt from the amendment, adopted
in 2004, that allows patients to check
records of medical mistakes by nurses
and doctors.
According to the Florida Supreme
Court's decision, "nursing homes do not
fall within the definition of 'health care
facility' or 'health care provider"' in the
patients' right to know amendment.
Tony Marshall, senior vice president


of the Florida Health Care Association,
which filed an amicus brief siding
with the nursing home, said that the
amendment applies to lpmitis" and
people in nursing homes are considered
"residents" under state law, according to
The Associated Press.
The decision means the estate
of deceased nursing home resident
Marlene Gagnon won't be able to obtain
incident reports from the nursing home
where she lived. Gagnon's estate is
suing Tandem Health Care Inc. the
owners of the home where Gagnon
lived.
Source: The Associated Press and the
Florida Supreme Court


Pleas back on PACER in Miami


MIAMI Chief Judge Federico
Moreno of the Southern District of
Florida ordered all plea agreements again
be made available through the PACER
system beginning in late February.
Moreno rescinded an April 2007 order
making plea agreements accessible for
viewing only at the courthouse.
The order followed a request from
the Department of Justice to restrict
electronic access to plea and cooperation
agreements out of concern for witnesses'
safety. The concern stemmed from


Whosarat.com, a Web site containing
information on cooperators in federal
cases.
"The sense of the Court is that the
public's interest in access must prevail in
this instance and that restricting access
to all plea agreements is overly broad,"
stated Moreno in the order, according to
The National Law Journal.
Moreno noted in the order that
individual plea deals can still be sealed by
judges.
Source: The National Law Journal


Also, the commission recommended
the legislature create new legal standards
for electronic records to facilitate public
access and reduce the cost of redaction
to such records. The commission also
recommended all agencies create a process
for public access to public record e-mail.
The report is available through the
governor's Web site at lllp \ \ Ilgo\.
com/og_home.
Source: Commission on Open
Government Reform Final Report


Child internet

law fight over
WASHINGTON The U.S.
Supreme Court won't review a
lower-court decision that struck down
as unconstitutional the Child Online
Protection Act.
The act was intended to protect
children from objectionable and explicit
materials online by barring Web sites
from making
FIRST such content
AMENDMENT valuable
minors.
The 3rd U.S. Circuit Court of Appeals
ruled the act violated the First
Amendment because its purpose could
be achieved through other means with
less damage to free speech.
The Supreme Court's decision ended
the government's last attempt to revive
the Child Online Protection Act, which
was passed in 1998. The act has been
the subject of numerous legal battles
and never took effect.
Despite the controversy over the
law, it is unusual for the Court to kill
a federal law without a final hearing,
according to The Associated Press.
Source: The Associated Press and
The New York Times







ACCESS MEETINGS


Sansom investigated over Sunshine violations


TALLAHASSEE Ousted House
Speaker Ray Sansom is being investigated
by the state attorney, a grand jury and is
also facing review from a House special
investigator and the state Commission on
Ethics.
The state attorney is investigating
whether Northwest Florida State College
trustees improperly held a meeting that
Sansom helped arrange and both he and
college president, Bob Richburg, attended.
The public college's board of trustees
meeting may have violated Sunshine
laws because it was only advertised in
a newspaper 150 miles away one week
before the meeting.
The meeting, booked under "Sansom
dinner," was held at a members-only club
and caterers were instructed not to post
signs directing the public to the meeting
place, according to the St. Petersburg


Tampa Bay

Downs fined
TAMPA A federal judge ordered
Tampa Bay Downs to pay $90,000 in
statutory damages to the American
Society of Composers, Authors and
Publishers for playing songs without
a license.
The six songs were played three
years ago at a Tampa Bay Downs

COPYRIGHT
Kids and Family Day event.
According to the St. Petersburg
Times, federal court records show
Tampa Bay Downs was warned
repeatedly by the ASCAP about
playing music without a license and
did not stop until it got sued.
U.S. District Judge Virginia
Hernandez Covington wrote in the
ruling, "the court finds that there is
a substantial likelihood that TBD
will continue to infringe copyrighted
works unless an injunction is issued,"
according to the St. Petersburg Times.
The judge prohibited Tampa
Bay Downs from using any music
licensed by ASCAP without
permission.
Source: St. Petersburg Times


Times/Miami Herald Tallahassee Bureau.
Under pressure, the "minutes" of
the meeting "suddenly emerged" ten
months after the meeting, according to
the St. Petersburg Times/Miami Herald
Tallahassee Bureau.
In January, Attorney General Bill
McCollum opened an inquiry into whether
the meeting violated open meetings laws
and requirements for keeping minutes of
open meetings.
A grand jury in Tallahassee is also
investigating whether an unadvertised
$110,000 job Sansom took at the college
the same day he became speaker of the
House was a reward for millions he
funneled to the college.
Over the past two years Sansom, as top
budget writer in the House, steered $35
million to the college including $6 million
for an airport project.


WASHINGTON The Smithsonian
Institution announced it will apply
"a presumption of disclosure" when
responding to records requests,
according to The Reporters Committee
for Freedom of the Press.
Although a federal court ruled in
1997 that The Smithsonian Institution
is not subject to FOIA, the institution
adopted the FOIA-like policy
responding to pressure from lawmakers
and open government activists.
Under the policy, requesters will
also have an administrative appeal right
similar to that allowed by FOIA, but
will not be able to file suit if a request


Sansom resigned from the job at the
college effective Jan. 31.
Planning documents and e-mails
obtained through public records link
Sansom, Richburg and developer Jay
Odom to plans for building an airport
facility with $6 million in state money.
Public records requests for e-mail
exchanges between Sansom and
Richburg related to the trustee's meeting
and Sansom's job at the college have
also revealed that Sansom's e-mail is
deleted every 30 days, according to The
Associated Press.
A spokeswoman for Sansom's office
said house members are allowed to decide
whether to archive e-mails, according to
The Associated Press.
Source: St. Petersburg Times, The
Miami Herald, The Associated Press and
The Tampa Tribune


is denied.
"It is an important first step
in ensuring more openness and
accountability, consistent with the
time-honored principles of FOIA," said
Sen. Patrick Leahy, according to The
Reporters Committee for Freedom of
the Press.
The policy also allows the profit-
generating portions of the Smithsonian
to protect documents containing trade
secrets and commercial or financial
information relating to the institution's
revenue-generating activities.
Source: The Reporters Committee
for Freedom of the Press


Cheney wins records battle


WASHINGTON A federal judge
ruled that former Vice President Dick
Cheney and his office have broad
discretion to determine what records to
preserve from his time in office.
The judge rejected the Bush
administration's position that Cheney
has discretion to decide how to apply
the Presidential Records Act to his
office, but held that the former vice
president had not unlawfully narrowed


the definition of what records must be
preserved from his office under the act.
"This is a huge loophole in the
Presidential Records Act and Congress
needs to address it immediately," said
Melanie Sloan, executive director of
Citizens for Responsibility and Ethics
in Washington, one of the plaintiffs in
the case, according to The Associated
Press.
Source: The Associated Press


2 The Brechner Report u March 2009


FREEDOM OF INFORMATION


Smithsonian adopts FOI policy







Tech-savvy

presidency

WASHINGTON Relying
on the tools that helped Barack
Obama reach millions by e-mail
and text message during the
campaign, the Obama presidency
promises to be the first digital
presidency.

NEW
TECHNOLOGY

For starters, President Obama
revamped the weekly radio
address to the nation, making
video of the speech available on
Whitehouse.gov and YouTube.
com.
The new administration
will use other new media
and social networking
sites, including Facebook,
Web sites, such as
MyBarackObama.com, and blogs
to keep the public informed
and rally support for the
administration's agenda.
"There's no president who has
been that directly connected to that
many million Americans," said
Joe Trippi, a Democratic strategist,
according to The Palm Beach Post.
Source: The Palm Beach
Post-Cox News Service and The
White House Web site


THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, P O Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou uf edu
Sandra E Chance, J.D., Exec. Director/Exec.Editor
Adrianna C. Rodriguez, Editor
Alana Kolifrath, Production Coordinator
The Brechner Report is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report 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


ACCESS RECORDS


Autopsy photo
ORLANDO -Orange County
Circuit Judge Stan Strickland agreed to
restrict access to three disks containing
digital images from Caylee Anthony's
autopsy in an effort to prevent those
images from reaching the media.
Caylee's mother, Casey Anthony, is
charged with killing the two-year-old.
Casey Anthony's defense team will
be able to view the images through a


access restricted
secure Web site and will also have to agree
not to copy the images.
Prosecutors in the case had originally
asked the judge to prohibit the images
from leaving the Orlando area by mail,
carrier service or the Internet, but
Anthony's defense team argued such
requirements would be burdensome to out-
of-state forensic experts they have hired.
Source: The Associated Press


Records request sparks debate


LAKELAND A Lakeland man's
request for the records of those covered
under the health insurance plans of each
of the 67 school districts in Florida has
prompted employee concern and the
introduction of new legislation.
Joel Chandler won a court case
forcing the Polk County school district
to turn over the records in October. The
personal information he is requesting
from the school districts includes the
names, addresses, ages and telephone
numbers of everyone covered under the
districts' health insurance plans and that
of their spouses and dependents.
Chandler has said he is filing the
requests to bring attention to Florida's
public records law and is not planning to
sell the information once he receives it,


according to the Ocala Star Banner.
In response, Sen. Paula Dockery,
R-Lakeland, and Rep. Seth McKeel,
R-Lakeland, have introduced a bill that
would prohibit the release of information
of children insured under health
insurance plans through their parents
who are current or former employees of
state agencies. Senate President Pro Tem
Mike Fasano, R-New Port Richey, has
also introduced a bill that would make
"any personal identifying information"
of the health and benefit coverage of
a public school employee, spouse and
dependents confidential, according to the
St. Petersburg Times.
Source: Daytona Beach News-
Journal, St. Petersburg Times and Ocala
Star-Banner


White House visitor logs open


WASHINGTON U.S. District Court
Chief Judge Royce Lamberth ruled
White House visitors logs are subject to
FOIA, contrary to arguments made by
the Bush administration.
Lamberth also ruled that the
Department of Homeland Security
violated the Federal Records Act in
regularly deleting visitor logs prior to
June 2006 from its computer system and
failing to retain records from another


computer system prior to October 2004.
Citizens for Responsibility and
Ethics in Washington requested the
records in 2006. After losing its initial
argument that the logs were not subject
to FOIA, the Bush administration
refused to release the logs claiming
that presidential communications are
privileged.
Source: The Reporters Committee
for Freedom of the Press


Man forced to cover T-shirt


NEW YORK An airline passenger
asked to
FIRST cover the
T-shirt
AMENDMENT he was
wearing
with Arabic script on it before boarding a
JetBlue Airways flight has been awarded
$240,000.
Raed Jarrar, a U.S. resident, was told


to cover the shirt which had written on it
in Arabic: "We will not be silent" before
boarding an August 2006 flight from
New York to Oakland, Ca.
The American Civil Liberties Union
announced that Jarrar received the
payout from two U.S. Transportation
Security Authority officials and JetBlue
Airways.
Source: www.aclu.org


The Brechner Report U March 2009




THE

BRECHNER
REPORT
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesvlle, FL 32611
March 2009


Non-Profit Organization
U.S. POSTAGE
PAID
Permit No. 94
Gainesville, FL


UF UNIVERSITY of
UFFLORIDA


Jacksonville records fight leads to "small victory"


In April 1990, Jacksonville officials and
representatives of the Jacksonville Jaguars promised the
city an NFL-quality stadium for between $20 million
and $60 million. The eventual cost of renovating the
old Gator Bowl reached $144 million.
Taxpayers had reason to wonder how, and how
wisely, their hard-earned dollars were spent not least
because the team decided to award the lucrative project,
without bids, to The Haskell Company, a firm owned by
a Jaguars partner. Mar\
The public also had a right to see documentation of
the expenditures under Florida's public records law. The lease
agreement between the city and the Jaguars even acknowledged
this right, guaranteeing "reasonable access to all renovation
project information."
Despite that guarantee, when Folio Weekly requested a copy
of the contract between the Jaguars and the project contractor
in March 2004, the city
The refused.
B ack P a e Initially, city procurement
officials said they couldn't
By Marvin Edwards find the document. They
later changed their story,
saying that since the Jaguars and The Haskell Company were
both private entities, the agreement between them was also
private.
Amazingly, city attorneys backed up this opinion. In an
August 2004 letter to Folio Weekly, Deputy General Counsel
Karen Chastain wrote, "we do not believe this specific
document is in the possession of the City. Please be advised
that we do not believe the city is required to have this particular
document so that it would be a public record. Because we do
not physically have it, and because it is not a public record, we
are not able to provide this specific item to you to satisfy your
request."
The argument was frail, and controverted state law. That's
because when the city anoints a private company to function in
its stead as Jacksonville did when it deputized the Jaguars
to manage the renovation that company becomes subject to
state public records laws.
As it turned out, the city did have a copy of the renovation


contract. After Folio Weekly sued to review documents
in the city's possession, the contract between the
Jaguars and the contractor was one of the first
documents we found. A similar standoff occurred when
we asked to see detailed expense reports for money
spent by the Jacksonville Super Bowl Host Committee,
the group that organized and financed events
S surrounding the 2005 Super Bowl in Jacksonville.
The city pledged some $3 million to the event, and
'dwards ultimately spent $11 million. But despite requests from
several local papers and auditors to the Jacksonville
City Council for a detailed financial accounting, city officials
and the committee refused to provide receipts, contracts or other
documentation. Although the committee was subsidized with
city funds, staffed with several city employees and tasked with
providing a public function on behalf of the city both the city and
the committee claimed the agency's records were not public.
The city declined to offer a legal justification for this
position, but its claim of being exempt ignored a salient fact: the
committee's agreement with the city specifically stated that it
would have to comply with public records laws. The agreement
also said that after the Super Bowl, all records would be turned
over to the city.
In the end, it took three years and more than $9,000 in legal
fees before the city would even acknowledge the documents
existed.
Our quest ended with a small victory.
Although the city had said all along that it didn't have in its
possession any documents relating to the Gator Bowl renovation,
it ultimately turned over 25 large boxes' worth of information.
The city also repaid $5,000 of our legal fees. But the document
trail is incomplete at best.
The battle highlighted the city's contempt for public records
laws, and its utter lack of accountability for expenditures related
to the city's NFL football interests. To date, some $185 million in
taxpayer money has been spent wooing the Jacksonville Jaguars
and luring the Super Bowl to town. How that money was spent
largely remains a mystery. And that is very clearly by design.

Marvin Edwards, 87, is a c. .i,,ii ,i'i,, writer at Folio
Weekly. Photo by Walter Coker Folio Weekly




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