Volume 33, Number 10 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
Escambia bans cell phones, laptops during meetings
ESCAMBIA COUNTY A week
after one of its members was charged
with a noncriminal violation of Florida's
Public Records Law
related to public e-mails A CC E
sent through a private
account, the Escambia MEETIN(
adopted a new technology policy.
The policy was recommended by
County Attorney Alison Rogers and
prohibits commissioners from using cell
phones, BlackBerrys, PDAs or laptops
during meetings or workshops, according
to the Pensacola News Journal. Officials
are permitted to have their phone set to
silent or vibrate and will be allowed
SS to leave commission chambers in
the event of a perceived emergency.
-S Another aspect of the policy
bans commissioners from blogging,
texting, instant messaging or using social
networking sites such as Facebook for
county business. The new policy does
allow commissioners to comment on
online stories and respond to blogs.
Finally, the policy prohibits the use
of private e-mail accounts for county
"The point is, you don't want these
things to be an interactive way of
communicating with each other," Rogers
said, according to the News Journal.
Florida's Sunshine Law applies to any
communication between two or more
members of a public body regarding a
matter on which foreseeable action might
be taken by the public body.
Source: Pensacola News Journal
Commissioner fined for failure to turn over e-mails
PENSACOLA Escambia County
Commissioner Gene Valentino pleaded
no contest to a noncriminal violation of
Florida's Public Records Law, according
to the Pensacola News Journal. He was
For criminal violations of the Public
Records Law, Fla. Stat. 119.10 provides
for suspension and impeachment plus
up to one year injail if a public officer
knowingly violates the law.
Valentino's charge stemmed from Eddins' office took possession of
an investigation by State Attorney Bill Valentino's personal laptop computer
Eddins, who acted on a complaint from an as part of its investigation. Valentino
attorney representing two property owners has denied violating the Public Records
fighting a proposal to build a Law, explaining that he forgot
casino on Perdido Key. A C C E SS some of the e-mails regarding
The attorney, Gregory the casino proposal were on
Smith, alleged that Valentino RECORDS his home computer due to
did not comply with a public problems with the county's
records request for e-mails related to the computer system.
Source: Pensacola News Journal
Fla. Supreme Court: Recordings open to public
TALLAHASSEE A proposal to
restrict disclosure of digital recordings
of court proceedings was rejected by the
Florida Supreme Court, which called the
proposal "overly restrictive and ...contrary
to Florida's well established public policy
of government in the
sunshine and [the] C O U I
presumption in favor
of openness for all court proceedings
and allowing access to records of those
The Commission on Trial Court
Performance and Accountability had
recommended that "electronic records,
videotapes, or stenographic tapes of
court proceedings" be deleted from the
definition of "court records" in the Florida
Rules of Judicial Administration.
The proposed change would have
severely restricted disclosure of electronic
To address concerns of courtroom
recording systems capturing confidential
S attorneys and clients, the
T- Court did adopt a new
provision titled "Safeguarding
Confidential Communications When
Electronic Recording Equipment Is Used
in the Courtroom."
The rule requires court personnel
to notify participants when courtroom
proceedings are being recorded; attorneys
must take precautions to prevent
disclosure of confidential communications;
and participantsns have a duty to protect
The Court's decision followed the
May 2009 decision of the Second District
Court of Appeals denying Media General
Operations, Inc., publisher of the Tampa
Tribune, access to an audio recording of a
The Second District concluded that the
written transcript of the hearing provided
by the Sixth Judicial Circuit was sufficient
and that the actual audio recording was
not an "electronic record" as defined in the
Florida Rules of Judicial Administration.
Following the Florida Supreme Court's
decision in favor of access to audio
recordings of court proceedings, Media
General has requested the Court review
the Second District's decision.
Source: www.floridasupremecourt. org
ACCESS RECORDS CONTINUED
Utility regulators demand salary
data from FPL, Progress Energy
TALLAHASSEE Two Florida energy FPL appealed the Commission's
providers seeking to increase their rates order to the 1st District Court of Appeal.
have been ordered by the Public Service It did, however, submit documents to
Commission (PSC), the body who will the PSC showing that $40.5 million
approve or deny the increase, to provide is budgeted this year for 42 executive
salary information. salary packages. In turn, the Commission
Florida Power & Light (FPL) is seeking released redacted documents to the
a $1.3 billion per year increase and public.
Progress Energy wants to increase rates by FPL CEO Armando Olivera, who
$500 million annually. receives a salary package of $3.6 million
FPL had resisted releasing the per year, defended the salaries. "We need
information, citing concern for employee good people and these people need to be
privacy, safety and security, according to compensated," Olivera told the PSC. "If
the Miami Herald. The PSC, however, we don't, these people will go another
felt that the information was needed for place."
the Commission's review of the rate PSC Commissioner and former state
increases. senator Nancy Argenziano has been vocal
The PSC decision requires both FPL in her criticism of FPL's resistance to
and Progress Energy to provide the PSC release the information. "The public's
with a confidential document containing right to know trumps the individual's
information on salaries for its employees right to keep secret their essentially
who make at least $165,000 per year. publicly funded salary," Argenziano said.
The PSC would know the job titles "We are the only policeman on the block
and salaries of the employees, and the and without that information, it would
individual figures would be released to the render us useless."
public. Source: Miami Herald
Paper files criminal complaint against county attorney
FORT MYERS The News-Press
filed a complaint with the State Attorney's
Office alleging that a deputy county
attorney violated the Public Records Law.
The complaint stemmed from requests
for notes of an investigator hired by
Lee County to look into possible racial
harassment by county employees.
The investigator, Debra Jessup,
concluded that the racially harassing
behavior of nine Lee County Facilities
Management employees resulted in a
hostile work environment. The employees
were fired Jan. 31, 2009, and seven
of them have a filed a whistle-blower
lawsuit against the county. The civil
suit alleges the employees were actually
fired for participating in a county Equal
Opportunity Employment investigation,
according to the News-Press.
When a News-Press reporter requested
Jessup's notes in February, deputy county
attorney Andrea Fraser responded that the
notes did not exist and the notes became
the report issued by Jessup. However,
in June, during a deposition in the civil
lawsuit, Jessup provided the notes to an
attorney. Fraser said she was under a
"mistaken impression" that the notes did
not exist, according to the News-Press.
Lee County Commissioner Ray Judah
defended the county and its attorney,
describing it as one of the country's "most
transparent counties" and Fraser as "a
person of integrity and honesty."
Former sheriff cleared in debate over deleted files
PENSACOLA The State Attorney's
Office has determined that the deletion
of all files from several computers in the
Escambia County Sheriff's Office did not
destroy any public records, according to
the Pensacola News Journal.
Former Sheriff Ron McNesby was
replaced earlier this year by Sheriff David
Morgan. After Morgan took office, his
chief deputy expressed concern to the
State Attorney's Office that records had
been removed from computers in the
Assistant State Attorney John
Molchan investigated the complaint and
determined that although the desktop
computers, including McNesby's, were
"wiped clean of files," much of the data
was saved in other formats.
"We're not saying what Sheriff
McNesby did was the model way to do
things," Molchan said. "I don't think
that's a prudent thing to do. It is clearly
something that is problematic. We're
just examining it from the standpoint of a
McNesby characterized the complaint
as "frivolous" and urged his detractors
to "move on," according to the News
Journal. The chief deputy who made
the complaint, Bill Chavers, said that the
Sheriff's Office would request a review by
the Office of Open Government.
Willful destruction of public records
can result in criminal charges.
Source: Pensacola News Journal
2 The Brechner Report U October 2009
UF for records
GAINESVILLE A recent
graduate of the University of Florida
has filed a public records lawsuit
seeking audio and video recordings of
Student Senate meetings, according to
The Florida Alligator.
Frank Bracco graduated in May
2009 and was previously a student
Bracco claims that since November
2008 he has been trying to obtain
copies of audio and video of the
meetings. He alleges that his requests
were denied and in some instances the
records were inadvertently destroyed.
Student Government employees
first offered to make the recordings
available online and when that didn't
happen, they offered to allow Bracco
to access the records in the SG office,
according to The Alligator.
Bracco's suit seeks copies of the
records as well as attorney's fees and
Source: The Ft i.. l,. liii.tor
Nassau mulls limits on commissioner debates
NASSAU COUNTY County
commissioners who have a conflict of
interest on a particular issue before the
Nassau County Commission may be
required to leave the room during debate
on that issue, if a proposed ordinance
passes, according to the News Leader
Commissioner Mike Boyle suggested
the ordinance, drawing on his discussions
NEW YORK Protests from major
media organizations prompted the
Southeastern Conference (SEC) to ease
its new media rules, which would have
prohibited journalists from blogging or
using video or audio game highlights
on their Web sites. The rules also
restricted the use of photos and pre- and
post-game audio and video.
The SEC backed off most of the
restrictions, allowing media to keep
photos online indefinitely, sell images,
post clips of game-related events and
post to blogs during games (but no
play-by-play posts). The revised rules
also eliminate the requirement for the
SEC to license newspaper images.
The change came after media
organizations complained and
threatened a boycott, according to
Editor & Publisher. The Associated
Press Sports Editors, Associated Press
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Society of Newspaper Editors and the Joseph L
with Broward County commissioners at a
Florida Association of Counties meeting.
Broward County requires commissioners
who have a conflict of interest to leave
the room during debate, according to
Nassau commissioners who have a
conflict of interest are already required to
recuse themselves from voting.
Commissioner Stacy Johnson seemed
concerned that the restriction could get
"out of control" and possibly extend
beyond the individual commissioner to
boards appointed under the commissioner.
Johnson felt that the public has a role in
policing government ethics, according to
the News Leader.
Boyle hoped the ordinance, if passed,
would encourage more citizen oversight.
Source: News Leader
MANATEE COUNTY Newspapers
might have to trim their budgets even
more if a proposal by the Manatee
County School District is turned into law,
according to the Sarasota Herald Tribune.
The district wants to eliminate the
need for public notice of district meetings
in newspaper classified. Instead, the
districts would put the notices on its own
Web sites and send out news releases.
The switch could save Manatee County
about $6,000 per year. The district
intends to ask the Florida School Board
Association to lobby legislators for the
change, which would have statewide
impact if passed.
"You're going to be cutting out a whole
swath of the population if you just go to
your own government Web site," said
Florida Press Association general counsel
Source: Sarasota Herald Tribune
City, Air Force settle FOIA suit
VALPARAISO The Valparaiso
City Commission has voted to settle
its Freedom of Information Act lawsuit
against the Air Force, according to the
Northwest Florida Daily News.
The city sued for information regarding
aircraft at Eglin Air Force Base, including
information regarding noise, mitigation
The Air Force plans to house dozens of
F-35 fighter jets at the base, which will be
the location of the first training school for
F-35 pilots, according to reporter Mona
Moore of the Daily News.
All pilots, including those from allied
countries, will learn how to fly this new
aircraft at Elgin. This will result in take-
offs approximately once every fifteen
The Air Force originally responded to
Valparaiso's request for information by
providing public comments related to the
Base Realignment and Closure decision.
Base Realignment and Closure is
a Department of Defense process to
reorganize and streamline military
After only receiving the public
comment portion of its request, the city
Under the settlement, the Air Force will
provide Valparaiso with noise data but will
not release the mitigation information.
A Supplemental Environmental Impact
Statement is expected to be complete
by September 2010 and will include
Source: Northwest Florida Daily News
The Brechner Report U October 2009
Media balks at SEC policies
Managing Editors and the American
Society of News Editors authored a letter
to the SEC protesting the restrictions.
Members of the press weren't the only
targets of SEC's attempt to protect the $3
billion it receives from ESPN and CBS
for broadcast rights to games, according
to the St. Petersburg Times. A new fan
policy contained rules banning fans
from disseminating information, audio
or video about the games meaning no
Facebook, Twitter or YouTube posts.
However, the SEC also relaxed the
broad fan restrictions, and their current
policy bans dissemination of "real-time"
information for commercial use or in
a way that is intended to substitute for
radio, television or video coverage. Fans
can take photos for personal use, but no
"game action videos" are permitted.
Source: Editor & Publisher, St.
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Technology policy restores commission's public priority
The Sunshine Law non-criminal violation Obviously, no one knows. But local
charge against Escambia County Commissioner governments have to be ready to adapt their
Gene Valentino shows the increasingly complex policies to the new world of communications.
nature of public records in an increasingly The Sunshine Law imposes strict
electronic world. requirements regarding how elected officials
Valentino pleaded no contest to the charge. He can communicate among themselves, and for
was at the center of an investigation into e-mails preserving and making records public.
related to county business that were saved to his This new world also makes it easy for
personal computer. The commissioner was fined Carl Wernicke elected officials to multi-task when they
$500, which is the maximum fine for a non- shouldn't. And one place they shouldn't be
criminal infraction under the Public Records Law. multi-tasking is public meetings.
His situation makes the communications policy changes Not only do members of the public deserve the full
recently adopted by Escambia County all the more timely attention of their elected representatives when speaking to
and sensible. The new policy will end the unfortunately commissioners, commissioners should be fully engaged
common practice of commissioners being distracted during discussions of public business.
during meetings by We have already heard reports of public officials being
The answering calls, e-mails distracted by their cell phones or other devices during
B ack P age or text messages. meetings, much the way drivers are distracted from paying
The policy also attention to the road when using cell phones. There's no
By Carl Wernicke restricts commissioners reason for it.
from communicating on Escambia County Commissioner Kevin White shows
blogs or sites like Facebook or MySpace regarding county how easy it is for commissioners to handle potential
business. emergency calls. He gives his cell phone to an aide during
And it will require commissioners to do county business meetings; the aide can alert White if a call requires the
only on county e-mail accounts, not personal accounts, commissioner's attention.
County attorney Alison Rogers, who drafted the new But common sense should suffice. Commissioner Wilson
policy, described it as "one part courtesy and three parts Robertson says he ought to be able to check a vibrating
preventative medicine." phone to see if the call needs immediate attention; if it does,
Texting, tweeting, e-mailing and talking on cell phones he can step outside and answer it.
are all communications portals that complicate compliance We understand the imperatives of constant and instant
with Florida's open records laws. Commissioners and communication today.
other elected officials no longer are walking on a public But the bottom line is that commissioners and other
records tightrope, but a series of tightropes that cross back elected officials are there to do the public's business.
and forth. If they can't devote their full attention to it, they
Instant communications are a part of today's world, and shouldn't be there. The new policy will help restore that
we have all seen how fast new means of communications priority.
become the norm. Tweeting was unknown to most people
a year ago, and today it is probably the fastest-growing Carl Wernicke is Opinion Editor for the Pensacola News
means of personal communication. Journal. He is a Pensacola native and has been with the
What's next? newspaper since 1978.