Volume 34, 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
Walton settles suit, will pay $148K attorney fees
WALTON COUNTY On the eve David W. Green.
of trial, Walton County Commissioners In addition to paying attorney's fees,
voted to settle a public records lawsuit and the Board of County Commissioners must
pay the resident requesting e-mail records also comply with the Public Records
$148,000 in attorney's fees. Law; comply with Harris'
Suzanne Harris requested A G SQQ request within 30 days of the
e-mail records from the A VC C SJ judgment; conduct annual
county in October and RpECORDS public records training;
December of 2008. and designate a records
The request was never management liaison officer.
filled, though the county contended that The annual training must "emphasize
its "offer to allow Ms. Suzanne Harris to the applicability of the Public Records
utilize Walton County's intranet system Act to all public officials' e-mail
and a county computer to retrieve records communications regarding county
responsive to her requests complied" with business, whether or not such e-mail
the Public Records Law, according to the communications are sent or received
final judgment signed by 1st Circuit Judge on an official Walton County e-mail
The settlement also stipulates that
commissioners will only use official
e-mail accounts to conduct official
business and enter into an agreement
specifying obligations regarding records
maintained by the Clerk of Court. Walton
County Clerk of Court Martha Ingle was
named in the suit, and her office was
ordered to pay $6,500 in attorney's fees.
The final judgment also included a
provision reserving c \clnui\ c jurisdiction
over the parties and the subject matter"
to use its contempt powers to enforce the
terms of the judgment.
Source: Northwest Florida Daily News
(Fort Walton Beach)
'Wafflegate': Rail e-mail subject lines draw ire
TALLAHASSEE Gov. Charlie
Crist ordered an investigation of e-mails
between transportation officials regarding
a commuter rail bill with subject lines
such as "pancakes" and "French Toast,"
but ignored calls to delay signing the bill.
Crist signed the bill (HB 1B), which
allows for the creation of a commuter rail
in the Orlando area called SunRail and
payment to CSX Transportation, Inc. of at
least $432 million for the SunRail track.
The e-mails between Department
of Transportation Secretary Stephanie
Kopelousos and her deputy, Kevin
Thibault, concerned SunRail but contained
subject lines of breakfast foods.
The so-called "Wafflegate" e-mails
were produced in response to a public
records request by Sen. Paula Dockery,
who opposed the transportation bill.
Dockery, a Republican gubernatorial
candidate, urged Crist to delay signing the
She said the code words might have
been utilized to block her efforts to obtain
details on the rail deal, according to The
Palm Beach Post.
Kopelousos, however, said the use of
odd subject lines was "a mere eye-catcher"
so she would look at the e-mail among the
hundreds she receives every day. "There
was nothing more, nothing less than just
that," Kopelousos said.
Melinda Miguel, inspector general, will
conduct the investigation.
Source: The Palm Beach Post
AGO: Economic group not subject to Sunshine
TALLAHASSEE The office of
Florida Attorney General Bill McCollum
has issued an informal opinion stating that
Florida's Great Northwest does not fall
under Florida's Open Meetings and Public
The opinion was requested by state
Sen. Don Gaetz (R-Niceville) and Rep.
Marti Coley (R-Marianna) after a series
of articles in the Northwest Florida
Daily News drew light to the economic
development organization's contention
that the laws did not apply.
The informal opinion concluded that
based upon the information presented,
Florida's Great Northwest was not
acting on behalf of a public agency.
The nonprofit was founded in 2002 "to
facilitate economic and
workforce development A C C
within the sixteen county
region of northwest MEET
Florida," according to the
Though Florida's Great Northwest
distributes a $15-million federal grant,
the AG office could not "state that a grant
from the federal government . subjects
an otherwise private entity to" state open
Another panhandle economic group,
TEAM Santa Rosa, was the subject of
S_ S a State Attorney's Office
E S s investigation regarding
the applicability of open
N GS government laws.
The State Attorney's Office
concluded that TEAM Santa Rosa was
subject to open government laws because
the county had delegated economic
development duties to the agency.
Source: Northwest Florida Daily News
Miranda review thwarted by $40K records review
CITRUS COUNTY Two attorneys
hoping to use a public records request
to determine how many Citrus County
criminal defendants signed a Miranda
form now deemed "fatally defective" have
been stalled by the potential $38,560 it
would cost them for the records. Miranda
warnings inform defendants of their right
to an attorney and that their statements to
police can be used against them in court.
The Florida Supreme Court overturned
a man's conviction involving a similar
form used in Tampa, and the U.S. Supreme
Court is currently reviewing that decision.
Inverness lawyers Bill Grant and Bo
Samargya requested from the Citrus
County Sheriff's Office and State
Attorney's Office information relating to
cases where defendants confessed after
signing the flawed Miranda form. Grant
and Samargya requested records dating
back two years.
The State Attorney's office estimated it
would cost $17,000 to produce the records
based on a staff person working 500 hours
at an overtime rate of $35 per hour. The
State Attorney's Office estimated a review
would include 15,000 files.
An estimate of $21,560 was given by
the Sheriff's Office to review 29,000 of
NCAA upholds FSU sanctions
TALLAHASSEE The Florida State
University student athlete cheating
scandal, which prompted a public records
battle between the National Collegiate
Athletic Association (NCAA) and the
media, has to come to an end. The NCAA
Division I Infractions Appeals Committee
upheld the NCAA's original penalty,
which includes vacating victories in 10
sports, including 14 wins by football
coach Bobby Bowden.
The 1st District Court of Appeal ruled
that documents sought by the media,
including an NCAA transcript, were
public records. The NCAA appealed that
decision to the Florida Supreme Court,
where the Court has yet to decide whether
to take the case.
FSU spent $201,000 defending itself
against the NCAA penalty-during which
time FSU lawyers accessed the documents
at the center of the public records dispute
via a custodial Web site. The university
also spent $81,000 in the public records
lawsuit (arguing in favor of disclosure),
according the St. Petersburg Times.
Bowden has retired, and three FSU
staff members involved in the alleged
cheating were fired.
Source: St. Petersburg Times
Dispute between commissioner,
activist, prompts e-mail review
BREVARD COUNTY The handling correspondence between specific parties
of a Port St. John activist's request for or on specific topics she can have that but
e-mail records has prompted the Brevard everything else is clearly fishing."
County Commission to reconsider how it Rupe complained to commissioners at
handles public records requests. On Aug. a December meeting. "The public record
9, Maureen Rupe requested Commissioner law is in place to ensure that government
Trudie Infantini's e-mails for the previous is working for the people," Rupe said.
four months in hopes of learning about
her budget proposals for the upcoming
Almost two months later, and nearly
a week after the new $1.1 -billion budget
was adopted by the commission, Rupe
received a $595 bill and 3,970 pages of
printouts. Infantini initially wanted to
reject Rupe's request, according to an
Aug. 21 e-mail stating that fouror months
of e-mails is excessive. I am retracting
my permission for the entire contents for
four months. Instead, if Maureen wants
In response, the commission waived
Rupe's $595 fee and addressed problems
with the county's current public records
procedures, calling it "vague," "gray,"
and "a broken system." A new draft
policy suggested by County Attorney
Scott Knox would have the county
compile cost estimates and require a 25
percent deposit prior to processing large
requests. The county apparently has had
issues with large records requests being
filled but never picked up or paid for.
Source: Florida Today
its files. The figure was based on a staffer
being paid $14 an hour over 1,540 hours.
Grant and Samargya hoped an
independent review would occur, with
Grant saying he is seeking outside sources
to fund the review. But Assistant State
Attorney Ric Ridgway said there is no
guarantee a case would be tossed if the
form was used but that prosecutors are on
the lookout for these types of cases. For
those already convicted, Ridgway said
there was nothing he could do if he came
across one because defendants must file
Source: Citrus County Chronicle
NASSAU COUNTY A county
attorney handed over nearly 100
personal e-mails between he and his
wife in an attempt to put an end to a
public records lawsuit filed in federal
court. Nassau County Attorney David
Hallman responded to Yulee resident
Thomas Brady's Nov. 16 request for all
e-mails sent or received by Hallman,
County Commissioner Mike Boyle and
In reviewing the approximately
40,000 e-mails for attorney-client
privilege, Hallman identified 91
e-mails between he and his wife that
did not pertain to county business and
therefore were not considered public
records. On Dec. 15, Hallman notified
Brady of the existence of the e-mails
and told him that they would not be
included in the county's response.
Brady responded by filing a
$25-million lawsuit in federal court
alleging constitutional violations.
Hoping to avoid spending further time
or money on the matter, Hallman on
Dec. 30 sent Brady the e-mails, which
mostly revolved around the well-being
of Hallman's dog, as well as dinner
reservations and dry cleaning matters.
Hallman also served Brady with
notice that the county would seek
sanctions against him for filing a
frivolous lawsuit if it was not timely
Source: Fernandina Beach News-
2 The Brechner Report February 2010
FREEDOM OF INFORMATION
request to close
TALLAHASSEE Circuit Judge
Mark Walker denied a co-defendant's
request to partially close a Tallahassee
murder trial. Walker did not elaborate
on the reasons behind his decision
to reject the request by attorneys for
Green is one of two men accused
and Florida State University alumna
Rachel Hoffman. Green's trial is set
for October, but his co-defendant and
stepbrother-in-law, Deneilo Bradshaw,
was tried in December.
That trial, which Walker kept
open, resulted in a guilty verdict and
life sentence for Bradshaw. Green,
who faces the death penalty, argued
that the fairness of his trial would be
compromised if evidence in the case
was made public during Bradshaw's
Hoffman was killed during a
botched drug sting by Tallahassee
Source: Tallahassee Democrat
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Society of Newspaper Editors and the Joseph L
Executive order changes process
for declassifying security records
WASHINGTON President Obama
signed an executive order shortly before
the new year that overhauled the executive
branch's treatment of classified national
The order notes that protectingig
information critical to our Nation's
security and demonstrating our
commitment to open Government... are
equally important priorities."
The order was accompanied by a
presidential memo to agency leaders,
directing them to periodically conduct
"comprehensive" reviews of classification
guidelines. Indefinite classification of
information is no longer permitted.
The order establishes a National
Declassification Center at the National
Archives aimed at declassifying historical
documents more quickly. Obama
established a four-year deadline to process
a backlog of these types of records.
More than 400-million pages of these
documents exist, including archives on
military operations during Vietnam and
World War II.
Another change implemented in
the order is the elimination of a 2003
rule by President George W. Bush that
permitted spy agencies to veto decisions
of an interagency panel declassifying
information. The new rule directs
intelligence agencies who object to
declassification to appeal to the president.
"Everything depends on the faithful
implementation by the agencies, but
there are some real innovations here,"
said Steven Aftergood, director of the
Federation of American Scientists' Project
on Government Secrecy.
Source: www.whitehouse.gov, The
New York Times
Panel urges friendingg" caution
ST. PETERSBURG Facebook
friendships should be avoided among
lawyers and judges, according to a recent
opinion of the Florida Judicial Ethics
Advisory Committee. The Committee
concluded that lawyers and judges who
are "friends" on Facebook could "convey
the impression that they
are in a special position N E W
to influence the judge," a T H (
violation of the Code of TECHN
Although the Committee does not
mandate judge actions, most judges are
likely to err on the side of caution and
follow the recommendation, said Florida
Supreme Court Public Information
Officer Craig Waters. The Florida
Supreme Court has the authority to
mandate judicial conduct.
A judge can, however, post comments
on another judge's social networking site
during judicial elections. And a judicial
campaign can have "fans" that include
lawyers, according the opinion.
McGrady, chief of the
6th Judicial Circuit in
)LOGY Pinellas County, said the
69 judges in his circuit
would receive a copy of the ruling and
that he doesn't have a Facebook page due
to the potential conflict of interest. "If
somebody's my friend, I'll call them on
the phone," McGrady joked.
Source: The Associated Press
Judge limits courtroom blogging
blogging by reporters in a murder
trial proved to be a challenge for a
Jacksonville judge, who revised his
electronic coverage rules several times
during the course of the trial.
Circuit Judge L. Page Haddock
initially ordered two television reporters
and a Florida Times-Union reporter to
halt electronic coverage of the trial of
three men accused in the shooting death
of an 8-year-old girl. Haddock cited a
1979 Florida Supreme Court decision
on cameras in the courtroom that did
not address the new technologies.
Haddock later revised his
restrictions to allow blog and video
coverage but only when he was present
in the courtroom. He also limited
the number of devices to two per
Source: The Florida Times-Union
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Permit No. 94
UF UNIVERSITY of
When you sign a petition, should it be a secret?
What in a name? That which we call a rose instance, the Court recognized the right of privacy and
By any other name would smell as sweet. anonymity in association in the landmark 1958 case,
In Shakespeare's Romeo and Juliet, that phrase set NAACP v. Alabama, which involved concerns about
out a central theme of the star-crossed lovers' tragedy: very likely intimidation and threats to personal safety
Real meaning lies in individuals, not in their feuding from state officials. In another case, the Court struck
families' names. down laws that required political pamphleteers to
The 45 words of the First Amendment are law rather identify themselves to officials.
than literature. But for the U.S. Supreme Court in an The issue has taken on a new twist and urgency
upcoming case, the question "What's in a name?" will because of the Web. It's not at all new to require that
involve parsing the modem meaning and application Gene Policinski the names of campaign contributors, petition signers and
of First Amendment rights of free speech, petition and others filing any manner of public reports or records be
The Court has agreed to consider Doe v. Reed, concerning
whether Washington state officials can release more than 120,000
names on a petition that sought a referendum on repealing the
state's domestic-partnership rights. Some supporters of the gay-
The rights law have said if the
T he names become public, they will
Back Page identify signers by name and
By Gene Policinski address in Internet postings.
Those seeking to have the
Court prevent disclosure say "there is a reasonable probability
that the signatories ... will be subjected to threats, harassment,
and reprisals." In their petition, they cite a death threat to the
campaign manager of a group supporting the referendum, Protect
On the other side, Washington state officials say the petition
and names are public records.
Justices will have to decide whether implied First Amendment
protection of privacy in political speech and association should
be overridden by a "compelling public need" for the names to be
The issue of anonymous political activity has roots in the
very founding of the nation. The Federalist Papers, a series of
political writings first published in 1787, identified the author
as "Publius." In reality, it was the work of three men, John
Jay, James Madison and Alexander Hamilton. Writers in pre-
revolutionary times frequently wrote under assumed names to
avoid arrest or retaliation from supporters of the Crown.
Legal protection of the right of association has found Supreme
Court protection in much more modem circumstances: In one
available on records considered open and public.
What is new is the ease with which such names and other
personal information can be aggregated and distributed -
sometimes replete with photos of individuals and maps of where
homes or businesses are located. And therein is the online rub.
An attorney for the group Protect Marriage Washington told
reporters that keeping the names secret would "protect the rights
of citizens ... to speak freely and without fear. No citizen should
ever worry that they will be threatened or injured because they
have exercised their right to engage in the political process."
Still, to hide the names of those who take a stand on one side
of an issue is to hinder the opportunity for the exchange of views
with the public in general and opponents in particular.
Secrecy also removes a measure of public accountability
- when, for example, names on petitions are vetted by state
examiners. Laws to prevent or punish intimidation or violence
already exist. Such acts are illegal even if done with a political or
social purpose in mind.
The circumstances in the Washington state dispute and others
like it pit the values of personal privacy and public disclosure
against each other in a contemporary setting.
After the Court hears arguments in April and likely issues
a ruling later this year, we'll know more about how the First
Amendment will function in the Internet Age.
Gene Policinski is vice president and executive
director of the First Amendment Center He is a veteran
journalist and a founding editor at USA TODAY. His
weekly "Inside the First Amendment" column is available at