Volume 34, Number 4 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
Appeals court: No right to speak
TALLAHASSEE The 1st District according to the Pensacola News Journal.
Court of Appeal has ruled Florida's Open A unanimous three-judge panel found
Meetings Law does not give citizens the that Florida case law did not lend itself to
right to speak at meetings. The Court the interpretation that an "open" meeting
handed down its decision in Keesler v. is one which the public has a right to
Community Maritime Park Associates, Inc. speak.
(1D09-1659), a case out of "[T]he remedy Appellants
Escambia County, on March AQ are seeking in this case is
10, less than a month after it A C CS more appropriately left to
heard oral arguments. MEETINGS the legislative process or
Byron Keesler and LeRoy the local public officials
Boyd sued Community to whom the CMPA board
Maritime Park Associates, Inc., seeking members are accountable," the court
to nullify the board's actions. CMPA is wrote.
in charge of developing a $40 million Keesler and Boyd alleged that by
maritime museum and waterfront park. failing to let the public speak at open
So far, Pensacola has spent $2.9 million meetings, CMPA violated the Sunshine
on designs, permits and site preparation, Law. At the trial level, Escambia Circuit
TALLAHASSEE A bill that would
have exempted recordings of 911
emergency calls from Florida's Public
Records Law has been abandoned after a
backlash by the press and crime victims.
The Florida House Governmental Affairs
Policy Committee approved the bill
March 10 but House Speaker Larry Cretul
announced a few days later that he would
not push further, citing the controversy
surrounding the bill.
The proposed law allowed for
transcripts of the recordings to be made
available 60 days after the call. However,
personal identifying information would
at open meetings
Judge Frank Bell dismissed the suit in
March 2009, finding that law does not
require public participation.
CMPA created a public comment period
before board discussion, but Keesler and
Boyd's attorney, Sharon Barnett, said that
was not enough.
"That forum does not allow any
meaningful participation," Barnett
said. "It isn't really open to them. It's
something they can watch on TV or on
their computer screens."
CMPA attorney Ed Fleming, however,
argued that the board would have
difficulty recruiting and retaining members
if meetings dragged on for hours due to
Source: Pensacola News Journal
lawmakers to drop 911 exemption
be redacted from the transcript and the on the bill. Cretul was also criticized
requester would be required to pay for the after revealing that the legislation was
cost of transcript. sponsored on behalf of Florida Farm
Opponents of PCB GAP A C C E SS Bureau President John Hoblick,
10-03 contended that if A C C E SS whose son died in 2009.
approved, the bill would The bill itself cited concerns
cripple public oversight of RECORDS for "invasion of privacy that
public safety personnel and could result in trauma, sorrow,
incidents of public interest. In addition, humiliation, or emotional injury" to 911
the costs of transcription could be a barrier callers or family members. It also pointed
to public access. to the possibility of third parties arriving
Florida's annual "Sunshine Sunday"
open government awareness day
occurred March 14, the day before
Cretul announced he would back down
on scene and potential harassment as
reasons for the exemption.
Source: FirstAmendment Foundation,
AGO opinion addresses student records in meetings
TALLAHASSEE A Florida Attorney The privacy provision stems from open meetings. McCollum specifically
General opinion requested by the Leon the federal Family Educational Rights declined to address specific procedures
County School Board may shed light on and Privacy Act (FERPA), incorporated of the board due to a lack of statutory
how the Open Meetings Law and federal into Florida law. Attorney General Bill authority for such procedures.
student privacy laws conflict. McCollum's opinion found that despite the However, his office "strongly"
The opinion, AGO 2010-04, addresses provision, no exemption to the Sunshine suggested the Legislature revisit the
whether the statutory right of privacy Law exists, issue of whether an Open Meetings
students have in educational records Next, McCollum addressed whether the Law exemption is warranted to protect
school board could employ procedures to
protect student records being discussed in
creates an exemption to the Sunshine
Proposal bans talks between PSC aides, utilities
TALLAHASSEE State lawmakers
are considering a law that would
prohibit private conversations between
staff members of the Public Service
Commission and utility companies.
In 2009, PSC staffers and Florida
Power & Light officials drew criticism
for exchanging BlackBerry messages
during FPL's request for a $1.3 billion rate
increase. FPL also invited a PSC lobbyist
to a Kentucky Derby party at the home of
its vice president and encouraged its own
lobbyists to call PSC staffers' cell phones,
according to The Miami Herald.
The scandal resulted in the termination
or resignation of some PSC staffers. FPL
received a $75 million rate increase.
"There's no question that FPL went
beyond ethical limits," said Sen. Mike
Fasano (R-New Port Richey), a sponsor
of the bill. "The way it promoted its rate
case, you'd think they were running a
candidate in a political campaign."
Existing law prohibits private
communications between PSC
commissioners and utilities.
The proposed law would include
staff members who work directly for
Source: The Miami Herald
Former city attorney sues Jacksonville for records
JACKSONVILLE A former city
attorney is suing the Jacksonville
Transportation Authority (JTA) over
an October public records request he
contends was not filled.
Tracey Arpen's suit stems from
a request for records related to the
TAMPA- The Hillsborough
Aviation Authority has had to redo
two meetings in order to comply with
the Sunshine Law. The meetings,
originally behind closed doors,
involved almost $20 million in public
A bid selection committee meeting,
held for the second time on Feb.
26, was described by an authority
attorney as an "open independent staff
evaluation meeting" where the "public
is not allowed to participate," but
may observe, according to WTSP-
TV/10connects.com. At the first
ACCES S of that
ACCES meeting, the
for an $11.6 million program.
The second do-over meeting
concerned an $8.1 million project. 10
Connects, a CBS affiliate in Tampa,
has filed a public records request to
determine if any other meetings were
Source: WTSP ( Oconnects.con)
JTA's lobbying of the Jacksonville City
Council to amend the city's law banning
JTA sought to build more bus shelters
and the new sign law will allow it to sell
advertising space on the shelters.
Arpen, an advocate of the existing
TALLAHASSEE Florida doctors
could be sitting in federal prison but
still have a profile showing a "clear
and active" medical license on the
Department of Health Web site, according
to The Miami Herald.
The newspaper cited one example of a
physician who is in prison after pleading
guilty to health fraud in 2008 but is
currently listed as having a clear license
on the DOH site.
TAMPA Some Florida counties
are adopting new policies that restrict
incoming inmate mail to postcards,
according to the Tampa Tribune. The
policy has already taken effect in Lee,
Manatee and Pasco county jails.
The concept originated in Arizona,
where Maricopa County Sheriff Joe
Arpaio, known for his tough inmate
policies such as requiring inmates to wear
pink underwear, instituted a postcard
Hillsborough County is currently
considering the postcard restrictions.
sign law, argues that the entire law could
be challenged by a sign company who
doesn't win a contract with JTA. City
attorneys dispute that assertion.
JTA had no comment on the suit,
according to the Florida Times-Union.
Source: Florida Times-Union
The mismatch is the result of
DOH policy not to post information
about arrests or convictions until the
professional licensing board takes action.
Administrative action can occur months
or even years after a conviction.
The DOH cited due process concerns
and time constraints in response to
questioning about its policy, according to
Source: The Miami Herald
"From a security standpoint, from an
economic standpoint, it would actually
make sense," said Col. Jim Previtera of the
Hillsborough Sheriff's Office. Reduced
manpower and less contraband are
predicted results of the restriction.
Several inmates in Manatee County
have filed a First Amendment lawsuit in
federal court based on the postcard policy,
citing the free speech rights of not only
the inmates but their families as well.
Attorneys have been appointed for the
Source: Tampa Tribune
2 The Brechner Report April 2010
Online physician records lag
months, years behind arrests
Florida jails face backlash after
limiting inmate mail to postcards
use of forms to
seal civil cases
LAKELAND A review of sealed
civil cases by The Ledger (Lakeland)
reveals that many cases are sealed
without citing justification, despite
2007 Florida Supreme Court rules to
the contrary. As a result, judges in the
10th Judicial Circuit (consisting of
Hardee, Highlands and Polk counties)
have chosen to use standardized forms
to ensure proper sealing of records.
Polk County Clerk of Court
Richard Weiss raised concerns about
sealing procedures last year. For
example, a Ledger review of cases
found that between April 2007,
when new rules were instituted, and
October 2009, more than half of cases
sealed items that were likely already
confidential under Florida law.
Orders in 19 cases did not cite reasons
The new forms are designed to
ensure that reasons for sealing are
The 2007 change in rules only
applied to civil cases. The Florida
Supreme Court is still considering
sealing rules for criminal and
Source: The Ledger, Reporters
Committee for Freedom of the Press
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gamesville, FL 32611-8400
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The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is ajoint effort
of The Brechner Center for Freedom of Information,
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Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
National litigation fund gives first
awards to Florida FOI activists
SEBRING The first awards of a
$400 million grant from the Knight
Foundation Freedom for Information
Fund will go toward open government
litigation in Florida.
In Sebring, citizen watchdog Capt.
Preston H. Colby received a $3,000
grant to assist with filing fees, deposition
costs and other expenses related to
his suit against the Highlands County
Colby, who represents himself in the
suit, seeks handwritten notes used by
the county administrator and a county
commissioner in a public meeting. No
judgment has been issued in Colby's suit,
which was recently tried.
The county argues that the notes are
not public records because they were
never transcribed and it was not the
intent of county officials that the notes
would be public records, according to
the National Freedom of Information
Coalition (NFOIC). NFOIC administers
"I am very pleased to be the first pro
se litigator getting the grant," Colby
told The News Sun (Sebring). "There
needs to be a lot more of it. It does not
strengthen the law, but it does help me
bring this case and others before a court."
The other award will help two
citizens groups defray costs in their legal
challenge against Sarasota County and
the City of Sarasota in connection with
negotiations for a spring training deal
with the Baltimore Orioles.
That suit centers on e-mail
correspondence allegedly in violation of
Florida's open government laws.
NFOIC member coalitions like the
First Amendment Foundation submit
grant applications to the NFOIC.
Source: The News Sun (Sebring),
National Freedom oflInformation
TALLAHASSEE A Tallahassee
man is challenging a 40-year-old law
prohibiting malicious publication of a
law enforcement officer's home address
or telephone number. Robert Brayshaw
was arrested in 2008 after he posted the
home address and telephone number of a
Tallahassee police officer on the Web site
Brayshaw found officer Annette
Garrett's information on the Internet and
posted it, along with critical comments.
He was arrested and prosecuted under
Florida Statute Section 843.17, which
prohibits publishing officer information.
The case was dismissed on other
procedural grounds, according to the
The law has never been challenged,
according to ACLU of Florida legal
director Randall Marshall. The ACLU of
Florida is representing Brayshaw.
Defendants in the suit are the City
of Tallahassee and State Attorney Willie
Brayshaw seeks to have the law
declared unconstitutional and in violation
of his free speech rights.
The state argues that while Brayshaw
is permitted to criticize Garrett, the
publication of her contact information is
not core political speech. Florida Attorney
General Special Counsel George Waas,
who represents the defendants, also
argued that the law is aimed at preventing
intimidation of officers and further,
that such contact information is not
Brayshaw's attorneys argue that the
existing threat of prosecution chills
his free speech rights and amounts to
viewpoint discrimination. They also
contend that newsworthiness is not the test
for constitutionality and that Brayshaw's
posting was not threatening.
Source: Tallahassee Democrat
The Brechner Report April 2010 3
Man challenges law prohibiting
publication of officer information
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
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U UNIVERSITY of
Rule change targets falsification of criminal records
Fiction is typically written about Florida's courts, not administration seek to strike a balance between the
by them. But for years, some judges and prosecutors public's right to access court records with the need to
quietly fictionalized the official court record to cover up protect certain confidential records. "The amendments
the felony convictions of informants and they did it with also bring our court system closer to providing the
Florida makes it a crime for anyone, including a judge,
to alter or falsify court records or proceedings. If the law
isn't clear enough, the Florida Supreme Court made it
explicit on March 18 in a unanimous decision that forbids
falsifying criminal court records. Dan Ci
The ruling, part of a sweeping revision of the code that
governs public access to state court records, also extended the
justices' three-year-old ban on hiding civil court cases on a secret
docket to the criminal courts.
"It's a clear victory for the public," said Miami First
The Amendment attorney Thomas
k P Julin. "It ensures we're not
ack a going to have falsified records
By Dan Christensen in the public court files that are
misleading to the public."
Patrick Danner and I were Miami Herald reporters in
November 2006 when we broke the story that judges and
prosecutors in Miami-Dade had altered court dockets and case
files to shield police informants from scrutiny.
Miami-Dade State Attorney Katherine Fernandez Rundle's
chief assistant, Jose Arrojo, told us that false dockets were
routinely used in his county to protect informants.
"This is an established practice in this circuit for many,
many years and we are comfortable that the rules of judicial
administration allow for this," Arrojo said.
But Florida's most experienced legal minds had no idea it was
happening. "I've never heard of such a thing," former Florida
Chief Justice Gerald Kogan told me at the time the story was
published. Kogan is a former criminal court judge and prosecutor
Those Miami Herald stories by Danner and I reported how
hundreds of criminal and civil cases, often divorces and lawsuits,
were hidden on a secret docket in Broward and elsewhere. The
stories led to the court's 2007 prohibition of secret dockets in
The high court's new amendments to Florida's rules of judicial
public with electronic access to court records," the 32-
page decision says.
The new rules identify 19 types of so-called "Type
I" information, like adoption records and social security
numbers, which clerks must automatically designate
istensen as confidential. Lawyers and others are obliged to tell
the clerk when such confidential information is in the
papers they file. Those procedures take effect Oct. 1. The rest
of the decision takes effect immediately. A judge will decide
whether to keep secret sensitive material that's not automatically
confidential "Type II" information.
New rules in civil cases provide for expedited hearings and
rulings, as well as sanctions against those who act in "bad-faith"
when they seek to hide or seal information. The justices said
they set the rules so courts would "narrowly apply" certain
restrictive procedures established to decide what should be kept
secret. Among other things, the rules allow secrecy "to prevent a
serious and imminent threat," protect a compelling government
interest, or avoid injury to an innocent.
Hearings on motions requesting confidentiality must be held
in open court within 15 days, although judges retain the authority
to close "all or part" of a hearing. Judges must rule within 10
The justices also imposed a 120 day time-limit on how long
information made secret under can remain hidden. But the court
also allowed for multiple 60 day extensions, if justified.
The high court's decision lights the future path to public
access in Florida's courts.
Still, the public should beware. It does not fill the gaps and
cracks in the public record that have accumulated over the years.
Dan Christensen is the first two-time winner of the Brechner
Award. He was recognized in 2004for his series on secrecy in
the federal courts and in 2007for stories on the use of secret
and false dockets in Florida courts. He is the founding editor of
BrowardBulldog.org, an independent, not for profit regional news
site in South Florida.