Volume 34, Number 6 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
Sarasota Sunshine suit also alleges bid favoritism
SARASOTA COUNTY Two citizen a stadium renovation project before the
groups suing the city and county of competitive bidding process started.
Sarasota over alleged open government The e-mails were obtained after
violations in connection with a $31.2 a fight for access to the computer of
million baseball stadium deal have sports consultant Dan Barrett, hired
added a new charge to their suit: that a to help bring the Baltimore Orioles to
county official influenced Sarasota. Barrett initially
the bidding process. E-mails E T H IC S said many e-mails related
produced as a result of the to the project were lost due
open government suit prompted the new
Citizens for Sunshine and Sarasota
Citizens for Responsible Government
allege that the Chicago-based firm
International Facilities Group (IFG)
helped draft the bid specifications for
NAPLES More than a dozen
sheriff's offices surveyed about their
e-mail storage policies don't have one,
according to the Naples Daily News.
The survey of 64 sheriff's offices
and one police department also revealed
problems with those who do have storage
Difficulties of storage and sorting
through thousands of e-mails were
among the problems voiced by the
sheriff's offices. There also seemed to
be confusion about whether servers are
storing e-mails and how long they must be
to computer problems, but an analysis of
the damaged computer revealed e-mails
from both Barrett and County Director of
Community Services Larry Arnold to IFG.
IFG eventually won the $500,000
contract. Arnold, who served on the
committee that awarded the contract,
allegedly has a personal tie to IFG. The
e-mails include one from Barrett to IFG
asking if it had "any specific language or
requirements that could be included in
an RFP that would differentiate you guys
from others," according to the Sarasota
Assistant County Administrator Dave
Bullock told the Herald-Tribune that the
bid specifications were drawn from similar
contracts used in other states.
The president of the firm whose bid
came in just behind IFG, Rick Fawley
of Fawley Bryant Architects, said his
business spent $40,000 to bid on the job.
Source: Sarasota Herald-Tribune
don't have e-mail storage policies
The Lee Sheriff's Office, for example, novelty to being, in most cases, in most
did not have an e-mail retention system organizations as well as government,
until January 2010, something the current probably the most important piece of
sheriff said had been an issue for many infrastructure they have in their computer
years prior to his arrival. The agency used systems," Tolson said.
forfeiture funds to purchase Many agencies
an archive system, which cost A C C E SS contacted by the Daily
$129,000. News complained that there
Central archiving systems RECORDS was not enough funding to
that store incoming and implement storage funds.
outgoing e-mails across an agency start at Tolson said judges are not usually
around $70,000, Bill Tolson, author of the sympathetic to agencies who use cost
book EmailArchivingfor Dummies, told as an excuse not to comply with public
the Daily News. records laws.
"E-mail has really gone from being a Source: Naples Daily News
Board members' break comments draw criticism
SARASOTA A discussion between
two Civil Service Board members
during a break from a public meeting
landed both in hot water with the city.
A city employee allegedly
overheard volunteer board
members Dan Major and
Frederic Bigio discussing
the fired police officer whose
appeal was being heard by the board.
City officials accused the pair of
violating the Sunshine Law and moved
to recuse them from the board during
the meeting. The city employee who
overheard them then testified at the civil
service board hearing, saying that Bigio
said he "would have done the
G S hFormer police officer
G Christopher Childers was
fired from the Sarasota Police
Department after surveillance video
showed him kicking a handcuffed man
to the ground. Childers had appealed his
termination to the board.
The board declined to recuse Bigio.
It did however, recuse Major, based on
his comment "I think we've seen enough
to go ahead and decide this case," made
during the hearing. Major denied any
"We did not think we were violating
anything by sitting there in open
chambers," Major said of his chat with
Source: Sarasota Herald-Tribune
ACCESS MEETINGS CONTINUED
City's FOIA suit draws Sunshine accusations
VALPARAISO The city of
Valparaiso signed a resolution that it
hopes will put an end to allegations that
it violated the Sunshine Law when it filed
suit against the Air Force, according to
the Northwest Florida Daily News (Fort
Walton Beach). Valparaiso sued the Air
Force under the Freedom of Information
Act (FOIA) due to its concerns about
noise from new jets coming to Eglin Air
Force Base. It also filed suit challenging
the Air Force's decision to beddown the
F-35 Joint Strike Fighter at Eglin.
Valparaiso resident Anthony Bradley
sued the city, alleging that the decisions to
sue the Air Force were not made at public
meetings. Okaloosa County (wherein
Valparaiso is located) filed a similar
Sunshine suit against the city.
Valparaiso has settled the FOIA
lawsuit, the beddown suit and the
Okaloosa County Sunshine Suit.
Bradley's suit remains pending, and the
city's resolution unanimously ratifies its
previous decisions related to the lawsuits
against the Air Force.
Bradley's attorney, Mike Chesser, told
the Daily News that while he understands
the effort, the violations still occurred and
his client's lawsuit can proceed.
"To allow this sort of action-a
resolution by the commission absolving
the commission of any violation of
law-would be to render the Sunshine
law and public records law. .. absolutely
meaningless," First Amendment
Foundation President Barbara Petersen
told the Daily News.
Okaloosa County denied a request for
attorney's fees of $61,000 from Valparaiso
related to defending the Sunshine suit.
Source: Northwest Florida Daily News
Newspaper questions hospital meeting ID policy
MIAMI A hospital board's
requirement of identification prior to
attending a public meeting is under
fire. Jackson Health System in Miami
is governed by the Public Health Trust,
which oversees the $1.9 billion per year
operation. The Public Health Trust holds
all of its meetings inside its hospitals.
Jackson requires all who enter its facilities
to show a driver's license. Visitors then
receive IDs to place on their clothing.
Further, in addition to presenting a
driver's license, a Miami Herald reporter
was escorted to recent meetings by
security, according to the newspaper. The
Herald has a pending records request with
Jackson to determine if security is called
to escort all journalists.
Adam Taylor, spokesperson for
Jackson Health System, said that it was
protocol for all journalists to be escorted
inside the hospital to ensure patient
privacy. Former Trust Chairman Michael
Kosnitzky told The Herald that there are
legitimate concerns about security and
patient privacy and that if the meetings
were moved outside the hospitals, costs
would increased substantially.
Florida's Sunshine Law does not
require identification prior to entering a
public meeting. A 2005 Attorney General
Opinion stated that a city could not require
attendees of public meetings to present
ID even if the meeting facilities housed
nii.Sili\ ~c documents."
Source: The Miami Herald
ACCESS RECORDS CONTINUED
Residents sue to
MIAMI LAKES Two residents of
Miami Lakes have filed a lawsuit asking
a judge to keep their e-mail addresses
private. Lynn Matos and Jack McCall
submitted their e-mail addresses to Miami
Lakes Mayor Michael Pizzi in order to
receive updates on community activities.
Matos and McCall allege that they
did not consent to disclosure of their
e-mail addresses and feared the potential
keep e-mail addresses private
for harassment or identity theft if the are conflicting legal opinions and advised
addresses were made public. They against disclosure, according to The
contend that even if the content of the Herald.
e-mail itself is a public record, the blind A 2007 opinion by the Florida Attorney
carbon copy list is not, according to The General (2007-14) noted that "[t]he fact
Miami Herald. that the e-mail was sent to an undisclosed
A citizen activist and town council or blind recipient does not remove the
member have requested the e-mail email or the e-mail addresses contained
addresses but have been denied. Town therein from the public records law."
attorney Gonzalo Dorta has said there Source: The Miami Herald
City commissioner's computer focus of hearing
ANNA MARIA ISLAND A electronic devices. Circuit Judge Stephen then lost forever."
city commissioner in Anna Maria L. Dakin, citing time constraints and an Stoltzfus' attorney, Richard Harrison,
Island is at the center of both a recall initial misunderstanding of the request, noted that the city requires that e-mail sent
petition and a lawsuit seeking his suggested Barfield request a hearing from or received on private devices to be copied
e-mail communications. Commissioner the judge assigned to the case, according to the city clerk.
Harry Stoltzfus has already turned over to The Anna Maria Island Sun. In a separate move, resident Bob
thousands of pages of e-mails to the city "When you delete a file, it doesn't Carter announced that he would seek a
clerk, according to the Bradenton Herald. go away," Barfield's attorney, Valerie recall petition to remove Stoltzfus from
But Michael Barfield and his attorney Fernandez, told Judge Dakin. "It's still office based on alleged violations of open
recently asked a circuit judge to grant there on your hard drive somewhere, but government laws.
their request to capture images of the hard the more you use the computer, the more Source: The Anna Maria Island Sun,
drives of Stoltzfus' computer and other likely that the file will be over-written and Bradenton Herald
2 The Brechner Report U June 2010
High court rejects defamation damages appeal
TALLAHASSEE The Florida
Supreme Court has denied review in a
defamation case where the jury awarded
$5 million in punitive damages but found
no compensatory damages. Dr. Samuel H.
Sadow sued Lawnwood Medical Center,
Inc. for breach of contract and slander.
At trial, the jury awarded Sadow $1.5
million for breach of contract after Sadow
assisted Lawnwood for years to open a
heart surgery center in St. Lucie County
but was denied privileges at the hospital.
Sadow also received a $5 million award
for his slander claim. One hospital official
said Sadow was "not qualified to perform
surgery on a dog."
The jury found zero compensatory
or nominal damages but found that the
slanders were intentional and malicious
and therefore awarded punitive damages.
The 4th District Court of Appeal upheld
the jury awards but certified a question
of great public importance to the Florida
Supreme Court: "Are punitive damages
of $5,000,000 arbitrary or excessive
under the Federal Constitution where the
jury awarded no compensation beyond
presumed nominal damages but found that
defendant intentionally and maliciously
harmed plaintiff by slanders per se?"
Two weeks later, the Florida Supreme
Court declined to review the case.
Source: Lawnwood v. Sadow
School board chair objects to image on YouTube
CAPE CORAL A YouTube video
about a town forum on education issues,
posted by a candidate for the Lee County
School Board, drew a strong reaction from
the Board Chairman.
Don Armstrong is running for
the Board, and he included in his
YouTube advertisement a photo of
Chairman Steve Teuber, noting that Teuber
was invited to the forum. Teuber, an
attorney, objected to the use of his name
and photo without permission. In a letter
to Armstrong, Teuber demanded that his
name and photo be removed from the
YouTube video and a related e-mail.
Teuber argued that the use of his
name and likeness violated Florida law
because it was
TRVACY a commercial
of his identity
for "trade, commercial, or advertising
purposes." Teuber also demanded a
"All I ask is that he runs his campaign
and not use me in it," Teuber told the Cape
Coral Daily Breeze. "Don't try to include
me or imply to people that I am going to
attend any of his functions."
Armstrong told the Daily Breeze that
he would not be taking the video down,
and as of April 30 it was still on YouTube,
with 198 views. Media attorney Deanna
Shullman, whose firm litigated the case
cited by Teuber, told the Daily Breeze that
the holding only extended to promotions
of products or services, not political
Source: Cape Coral Daily Breeze
Florida suit receives Knight FOI litigation grant
BRADENTON The Knight FOI Fund
has awarded a $15,000 grant to defray
costs in an open government suit against a
Bradenton mobile home community. Two
sisters filed suit against the Trailer Estates
Park and Recreation District, a mobile
home park converted into a "Special
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The suit alleges Public Records and
Sunshine Law violations by the district
and its elected, nine-member Board of
Trustees. Among the violations alleged
include meetings without notice, minutes
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Sites shine light
TALLAHASSEE Access to state
information online is made a little easier
by several initiatives, according to a
recent column by Gannett Editor Paul
Flemming, whose top sites include:
transparencyflorida.gov: This site
was established by the State Senate
and features comprehensive budget
information, including every line item
and how the money is used. The site
also tracks the numbers of positions in
a particular agency. The State Court
System, for example, had an operating
budget of $451,674,436 and 4,325.50 jobs
in the 2009-10 fiscal year, though 129.25
positions were vacant. The site launched
The "Sunshine Spending" site provides
private homes; secret voting; and failure
to produce documents.
The suit was filed in November 2008.
Extensive documents are available
on the Trailer Estates website, www.
on state actions
access to how state and local governments
in Florida are spending money. One
database tracks vendor payments from
state agencies, another provides local
government expenditures, and others
feature statewide budget information.
dms.myflorida.com: The "open
government" link from the Department
of Management Services homepage leads
to spreadsheets with logs of state aircraft
information. They show who flies where,
with whom and at what cost to taxpayers.
dep.state.fl.us: The state Department
of Environmental Protection has a number
of tools available through the "public
access" link on its homepage. Visitors
can view a map showing waste sites and
sign up for e-mail alerts about sites.
Source: Tallahassee Democrat
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S UNIVERSITY of
Old law has First Amendment flaws in Internet era
In 2007, Robert Brayshaw was investigated by a
Tallahassee police officer on a trespass complaint that
the State Attorney's office ultimately declined to file
charges. In the course of the investigation, Brayshaw
found officer Annette Garrett to be rude, abusive and
unprofessional. He filed complaints against her with
the Tallahassee Police Department ("TPD") but wasn't
satisfied with the Department's response.
He then found another forum to voice his opinion Randall C.
RateMyCop.com, a privately owned company in Los
Angeles, California, that allo\ s. registered users to leave written
feedback about their interactions with police officers, and rank
the officer's service based on three criteria: Professionalism,
Fairness and Satisfaction." Over the course of several weeks
in March and April, 2008, Brayshaw posted a series of critical
The comments about Officer
SGarrett. The TPD was
Back Page monitoring the website.
By Randall C. Marshall Brayshaw looked for
information about Officer
Garrett and, in addition to public records regarding the home
she owned in Leon County, found her personal website, her
Avon website and information about her attempt to adopt a child
from Guatemala. Through her own postings, Officer Garrett had
identified herself as a police officer with the TPD and provided
personal information about herself. Brayshaw found information
about Officer Garrett's marital status, home address and estimated
value, cell phone number and personal e-mail address.
He posted it on RateMyCop.com. The TPD promptly
opened up a criminal investigation, subpoenaed records from
RateMyCop.com and Brayshaw's Internet provider, and sought
his arrest for violation of a Florida statute enacted in 1972: "Any
person who shall maliciously, with intent to obstruct the due
execution of the law or with the intent to intimidate, hinder, or
interrupt any law enforcement officer in the legal performance
of his or her duties, publish or disseminate the residence
address or telephone number of any law enforcement officer
while designating the officer as such, without authorization
of the agency which employs the officer, shall be guilty of a
The State Attorney's office prosecuted. In December
2008, after selecting a jury, the State dismissed the
charge. It re-filed the charge less than two weeks later.
After the State failed to comply with Florida's speedy
trial requirements, the charge was dismissed with
prejudice in April 2009.
Shaken by the arrest and prosecution for the
publication of truthful information, and afraid to do it
Marshall again, Brayshaw turned to the American Civil Liberties
Union of Florida, which took his case to federal court
in September 2009, suing the City of Tallahassee and the State
Attorney to have the statute declared unconstitutional and seeking
damages for his arrest.
Florida has a long history of enacting laws that seek to
punish or prohibit the distribution of truthful information. And
they have met with the same fate a finding that they violated
the First Amendment. On April 30, 2010, Northern District
of Florida Judge Richard Smoak declared the statute facially
unconstitutional and enjoined its enforcement, finding that
Brayshaw's postings were protected speech and that "the release
of personal information, even with the intent to intimidate, is not
per se a true threat" that can be constitutionally prohibited.
This determination is undoubtedly correct and leaves
one wondering why the State Attorney's office initiated the
prosecution to begin with. Brayshaw's posting of the personal
information was unaccompanied by any suggestion that anyone
do anything with the information that was already publicly
available. In effect, the prosecution of Brayshaw was based upon
the mere publication of the name, address and phone number of a
In this Internet era, substantial amounts of information are
available to anyone with access to a computer and the time and
interest to conduct exhaustive searches. Penalizing the researcher
in an effort to put the genie back in the bottle does little to
prevent anyone with similar time and interest from "discovering"
the information afresh. Brayshaw's prosecution under this
antiquated statute was akin to killing the messenger. Florida's old
law, as applied to the Internet, fails a constitutional analysis.
Randall C. Marshall is Legal Director of the ACLU of Florida.