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Title: Brechner report
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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: July 2010
Copyright Date: 2010
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Volume ID: VID00127
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THE


BRECHNER

REPORT

Volume 34, Number 7 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information 0 College of Journalism and Communications U University of Florida
July 2010

Florida Supreme Court denies NCAA review


TALLAHASSEE The Florida
Supreme Court has refused to hear the
National Collegiate Athletic Association's
(NCAA) appeal of its public
records case. A (
The 1st DCA had ruled that
documents on a password- RE(
protected website related
to a cheating scandal at Florida State
University were in fact public records.
The documents were viewed by
attorneys for FSU. The NCAA argued it


was a private entity and that viewing of
the documents by FSU attorneys did not
make the records public.
However, the 1st
C E SS DCA held that viewing
the records amounted
)RDS to "receipt" of them
under Florida's Public
Records Law.
The Florida Supreme Court exercised
its discretion to decline review of the
case.


Several news organizations sued for
access to the documents last summer.
FSU and Florida Attorney General
Bill McCollum sided with the media
in demanding public disclosure of the
documents.
The NCAA sanctions case connected
to the records resulted in disciplinary
action against FSU including the loss of
12 football victories.
Source: Tallahassee Democrat, www.
floridasupremecourt. org


Judge grants access to depositions in Ponzi case


BROWARD COUNTY A federal
judge has granted the press access to
depositions in a bankruptcy case involving
a $1.2 billion Ponzi scheme.
The Daily Business Review filed a
motion to intervene in the case after Judge
Raymond B. Ray of the U.S. Bankruptcy
Court for the Southern District of Florida
closed the deposition of a former partner
in the law firm Rothstein Rosenfeldt Adler.
The firm's chairman, Scott Rothstein, is
accused of orchestrating the Ponzi scheme.
Steve Lippman wanted the depositions
of himself and his wife closed, concerned
that details of their personal life or
attorney-client relationships might be


revealed. A bankruptcy trustee is suing allowed to attend but may not record the
Lippman for $3.1 million in allegedly deposition.
fraudulent transfers of property, according The press and the public are also
to the Review. prohibited from talking or doing anything
Judge Ray held that Lippman and "that would cause the slightest disruption"
his wife did not meet their burden of of the proceeding.
proving a particular need Judge Ray also ordered
for protection. Judge Ray's C O U R T S a copy of the deposition
opinion also noted "the need transcript be posted online.
for transparency in this bankruptcy case Rothstein faces up to 100 years in
following the collapse of the largest Ponzi prison for his scheme involving the sale
scheme in the history of South Florida." of legal settlements to wealthy investors,
The order granting the Review's according to The Miami Herald.
motion to intervene permits the public Source: The Daily Business Review, In
and the press to attend the deposition. re: Rothstein RosenfeldtAdler, PA., The
"Properly credentialed" reporters are Miami Herald


Gag order in DuPont suit reversed on appeal


BROWARD COUNTY The 4th DCA was attempting to influence potential
has overturned a trial judge's gag order jurors.
in a lawsuit against DuPont by shrimp DuPont appealed, and the 4t DCA
farmers from Ecuador. struck down the gag order because
Broward Circuit Judge Charles it was unsupported by
M. Greene in December issued a FIR ST any findings that it was
gag order, preventing all parties necessary for a fair
from talking about the lawsuit. AMENDMN ENT trial; there was no
The plaintiffs in the suit notice or proper
alleged that DuPont, by way of a Sept. 3, evidentiary hearing on the issue; and
2009 opinion piece in the South Florida because the order didn't have limits on
Sun-Sentinel (Fort Lauderdale) submitted the time or application.
by the Florida Justice Reform Institute, The lawsuit is more than a decade


old and centers on claims by the shrimp
farmers that runoff containing the
fungicide Benlate entered waterways and
killed shellfish, according to The Daily
Business Review. DuPont later withdrew
Benlate from the market but denies it was
harmful.
Retrials are scheduled after
multimillion-dollar verdicts in favor of
the shrimp farmers were overturned on
appeal.
Source: The Daily Business Review,
www.4dca.org


ji
(
r






ACCESS MEETINGS


Six Florida agencies receive transparency awards


OCALA The Sunshine Review
has bestowed "Sunny Awards" on 41
government websites, four of which
were from Florida.
The Sunshine Review analyzed 5,000
websites using a 10-point transparency
checklist.
The sites were graded according


to the information available online
related to budgets, meetings, elected
and administrative officials, permits
and zoning, audits, contracts, lobbying,
public records, and taxes.
In Florida, Duval County,
Hillsborough County Public Schools,
Seminole County Public Schools and the


St. Johns County School District all earned
perfect scores.
Marion County Public Schools and the
Palm Beach County School District also
garnered Sunny Awards, each receiving an
"A" grade.
Source: sunshinereview.org, Ocala Star-


Police chief admits to tipping off prosecutors


CORAL SPRINGS The person
who tipped off prosecutors about a
meeting between two Coral Springs
city commissioners and police union
representatives was the police chief,
according to The Miami Herald. Police
Chief Duncan Foster testified in a
deposition that he told prosecutors about
a March meeting between commissioners


Tom Powers and Vincent Boccard and
police union reps.
Powers and Boccard now face
charges of violating the Sunshine Law.
They were also removed from office by
Gov. Charlie Crist and have since been
replaced.
But an attorney for Powers alleges that
Chief Foster was retaliating against the


commissioners for raising questions about
Foster's job performance and rejecting a pay
raise for police, according to The Herald.
Foster stated in the deposition that while
he did have professional disagreements with
Boccard and Powers, it was his job to refer
evidence of possible criminal wrongdoing to
the proper authorities.
Source: The Miami Herald


ACCESS RECORDS CONTINUED


Prisoner advocacy group wins public records suit


WEST PALM BEACH Prison Legal
News has prevailed in a Public Records
Law suit against private prison company
GEO Group.
Prison Legal News filed suit in 2005,
seeking records related to contractual


WASHINGTON D.C. A new law
aimed at promoting press freedom
worldwide has been signed into law by
President Obama.
The Daniel Pearl Freedom of the
Press Act honors Pearl, a Wall Street
Journal reporter who was killed in
Pakistan eight years ago.
The legislation calls on the State
Department to identify countries that
subject journalists to censorship,
physical attacks and imprisonment.
The department is also charged with
determining if foreign governments are
condoning mistreatment of journalists.
An annual review of how foreign
governments respond to those who
persecute journalists will also be


violations and settlements or verdicts
against the Boca Raton-based prison
services provider.
Just prior to a summary judgment
hearing, GEO produced records. It also
agreed to pay $40,000 in attorney's fees,


performed by the State Department.
"Without this kind of attention,
countries and governments feel they can
operate against the press with impunity,
and we want to send a message that they
can't," Obama said upon signing the
law.
Eleven journalists have died so far
this year and 164 imprisoned, according
Reporters Without Borders. The group's
director, Clothilde Le Coz, said it was
difficult to say whether the new law will
bring change.
Obama refused to answer any
questions from reporters who covered
the signing.
Source: Reporters Committee for
Freedom of the Press


according to Frank Kreidler, attorney for
Prison Legal News.
GEO Group operates four prisons in
Florida, according to its website.
Source: Prison Legal News v. The GEO
Group, Inc.


Newspapers

challenge ban
MIAMI The Pentagon's decision
to bar four reporters from covering
proceedings at Guantanamo Bay has
prompted three news organizations to
challenge the ban. The Miami Herald,
Toronto Star and Canwest Newspapers
have asked
COURTS the Pentagon
to reconsider
its ban, which was prompted when the
reporters published the name of a witness
who the presiding judge ordered be
referred to only as "Interrogator No. 1."
However, the witness' name had
already been made public on several
occasions. The news organizations want
the Pentagon to rescind its order.
The hearing involves Canadian
detainee Omar Khadr.
Source: Reporters Committee for
Freedom of the Press


2 The Brechner Report July 2010


PRESS FREEDOM


New federal law promotes

press freedom internationally







2010 LEGISLATIVE REVIEW


TALLAHASSEE The following is
a summary of bills pertaining to public
records and open meetings introduced
during the 2010 legislative session. Chief
sponsors of the bills are indicated in
parentheses at the end of the summaries.
Copies of the legislation in full are
available at the Florida Legislature's
website (www.leg.state.fl.us).
SB=Senate Bill; HB=House Bill;
CS=Committee Substitute.


The following six bills create new
exemptions to the state Public Records
and Open U I.. ,., laws.

CS/SB 312 Home Addresses -
Public Defenders: Creates an exemption
to the Public Records Law for home
addresses, telephone numbers and photos
of current or former public defenders.
The exemption also applies to criminal
conflict and civil regional counsel.
Home addresses, phone numbers and
workplaces of spouses and children are
also exempted, as are names and locations
of schools or daycares attended by their
children. (Jones, R-Seminole). Signed by
Gov. Crist June 1.

CS/HB 393 Public Transit Providers:
Creates an exemption to the Public
Records Law for personal identifying
information held by a public transit
provider for the purposes of prepaid fares.
(Bovo, R-Hialeah). Signed by Gov. Crist
June 3.

CS/HB 551 County Conduct
Complaints: Expands the exemption
for complaints and records relating to
investigations by the Ethics Commission
to include records held by counties and
cities with local investigatory processes.
This expansion of Section 112.324, Fla.
Stat., applies until a probable cause
determination is made, the complaint is
dismissed or the accused person requests
disclosure. (Eisnaugle, R-Orlando).
Signed by Gov. Crist May 27.

CS/HB 1059 DFS Examination
Techniques & Procedures: Creates an
exemption to the Public Records Law
for information revealing examination
techniques or procedures utilized by the
Office of Financial Regulation, defined as
"methods, processes, and guidelines used
to evaluate regulatory compliance and
to collect and analyze data, records, and


testimony for the purpose of
documenting" legal or rule violations.
(Domino, R-Juno Beach). Signed by Gov.
Crist May 11.

HB 7017 Credit Histories and
Credit Scores: Exempts credit histories
and scores of mortgage broker licensees
contained in records of the Office of
Financial Regulation. (Workman,
R-Melbourne). Signed by Gov. Crist May
28.

HB 7079 Voter Registration Records:
Renews exemption for the Social Security
number, driver's license number, and
Florida identification number of a voter
registration applicant or a voter. Prohibits
copying voter registration applications
and signatures. Expanded to exempt
declinations to register, information
related to where voter registered or update
information. Also creates an exemption
for names, addresses and phone numbers
of people who reasonably believe they
are being stalked and whose names are
held by the Florida Attorney General's
Office. (H. Governmental Affairs Policy
Committee). Signed by Gov. Crist May
26.

The following 17 exemptions were
reenacted in 2010 under the Open
Government Sunset Review Act (OGSR),
which requires review of exemptions every
five years; laws not reenacted during the
fifth year are repealed.

SB 1678 Moffitt Cancer Center
& Research Institute: Exemption
for proprietary confidential business
information relating to methods of
manufacture or production, potential trade
secrets, potentially patentable material
or proprietary information received,
generated, ascertained or discovered
during the course of research by the
Center. (S. Higher Education Committee).
Signed by Gov. Crist June 3.

HB 7079 Voter Registration Records:
(see summary above).

HB 7085 Commission on Ethics and
Public Trust: Exemption for complaints
and records relating to preliminary
investigation of the Commission on Ethics
or Commission on Ethics and Public
Trust established by a municipality. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 26.


HB7087 Home Addresses -
Guardians ad Litem: Exemption for
addresses, phone numbers, places of
employment and photos of current or
former guardians ad litem; also applies
to information about children and
spouses under certain conditions. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 11.

HB 7089 Florida Self-Insurers
Guaranty Association: Exemption for
claims files of the Florida Self-Insurer
Guaranty Association, stipulating that the
records become public upon termination
of all litigation and settlement of all claims
arising out of the same incident. Exempts
those portions of association board
meetings during which exempt claims files
are discussed, requiring that the closed
portions be recorded and transcribed.
Finally, exempts the minutes of all closed
meetings until settlement of the claim
and termination of all litigation. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 11.

HB 7091 Insurance Claim Data:
Exemption for Department of Revenue
information obtained under insurance
claim data exchange system where
insurer voluntarily provides information
about non-custodial parents with a claim
against insurer who also owe child
support. Information remains exempt
until the department determines if a match
exists. (H. Governmental Affairs Policy
Committee). Signed by Gov. Crist May
11.

HB 7093 Domestic Security
Oversight Council: Exemption for
portions of meetings of the Domestic
Security Oversight Council at which active
criminal investigative or intelligence
information is heard or discussed if
the council chair announces at a public
meeting the need to discuss such
information and declares the specific need
to close the meeting in writing. Stipulates
that the entire closed session must be
recorded and no portions may be off the
record and limits who may attend the
closed session. Exemption for audio or
video recordings and any minutes or notes
generated during closed meetings, until the
criminal investigation is no longer active
or the security system plan is no longer
in use. (H. Governmental Affairs Policy
Committee). Signed by Gov. Crist May
11.

The Brechner Report U July 2010 3







LEGISLATION CONTINUED


HB 7111 Information Held by
Guardians ad Litem: Exemption for all
information relating to the best interest
of the child held by the guardian ad
litem. (H. Governmental Affairs Policy
Committee). Signed by Gov. Crist May
11.

HB 7113 Child Abuse Death Review
Committee: Exemption for information
identifying a deceased child's surviving
siblings, family members or others living
in the home of the deceased, in records
held by the State Child Abuse Death
Review Committee or local committees.
Provides a penalty for the knowing or
willful disclosure of exempt information.
Exempts committee meetings where
identifying information is discussed;
requires recordings of closed meetings
and exempts the recordings. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 7.

HB 7115 Parental Notification
Waiver Information: Exemption for
information in records held by a court
that could identify a minor seeking a
waiver of parental notification of abortion
requirements. (H. Governmental Affairs
Policy Committee). Signed by Gov. Crist
May 7.

HB 7117 Meetings Funeral,
Cemetery & Consumer Services
Board: Exemption for records and
meetings of the Funeral, Cemetery and
Consumer Services Board. All closed
meetings must be recorded; recordings
are exempt from disclosure. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 11.

HB 7119 Hurricane Loss Model:
Exemption for trade secrets used in
design and construction of hurricane
loss model. Also exempts portions
of meetings where trade secrets are
discussed. Recording of a closed meeting
must be made but is exempt from the
Public Records Law. (H. Governmental
Affairs Policy Committee). Signed by
Gov. Crist May 15.

HB 7121 Hurricane Loss -
Associated Exposure Data: Exemption
for "reports of hurricane loss data and
associated exposure data" specific to a
particular insurance company reported
to the Office of Insurance Regulation
or a state university for the purpose of
developing a hurricane loss projection
4 The Brechner Report U July 2010


model. Trade secrets and portions of
meetings at which trade secrets are
discussed are also exempt. Requires
Florida International University
(responsible for public hurricane loss
model) to publish report summarizing loss
and associated exposure data collected
from residential property insurers. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 27.

HB 7123 Addresses Domestic
Violence Victims: Exemption for
addresses and phone numbers of
domestic violence victims participating
in the Attorney General's Address
Confidentiality Program. Same
information is also exempt when held by
Division of Elections or county supervisor
of elections. (H. Governmental Affairs
Policy Committee). Signed by Gov. Crist
May 7.

HB 7165 Domestic Violence
Fatality Review Team: Exemption
for information in records created by
the team that would identify a domestic
violence victim or children; also exempts
portions of team meetings where
exempt information is discussed. (H.
Governmental Affairs Policy Committee).
Signed by Gov. Crist May 7.

HB 7167 Commission for
Independent Education: Exemption
for all investigatory records held by the
Independent Education Commission
in conjunction with investigations into
complaints, including minutes and
findings of exempt probable cause panel
meetings convened in conjunction with
such investigations. Stipulates that such
information will be exempt for no more
than 10 days after the panel makes a
determination regarding probable cause.
Also creates an exemption for portions
of meetings of the probable cause panel
at which exempt records are discussed.
Now requires closed meetings be
required and subject to disclosure 10 days
after probable cause determination is
made. (H. Governmental Affairs Policy
Committee). Signed by Gov. Crist May
11.

HB 7193 Voluntary Prekindergarten
Education Program: Exemption for
individual records of children enrolled in
the Voluntary Prekindergarten Education
Program. (H. Governmental Affairs
Policy Committee). Signed by Gov. Crist
May 7.


The following bills were introduced in
the 2010 session but were not passed.

SB 138 and CS/HB 405, Exemption/
Litigation Meetings
CS/SB 142 and HB 659, Meetings -
Water Management Districts
SB 154 and HB 359, Workplace
Safety
HJR 241 and SJR 440, Constitutional
Amendment Legislative Process
HB 279 and SB 586, Data Destruction
CS/SB 310, Exemption/Trade Secrets
SB 376, HB 1381 and HB 1511,
Public Notice
HB 529 and CS/SB 656, Home
Addresses Long-Term Care
Ombudsmen
HB 539 and CS/SB 972, Exemption/
Dental Workforce Surveys
CS/HB 541 and SB 1214, Sealing &
Expunging Criminal History Records
HB 647 and SB 1506, Commercial
Use/Crime Scene Photos & Videos
HB 649 and SB 1496, Exemption/
Crime Scene Photos & Videos
SB 686, Shell Bill/Public Records and
Meetings
SB 692, Shell Bill/Public Records
SB 726, Shell Bill/Public Records
HB 733 and SB 1942, Public
Participation Comprehensive Plan
Amendments
HB 745 and CS/CS/SB 1142,
Exemption/Meetings Invitations to Bid
SB 746, Shell Bill/Public Records and
Meetings
CS/HB 867 and SB 1838, Exemption/
DFS Title Insurance, Insurers, & Agents
HB 1099 and SB 2122, Exemption/
Home Addresses Foster Parents
HB 1211 and CS/CS/SB 1598,
Sunshine in Government Act
SB 1252, Shell/Governmental
Effectiveness & Efficiency
SB 1268, Shell/Governmental
Effectiveness & Efficiency
CS/SB 1282, Exemption/Names -
Spouses & Children
CS/SB 1296, Exemption/Fraud Strike
Force
HB 1313 and CS/SB 1340,
Exemption/Publicly-Owned Performing
Arts Centers
SB 1362, Exemption/Juvenile Blood
Test Results
HB 1423 and SB 2494, Exemption/
Ethics Commission
CS/HB 1433 and SB 2628,
Exemption/Incapacity Petitions
CS/HB 1435 and SB 2624,
continued on p. 5







ATTORNEY GENERAL OPINIONS


Informal opinion: Photo tickets are public records
TALLAHASSEE Traffic tickets 8,600 notices of infraction were issued by confidential applied to the notices.
issued after drivers are caught on camera a third-party vendor and were the subject The Attorney General's Office concluded
are not confidential, according to an of the records question. that "once personal information contained
informal opinion of the Florida Attorney The notices were created using in a motor vehicle record is received from
General's Office. information from motor vehicle records, the department [of motor vehicles and


The opinion was issued at the request
of the attorney for Juno Beach after The
Palm Beach Post's request for records
related to the photo tickets. More than


Town Attorney Leonard G. Rubin used in the creation of new records," the
asked if the Florida law (and the federal confidentiality protections of state and
Driver's Privacy Protection Act of federal law no longer apply.
1994) that made motor vehicle records Source: myfloridalegal.com


Agency's call whether misdirected letter is public
TALLAHASSEE A settlement executive director. The letter itself was definition of a public record. The Public
letter sent by accident to a state agency addressed to the other attorney in the Records Law covers documents "made o
is only a public record if the agency business dispute, whose name was similar received pursuant to law or ordinance or
determines it was received pursuant to the Board's director, Carrie Flynn. connection with the transaction of official
to official business, according to an The engineer later discovered that his business by any agency."
informal opinion from the Florida attorney's letter regarding his settlement The AGO concluded that the board w(
Attorney General's Office. was in the board's file and requested that need to determine whether the settlement
The state Board of Professional it be removed and destroyed. letter was received in connection with
Engineers requested advice from the The Attorney General's Office issued official business, considering whether the
AGO after an attorney for an engineer an informal opinion, stating that whether letter relates "to a past, existing, or poten
involved in a business dispute faxed a document received by an agency is investigation by the board."
a settlement letter to the Board's a nlblic record turns on the statutory Source: mvfloridalegal.com


r
in
1

)uld



tial


Property value
TALLAHASSEE Special
magistrates appointed to take testimony
and make recommendations regarding
tax exemptions and property values
are subject to the Open Meetings Law,
according to an opinion of the Florida
Attorney General (AGO 2010-15).
The Executive Director of the Florid
Department of Revenue, Lisa Escheven
requested the opinion. Value adjustment
boards (VABs) are quasi-judicial
bodies that hear appeals from taxpayers

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


magistrates subject to Sunshine
regarding denial of tax exemptions and more hearings.
valuation of property for tax purposes. Attorney General Bill McCollun
The board holds hearings where concluded that while the Open Mee
taxpayers and the property appraiser can Law "would not ordinarily apply to
testify and present evidence related to the individual member of a public boar
tax assessment, commission or to public officials wl
In counties with more than 75,000 not board or commission members,'
a people, VABs must appoint special law does apply when a board has de
ri, magistrates to hold the hearings and authority. A special magistrate stalll
it make recommendations. The VAB the shoes of the VAB" and is subject
can then take action based on the Sunshine Law, the opinion stated.
recommendations without holding any Source: myfloridalegal.com


tings
an
Sor
ho are
'the
legated
nds in
t to the


2010 LEGISLATIVE REVIEW

CONTINUED


Exemption/Incapacity Records
SB 1452 Public Record Mediation
Program
HB 1497 and SB 2544,
Expungement/Non-Judicial Arrest
Record
HB 1513 and SB 1994, Clerks of
Court
HB 1617, DOH/Legislative Budget
Requests
CS/SB 2070 Exemption/OFR -
Consumer Investigations
CS/SB 2072 Exemption/OFR -
Debtor Investigations
SB 2096 Shell/Public Record


Exemptions
SB 2158 Shell/Public Records and
Public Meetings
SB 2704, Right to Vote by Secret Ballot
SB 2732, Exemption/Florida Vocational
College
SB 2740, Exemption/Instructional
Assessments
HB 7211, Exemption/Office of
Regulatory Staff
HB 7239, Exemption/DOH -
Statements of Reference
Source: Florida FirstAmendment
Foundation: www.floridafaf.org, www.
flsenate.gov and www.myfloridahouse.gov


The Brechner Report July 2010 5


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"" "




THE

BRECHNER
REPORT
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesvllle, FL 32611
July 2010


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U.S. POSTAGE
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UFIFLORIDA


2010 Legislature misses opportunities for reform


Friends and advocates of open government began the year
cautiously optimistic that the Florida Legislature would enact
significant open government reforms the first in nearly 15
years in the 2010 legislative session. A few bills in particular
generated hope for reform. One would have opened up the
legislative process to more sunshine. The other would have
enacted reforms to the Sunshine and Public Records laws
recommended by the Commission on Open Government.
Neither passed.
House Joint Resolution 241 by Rep. Keith Fitzgerald
(D-Sarasota) and its companion, SJR 440 by Sen. Dan
Gelber (D-Miami Beach), would have prohibited members
of a legislative conference committee from discussing issues
before that committee with other conferees except at a noticed,
open meeting. Allowing public oversight of the conference
The committee process would have
Been a significant reform
B ack P age resulting in more sunshine and
By Jim Rhea accountability on decisions
made during the last few weeks
of session, when House and Senate conferees meet to hammer
out differences in companion bills. Unfortunately, neither bill
received a hearing during the legislative session and, as a result,
both bills died without any discussion or debate on the merits.
The House and Senate bills based on recommendations of the
Governor's Commission on Open Government also generated
hope for reform. Among other changes, the bills would have:
merged the Sunshine Law and Public Records Act into one
chapter; made penalties consistent for violations of records and
meetings laws; and prohibited charging fees for redaction of
information that is not a public record. The Senate bill (SB 1598
by Sen. Paula Dockery (R-Lakeland)) was heard in three Senate
committees, passing out of each unanimously. HB 1211 (Rep.
Clay Ford (R-Pensacola)), however, didn't receive a hearing and
died in its first committee of reference.
The 2010 Legislature also enacted six new exemptions,
including the expansion of a few existing exemptions to protect
more records. Over the past decade, the Legislature has enacted
an average of ten new exemptions each session, and passage of a
mere six new exemptions is an improvement.
At least two of the new exemptions are cause for concern.
The CS/SB 312 by Sen. Dennis Jones (R-Seminole) creates


a public record exemption for the home addresses, telephone
numbers, and photographs of current and former public
defenders and criminal conflict and civil regional counsel, as
well as certain information about their spouses and children.
This information will now be protected when held by an agency
even though it could still be available in telephone books or on
the internet. Creating an exemption from the constitutional right
of access for information that is publicly available elsewhere is
constitutionally flawed, and could very well be misleading for
the individuals intended to be protected by the exemption.
Of significant concern is HB 7079 by the House
Governmental Affairs Policy Committee, which originally
simply reenacted an exemption for information concerning
voters and voter registration records, with some minor
modification. The bill was amended in the final days of session
to create an exemption for the names, addresses and telephone
numbers of persons who reasonably believe they are the victims
of a stalker which are held by the Attorney General under a
program designed to protect the location of domestic violence
victims. Interestingly, a person who believes he or she is being
stalked enjoys complete anonymity under the exemption,
whereas only information relating to where a domestic violence
victim lives or works is protected. Current law allows a stalking
victim to protect locating information in all public records if the
victim makes a written request and some evidence, such as a
police report, that the crime actually occurred. The legislation
also triggers constitutional questions adding stalking victims to
an exemption for records related to voters and voter registration
could violate the single subject requirement of the Florida
Constitution.
In addition to the new exemptions that passed, 17 exemptions
that were subject to Open Government Sunset Review were
reenacted, including HB 7079 discussed above.
All in all, the 2010 legislative session was mixed. The
Legislature failed to enact reform legislation designed to
improve open government in Florida, but only passed a limited
number of new exemptions from the constitutional right of
access to public records and meetings. Hopefully, some of the
good bills that didn't make it through this year will be revived in
the 2011 legislative session.

Jim Rhea is Director of the First Amendment Foundation.




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