Volume 34, Number 9 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
Judge throws out $10M libel verdict against paper
ST. PETERSBURG A $10 million Veterans Affairs Medical Center.
libel verdict against the parent company Pinellas-Pasco Circuit Judge Anthony
of the St. Petersburg Times has Rondolino wrote in his two-
been overturned due to a lack L IB E L page ruling that the evidence
of evidence. The case centered was "insufficient to cross the
on articles appearing in the threshold required by the First
newspaper in 2003 concerning Dr. Harold Amendment."
L. Kennedy's work at the Bay Pines Paul Tash, chairman and CEO of
Commissioner resigns, pleads
guilty to Sunshine Law charge
PALM BEACH COUNTY A member Koons made in connection with a Lake
of the Palm Beach County Commission Worth Lagoon environmental project he
has pleaded guilty to extortion, perjury supported. Koons made telephone threats
and violating the Open Meetings Law. to the representative of a prominent
Jeff Koons, 62, entered his plea just days businessman who opposed parts of the
after his arrest, project. Koons initially lied about the
Koons will not serve jail A CS phone calls to investigators,
time but will pay an $11,500 i j resulting in the perjury charge.
fine in addition to five years MEETINGS The Open Meetings Law
of probation. He could have charge was based on private
faced up to 16 years in prison. discussions of the project between Koons
Koons was charged with a felony and a fellow member of the Lake Worth
count of extortion; misdemeanor perjury; Lagoon Initiative. The Initiative is an
and a criminal violation of the Sunshine advisory group for Palm Beach County.
Law. Koons, a Democrat, resigned from The other member, county employee
office the day of his arrest. He had been Richard Walesky, denies wrongdoing and
a member of the commission since 2002, has not been charged with violating the
and had previously spent 11 years as a Sunshine Law.
West Palm Beach city commissioner. Source: The Palm Beach Post, South
The charges stem from phone calls Florida Sun-Sentinel (Fort Lauderdale)
SARASOTA- A circuit judge has
ruled in favor of Sarasota County
following a trial on alleged violations of
the Open Meetings and Public Records
laws. Two citizen groups-Citizens for
Responsible Government and Citizens for
Sunshine-sued the county, seeking to
set aside a $31.2 million contract with the
Judge Bob Bennett ruled that the
contract stands and that the county and
city of Sarasota can issue approximately
$26 million in bonds to improve a
deal can proceed
stadium. The citizen groups argued that
during negotiations for the spring training
contract, officials violated the Sunshine
Law by communicating by e-mail. Bennett
ruled that three county commissioners
unintentionally violated the Sunshine Law
but should not be sanctioned.
In a separate investigation, the Sarasota
County Clerk of Courts found that neither
the county nor Larry Arnold, its director
of community services, improperly
influenced bids on the contract.
Source: Sarasota Herald-Tribune
Times Publishing Co., said the ruling was
expected. "Despite the jury's verdict,
we remained confident in the work and
expected to eventually reach this result,"
Kennedy has filed an appeal with the
2nd District Court of Appeal.
Source: St. Petersburg Times
ordered to pay
$325K in fees
TALLAHASSEE The National
Collegiate Athletic Association
(NCAA) and Florida State University
(FSU) will pay a total of $325,000 in
attorney's fees to media outlets who
successfully sued for access to records
in a cheating scandal. The fee award
is the result of a mediation of the
disputed legal fees.
The Florida Supreme Court upheld
the 1st DCA's ruling that documents
related to the case, including those the
NCAA kept on a password-protected
website that were viewed by FSU
attorneys, were public.
The NCAA eventually vacated
several FSU football victories and
imposed other sanctions as result of
its investigation. The NCAA will pay
$260,000 of the fees, with FSU paying
the remaining $65,000.
"We hope that the attorney's fee
payment here sends a strong message
to government agencies and private
entities seeking to impose secrecy,"
Carol Jean LoCicero, an attorney for
the media in the case, said.
"Don't mess with public records
in Florida. We will fight for open
government and hand you the tab,"
Source: Orlando Sentinel
Office Depot sues AG to block release of records
TALLAHASSEE Office supply
corporation Office Depot is suing the
Florida Attorney General's Office in an
effort to block the release of documents
in response to a public records request.
Following an investigation by the
AGO, Office Depot recently agreed to
pay $4.5 million in refunds to customers
whose pricing plans were switched by
A reporter for the Naples Daily
News made a public records request to
the AGO for documents related to the
investigation. Office Depot then filed
suit, claiming the documents are exempt
from the Public Records Law as trade
The suit is pending in circuit court in
Source: South Florida Business
Judge: Admissions in jail records exempt from law
FORT LAUDERDALE Defense
attorneys for teens accused of setting
a former friend on fire have appealed
a circuit judge's ruling to release jail
phone records. Circuit Judge Carlos
Rebollo ordered that conversations be
edited to remove any admissions, which
he considered exempt from the Public
Attorneys for the media had argued that
there was no such exemption to the Public
Records Law and that the full recordings
for access to
HIGH SPRINGS -A pre-
employment polygraph test is the
subject of a public records lawsuit in
Resident Robyn Rush is suing
the city for the test results of an
applicant for a part-time position at
the High Springs Police Department.
The Florida Attorney General's
Office has notified both parties that
it appeared the city was complying
with the Public Records Law,
according to Alachua County Today.
But Rush contends that the redacted
documents provided by the city
are not sufficient and disagrees
with its interpretation of a statutory
The applicant, Clinton Knowles,
is a reserve officer and was selected
by the police chief as the top
candidate but was not approved by
the city manager.
Rush is represented by University
of Florida law Professor Emeritus
Joe Little. Little has requested an
Source: Alachua County Today
should be released. The South Florida
Sun-Sentinel (Fort Lauderdale) had
requested the records under the Public
Defense attorneys argued the
recordings were exempt and would
negatively impact the fairness of the trial.
Matthew Bent, 15, Denver Jarvis, 15,
and Jesus Mendez, 16, are being tried
as adults for the attempted murder of
15-year-old Michael Brewer. Prosecutors
allege the teens poured rubbing alcohol
HIGH SPRINGS An October hearing
date has been set to determine attorney's
fees in a public records case. In January,
the 1st DCA ruled in favor of citizens
Michael Canney and Charles Grapski,
who sued the city after being denied a
document before a public meeting.
The 1st DCA ruled that the city
violated the Public Records Law in
2006 when it did not provide an election
certification record prior to its approval at
a commission meeting.
The 1st DCA also ruled that the city
ORLANDO Several media outlets
have withdrawn from seeking access to
SeaWorld surveillance videos held by the
Orange County Sheriff's Office.
The videos are thought to depict the
Feb. 24 attack by killer whale Tilikum on
his trainer, Dawn Brancheau. Brancheau's
family wants to seal the records.
Media outlets have contended that the
videos are public under the Public Records
Law and no exemption applies.
The parties previously agreed to
mediate the case. Brancheau's family
on Brewer and set him on fire last October.
"The release of these tapes will
drastically affect the child's right to a fair
trial, considering all the further pre-trial
publicity in this case," Chief Assistant
Public Defender Gordon Weekes said
upon filing the appeal on behalf of his
The 4th DCA in West Palm Beach
has stayed any release or editing of the
conversations pending the appeal.
Source: South Florida Sun-Sentinel
must pay Canney and Grapski's attorney's
fees for the public records portion of the
Canney and Grapski estimated costs
and fees in excess of $200,000. The
High Springs City Commission recently
rejected a $100,000 settlement offer and
presented a $30,000 counter offer. The
city later withdrew the counter offer.
Circuit Judge Victor Hulslander will
determine the attorney's fees amount after
the Oct. 18 hearing.
Source: High Springs Herald
rejected a settlement offer by the media to
not publish or air any images in exchange
for the right to inspect the video.
The Sheriff's Office ultimately released
a detailed report describing the contents of
the video, leading to the media's decision
to back out of the suit, according to the
Orlando Sentinel. The Sentinel and other
Tribune Co. outlets had partnered with
The Associated Press, the Tampa Tribune
and The Ledger (Lakeland) and others to
gain access to the videos.
Source: Orlando Sentinel
2 The Brechner Report September 2010
October hearing set in effort to
resolve High Springs fee dispute
Media abandons bid to access
SeaWorld video of whale attack
The First Amendment Foundation
is presenting a Sunshine Litigation
Seminar on Saturday Sept. 25, 2010,
at the Tampa Marriott Waterside Hotel
and Marina in Tampa.
The all-day session is geared for
attorneys interested in learning more,
including practical tips, on litigating
open government issues.
Lunch is included and will feature
a keynote address by Lucy Dalglish,
executive director of the Reporters
Committee for Freedom of the Press.
This course has been approved by The
Florida Bar for 7.5 CLE hours.
The First Amendment Foundation
will also celebrate its Silver
Anniversary the evening of Sept. 25
by hosting a fundraising dinner with
guest P.J. O'Rourke, noted author and
The cost to attend the Sunshine
Litigation Seminar is $275, which
includes lunch. A combination
package is available for those wishing
to also attend the First Amendment
Foundation's Silver Anniversary
Dinner with P.J. O'Rourke. The cost
to attend both the seminar and the
dinner is $425.
Registration information is
available at www.floridafaf.org. Call
the First Amendment Foundation at
850-224-4555 with questions.
BARTOW Interactive webcasts are a
new tool Polk County is using to engage
citizens in local government. But despite
the success of the webcasts, budget cuts
might hinder the program.
The county held its first e-Town Hall
Meeting last year. County commissioners
met at the Polk Government Television
(PGTV) studio while viewers asked
questions via the Internet. More than 400
people logged on to view the meeting or
PGTV has since increased its
interactive webcasts to at least two per
week, including other agencies such as
Polk Housing, Veteran Services and the
"Being able to open up government
meetings to the residents who can't make
it to the county building is a massive
opportunity for us to reach them in
another way," Nate Graham, freelance
production assistant for PGTV, said.
Freelancers like Graham are often the
first to feel the effects of county budget
cuts, PGTV Program Director Joan
But Davies hopes that the support of
the Polk County Commission so far in
backing the webcasts will ensure budget
cuts don't affect the program.
Davies said PGTV is pursuing grants
to help fund the interactive webcasts.
Source: News Chief(Winter Haven)
ORLANDO The owners of a 1,440-
acre ranch whose redevelopment plan was
denied by Orange County have sued the
county commission, alleging Sunshine
Rolling R. Ranch Ltd. owns the
property and proposed building a
$1.2-billion mixed-use community
with housing, retail and office spaces, a
research park and trails.
The Orange County Commission
declined to submit Rolling R's application
to the state Department of Community
In its suit filed in the 9t Judicial
Circuit, Rolling R alleges that
PALM BEACH A task force created
by the Palm Beach Town Council to
monitor the county budget must meet in
the Sunshine, according to a decision by
The budget task force was
established in May by a resolution that
outlined the group's mission to make
recommendations to the council and
therefore be subject to the Open Meetings
and Public Records laws.
However, at the first meeting of the
commissioners violated the Sunshine Law
by making improper public statements
against the plan.
The suit also alleges that
Commissioner Bill Segal used Twitter
and Facebook during the March 9 hearing
on the project to announce he had voted
Commissioners say they denied the
plan due to the need for a bridge that
would disturb the rural nature of the area
in east Orange County.
Rolling R seeks an overturn of the
denial and transmission of the application
to the Department of Community Affairs.
Source: Orlando Business Journal
task force, it voted 4-3 to operate outside
of open government laws unless the
council gave instructions otherwise.
The task force determined that it was
a fact-finding entity and therefore did not
need to comply with Sunshine laws.
The council, however, directed the
task force to operate under the Open
Meetings and Public Records laws
because its duties go beyond fact-
Source: Palm Beach Daily News
The Brechner Report U September 2010
Polk County finds success with
interactive webcast initiative
Developer alleges Sunshine Law
violated in application process
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 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,
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
Town Council orders task force
to comply with Sunshine laws
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
S UNIVERSITY of
Did Congress just exemp
Like many others, we at the Project On Government
Oversight were outraged to learn this summer that
a provision buried in the financial reform bill may
allow the Securities and Exchange Commission (SEC)
to ignore a vast array of Freedom of Information
Act (FOIA) requests. But there is still widespread
disagreement over the intent of this provision, and
questions remain as to how it will be applied.
In the meantime, Senators Patrick Leahy (D-VT), Michael
Charles Grassley (R-IA), John Cornyn (R-TX), and Ted
Kaufman (D-DE) introduced legislation to repeal Section
9291 of the Dodd-Frank Wall Street Reform and Consumer
Protection Act, the provision that prohibits the SEC from publicly
disclosing any "records or information" provided by its regulated
entities if the SEC uses the information for "surveillance,
risk assessments, or other
The regulatory and oversight
B ack Page activities."
T he issue came to a head
By Michael Smallberg as part of an ongoing FOIA
dispute between the SEC
and the FOX Business Network. FOX Business sued the SEC
in March 2009 for failing to produce documents related to the
agency's botched investigations of the Madoff and Stanford Ponzi
schemes. Now the SEC is arguing that a provision in the new law
exempts the agency from releasing any documents related to FOX
The vague language in the bill ("other regulatory and oversight
activities") could be interpreted to mean that virtually all SEC
activities will be exempt from FOIA. Steven Mintz, FOX
Business's attorney in its case against the SEC, attacked what he
described as a "backroom deal that was cut between Congress
and the SEC to keep the SEC's failures secret," and warned that
"the next time there is a Bernie Madoff failure the American
public will not be able to obtain the SEC documents that describe
On the other hand, SEC spokesman John Nester argued
that this provision is simply intended to "make certain that we
can obtain documents from registrants for risk assessment and
surveillance under similar conditions that already exist by law for
t the SEC from FOIA?
our examinations." He claimed that some companies
might be hesitant to provide sensitive documents to the
SEC if there was a possibility that the documents could
one day be obtained through FOIA.
But FOIA already protects against the release of
"trade secrets and commercial or financial information
obtained from a person [that is] privileged or
confidential," and the SEC already has strict rules in
Smallberg place to protect against the release of information from
If nothing else, the SEC's ongoing efforts to
withhold information in the FOX Business lawsuit and other
cases would appear to undermine the overall spirit of the Wall
Street reform bill, which seeks to improve transparency and
accountability across the financial system. The SEC's position
also flies in the face of President Obama's guidance instructing
agencies to adopt a "presumption in favor of disclosure, in order to
renew their commitment to the principles embodied in FOIA, and
to usher in a new era of open Government."
In fact, a recent audit by the SEC Office of Inspector General
(OIG) found that the agency uses "inadequate or incorrect
procedures" for responding to FOIA requests and applying
exemptions, which has the effect of "creating a presumption in
favor of withholding, rather than disclosure, as required by the
FOIA." The audit concluded that the SEC's FOIA disposition
rate is "significantly lower when compared to all other federal
Furthermore, there is evidence to suggest that the SEC
routinely keeps investigations open so that it can take advantage
of a FOIA exemption that protects against the disclosure of
information compiled for law enforcement purposes if such
disclosure "could reasonably be expected to interfere with
All in all, there's no question that the SEC is in need of some
serious transparency. Now is certainly not the time to give the SEC
even more authority to keep its records under a veil of secrecy.
Michael Smallberg is an .,,, ,i. 'aI ,'for the Project On
Government Oversight. To learn more about POGO work on
the SEC and other transparency issues, visit www.pogo. org.