Volume 34, Number 10 m 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 stops Sunshine trial of suspended officials
FORT LAUDERDALE Two The commissioners' trial on the Open
members of the Coral Springs City Meetings violation was halted by the
Commission have been reinstated by Gov. presiding judge just prior to presentation
Charlie Crist following a suspension over of closing arguments on Aug. 18.
Sunshine Law charges. Vince Boccard Judge Fred Berman dismissed the
and Tom Powers were charges, telling prosecutor
suspended in March after A David Schulson that he was
each being charged with a A C C E S "assuming the appearance
misdemeanor violation of the MEETINGS of impropriety creates
Open Meetings Law. impropriety." Berman
The charges stemmed determined that the
from a meeting of Powers, Boccard and commissioners did not commit a crime.
two police union officials at a sports bar. Boccard and Powers maintain that they
only discussed past issues with the union
officials. Prosecutors allege that the group
discussed issues that would likely come
before the commission: a police salary
freeze and the city manager's annual
Gov. Crist's office reviewed the case
and rescinded the suspension order nine
days after the trial. If convicted, Boccard
and Powers could each have faced up to
60 days injail and a $500 fine.
Source: South Florida Sun-Sentinel
Wauchula city commissioners reach plea deal
BARTOW The entire Wauchula City
Commission has reached a plea agreement
after the seven commissioners were
charged with violating the Open Meetings
Law. The charges relate to two private
meetings on Sept. 14, 2009 and March 1,
Six of the commissioners, Jerry
Conerly, Daniel Graham, Delois
NEW SMYRNA BEACH The
Southeast Volusia Hospital District
will start over a nearly two-year long
negotiation process for a possible hospital
merger after The Daytona Beach News-
Journal and a lawsuit drew attention to a
series of closed meetings.
On June 30, the District finalized its
plan to merge publicly-owned Bert Fish
Medical Center with Florida Hospital, a
deal worth more than $80 million.
Bert Fish Medical Center's indigent
care is funded by property taxes and
therefore the meetings, 21 over a period
of 16 months, should have been open,
according to the lawsuit filed by the
foundation that donated the medical
center in the 1960s.
The Bert Fish Foundation now wants
Johnson, Valentine Patarini, David
Royal and Yeavone Spieth, each
face two misdemeanor counts of
intentionally violating the Sunshine Law.
Commissioner Clarence Bolin attended
one meeting and only faced one count.
Each commissioner pleaded no contest
to a single count of violating the Open
Meetings Law and was ordered to pay
the merger deal set aside, with a new
board reviewing whether the Bert Fish
Medical Center should merge with another
healthcare facility. The foundation's
attorney, Jon Kaney of Cobb Cole, says
that the new meetings with the same board
will not affect the Open Meetings suit.
An attorney for Bert Fish Medical
Center, Mayanne Downs, defended the
do-over decision. "Rather than fight
over whether a technical violation of the
sunshine may have occurred, we throw
open the process to the sunshine," Downs
said. Bert Fish Medical Center officials
have also established a document room
where the public can view documents
related to the merger negotiations.
Source: The Daytona Beach News-
$325 for fines and court costs as part of
their plea agreement. Royal, the mayor,
must also pay $500 for prosecution costs;
the remaining members must each pay
$300 for prosecution costs.
Adjudication of guilt was withheld.
Each charge carried a maximum penalty of
up to 60 days injail and a $500 fine.
Source: The Ledger (Lakeland)
This issue of The
features a special
Q&A with the
candidates for Florida
page two for their take
on open government.
Hospital merger negotiations
start anew after Sunshine suit
ATTORNEY GENERAL CANDIDATE Q&A
Pam Bondi is The Florida Attorney General is in Dan Gelber is
a unique position to influence open the Democratic
the Republican government. The AGO administers the
candidate voluntary mediation program, issues legal candidate
for Florida opinions on open government issues, and for Florida
often implements transparency initiatives
Attorney within the AGO. Here, the candidates Attorney
General. respond to The Brechner Report 's General.
questions on open government.
The Attorney General has historically played a major role in promoting Florida's strong open government and
transparency laws. As AG, where would you put open government on your list of priorities?
Bondi: I have spent the last two
decades as a prosecutor in Hillsborough
County, and for the last ten years I acted
as the public information officer for
our office, with the responsibility of
handling requests for public records and
information. I whole-heartedly believe
that Florida's open government laws are
paramount to ensuring transparency in the
public process and providing citizens with
a means to hold government accountable
and that the people have the right to know.
As Florida's Attorney General, it will be a
top priority to support efforts and advance
policies that protect and guarantee
transparency at all levels of government.
Gelber: Among the most important
things I do. First, I believe sunlight is a
terrific antiseptic. I have already indicated
I would push a public corruption task
force that would include lawyers from the
AG office designated to help prosecute
open government violations. I will also
continue to push to bring a more open
and transparent government to state
government (where it is currently lacking)
like Senate Joint Resolution 440, which
requires the Legislature to abide by much
of the open-government laws that govern
Are there any exemptions to the Open Meetings or Public Records Laws that you feel should be passed?
Gelber: I don't see the need for more
exemptions. I would support (see above)
a change that would bring more sunshine
to the state legislature. In the early 1990s,
as various citizen forces and Florida's
attorney general were pushing for more
oversight and transparency in government,
legislative leaders negotiated a compromise
that would impose lesser open-government
standards for the Legislature. Legislators
argued that the nature of a 60-day session
and the practicalities of noticing all
communications among legislators would
make it unrealistic to apply the same notice
requirements as imposed on other levels
of government. I would support legislation
that would change these exemptions and
require the Legislature to operate with
greater sunshine. This means opening up the
budget process, requiring that any budget
allocations be made in public and greater
scrutiny over the amendatory process.
Bondi: As Attorney General, I will
continually review our state's open
government laws to ensure that any
exemptions are truly necessary and properly
What is your position on the use of Blackberries, PDAs, text messaging and other mobile technologies by
Bondi: We are living in a highly order to uphold Florida's century-long government.
technological age where electronic commitment to open government our Gelber: I believe communications
communications are commonly used laws must stay current with evolving of public officials related to official acts
to conduct business in industries, technology, in order to ensure continued should be disclosed to the extent they can
including government. I believe in transparency and accountability in be memorialized (including texts).
Do you have any specific open government initiatives that you would like to implement if elected?
Gelber: The most important unit of
government that is in desperate need of
greater transparency and sunshine is the
Florida Legislature. While I cannot put laws
in place to bring such transparency and
openness, I will use my office to push for
reforms in hopes that recent incidents of
misappropriations compels the legislature
Are there any other comments you'd like to make on open government?
Bondi: Florida has a long-standing
tradition of enacting laws that require
government to operate in the sunshine,
so that citizens can hold government
accountable for its actions. If given the
honor to serve as our state's next Attorney
General, I will continue to make these
efforts a priority and make certain that
my administration works to increase
transparency and provide the people with
access to their government.
Gelber: Although it might be easier to
govern with limited citizen involvement,
it is not better or healthier for a
democracy. For that reason, I have been
a leading advocate for more transparency
and openness. I appreciate that many
will raise the same arguments that were
raised when the Legislature initially
exempted itself from Florida's demanding
to advance such proposals.
Bondi: As attorney general, I will be an
advocate for openness and transparency at
every level of government.
open-government laws. Perhaps if, in
the nearly two decades that followed,
the legislature would have governed
themselves better, such an argument
But regrettably, most Floridians view
state government as more beholden to
special interests than the interests of
citizens. Sunshine is an antiseptic sorely
needed in Tallahassee.
2 The Brechner Report U October 2010
ACCESS MEETINGS CONTINUED
TAMPA A law enforcement
officer's defamation suit against Tampa
area television station WTSP-Ch. 10
and reporter Mike Deeson has been
Steven Dickey, a corporal for
the Hillsborough County Sheriff's
Office, filed the suit after a February
2008 story aired about a quadriplegic
man who was
LIBEL dumped out of
by law enforcement personnel after
being booked on a traffic stop. A
surveillance video of the incident
shows Dickey smiling.
Deeson remarked that Dickey
"appears to think it's funny." Dickey
then sued, alleging the video was
edited to make it appear that he was
complicit in the incident and thought it
Hillsborough Circuit Judge William
P. Levens ruled in favor of 10 Connects
and Deeson, finding that the broadcast
was "a fair report of a public record,
Deeson's statement was an opinion, the
report was substantially true and there
was no evidence of actual malice,"
according to the St. Petersburg Times.
Source: St. Petersburg Times
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The BrechnerReport is published 12 times a
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Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Citizens groups appeal baseball
ruling to Fla. Supreme Court
SARASOTA Two citizens groups are
appealing the ruling of a circuit judge in
their open government case involving the
Baltimore Orioles spring training deal in
Judge Robert Bennett ruled this
summer that although there were
unintentional violations of the Open
Meetings Law in the negotiation of the
spring training contract, the contract
and issuance of $26 million in bonds to
improve a stadium can both proceed.
Citizens for Responsible Government
and Citizens for Sunshine filed an appeal
with the Florida Supreme Court. A key
issue in the case is the county's delegation
of negotiations to Deputy County
Administrator David Bullock, according
to the Pelican Press.
Bullock and his staffers maintain
that they were operating as an economic
development agency. Records of an
economic development agency are
exempt from the Public Records Law.
However, meetings of such agencies are
not exempt from the Open Meetings Law.
The Florida First Amendment
Foundation has filed a friend of the court
brief on behalf of the citizens groups.
Source: Pelican Press
After failed Senate bid, Greene
sues two newspapers for libel
MIAMI-DADE Democratic U.S. drug use did not occur on Greene's yacht.
Senate hopeful Jeff Greene lost the Tyson was the best man in Greene's 2007
Florida primary and has now filed a wedding.
defamation suit against two newspapers,
alleging their coverage damaged his
Greene is suing The Miami Herald and
the St. Petersburg Times for $500 million
in damages, alleging that two stories were
"knowingly based on false LI
information," according to the
complaint filed Sept. 1. The
stories were written and edited by Times
staffers but also published in The Herald.
The first story looked at Greene's real
estate dealings in California. The second
story addressed boxer Mike Tyson's ties
to Greene and Tyson's admission of using
drugs on a yacht. A correction was run by
both papers in which Tyson clarified the
Greene, who is represented by
Atlanta attorney L. Lin Wood, filed the
defamation suit in Miami-Dade circuit
court. "It's very unfortunate," Greene
told The Herald in a phone interview.
"I was ahead 15 percent and when the
L stories ran, I was down 10
percent. It just snowballed
Times Editor Neil Brown denied the
suit's allegations. "Democracy won't
work if we let lawsuits full of baseless
charges from a political candidate
inhibit us from providing voters with the
independent information that they need
and rely on," Brown said.
Source: The Miami Herald
Cape Coral seeks records ruling
CAPE CORAL The Cape Coral favor of seeking the court ruling, pointing
City Council has agreed to seek a court to assessments of $30,000 and more paid
ruling on whether records of a company by residents for the utility expansion.
it contracted with for utilities City attorney Dolores
projects in 1999 should be A C C E SS Menendez told the city council
public. that even if the documents were
The documents will assist RECORDS made public and gave rise to a
in the completion of an cause of action against MWH,
audit to determine whether the city was the statute of limitations may have passed.
overcharged for the work. An initial audit was completed in 2007
The company, MWH Americas, has but stalled due to the auditor's claims of a
thus far refused to provide the records, lack of documents.
according to The News-Press (Fort Source: Cape Coral Breeze, The
Myers). Mayor John Sullivan voted in News-Press
The Brechner Report U October 2010
University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
S UNIVERSITY of
Shield laws create odd al
Whenever there's a conflict between government
and news media, I reflexively side with my guys. /
But we seem blind to human failings in the media's
collective support for a reporter "shield law" at the
national level. It's as if the press, naturally skeptical
of anything big business and government do, happily
makes an exception when the business is us and the
government purports to help us and not just to help,
but to protect us. Huh? The government is going to
shield us from the government? It's not hard to figure Bill
out whose side the government will take when a close
If everything works as planned, the bill pending in the U.S.
Senate sounds good. And if the press behaves responsibly -
every time, every story the shield would be needed only when
the public's legitimate right to know is thwarted for political,
bureaucratic or illegal purposes. That's in a perfect world.
The The best Florida example
Bk P is the courage of the late Tim
Back Page Roche. He was a reporter for a
By Bill Cotterell Southeast Florida newspaper
when someone showed him
the legally sealed file of a child-custody case. He wrote a story
that may have prevented a toddler from being returned to a life-
threatening situation. Acting out of either a genuine concern that
a felony occurred when a courthouse employee leaked the file, or
out of revenge for a story that showed the child-protection system
failing, a prosecutor demanded that Roche identify his source. He
refused, was cited for contempt and served 18 days of a 30-day
I've been threatened withjail twice in far less-important
circumstances. Both times I knew the threats were spurious,
and my employers' lawyers got them quashed quickly, without
embroidering any new language into the First Amendment.
The trouble with shield laws is that, with the best of intentions,
they put us in partnership with the government. If we're exempt
from a contempt-of-court citation, whenever we decide we're
defending the public's right to know, what other laws should we
be allowed to ignore? Might we speed to the scene of a crime or
accident, so as not to miss important news by obeying the speed
limit? It's a felony to secretly record phone calls in Florida, but
liance with government
should reporters do it when they reasonably believe the
S public officials they're interviewing wouldn't use such
language if they knew they were being taped?
r If Congress authorizes "get out of jail free" cards,
maybe we need to start licensing reporters? There'd be
a bit of a First Amendment problem with that, but how
do you distinguish between The Washington Post and
some celebrity gossip website?
Don't get me wrong. I've never given up a source
Cotterell and, although the threats I've encountered were mild,
I admire reporters like Roche. Every reporter I know
would honor a promise, once given, to never identify a source.
But very few cases involve a child's life, or Watergate or the
Pentagon Papers. More frequently, more cynically, we see cases
like former New York Times reporter Judith Miller, going to jail to
protect Scooter Libby's right to mislead the country about Iraq.
The media prefer to cite those kinds of cases, but the day-in,
day-out impact of a shield law would involve junk news. Suppose
a Las Vegas jailer leaks Paris Hilton's private medical data not
her booking photo or arrest report, which are public documents,
but a rundown of any physical conditions they check for every
newly arrived inmate. "Hard Copy," "Nancy Grace" and "Inside
Edition" not to mention hundreds of blog sites would
probably pay for such a scoop. No big deal, perhaps, in the grand
scope of journalism from John Peter Zenger to Wikileaks. But if
journalists can claim privilege about a source of titillating dirt on
Paris Hilton or Lindsay Lohan, they can do it with you or your
kid, or anybody else who lands injail.
The saving feature of the pending Senate bill seems to be the
provision that a judge can quash a subpoena for a reporter's notes
or sources. If an agency just wants to root out a whistleblower so
it can continue hiding its mistakes, that's one thing. If the media
want carte blanche to decide what the public needs to know,
immune from the criminal sanctions covering everybody else,
that's another thing.
There will be some judges who reflexively side with the
government, some who pander to the press. But it's better that
a judge weigh the validity of a subpoena, rather than having the
government or us decide what the public needs to know.
Bill Cotterell is Senior Political Writer for the Tallahasee Democrat.