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Title: Brechner report
Physical Description: Serial
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: November 2010
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Bibliographic ID: UF00090012
Volume ID: VID00131
Source Institution: University of Florida
Holding Location: University of Florida
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THE


BRECHNER

REPORT

Volume 34, Number 11 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
November 2010

Appeals court denies access to jail recordings
FORT LAUDERDALE The 4th are accused of dousing Michael Brewer Court of Appeal. The court found that
District Court of Appeal has ruled that with rubbing alcohol and then setting him the recordings were not public records
telephone conversations of inmates on fire. because they were not investigative
recorded by law enforcement are not The South Florida Sun-Sentinel had material and therefore "do not perpetuate
public records unless they serve A C C E S previously made a public or formalize knowledge in connection
an investigative purpose. The records request to the with official action." The court called
ruling overturned a trial judge's RECORDS Broward Sheriff's Office for the phone calls "purely personal" and
order for the Broward County recordings of the defendants' stated that "an accused child should be
Sheriff's Office to produce the recordings phone conversations while injail. Circuit able to consult with a parent without
after removing any confessional portions. Judge Carlos Rebollo ruled June 30 that the communication becoming a public
The calls at issue involved three the recordings could be released after record."
teenage boys facing second-degree murder any parts that were confessional in nature Sun-Sentinel attorney David Bralow
charges in an Oct. 12, 2009, attack on were redacted. called the decision "a huge retraction of
another teen. Matthew Bent, Denver Attorneys for the defendants the public's right of access."
Jarvis and Jesus Mendez, all 16-years-old, appealed the ruling to the 4t District Source: South Florida Sun-Sentinel


Sealed election results opened,

new commissioner sworn in


ANNA MARIA In Manatee County's
first recall election, Anna Maria City
Commission member Harry Stoltzfus was
recalled by a 31-vote margin. The results
of the Sept. 7 election were initially
sealed.
Circuit Judge Ed Nicholas ordered
the results sealed while Stoltzfus
appealed the petition for the recall
election. However, the 2nd District Court
of Appeal overturned the stay, and new


commissioner Eugene E. Aubry was
sworn into office.
The recall petition alleged that
Stoltzfus had violated the Open Meetings
Law and sent inflammatory emails
regarding commercial development on
Pine Avenue in Anna Maria.
In June, the Florida Commission on
Ethics dismissed ethics charges against
Stoltzfus related to the e-mails.
Source: Bradenton Herald


Supreme Court agrees to hear

case on FOIA privacy exemption
WASHINGTON The U.S. Supreme Appeals in Philadelphia.
Court has agreed to hear a case on a The FCC investigated AT&T for
federal Freedom of Information Act possible over-billing; a third-party
(FOIA) exemption. The case pits the requested records related to that
Federal Communications Commission investigation. The FCC was set to
against AT&T over whether corporations release the files, but AT&T sued to block
can claim the "personal privacy" disclosure.
exemption to avoid disclosure under The 3rd Circuit agreed with AT&T's
Exemption 7(c) of FOIA. contention that "personal privacy"
The case, Federal Communications protections from disclosure extended to
Commission v. AT&T, Inc. (09-1279) corporations.
comes from the 3rd U.S. Circuit Court of Source: The Associated Press


Lawn mower

chat leads to

infractions
ASTATULA Two members
of the Astatula Town Council have
been charged with non-criminal
violations of the Sunshine Law.
Mayor Hillard "Shep" Shepard and
council member Katherine "Tatty"
Morgan reportedly met in March
to discuss the purchase of lawn
mowers
ACCESS for the
town.
MEETINGS The
Town
Council subsequently voted to
purchase two lawn mowers for
$17,199.98. Chief Assistant State
Attorney Ric Ridgway said that
Shepard and Morgan were not
aware they violated the Open
Meetings Law. The civil infraction
is punishable by a fine of up to $500.
Astatula is a town of less than
2,000 people located near Orlando.
Source: Orlando Sentinel






ACCESS MEETINGS CONTINUED


Martin economic board agrees to transparency


STUART A business development
group in Martin County has agreed to
abide by the Open Meetings and Public
Records Laws following the settlement of
a lawsuit seeking access.
The Martin County Business
Development Board initially argued that
it was a private, non-profit entity and was
not subject to Florida's Sunshine laws.
Attorney Virginia Sherlock filed suit


against the board in May, claiming that
the board is subject to the Open Meetings
and Public Records Laws.
The board receives approximately
$625,000 per year from Martin County
and is the county's official economic
development group, according to
Sherlock's suit.
The board announced its new public
meeting and records policy after voting to


settle the lawsuit.
It cited a Florida Attorney General
Opinion on economic development
agencies that came out after the suit was
filed as its reason for complying with
open government laws.
As part of the agreement, the board
will pay Sherlock's court costs and
attorney's fees.
Source: TCPalm.com


St. Augustine anniversary plans bring Sunshine woes


ST. AUGUSTINE The 450th
anniversary of the city of St. Augustine
and the plans surrounding the celebration
have raised Sunshine Law issues for city
commissioners.
First, the St. Augustine mayor canceled
his participation in a two-week trip to
Spain with other commissioners in order
to avoid the appearance of impropriety.
The trip involved a four-city tour of Spain
that was originally slated to cost the city
$25,000.
However, after Mayor Joe Boyles
stepped down from the trip due to Open
Meetings concerns, other commissioners


backed out as well. The downsized
trip was set to include only one city
commissioner and two staffers, lowering
the cost to about $6,000.
The commission has also given
responsibility for planning the 450th
anniversary celebration to the First
America Foundation. The non-profit
was founded in July and had no record
of event planning, according to Folio
Weekly. Commissioners voted to give
First America $275,000 to plan the 2015
event.
City Attorney Ron Brown told
Folio Weekly that the First America


contract was not required to be put out
for a public bid and would not be subject
to the Open Meetings Law. Brown
characterized the relationship as a
contract for services.
But Jim Rhea of the Florida First
Amendment Foundation cautioned that if
the city has delegated a city function to
the non-profit, the Open Meetings Law
would apply.
Donald Wallis, registered agent for
First America, promised that it would
make efforts to be transparent.
Source: Folio Weekly (Jacksonville),
The St. 1o. ir,i, .. Record


ACCESS RECORDS CONTINUED


Jail points to federal law in denying


MACCLENNY An organization
that provides legal assistance to prisoners
is suing the Baker County Sheriff's
Office over records related to immigrant
detainees.
Florida Institutional Legal Services
previously requested records under
Florida's Public Records Law. The
records requested were a roster of
individuals housed at the jail who were
detained by Immigration and Customs


Enforcement (ICE), incident reports
related to those detainees and a copy of
the contract between ICE and the Sheriff's
Office.
The Sheriff's Office refused to turn
over the records, citing the federal Privacy
Act.
An April letter from a Sheriff's
Office corrections chief stated that after
discussing the request with a Jacksonville
ICE representative, he was advised that


records request
the records could not be released due to
Privacy Act restrictions.
Also at issue is a rule promulgated
by the U.S. Justice Department in 2002,
forbidding state officials to release
information about immigration detainees.
The Baker County Sheriff's Office
houses about 175 immigration detainees
for ICE.
Source: The Press (Baker County),
The Florida Times-Union


Pasco County moves to "cloud" e-mail storage


PASCO COUNTY A new e-mail
management system in Pasco County
might prove beneficial to public records
requesters.
The county has moved its e-mail
system to the "cloud," meaning that
instead of being maintained on-site, it
will be stored online through a third-party
service.


Pasco is using an e-mail archiving
system by Mimecast in hopes of quicker,
more accurate response to public records
requests.
"As a public entity, it is critical that
we be able to respond to record requests
in a timely fashion-we simply cannot
delay in sharing needed information,"
Pasco County technical architect Kristine


Johnson said.
"Before Mimecast, finding the right
messages was taking too much time and
energy away from other key IT tasks that
needed attention," she added.
Mimecast also touts reduced risk and
lower costs as benefits of its software
systems.
Source: KMWorld.com


2 The Brechner Report U November 2010






FREEDOM OF INFORMATION


Federal judges

approve pilot

camera study
WASHINGTON The U.S.
Judicial Conference has agreed to
allow cameras in the courtroom for a
pilot study in federal courts.
The study was prompted by
changes in technology allowing for
less obtrusive cameras as well interest
from members and lawmakers,
according to appeals court Judge
David Sentelle.
Federal judges conducted a similar,
3-year study in the 1990s which
overall
COURTS had
positive
results but did not remove the
longtime ban on televising federal
proceedings.
Appeals courts have been able to
decide whether to allow cameras since
1996; lower federal courts remain
under the ban. The U.S. Supreme
Court does not permit cameras.
Details of the pilot program are still
being developed, but the study will
only include civil trials; either party
can elect to keep cameras out; and
recording faces of witnesses or jurors
will be prohibited.
Source: The Associated Press



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 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
Brechner Endowment


Obama signs bill reversing SEC

FOIA exemption in reform law


WASHINGTON President Obama
signed into law a bill that reversed prior
legislation that created what many called
a new exemption from the Freedom
of Information Act (FOIA) for the
Securities and Exchange Commission
(SEC).
Congress passed the Dodd-Frank
Financial reform bill over the summer,
which included a provision, section 9291,
that exempted the SEC from disclosing
information related to much of its
regulatory and oversight duties.
Open government advocates and some
lawmakers responded immediately with
a call to repeal the exemption, claiming it


was too broad.
Project on Government Oversight
Director of Public Policy Angela
Canterbury called the language "a recipe
for more coverups at the agency that
failed to catch Bernie Madoff," adding
that "Congress has done well in removing
this cloak of secrecy that was sought by
the SEC."
SEC Chairman Mary Schapiro pressed
lawmakers to keep the language in the
bill, arguing that it only formalized
existing practices.
Source: Reporters Committee for
Freedom of the Press, The Wall Street
Journal


WEST PALM BEACH Records
from the murder trial of Paul Michael
Merhige are open to the public, according
to a ruling of Circuit Judge John Hoy.
Merhige is accused of killing four
family members on Thanksgiving in
2009.
Merhige's twin sisters, aunt and
6-year-old cousin were all shot to death
at a Jupiter home. Police searched for
him for 38 days before finding him in


COPYRIGHT


Long Key, Fla.
In April, Public Defender Carey
Haughwout sought to have the evidence
sealed, arguing that releasing it would
affect Merhige's constitutional right to
a fair trial. Media outlets, including
The Palm Beach Post, argued that the
evidence was a matter of public record.
Merhige could face the death penalty if
convicted.
Source: The Palm Beach Post


NFL cracks down on Tampa bars


streaming games
TAMPA The National Football
League (NFL) has warned eight Tampa-
area sports bars to stop airing live
video feeds of blacked-out Tampa Bay
Buccaneers games or face a copyright
lawsuit. NFL rules call for a ban on local
broadcasts of football games if the home
stadium is not sold out 72 hours before
kickoff.
The NFL contends that by airing the
internet feeds, the bars infringed on NFL's
television copyrights. If the establishments
comply, no further action is usually taken,
NFL spokesperson Dan Masonson told The


during blackout
Tampa Tribune. However, the bars could
face lawsuits for up to $150,000 for each
incident if they continue.
Buccaneers co-chairman Joel Glazer
said that last year the team bought back
unsold tickets at a lower price in order to
avoid blackouts, but would not be doing
that this season. The slow economy
and poor team performance are some
factors that are causing a large number of
blackouts among NFL teams nationwide,
according to USA Today.
Source: The Tampa Tribune, USA
Today


The Brechner Report U November 2010


Media wins access to records in

Jupiter capital murder trial





THE

BRECHNER
REPORT
University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
November 2010


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Suits reveal pattern of ov
A typical autopsy report may be four to nine
pages long, so a person who requests a copy
under Florida's Public Records Law shouldn't
face fees in excess of 15 cents per page, or less
than $1.50, in typical cases. But this hasn't
been the case; 10 of the 24 medical examiner
districts in Florida were, or still are, charging
unlawful automatic flat fees as high as $25 for
a single copy of an autopsy report, regardless
of its length or the amount of time it takes to Susan Tillotson
produce. Bunch
This year, the five medical examiner districts
that charged the most egregious flat fees settled cases brought
against them by citizens who argued the automatic fees were
unlawful denials of their constitutional and statutory right
to public records. As a result of the settlements, Districts 3
(Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee),
The 4 (Clay, Duval, Nassau), 10
S k P g (Hardee, Highlands, Polk),
ack a e 16 (Monroe), and 21 (Glades,
Hendry, Lee) all amended their
By Susan Tillotson Bunch fee policies to be compliant
& Ana-Klara H. Anderson with the Public Records Act.
These districts also paid
the plaintiffs' attorney's fees, totaling more than $34,000,
and Districts 3 and 4 agreed to refund citizens who request
reimbursement. Despite the costly settlements, several other
medical examiner districts are still not in compliance with the
Public Records Law, continuing to charge the public automatic
flat fees for copies of non-exempt autopsy reports, ranging from
$2 to $5. While not as egregious as those in the districts that were
sued, these fees are no less unlawful.
At least two medical examiner districts that were not the
subject of a lawsuit challenging their fee schedules have appeared
to come into compliance since the litigation against the other
districts ensued. District 22 (Charlotte County) was charging an
automatic flat fee of $22 for a copy of an autopsy report. After
receiving an inquiry regarding its fee schedule in February -
while other districts across the state were responding to public
record lawsuits it suddenly, and without prompting, eliminated
its problematic flat fee and subsequently agreed to refund flat


rerbilling by ME districts
fees that were not authorized by the Public
Records Act. District 19 (Indian River, Martin,
Okeechobee, St. Lucie) also rescinded its
automatic flat fee of $5 after receiving a notice
of the lawsuits against the other state medical
examiners and their subsequent settlements.
Just how long some medical examiner
districts have been charging unlawful fees
for autopsy records isn't clear. The 24
Ana-Klara H. medical examiner districts in Florida operate
Anderson independently of each other and under
individually devised fee schedules, resulting in fee disparities
between the districts.
While most of the medical examiner districts in Florida appear
to be in compliance with the Public Records Act, the offending
districts appear to be taking advantage of the fact that the most
frequent requestors of autopsy records are insurance companies
and law firms. This opportunist practice is evidenced by the fact
that some medical examiner offices ask whether the requestor is
"from a law firm or insurance agency."
While many districts have adopted a policy of not charging
family members or next of kin for the reports, there is no
statutory authority for charging anyone an automatic flat fee
for the records, regardless of their status as family, non-family,
everyday citizens or legal or insurance representatives.
By now, one would think that the chief medical examiners
of all of the various districts would be aware of these lawsuits,
and as a result, self-regulating and ending the unlawful practice
of automatic flat fees. But, to date, several districts continue to
charge unlawful flat fees.
Ultimately, the price tag for conditioning access to public
records on the payment of illegal fees is much more costly to
Florida's taxpayers than abiding by the law. The expectation is
that each of the state's medical examiner districts will eventually
follow Florida's Public Records Law and that the public won't
have to foot the bill in order to make that happen.

Susan Tillotson Bunch, Esq. is a partner and Ana-Klara H.
Anderson, Esq., Ph.D., is an associate with Thomas & LoCicero
PL in Tampa, which represented the plaintit.N in the lawsuits
against the medical examiner districts for the autopsy records.




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