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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: January 2011
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Volume ID: VID00133
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Full Text




THE


BRECHNER


REPORT

Volume 35, Number 1 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
January 2011

Chief justice orders access to foreclosure hearings


TALLAHASSEE Florida Supreme resulted in fast-track hearings being held
Court Chief Justice Charles Canady in less formal settings such as judges'
has ordered trial judges in the state to chambers. The Florida Press Association
keep foreclosure hearings and other groups noted
open. The directive comes CT J Q instances across the state
after media groups and the -) C where people were denied
American Civil Liberties access to foreclosure
Union wrote a letter to Canady describing hearings.
closed hearings across the state. In Jacksonville, a legal aid attorney
Florida courts hope to clear a backlog who brought a reporter for Rolling Stone
of foreclosure hearings, which has to a foreclosure proceeding was later


reprimanded by the presiding judge and
threatened with contempt charges.
"The courts of Florida belong to the
people of Florida," Canady wrote. "The
people of Florida are entitled to know
what takes place in the courts of this
state. No crisis justifies the administrative
suspension of the strong legal presumption
that state court proceedings are open to the
public."
Source: Florida Press Association


Fla. plaintiffs take anonymity plea to 11th Circuit


ATLANTA -The 11th U.S. Circuit
Court of Appeals is considering whether
to grant the request of four women suing
"Girls Gone Wild" producer Joe Francis to
keep their identities secret.
The women were between the ages
of 13 and 17 when they allege Francis
exploited them by filming them in Panama
City. They are now in their 20s and filed a
civil lawsuit against Francis in 2008, using
only their initials.
Federal trial Judge Richard Smoak
rejected the request to file anonymously,
prompting an appeal to the 11th Circuit.
Judge Smoak also rejected the plaintiffs'
requests to close the trial during their

Court closes Jax
JACKSONVILLE The 1st District
Court of Appeal has ordered the
Jacksonville Sheriff's Office to stop its
longstanding practice of opening police
shooting review meetings to the public.
The Fraternal Order of Police


challenged the openness A
of the deliberations, citing A
Florida statutes that provide MEE
for confidentiality of
investigations of complaints against
officers or when an officer is subject to
disciplinary action.
The circuit court ruled that the
administrative hearings of the Response
to Resistance board were distinct


T
nI


testimony and prohibit the media from
reporting their names.
Lawyers for the News-Herald (Panama
City) and the Southern Newspaper
Publishers Association argued that
granting the women's requests would
infringe on First Amendment rights of a
free press and access to the courts.
Attorneys for the plaintiffs argued that
keeping their names private would protect
them from unnecessary embarrassment
and discrimination.
"Their names are going to be
everywhere" if made public, attorney
Rachael Pontikes, who represents the
women, said. "Whenever anyone types

police shooting
from written complaints and therefore
confidentiality did not apply.
But the 1st DCA disagreed, finding
no difference between a written
complaint and the review panel. The
court also noted that because the
ESS officers could be subject to
J 3 disciplinary action, that the
INGS confidentiality provision
also applied.
Sheriff John Rutherford
and the City of Jacksonville have
requested a rehearing of the matter. The
Florida Times-Union argued in favor
of access at the circuit court but did not
participate in the appeal.


any of their names on Google, they will
link to these sexualized images."
Members of the three-judge panel
at the 11th Circuit questioned whether
keeping the plaintiffs anonymous would
interfere with reporting. Media attorneys
argued that reporting and fact-checking
would be inhibited if the plaintiffs
remained anonymous.
"The editorial process is based on
access to openness," SNPA attorney
Jeff Nobles told the judges. "And the
purpose of fact-checking is obscured and
prevented when parties come to court
anonymously."
Source: Northwest Florida Daily News

board meetings
"Public confidence in the system is
always enhanced when any proceeding
is open," Times-Union attorney George
Gabel said.
But the police union argued that the
issue was one of officers' rights.
"Justice has prevailed," union
President Nelson Cuba said. "There are
certain rights that officers have the under
the [law enforcement officers'] bill of
rights that the sheriff was violating,"
Cuba added.
Since 2007, 68 people have been shot
by Jacksonville police. Of those, 35 were
fatal, according The Times-Union.
Source: The Florida Times-Union






ACCESS MEETINGS CONTINUED


Trailer Estates prevails in open meetings lawsuit


by not responding to all requests and the
Open Meetings Law by discussing park
business outside of public meetings.
Circuit Court Judge Janette Dunnigan,
however, ruled in favor of Trailer Estates
after a week-long nonjury trial. Smith
and Denson filed the lawsuit in 2008.
Judge Dunnigan ruled that although
"the evidence clearly shows that there is a
need for improvement in the maintenance
of its records," Trailer Estates did not


County nixes closed meeting on
PASCO COUNTY The Pasco County cabinet. The county previously voted to
Commission abruptly canceled a private hold White's budget at $85.5 million; he
meeting to discuss the sheriff's budget wants an additional $4 million to hire new
appeal, after the county attorney advised deputies.
commissioners against the closed meeting. When commissioners scheduled a
Commissioners wanted the private closed meeting to discuss the appeal,
meeting to discuss Sheriff Bob White's White objected. White's letter to
budget appeal to the Florida governor and commissioners declared that his budget

Watchdog seeks exemption


PALM BEACH COUNTY A local
inspector general charged with rooting out
corruption in Palm Beach County wants an
open government exemption for her work.
Sheryl Steckler was hired by the county
last June to lead its ethics reform efforts.
Corruption problems have plagued the
county, with four county commissioners
resigning in as many years in order to face
criminal charges related to their offices.
Steckler's office audits government
contracts and investigates potential
wrongdoing within the government.


She wants an exemption that would
allow her office's work to remain
confidential until finalized by presentation
to local government. "You will ruin a
case...if information comes out while we
are doing an investigation," Steckler said,
according to The Palm Beach Post.
But Jim Rhea of the Florida First
Amendment Foundation noted that there
was a risk of information never seeing
the light of day if it was never formally
reported.
Source: The Palm Beach Post


FOIA request shows body scans


ORLANDO Technology website
Gizmodo has published 100 images of
body scans that were improperly saved
by officials at a federal courthouse in
Orlando.
The body scans were obtained through
a Freedom of Information Act request
submitted by the Electronic Privacy
Information Center (EPIC).
More than 35,000 of the low-resolution
images were captured during security
screenings at the courthouse. The U.S.
Marshals Service saved the images despite
previous claims that the technology could
not store the scans.
Gizmodo removed identifying features
of the individuals depicted in the body
scans. Gizmodo wrote that the scans


highlighted "the security limitations of not
just this particular machine, but millimeter
wave and x-ray backscatter body scanners
operated by federal employees in our
courthouses and TSA officers in airports
across the country. That we can see these
images today almost guarantees that
others will be seeing similar images in the
future."
A spokesman for TSA said that airport
body image scanners do not have "the
ability to save, transmit or print the
images," and that after review the images
are immediately deleted.
EPIC disputes the TSA's statement
that the images can't be stored, citing
documents obtained in another FOIA case.
Source: USA Today


MANATEE A mobile home park
in Manatee County has prevailed in a
Sunshine lawsuit brought by two residents
of the special taxing district.
Trailer Estates was designated a special
taxing district in 1969 by the Florida
Legislature and is subject to state open
government laws. Sisters and Trailer
Estates residents Mary Lou Smith and
Sharon Denson alleged the park's board of
trustees violated the Public Records Law


2 The Brechner Report January 2011


wrongfully deny access to its records.
On the allegation of open meetings
violations, Judge Dunnigan agreed that
five meetings of an executive committee
without notice did in fact violate the
law. However, Dunnigan determined that
because the specific committee members
involved were no longer serving and
that the executive committee had been
discontinued, the violations were cured.
Source: Bradenton Herald

budget appeal
appeal was an administrative, not judicial,
function, and therefore the exemption for
attorney-client meetings would not apply.
County Attorney Jeff Steinsnyder
advised commissioners to cancel the
meeting, but told the St. Petersburg Times
that they were within their rights to hold it.
Source: St. Petersburg Times

Callaway man

challenges bill
CALLAWAY, Fla. -A former
candidate for the city commission is
suing the City of Callaway over what
he alleges is an improper charge to
inspect public records. John J. Malone
filed suit in the 14t Judicial Circuit
over a $98.52 bill for a July 2007
records request.
Malone's suit against the city
commission and city manager alleges
they violated the Public Records Law
and that he never received a response
to his request for a written policy on
charges for records requiring extensive
resources. Florida law permits a
special service charge to inspect
recordsif c\ i n~i\ n" resources are
required.
City Manager Judy Whitis
previously wrote to Malone that the
charge was authorized due to extensive
clerical or supervisory assistance,
according to The News Herald
(Panama City). Another concern
of the city was that Malone had an
outstanding balance due for previous
records requests.
City attorney Mike Duncan advised
the commission that it had legal
justification to deny records requests if
Malone had an unpaid balance.
Source: The News Herald





2010 FREEDOM OF INFORMATION REPORT
Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida

Court declines case on right to speak at meetings


TALLAHASSEE The question The suit was brought by two Pensacola
of whether Florida's Open Meetings residents who challenged Community
Law gives citizens the right to speak at Maritime Park Associates (CMPA),
meetings will not be answered by the which oversees a public park project
Florida Supreme Court, in the Panhandle, for not
leaving in place the Ist ACC E SS allowing citizens to speak at
District Court of Appeal's A meetings.
ruling that no right to speak MEETINGS A trial court judge
is found in the Sunshine dismissed the suit in 2009,
Law. ruling that while the law
The Supreme Court declined review guarantees a right to attend meetings,
in Keesler v. Community Maritime Park it does not confer a right to speak. The
Associates. 1st District Court of Appeal agreed. The


decision now stands unless another
District Court of Appeal rules differently
or the Supreme Court weighs in on the
issue.
"For the first time in more than
40 years in Florida, the courts have
declined to construe the law broadly in
the public's interest," attorney Sharon
Barnett, who represents the citizens, said.
"This is a radical shift in Sunshine Law
jurisprudence."
CMPA now allows public comment.
Source: Pensacola News-Journal


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,
2010.
Six of the commissioners, Jerry
Conerly, Daniel Graham, Delois


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


$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)


Supreme Court rules no violation in Orioles deal


SARASOTA- The Florida Supreme
Court has denied an appeal by citizens
groups who claim that Sarasota County
officials broke the Open Meetings Law
while negotiating a spring training deal
with the Baltimore Orioles.
Sarasota Citizens for Responsible
Government and Citizens for Sunshine
sued the county and city in February,
alleging Sunshine Law violations
occurred during the process of negotiating
the $31.2 million deal.
As part of the spring training plan,
up to $28 million in bonds were to be
issued to pay for renovations to a baseball
stadium.
A trial in July resulted in a loss for
the citizens groups, who wanted the
deal invalidated. Circuit Judge Robert


Bennett Jr. validated the bonds and ruled
that county staff who negotiated with the
Orioles were not subject to the Sunshine
Law.
Bennett found that while some e-mail
exchanges between county commissioners
may have violated the Sunshine Law, any
issues were cured by subsequent open
meetings.
The Florida Supreme Court affirmed
Bennett's ruling, validating the bonds
and finding that county staffers who
negotiated the specifics of the deal were
not an advisory committee but "only
served an informational role," according
to the opinion.
A related but separate public records
lawsuit against Sarasota County
Commissioner Joe Barbetta was later


settled for $5,000 in attorney's fees and
costs. Sarasota Citizens for Responsible
Government and Citizens for Sunshine
alleged that Barbetta didn't fully comply
with a public records request.
Neither party will have to admit fault,
according to the settlement.
The citizens groups filed the suit
against Barbetta after they asked to see
county-related e-mails from personal and
county accounts, claiming he didn't fully
respond.
Barbetta contended that he was not
a proper defendant and that the request
was given to the county's public records
custodian rather than to him personally.
Source: Sarasota Herald-Tribune,
Florida Supreme Court Case No. SC10-
1647


Annual FOIReport U 2010


THE



BRECHNER


CENTER






2010 FREEDOM OF INFORMATION REPORT


Six new open g
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).
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).
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).
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).
HB 7017 Credit Histories and
Credit Scores: Exempts credit histories
and scores of mortgage broker licensees
contained in records of the Office of


)vernment exemptions passed
Financial Regulation. (Workman, transcribed. Finally, exempts the mir
R-Melbourne). of all closed meetings until settleme
HB 7079 Voter Registration Records: the claim and termination of all litig
Renews exemption for the Social Security HB 7091 Insurance Claim Data


number, driver's license number, and Exemption for Departm
Florida identification number of a voter information obtained ur
registration applicant or a voter. Prohibits claim data exchange sy
copying voter registration applications voluntarily provides inf
and signatures. Expanded to exempt non-custodial parents w
declinations to register, information insurer who also owe cl
related to where voter registered or update Information remains ex
information. Also creates an exemption department determines
for names, addresses and phone numbers HB 7093 Domestic
of people who
reasonably believe they LEGISLATIVE
are being stalked and L E I L V V
whose names are held SESSION REPORT
by the Florida Attorney
General's Office. (H.
Governmental Affairs Policy Committee). Security Oversight Cou
The following 17 exemptions were active criminal investing;
reenacted in 2010 under the Open intelligence information
Government Sunset Review Act (OGSR). discussed if the council
SB 1678 Moffitt Cancer Center at a public meeting the
& Research Institute: Exemption such information and de
for proprietary confidential business need to close the meetir
information relating to methods of Stipulates that the entire
manufacture or production, potential trade must be recorded and n(
secrets, potentially patentable material off the record and limits
or proprietary information received, the closed session. Exe
generated, ascertained or discovered video recordings and an
during the course of research by the generated during closed
Center. the criminal investigation
HB 7079 Voter Registration Records: active or the security sy
(see summary above), longer in use.
HB 7085 Commission on Ethics and HB 7111 Informati
Public Trust: Exemption for complaints Guardians ad Litem: I
and records relating to preliminary information relating to t
investigation of the Commission on Ethics the child held by the gu
or Commission on Ethics and Public Trust HB 7113 Child Abu
established by a municipality. Committee: Exemptio
HB7087 Home Addresses identifying a deceased c
Guardians ad Litem: Exemption for siblings, family membe
addresses, phone numbers, places of in the home of the dece;
employment and photos of current or held by the State Child,
former guardians ad litem; also applies to Review Committee or l
information about children and spouses Provides a penalty for tl
under certain conditions, willful disclosure of exe
HB 7089 Florida Self-Insurers Exempts committee me
Guaranty Association: Exemption for identifying information
claims files of the Florida Self-Insurer requires recordings of c
Guaranty Association, stipulating that the and exempts the record
records become public upon termination HB 7115 Parental NS
of all litigation and settlement of all Waiver Information: E
claims arising out of the same incident, information in records i
Exempts those portions of association that could identify a mi
board meetings during which exempt waiver of parental notify
claims files are discussed, requiring requirements.
that the closed portions be recorded and Continued on p. 3


ent of Reven
ider insurance
stem where ii
formation abo
ith a claim a
lild support.
empt until th(
if a match ex
Security
Oversight
Council:
Exemption


lutes
nt of
ition.

ue
e
isurer
*ut
against


ists.


for portions
of meetings of
the Domestic
ncil at which
ative or
Sis heard or
chair announces
need to discuss
declares the specific
ig in writing.
Closed session
o portions may be
who may attend
option for audio or
ly minutes or notes
meetings, until
n is no longer
stem plan is no

n Held by
Exemption for all
he best interest of
ardian ad litem.
se Death Review
n for information
:hild's surviving
rs or others living
based, in records
Abuse Death
local committees.
he knowing or
empt information.
etings where
is discussed;
losed meetings
ngs.
notification
Exemption for
leld by a court
nor seeking a
ication of abortion


2 AnnualFOIReport U 2010






2010 FREEDOM OF INFORMATION REPORT

Delegation of authority common issue for AGO


TALLAHASSEE Attorney General
Bill McCollum's office weighed in on
several open government issues in 2010,
ranging from discussion of student
records to local inspectors general. Below
are summaries of these Florida Attorney
General Advisory Legal Opinions.
Board meeting discussing student
records: Do statutory privacy protections
for student records create an exemption
to the Open Meetings
Law? AGO 2010- ATTO
04: No. However, A T
school boards may GENERA
want "to be mindful
of the sensitivity of
the information to be discussed," and the
Legislature may want to consider whether
an exemption from the Open Meetings
Law is warranted to protect private
student information.
Sunshine Law and special
magistrates: Does the Open Meetings
Law apply to special magistrates
appointed by property value adjustment
boards to conduct hearings? AGO 2010-
15: Yes. Value adjustment boards are
subject to the Open Meetings Law. When
boards delegate responsibilities to special
magistrates, the Open Meetings Law also
applies.


I
L


Sunshine Law and private economic
development council: Are meetings of a
private, nonprofit economic development
council subject to the Open Meetings
Law? AGO 2010-30: Yes, where
a government entity (in this case, a
county) delegates the accomplishment
of goals set out in its strategic plan to a
private organization. This delegation,
coupled with public funding, supports
a conclusion
that open
EY government
SOPINIONS laws apply.
Law
enforcement
officer's home address: Does the
exemption for a law enforcement officer
home addresses apply to former home
addresses as well? AGO 2010-37: No.
Construing the Public Records Law to
limit the purpose of the exemption to
protect the safety of officers and their
families in their residences (both primary
and vacation), the AGO would not favor
application of the exemption to past
addresses.
Local inspectors general and open
government laws: Do the public
records and open meetings exemptions
for local ethics commissions apply to a


local inspector general? AGO 2010-39:
Yes, to the extent the inspector general
is investigating complaints involving
local codes of ethics. However, the
exemptions would not generally apply to
all investigations of the local inspector
general's office.
Recordings of child abuse death
review committees: Are audio recordings
of the State Child Abuse Death Review
Committee required by law? AGO
2010-42: Yes, verbatim recordings of all
discussion, whether during open or closed
meetings, are required. Audio recordings
would appear to be the most cost-effective
and efficient technology to fulfill that
requirement.
Open Meetings Law and nonprofit
corporation: Are the meetings of the
Solar and Energy Loan Fund of St.
Lucie County, Inc. subject to the Open
Meetings Law? AGO-2010-44: Yes. The
fund is administering a grant applied for
by St. Lucie County. This represents a
delegation of authority from the county to
the fund. In addition, public funding of
the program helps lead to "the conclusion
that the fund stands in the shoes of the
county for this program and is subject to
the open meetings law to the same extent
as the county."


LEGISLATIVE REPORT CONTINUED


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.
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.
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 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.
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.
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.
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.
HB 7193 Voluntary
Prekindergarten Education Program:
Exemption for individual records of
children enrolled in the Voluntary
Prekindergarten Education Program.
Source: Florida FirstAmendment
Foundation: www.floridafaf org, www.
flsenate.gov and www.myfloridahouse.
gov


Annual FOI Report U 2010






2010 FREEDOM OF INFORMATION REPORT


Court amends online access rules
TALLAHASSEE After seven information claimed to be exempt, those
years of gathering research and who file documents will carry most of the
recommendations, the Florida Supreme burden of establishing confidentiality.
Court has amended its rules to respond to Non-confidential information must
the push for online access to court records, be redacted rather than sealing an entire
Under the new rules, a record is record. If a party, the media or other party
presumed open unless it fits into one of challenges the designation of a record as
19 exemptions. Examples C U RT confidential, a hearing must
of the exemptions include U be held within 30 days,
adoption records, grand according to the Court.
jury records, Social Security numbers and "The goal of the comprehensive
identification of sexual abuse victims, amendments is to balance the public's
"The list of exemptions contained in the constitutional right to access court records
rule is pretty short," media attorney Carol with the courts' responsibility to protect
LoCicero told the St. Petersburg Times. from public access court records that are
"When you put that into the context of confidential," the Court wrote in its 50-
where we started, that is fabulous." page opinion on the rule changes.
While clerks of court will be Source: St. Petersburg Times, First
responsible for independently verifying Amendment Center


Judge tosses $10M libel verdict

against St. Petersburg Times
ST. PETERSBURG A $10 million cross the threshold required by the Fir
libel verdict against the parent company Amendment."
of the St. Petersburg Times has been Paul Tash, chairman and CEO of


overturned due to a lack of evidence.
The case centered on articles
appearing in the newspaper in LIBI
2003 concerning Dr. Harold
L. Kennedy's work at the Bay
Pines Veterans Affairs Medical Center.
Pinellas-Pasco Circuit Judge Anthony
Rondolino wrote in his two-page ruling
that the evidence was "insufficient to


st


Times Publishing Co., said the ruling
was expected. "Despite the
EL jury's verdict, we remained
confident in the work and
expected to eventually reach
this result," Tash said.
Kennedy has filed an appeal with the
2nd District Court of Appeal.
Source: St. Petersburg Times


Fla. Supreme Court gives OK to

suit against out-of-state blogger


TALLAHASSEE The Florida
Supreme Court has ruled that non-
residents can be sued for defamation if the
information is accessible in Florida.
Blogger Tabatha Marshall, of
Washington state, was sued by the
employment firm Internet Solutions
Corp. for defamation in a Florida federal
court. The company claims its principal
place of business as Orlando, though it is
incorporated in Nevada.
Internet Solutions alleged that postings
on Marshall's consumer complaint website
accused it of "phishing" for personal
information online.
The federal trial court dismissed
Internet Solutions' suit for lack of


jurisdiction over Marshall.
The company appealed, and the U.S.
Court of Appeals for the 11t Circuit
asked the Florida Supreme Court to
determine whether the postings constituted
"electronic communication into Florida."
The Court held that because the
material was accessible and accessed in
Florida, the suit could proceed. The Court
has previously ruled that phone calls and
e-mails are "electronic communications
into Florida" but this is the first decision to
include website postings.
The case will return to the 11th
Circuit for consideration of Marshall's
constitutional arguments.
Source: The Miami Herald


Brechner.org
Visit The Brechner Center 's website
for more information about media law
in Florida. You can find:
* Our Open Government Pledge,
which you can pass on to your elected
officials.
* How Florida lawmakers voted on
open government issues.
* Sample public records request
letters.
* The Citizen's Guide.


NCAA, FSU

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
AC the 1 DCA's
ACCESS ruling that
RECORDS 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,"
LoCicero said.
Source: Orlando Sentinel


SAnnual FOI Report U 2010









Media wins limited access to trial


Judge refuses

to seal Anthony

jail records
ORLANDO The judge in Casey
Anthony's capital murder trial has
denied her request to keep her jail
records from the public. Defense
attorneys requested the closure after a
South Florida appeals court ruled that
personal jail records were not public
records.
Judge Belvin Perry denied the
defense motion by reading from the
Florida constitution and statutes, both
ACCESS of which
AC CESS establish
RECORDS a right of
access to
government information.
Anthony's attorneys argued that
phone and visitation logs as well as
commissary records should be private.
"If it's not official business of the
jail, it's not a public record," attorney
Jose Baez said. The Orlando Sentinel
had filed a motion to block the efforts
to seal the records.
Anthony, 24, is accused of
murdering her daughter, Caylee.
She could face the death penalty if
convicted of first-degree murder. The
trial is set for May.
Source: The Palm Beach Post


JACKSONVILLE The Florida Times-
Union was partially successful in its bid
for access to the trial of a teen charged
with driving without a license in a crash
that left four teens dead and four injured.
Judge Jeff Morrow initially closed the
juvenile trial, keeping out members of the
public, press and parties involved in civil
litigation related to the crash.
Brandon Hodges, 16, was 15 when
he and several friends were traveling on
Interstate 295. A tire on the 1997 Ford
Explorer separated, rolling the SUV.
Hodges was charged with eight felony
counts of driving without a license causing
death or serious injury. After a non-jury


Duckett family settles CNN suit


OCALA The family of Melinda
Duckett, the mother of a missing toddler
who committed suicide shortly after an
interview by Nancy Grace, has settled their
lawsuit against Grace and CNN.
Duckett's family issued an apology to
CNN absolving it of any responsibility in
the death. CNN established a $200,000
trust to fund efforts to find Trenton
Duckett, who still missing since his 2006
disappearance.
Duckett, 21, was interviewed by the
cable television host in 2006 regarding the
disappearance of her then-2-year-old son.
Duckett claimed someone took her son
through a bedroom window.
Grace questioned Duckett during the
telephone interview, at one point asking
her why she was not more forthcoming.


"What is the reason? You refuse to give
even the simplest facts of where you were
with your son before he went missing.
It is Day 12," Grace said during the
interview.
The day after the interview, Duckett
shot herself. Hours later, the interview
aired. Duckett's family then filed a
wrongful death claim against Grace and
CNN. Duckett's family claimed that
Grace's "veiled accusations" that the
young woman was involved in her son's
disappearance played a part in her death.
CNN argued that the lawsuit could
have a chilling effect on media efforts to
find missing children and that Grace was
only engaging in aggressive questioning of
Duckett.
Source: Ocala Star-Banner


WASHINGTON The U.S. Supreme
Court heard oral arguments in a case
involving a Washington state man's
Freedom of Information Act (FOIA)
lawsuit seeking maps from the Navy.
The case, Milner v. Department of the
Navy, involves the FOIA exemption for
"internal personnel rules and practices
of an agency." The government claims
the exemption applies to the documents
requested by Glen Milner. Milner wants
maps that show what the potential damage
would be if there were an explosion at the
Navy's primary ammunition dump on the


West Coast.
The ammunition dump is located on
Indian Island, near Washington state's
western coast. Milner argues that people
who live nearby should know if they are in
potential danger.
During oral arguments, Chief
Justice Roberts said that the Obama
administration was asking the Court "to
torture the language in FOIA." Roberts
also lamented the lengthy time it often
takes to fulfill FOIA requests.
A ruling is expected before the summer.
Source: The Associated Press


The Brechner Report U January 2011


COURTS CONTINUED


trial, the judge found Hodges guilty of
eight misdemeanor charges of driving
without a license. Sentencing is scheduled
for January.
The Times-Union was permitted one
reporter in the court, to serve as a surrogate
for all media outlets and the public. No
cameras were permitted in the trial. The
Times-Union live-blogged from the
proceedings.
Judge Morrow initially stated that
the closure was necessary "in that the
child's rehabilitation will be hindered
by the presence of the public during the
proceedings."
Source: The Florida Times-Union


THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gamesville, 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 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


FREEDOM OF INFORMATION

High court hears Navy FOIA suit





THE-

BRECHNER
REPORT
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
January 2011


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Shield laws should turn on function, not credentials


The unprecedented growth in size, scope and
popularity of the Internet has transformed the news
industry. Mainstream news organizations increasingly
rely on their websites to deliver content and attract
readers. Nontraditional online outlets provide
information about current events of public interest,
prompting bloggers, citizen journalists and other
Internet publishers to invoke state shield laws or the
First Amendment-based reporter's privilege. This shift Kris
is forcing courts to struggle with the question of who is Rasmi
covered by the shield. The most recent decisions on the issue vary,
indicating that it likely will be a source of debate for some time.
Generally, courts, in a line of cases dating to 1987, have
answered the question of who qualifies as a journalist entitled to
statutory or common-law protection by looking to the author's
The intent at the time of his or her
k information gathering. That is,
B aC P a e most courts hold that the privilege
By Kristen Rasmussen applies to all parties engaged
in the practice of compiling
information for public dissemination, regardless of the type of
medium they use to provide their reporting to the public.
The New Hampshire Supreme Court applied this so-called
"intent" or "function" test to online publishers in May when
it found that the privilege extended to a website providing
information about the mortgage industry. The court rejected
an argument that the website was ineligible for protection
because it was neither an established media entity nor engaged
in investigative reporting. Rather, the Supreme Court took
note of a lower court finding that the website was a "legitimate
publisher of information" and concluded that because the site
served[] an informative function and contributed] to the flow of
information to the public ... [it was] a reporter for purposes of the
newsgathering privilege."
Despite this trend of extending protection to online authors
who perform an informative function, the New Jersey Appellate
Division in April issued a potentially problematic interpretation
of the New Jersey shield law, traditionally one of the strongest
in the nation. In finding that the defendant, a website operator
investigating the online adult entertainment industry, could
not invoke the shield in relation to comments she posted on a


pornography watchdog website, the Appellate Division
adopted a series of indicia that present an alarmingly
restrictive view of who qualifies as a journalist. The
court provides a list of specific qualities that it said are
partially necessary to demonstrate before one could
qualify for protection under the shield law. This list of 12
characteristics including a would-be invoker's proof
of affiliation with a recognized news entity, proof of a
ten fact-checking scheme, proof that he or she contacted the
ussen subjects of the story to "ascertain their version" of it,
proof that the material was actually published, and
disclosure of the identities of any writers the would-be invoker
hired to work for his or her online publication makes it more
difficult for anyone who is not a member of the traditional print
news media to assert the shield law and, more significantly,
imposes far more restrictions onjournalistic practice than both
the state shield law and First Amendment jurisprudence permit.
(The New Jersey Supreme Court granted review of this case.)
The New Jersey Appellate Division did get one thing right,
however, when it noted that "new media should not be confused
with news media." While some overlap between the two may
exist, certainly there are online authors who are not entitled to
invoke the shield law. Indeed, the law's protection in New Jersey
and elsewhere cannot extend to anyone who speaks but, rather,
must be limited to a very specific type of person. Otherwise, the
privilege becomes so broad that it loses its meaning.
Yet, the determination of whether a particular person qualifies
for the privilege cannot be based on judicially created factors that
try to fit into a framework of what the news media traditionally
have been. Rather, any set of factors must conform to a definition
of the media that is consistent with the constitutionally protected
functions they perform, particularly in this modern era of
journalism. As such, courts deciding whether a particular person
is entitled to shield law protections must focus on the would-
be invoker's function and intent, rather than his or her title or
credentials.

Kristen Rasmussen is the 2010-2011 Ethics & Excellence
in Journalism Legal Fellow at The Reporters Committee for
Freedom of the Press. She is a 2010 graduate of the J.D.
M.A.M.C. joint-degree program at the University ofFlorida.




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