THE


BRECHNER

REPORT


Volume 35, Number 2 0 A monthly report of mass media law in HFlonda
Pubhshed by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
February 2011

Citizens groups ordered to pay up in Sunshine suit
SARASOTA Citizens groups who Florida Supreme Court, and while disagrees with
sued Sarasota County for allegedly some violations were acknowledged, "They got their pound of flesh,"
violating open government laws while the county prevailed in the case It Antunes told the Sarasota Herald-
negotiatmg a multi-million dollar then sought $38,000 in litigation costs Tribune "It was a punitive action on
spring training deal have under the Florida law that their part "
been ordered to pay almost A C C E SS authorizes recovery for Deputy County Attorney Rick
$20,000 in litigation costs prevailing parties Elbrecht defended the county's actions
after losing the suit MEETINGS The county was awarded as common legal procedure when a party
Citizens for Responsible almost $20,000 m costs, prevails in court, regardless of the nature
Government and Citizens for Sunshine a move Citizens for Responsible of the case
appealed their case all the way to the Government founder Cathy Antunes Source: Sarasota Herald-Tribune

UF ordered to release Student Government records


GAINESVILLE A University of
Florida graduate has prevailed m his
public records lawsuit against his alma
mater, with a trial court ruling that he is
entitled to copies of recordings of Student
Government meetings
Frank Bracco filed suit against UF
m August 2009 after being denied
access to copies of video and audio
recordings of Student Senate meetings
Bracco maintained he was entitled to


copies of the recordings under Florida's
Public Records Law UF argued that
the recordings were protected under
the federal law protecting
student privacy (the Family A C (
Educational Rights and
Privacy Act, or "FERPA") RECO
Eighth Judicial Circuit
Judge Victor L Hulslander granted a
motion for summary judgment in favor
of Bracco, rejecting the argument that the


RI
,R]


recordings were student records under the
meaning of FERPA "Moreover, because
the meeting itself was open, it is hardly
S logical that a memoriahzation
SNS of it would be confidential,"
Hulslander wrote in his ruling
DS UF Student Government
oversees a budget of
approximately $14 million
Source: The Independent Florida
Alligator


Gov. Scott issues ethics order,

keeps Open Government office


TALLAHASSEE Gov Rick
Scott made open government the
target of one his first official acts as
Florida governor Executive Order
11-03 re-establishes the Office of
Open Government first set up by
then-Gov Charlie Crist In the order,
Scott also authorized a new Code
of Ethics for his office and directed
his staff to review a December
report of the statewide grand jury on
corruption and recommend a plan
for implementmg the grand jury's
recommendations
Scott's goals for the Office of
Open Government, in existence since


2007, are to "(1) facilitate Florldians'
right to know and have access to
information with which they can hold
government accountable, (2) establish
and maintain a website providing ready
access to accountability information,
(3) continue to assure full and
expeditious compliance with Florida's
open government and public records
laws, and (4) provide training to all
executive agencies under my purview
on transparency and accountability "
As of press time, Gov Scott had not
named the new staff of the Office of
Open Government
Source: Executive Order 11-03


Gleason returns

to AGO office
TALLAHASSEE -Attorney Pat
Gleason will return to the Florida Attorney
General's Office as special counsel for
open government Gleason was formerly
Gov Charlie Crist's legal adviser on open
government and cabiet-affairs director
and has been an authority on Florida's
open government laws for decades
"Pat is a leading authority in our state
on open government and public records,
and I am honored to have her join my
administration," Attorney General Pam
Bondi said "We have worked together
for over a decade, and I have the highest
respect for her work ethic, integrity
and the transparency she brings to the
government process"
Source: Tallahassee Democrat






ACCESS MEETINGS CONTINUED

City pays fees for failed Sunshine prosecutions


CORAL SPRINGS -The city has
agreed to pay $90,000 in attorney's
fees for two commissioners accused
of violating the Open Meetings Law,
suspended from office but later reinstated
after a judge dismissed the charges
during trial
Coral Springs City Commission
members Tom Powers and Vincent
Boccard were charged with misdemeanor


counts of violating the Open Meetings
Law Prosecutors alleged the pair
secretly met with police union leaders to
talk about city business
After the commissioners were
charged, then-Gov Charlie Crist
suspended them
During the August 2010 trial, Broward
County Judge Fred Berman threw out the
charges just prior to closing arguments


Berman cited a lack of evidence
Crist reinstated Powers and Boccard
later that month
The $90,000 fee was reached after a
compromise between the commissioners
attorneys, who requested a $500 per
hour rate, and the city's expert, who
recommended $450 per hour
Source: South Florida Sun-Sentinel
(Fort Lauderdale)


Riviera Beach pays $85K in legal fees to activist
RIVIERA BEACH -The City of Until last year, the city would meet Court of Appeal agreed with Lozman's
Riviera Beach agreed to pay $85,000 in on Mondays to discuss the agenda for contention that failure to keep the written
legal fees to activist Fane Lozman in an Wednesday meetings Although audiotapes minutes violated Florida's Open Meetings
open meetings lawsuit Lozman sued the of the agenda review meetings were Law The city unsuccessfully argued that
city in 2007 for failing to keep written maintained, written records were not the law did not apply to cities
minutes of its agenda review meetings A trial courtjudge and the 4h District Source: The Palm Beach Post


FIRST AMENDMENT

Student settles Facebook lawsuit


PEMBROKE PINES A student who
was suspended for her Facebook comments
about a teacher has reached a settlement in
the First Amendment lawsuit against her
high school principal
Katie Evans, now a 20-year-old
Umversity of Florida student, was a
student at Pembroke Pines Charter High
School m 2007 when she made comments
on the social networking site describing
her English teacher as "the worst teacher
I've ever met"
School principal Peter Bayer suspended
Evans for three days and placed the honors
student m lower-level English courses
Bayer had determined that Evans was


m violation of a school cyberbullying/
harassment policy
Evans sued m federal court, alleging
her First Amendment rights were violated
In February 2010, a judge ruled that
Evans' comments were constitutionally
protected-they were made off campus
and weren't threatening or vulgar
In the recent settlement, Evans'
suspension will be removed from her
record and documents relating to the
suspension destroyed Evans, who
was represented by the American Civil
Liberties Union of Florida, will also
receive $15,000 in legal fees
Source: South Florida Sun-Sentinel


DCA strikes down adjuster ban


TALLAHASSEE The 1st District
Court of Appeal has ruled that a Florida
law prohibiting public adjusters from
soliciting property owners 48 hours
after an event such as a hurricane
is unconstitutional under the First
Amendment Apubhc adjuster, for a fee,
helps people negotiate insurance claims
In 2008, the Florida Legislature passed
a law prohibiting solicitation within
the first 48 hours of an event The law
was enacted in response to concerns
about unethical behavior by some public
adjusters
Public adjuster Frederick W Kortum

2 The BrechnerReport E February 2011


Jr sued the state, seeking a declaration
that the law was unconstitutional The
1t District Court of Appeal agreed with
Kortum, finding that his First Amendment
right to engage m commercial speech was
violated by the broad sweep of the law
"The [state] has not demonstrated
that prohibiting property owners from
receiving any information from public
adjusters for a period of 48 hours is
justified by the possibility that some public
adjuster may unduly pressure traumatized
victims or otherwise engage in unethical or
unprofessional behavior," the court wrote
Source: Kortum v. Sink (Ist DCA)


SeaWorld death

records sealed
ORLANDO -Video and photographs
related to the death of a SeaWorld trainer
killed after being attacked by a whale
will be permanently sealed from public
view
The family of Dawn Brancheau, who
died during a Feb 24, 2010 show at the
Orlando theme park, sued the Orange
County Sheriff's Office and the Medical
Examiner to prevent them from releasing
photos or videos related to the incident
The media argued for access to what
they contended ACCESS
were public LACC
records, and RECORDS
the case was
set for mediation last summer However,
after the Sheriff's Office released a
detailed report describing the SeaWorld
surveillance video, the media dropped its
efforts
Ninth Judicial Circuit Court Judge
Lawrence R Kirkwood granted the
permanent closure of the records in
December
In addition to "the paramount privacy
interests at stake, SeaWorld's property
interests in the Death Scene Videos
provides a separate and independent
basis for restricting disclosure of those
videos," the ruling states Kirkwood
noted SeaWorld's copyright interests
and intellectual property rights to
Brancheau's image
Source: 9th Judcial Circuit Order







ACCESS RECORDS CONTINUED


Newspaper

sues for red

light names

ST. PETERSBURG - The St.
Petersburg Times has filed suit against
the town of Kenneth City and its red
light camera company, seeking access
to names of people suspected of
running red lights.
Kenneth City hired American
Traffic Solutions Inc. to install and
monitor red light cameras at three of
its five intersections with traffic lights.
Kenneth City Mayor Teresa
Zemaitis told the Times that she
believed the names were public and
should be released to the newspaper.
Zemaitis said the town had also had
difficulty getting information from
ATS.
ATS maintains that it would not
release the information for fear of
violating the federal Drivers Privacy
Protection Act. ATS anticipated
clarification by the courts, according
to an e-mail statement from the
company.
Anne Arsenault, attorney for the
Times, said that the federal privacy
law does not apply to lawbreakers
and that the names are public under
Florida's Public Records Law.
Source: St. Petersburg Times



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
Warren Tillery, Production Assistant
The Brechner Report is published 12 times a
year under the auspices of the University of Florida
Foundation The BrechnerReport is a joint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Brechner Endowment


Report on Adam Walsh murder

subject of public records appeal


HOLLYWOOD - A witness in the
1981 murder of 6-year-old Adam Walsh
is appealing his public records lawsuit to
the 4h District Court of Appeal. Willis
Morgan is seeking a report prepared by
retired detective Joe Matthews.
Morgan contends he saw serial killer
Jeffrey Dahmer at the Sears store in
Hollywood. Matthews contends, and
Hollywood police have agreed, that drifter
Ottis Toole, now deceased, committed the
kidnapping and murder.
Matthews conducted an independent
investigation of the case and has been
credited by the Walsh family in helping
solve the case. The Hollywood Police
Department closed the case in 2008, after


reviewing Matthews' report.
The Hollywood Police Department
and the Broward State Attorney's Office,
defendants in the suit, claim that although
each agency reviewed the report, no copies
were retained. Broward State Attorney
Michael Satz and Hollywood Police Chief
Chadwick Wagner contend that the report
was not helpful in their investigations.
In his appeal to the 4h District Court
of Appeal, Morgan argues that because
the report was received by Wagner and
Satz in the course of their official duties,
it is a public record and should have
been retained accordingly. Matthews has
refused to produce a copy of the report.
Source: BrowardBulldog.org


In Memoriam: Marion B. Brechner


ORLANDO - The
Brechner Center for Freedom
of Information mourns
the passing of Marion B.
Brechner, who died Jan.
6, 2011 at the age of 98.
Mrs. Brechner was a media
executive and philanthropist
strongly committed to Mario
defending Florida's freedom
of information laws. She
and her husband, the late Joseph L.
Brechner, worked together throughout
his long career as a broadcaster
to ensure access to government
information. Mr. and Mrs. Brechner's
generosity helped endow the Brechner
Eminent Scholar of Freedom of
Information Chair and build the
current facilities for The Brechner
Center.
Since Mr. Brechner's death in
1990, Marion Brechner continued
her and Joe's commitment to the
First Amendment and freedom of
information. She created the Joseph
L. and Marion B. Brechner graduate
assistantship in 1996 because she
saw the importance of extending
understanding of Florida's Sunshine
laws and other freedom of information
issues to the then-new medium of the
Internet and the World Wide Web.
She endowed the Marion Brechner
Citizen Access Project (MBCAP)


n Bre


in 1999 because she believed
its mission - to examine
open government laws in all
50 states - was vital to the
continuance of our democratic
society. That project is now
the Marion B. Brechner First
Amendment Project, dedicated to
echner contemporary free speech issues.
"At 98, Marion Brechner was
still a force of nature and a true
FOI hero," Sandra Chance, executive
director of the Brechner Center, said.
"As an Orlando broadcasting executive,
she was a tireless advocate for press
freedoms, the First Amendment,
and freedom of information. She
encouraged, prodded, supported and
challenged us right up until the end."
"Throughout the years, the
Brechners' generous gifts have
helped educate thousands of students,
journalists, citizens and public officials
about the value of open government
and the First Amendment," Chance
said. "Thanks to their extraordinary
generosity and vision, the Center is able
to promote government transparency
as fundamentally important to our
democracy and fight to preserve access
to information at the local, state and
national level."
Services were held Monday, Jan.
10, 2011 at Temple Israel Cemetery in
Orlando.


The Brechner Report 0 February 2011 3





THE

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


Non-Profit Organization
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PAID
Permit No. 94
Gainesville, FL


UF UNIVERSITY of
UFFLORIDA


New FOIA office has small staff
Being part of the start-up of a new government denied their r
agency is a rare opportunity. Even more rare is for an help contactin
intern with just one year of law school behind her to answers when
get that opportunity. Last summer, as the first law clerk Denials and d
at the U.S. Office of Government Information Services first-year case
(OGIS), I got to dive in and be a part of a brand-new During its
federal FOIA office, coming in just nine months after for working w
the office opened its doors. everything fro
Known as the "FOIA Ombudsman," OGIS was Adrianna disputes. It h
created by the 2007 OPEN Government Act. The Act Rodriguez professions oi
made the first changes to FOIA in more than a decade. with agencies in
Just 104 words in the OPEN Government Act charge OGIS Resolution techniques w
with three very large mandates: (1) to offer mediation services published a series of Be
to help resolve FOIA disputes between requesters and agencies, requesters and agencies
(2) to review agencies' FOIA policies and procedures, and (3) to Now in its second ye
make recommendations to Congress and the President to improve agencies, including the ]
The the FOIA process. Department of Veterans
OGIS is a FOIA resource about OGIS and OGIS'
B ack Page for requesters and agencies This year OGIS expects
By Ad a C Rz alike. The office is an advocate and also make its first re
By Adrianna C. Rodriguez for the FOIA process, rather improvements to FOIA.
than for agencies or requesters. OGIS works to assist parties a case management syst
in agreeing on a resolution short of litigation. The office can will allow requesters to
offer mediation services as "a non-exclusive alternative to communicate with OGI0
litigation." This means OGIS can use a variety of Alternative OGIS was the perfect
Dispute Resolution techniques to resolve a FOIA dispute, ranging to get involved with FO
from informal discussions with agency FOIA professionals to expanding to-do list, O(
arranging for formal mediation between requesters and agencies. office welcomed me onl
Participation in OGIS' services is voluntary. Under the OPEN information for its first r
Government Act, OGIS can also issue advisory opinions when procedures, including fo
mediation fails to resolve the dispute. to the research for both,
OGIS opened in September 2009 with one staff member, The office has a large
Director Miriam Nisbet, in a small office within the National work done in its earliest
Archives and Records Administration. In just over a year, the grow and meet its goals
office has grown to seven full-time staff members and has handled am privileged to have b<
hundreds of cases from 40 states, the District of Columbia, and Ombudsman's first year
seven countries. Last fiscal year, OGIS handled 391 cases. In the
first quarter of fiscal year 2011, the office handled 144 cases. Adrianna C. Rodrigu
Requesters contact OGIS seeking help with a variety of FOIA and former editor of
issues. Some contact OGIS for assistance after an agency has second-year student at I


but big goals
quest or appeal for records. Others need
ig agency FOIA officials and getting
Responses to requests are delayed.
elays accounted for almost half of OGIS'
load.
first year, OGIS established procedures
rith both agencies and requesters on
)m filing requests and appeals to handling
eld three training courses for FOIA
n dispute resolution skills and worked
terested in using Alternative Dispute
ith their FOIA process. The office also
st Practices documents to help both
improve the FOIA process.
ar, OGIS' work continues. Several
Department of Justice and the
Affairs, have begun including language
services in response and appeals letters.
to publish its first report to Congress
recommendations to Congress suggesting
It is also looking forward to launching
em complete with a Web portal that
easily track their cases' progress,
S and obtain information about FOIA.
t place for a first-year law student eager
IA. As a small office with an ever-
GIS needed all hands on deck and the
board just as it was beginning to compile
-eport and setting office policies and
or issuing advisory opinions. I contributed
and also participated in FOIA training.
mandate and a small staff, but the
phases of start-up will help the office
of improving the FOIA process. I
een even a small part of the FOIA


ez is a University of Florida alumna
The Brechner Report. She is currently a
HarvardLaw School.