This item has the following downloads:

( PDF )

THE


BRECHNER


REPORT

Volume 35, Number 4 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
April 2011

Corporations don't have privacy claim under FOIA


WASHINGTON The U.S. Supreme
Court unanimously ruled that corporations
can't claim the personal privacy
exemption of the Freedom of Information
Act (FOIA). The
decision in FCC v. R E E
AT&T overturned FRE
the 3rd Circuit Court OF INFOI
of Appeal's ruling in
favor of AT&T.
The documents at issue were collected
during a Federal Communications

Judge overturns
DAYTONA BEACH A circuit judge
has overturned an $80 million hospital
merger due to Sunshine violations and an
inadequate attempt to cure 21 closed-door
meetings. Last summer, the hospital board
approved a plan to merge publicly owned
Bert Fish Medical Center
with the private Adventist A C CI
Health System.
But the 21 closed MEETI
meetings over the 16
months prior to the decision, brought to
light by the Daytona Beach News-Journal
and a lawsuit filed by the philanthropic
foundation that donated the hospital to the
public in the 1960s, prompted a "cure."
Over two months during the fall of
2010, new meetings were held and once
again the hospital district board voted to
merge with Adventist.
"This attempted cure was not a fresh
start," Circuit Judge Richard Graham


Commission investigation of AT&T's
involvement in a federal program that
assists schools in getting Internet access.
AT&T eventually paid $500,000 to
resolve allegations
O M that it overcharged
the government but
LMATION did not admit any
wrongdoing.
AT&T's rivals requested the documents
from the FCC, but AT&T argued against
release, citing the personal privacy

hospital merger
wrote in his ruling. "It was to a large
extent managed and controlled by some of
the very people who caused the problem
in the first place and some who had huge
personal financial stakes in the outcome."
The ruling came after a five-day civil
trial on the Sunshine violations.
S Jon Kaney, attorney for the
Philanthropic foundation that
N GS sued to nullify the merger, noted
the significance of the decision.
"If what they did had worked. .it
would have been the death knell for the
Sunshine Law," Kaney said. "The court
makes it clear that a cure of a Sunshine
Law violation must be independent of the
violation."
The parties were given 30 days to
submit plans for how to return the hospital
to the public domain.
Source: The Daytona Beach News-
Journal


Scott removes official from office


WAUCHULA Gov. Rick Scott
removed a Wauchula city commissioner
from office for violating the Sunshine
Law by attending secret meetings.
Another four members have resigned.
Scott's executive order removing
Daniel Graham from office comes after
the entire city commission was charged
last year with violating the law. The


commissioners pleaded no contest and a
formal finding of guilt was withheld.
The remaining four members of the
commission, Clarence Bolin, Jerry Conerly,
Valentine Patarini and David Royal,
have resigned. City officials said a new
commission could be appointed or a special
election could be held to fill the positions.
Source: The Ledger (Lakeland)


exemption to FOIA.
"The protection in FOIA against
disclosure of law enforcement information
on the ground that it would constitute an
unwarranted invasion of personal privacy
does not extend to corporations," Chief
Justice John Roberts wrote. "We trust that
AT&T will not take it personally."
The Brechner Center for Freedom of
Information participated in a friend-of-the-
court brief in favor of disclosure.
Source: The Associated Press


Sunshine suit

costs $288K
STUART The Martin County
Business Development Board spent
approximately $288,000 on an open
government suit that resulted in the
board agreeing to open its records
and meetings to the public.
Treasure Coast area attorney
Virginia Sherlock sued the board
last year, alleging the business board
should be subject to open government
laws. Sherlock claimed that because
the board is the county's official
economic development organization
and receives $625,000 a year from
the county, it should be open.
Six months after the suit was filed,
the board settled the suit, agreeing
to hold public meetings and open its
records. The board had maintained
that it was a private organization not
subject to open government laws.
As part of the settlement, the
board paid Sherlock $61,546.58 in
attorney's fees and costs as well as
$500 in nominal damages. It spent
$226,831.56 on its own legal fees
defending the case.
Source: Scripps Treasure Coast
Newspapers


E


^





THE

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


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


U UNIVERSITY of
UFFLORIDA


Technology shouldn't be
Florida Gov. Rick Scott's administration has
embraced social media as a way to communicate
with the public, posting hundreds of messages on
Twitter and holding town forums on both Twitter and
Facebook. Scott used Facebook to announce delays
in the SunRail project. The resulting comments on
the social media site gave Scott's team insight into the
public's understanding of the project.
Social media is clearly a key tool for Scott's
administration. But while increased dialogue between Christi
the public and the government is commendable, other Lo
issues must also be considered. Specifically, how are government
agencies handling the public records aspect of social media? In
2009, Attorney General Bill McCollum weighed in on the issue,
determining that Florida's Public Records Law still applies in
the land of Facebook, which means the public records retention
The schedule should be followed.
P The Scott administration's take
ack P age on Facebook and public records?
Apparently they can't be bothered.
By Christina M. Locke Scott spokesperson Brian Burgess
told the St. Petersburg Times that most posts or comments won't
be retained; only posts that are deleted for inappropriate content
and messages sent through Facebook's e-mail function will be
archived. "We don't have the time to record every post on the
site," Burgess told the Times.
What Scott's team is saying, in essence, is that doesn't
have time to comply with the law. Or, even worse, that it can
unilaterally interpret Florida's open government laws, ignoring the
Attorney General's opinion and the fact that there is no exemption
in the Public Records Law for records that might be time
consuming to maintain. Either scenario is unacceptable.
Burgess correctly noted that "Sunshine Laws do not
anticipate the real-time free-flow of all this information on a
constantly public forum." New technology, from social media to
smartphones, has raised many questions about how to mesh the
practical implications of technology use with the requirements
of the law. The answers lie in both how we have dealt with prior
innovations-email, for example, was once a source of confusion
in the public records realm but its records status and requirements


an excuse to avoid the law
are now generally well settled-as well as looking to
peers in government and technology for new solutions.
First, as to the allegedly time-consuming task
of retaining all those pesky social media comments
and postings, there are numerous third-party
software solutions available: TwInbox, Tweetake,
ArchiveFacebook, SocialSafe, Socialware Sync and
others. These programs allow users to archive social
media content (including content posted by others).
ina M. The City of Bellingham, Washington, features a free
eke "Facebook Fan Archiver" tool on its website (www.cob/
org/data/facebook) that can retain posts and comments from
Facebook fan pages.
One concern raised by using software to retain social media
content for public records purposes is that in some cases, saving
information about other users might violate the agreement
between the government and the social media site. The federal
government has negotiated amended terms of service with social
media sites. Apps.gov is a central location where federal agencies
can download model amendments to standard terms of service
that take into account the special obligations of government social
media users. For example, the model amendment has provisions
specific to public records, software tools ("crawlers") that agencies
might use to save records, and what will happen to the data if
the agency decides to no longer use the service. State and local
governments can easily adapt the terms to their own use.
State and local governments have already made some
progress in negotiating special terms for Facebook. The national
associations of state CIOs and attorneys general helped establish
new provisions regarding indemnity and dispute resolution.
Unfortunately, the new terms don't address public records.
New technology and old laws don't have to be incompatible.
With a little innovation and collaboration, solutions can be found
to bridge the gap. But what is also essential is a commitment
to open government and compliance with existing laws. As the
state's chief executive, Gov. Scott sets the tone for all Florida
agencies. Citizen watchdogs, open government groups and the
press must demand nothing less than compliance with the law.
Christina M. Locke is an attorney and Editor of The Brechner
Report. She is currently a doctoral student at UF






ACCESS RECORDS


Judge: Official must turn over personal hard drives
ST. PETERSBURG A circuit authority, was given 20 days to turn over The county authority hired a forensic
judge has ordered the leader of the St. his hard drives and the user name and audit company which last year reported
Petersburg Housing Authority to hand password for his Yahoo e-mail account, that Irions forwarded public e-mails to h
over his personal computer hard drives in The order is part of a public records Yahoo address and deleted e-mail from
connection with a public records dispute. lawsuit filed by the county housing government server. Irions denies deleti
Darrell Irions, chief executive officer authority against the city authority over records and contends that he fulfilled
of the city housing authority and former records from the five years Irions also public records requests.
head of the Pinellas County Housing served as head of the county agency. Source: St. Petersburg Times

Newspaper obtains mayor's cell phone records


is
the
ng


MIAMI After filing a lawsuit for
Miami Mayor Tomas Regalado's phone
records, The Miami Herald and the mayor
reached a settlement that will allow access
to the records.
The newspaper sought access to the
mayor's cell phone records during October
2010 police raids that resulted in seizure


Tax series wins

FOI award
GAINESVILLE, Fla. The Asbury
Park Press has been named the winner
of the 2010 Joseph L. Brechner
Freedom of Information Award for
exposing questionable use of taxpayer
dollars in New Jersey and how that
state's property tax system harms the
economy. In addition, the Asbury Park
Press raised awareness of a gap in the
public records law that allows cities
to delegate duties to private vendors,
who in turn charge high fees for public
information.
The series was recognized with a
$3,000 prize. The Asbury Park Press
was a finalist for the 2010 Pulitzer
Prize for Public Service for its "Tax
Crush" series.
The Asbury Park Press sued a
municipality in New Jersey based
on the series, questioning whether a
private vendor's ability to set its own
fees for data obtained while performing
a public function stifled the public
records law.
"What the eight-day series reflects
about the Swiss-cheese loopholes in
basic public recordkeeping in New
Jersey was more than embarrassing
and infuriating," one of the judges said.
"The resulting litigation may even
bring about some much-needed reform.
Terrific journalism."


of hundreds of gaming machines and 28
arrests.
Regalado has agreed to provide the
records, though his personal calls will be
redacted.
The Herald can challenge any of the
redactions in court if it wishes. Regalado
said he was initially willing to turn over


MIAMI The Miami Herald has sued
the Department of Children and Families
for records related to an abuse hotline
call made just days before twins were
found, one dead and the other covered
in chemicals, along Interstate 95 in West
Palm Beach.
Jorge Barahona, 53, is being held in the
Palm Beach County Jail after being found
Feb. 14 passed out in his truck on the side
of the road. His 10-year-old adopted son
Victor was covered in toxic chemicals and
convulsing in the cab while Victor's twin


the records but refrained from doing
so on the recommendation of the city
attorney.
The records were requested after a
former city manager and a police official
alleged that the mayor interfered with the
raid. Regalado denies those accusations.
Source: The Miami Herald


sister, Nubia was found dead in the back
of the truck.
Four days prior, on Feb. 10, a call
was made to the DCF abuse hotline. The
Herald seeks documents related to that
call or any subsequent investigation,
maintaining that they are public records.
In a statement, DCF said that law
enforcement had requested details of the
abuse investigation be kept confidential
to protect the integrity of the criminal
investigation.
Source: The Miami Herald


City revises records policy after

investigation reveals violations
FORT PIERCE The city will change investigated the case and found that the
its public records policy after one man's city unintentionally violated the Public
request for salary information was met Records Law. He declined to pursue any
with a $3,000 bill. Fort Pierce resident fines against city officials.
John Bailey filed a complaint related His investigation found that the city
to his request for tax forms for city charged for overtime for a salaried
employees earning annual salaries of technology employee even though she
$50,000 or more. was not eligible for overtime.
It took the city more than two months City manager David Recor agreed
to fulfill the request and it initially wanted to revise the policy based on Butler's
to charge $3,000 to create a computer recommendations and findings regarding
program that would produce the tax forms overtime charges for salaried employees
in a readable format. It later told Bailey and requests involving programming.
if he accepted a five-page list of the The city refunded Bailey $114.14 of
employees instead of the actual tax forms, the $313.79 charge.
the cost would be $313.79. Source: Scripps Treasure Coast
Assistant State Attorney Ryan Butler Newspapers


2 The Brechner Report April 2011


Miami Herald sues DCF for

records in twins' abuse case






FREEDOM OF INFORMATION CONTINUED


Case involving

Tiger Woods

remains open
ORLANDO The lawsuit filed
by a nurse fired after being accused
of accessing Tiger Woods' hospital
records following the golfer's 2009
crash outside his home will remain
open, despite the hospital's motion to
seal court records.

COURTS
David M. Rothenberg was fired
from Health Central after being
accused of inappropriately accessing
Woods' records. He is suing for his
job back and $400,000 in damages.
Health Central argued to seal all
records in the case. It contended that
the issue was whether lab results were
inappropriately accessed, regardless
of who the results belong to.
Rothenberg argued that the media
attention to the case, Woods' celebrity
status and the potential to expose
information security issues were all
reasons why the case should remain
open.
Orange County Circuit Judge A.
Thomas Mihok denied the motion to
seal documents in the lawsuit.
Source: Orlando Sentinel


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 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


FOI Fund helps suits that target

CIA's handling of FOIA requests
ARLINGTON The public interest notifying requesters and refusal to allow
group National Security Counselors has requesters to assign the request to a third
filed three lawsuits against the CIA, seek- party.
ing data about how the agency processes "It is our sincere hope that through this
FOIA requests. The suits are funded in litigation, we will be able to go signifi-
part by the Knight FOI Fund, and are the cantly beyond the traditional FOIA rem-
first federal FOI cases to receive a grant edy of simply obtaining the records we
from the fund. seek," said Kel McClanahan, executive
National Security Counselors seeks director of National Security Counselors.
comments from CIA FOIA analysts about "Instead, we seek declaratory and injunc-
pending cases, FOIA training materials tive relief from the court that will find
and aggregate data about FOIA requesters. these practices themselves to be unlawful
It is also challenging the CIA's practice and forbid their future use."
of refusing to process requests without Source: NFOIC


FIRST AMENDMENT

Orlando judge bans distribution

of jury pamphlets at courthouse
ORLANDO An Orlando judge (FIJA) has been handing out information
has banned activists from handing out aimed at potential jurors, advising them
pamphlets meant to influence jurors. they can vote their conscience and have
Chief Judge Belvin Perry, of the Ninth the right to "hang" a jury if they don't
Judicial Circuit, issued the administrative agree with other jurors.
order after a trial found that a jury had FIJA contends that the order is a prior
been compromised due to leaflets, restraint and infringes on free speech
Pamphleteers handing out materials rights.
with "written or pictorial information In his order, Judge Perry noted that
tending to influence summoned jurors" the government had a compelling interest
are banned from the Orange and Osceola in "protecting the integrity of the jury
County courthouse complexes. system."
The Fully Informed Jury Association Source: Orlando Sentinel

Texas judge: Open meetings law

doesn't violate First Amendment


PECOS, Texas A federal trial judge
has ruled against several public officials
who claimed that Texas's Open Meetings
Law violated their First Amendment
rights.
A bench trial in the case was held in
November 2010. U.S. District Judge
Robert Junell found that the meetings
law advances the "compelling interest of
governmental transparency."
The current case, Asgeirsson v.
Abbott, was filed by members of the
Alpine City Council and officials from 11
other cities in Texas.
The Alpine City Council previously


challenged the meetings law in a
separate federal lawsuit. In that suit,
Alpine officials were indicted after
e-mail correspondence about a pending
water project. Those charges were later
dismissed, but the officials sued to declare
the law unconstitutional because it
infringed on their rights to speak to each
other
That case, Rangra v. Brown, was
eventually dismissed as moot by an en
banc panel of the 5t U.S. Circuit Court of
Appeals.
Source: Austin American-Statesmen,
The Associated Press


The Brechner Report U April 2011