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Volume 35, Number 5 m A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
Scott changes policy, charges for public records
TALLAHASSEE In a departure per page for all requests. "We are dealing with a high volume
from the policies under previous In his first two months in office, Scott of public information requests, but we're
administrations, Gov. A C C E SS received more than 300 public happy to do it because we're complying
Rick Scott's office is 3 records requests. Some reporters with the law," spokesman Brian Hughes
charging for all public RE CORDS complained in March that records said.
records requests. requested in January still had not Scott had previously directed all
Unlike previous governors-including been produced. department heads in state government
Charlie Crist and Jeb Bush, who only Scott's office said the governor was to refer public records requests to the
charged for large requests-Scott will committed to open government, and the governor's office.
charge the statutory maximum of 15 cents fee was implemented to curb costs. Source: Orlando Sentinel
Media wins access to recordings
TAMPA A 16-minute video of the
shooting deaths of two Tampa police
officers was released to the public after
attorneys for the media challenged a move
to block the footage's release. The video
was captured by a dashboard camera in
Officer David Curtis' cruiser.
Curtis and Officer Jeffrey Kocab were
killed during a June 29, 2010, traffic stop.
Dontae Morris, 23, is accused of shooting
the officers. The video depicts Morris
shooting the officers and stumbling over
Curtis and Kocab were taken to the
hospital but died within hours of the
shooting. Morris was captured after a
four-day manhunt. Morris is also charged
with murder in the separate deaths of
three men last summer.
Morris' attorneys asked the court
to block the release of the video, but
attorneys for The Tampa Tribune and
WFLA, News Channel 8, objected to
the closure as too broad. Hillsborough
Circuit Judge Daniel H. Sleet ordered the
video be made available.
The release of the video prompted state
lawmakers to propose legislation that
would make audio or video recordings of
the killing of a person exempt from the
Public Records Law. The bill passed the
Senate and the House in late April and
will go to Gov. Scott's office.
Source: The Tampa Tribune
Two removed from search panel
LAKELAND Two members of a checking process. The email continued,
search committee in charge of vetting "OK, so now I broke the law, anyway
candidates for the chief academic officer erase this when you get it. I will do the
position at University of South Florida same, but we do need to contact the three
Polytechnic were removed from the references we did not call and at least give
group for possibly violating the Sunshine them an answer."
Law. The conversation drew concern from
The allegation stems AC Q the committee chair. "This is
from a Nov. 30 email from I IC C E SS of great concern and we take
Richard Plank, director of MEETINGS this type of allegation very
USF Polytechnic's division seriously," Karen White, who
of innovation, to William Armitage, is chairing the panel, said.
director of the information technology The remaining committee members
division, will continue with the search process and
In the email, Plank discussed the provide input on the finalists.
strength of candidates and the reference Source: The Ledger (Lakeland)
MIAMI Local governments
in Florida fared much better in a
statewide public records audit this
year, with most of them complying
with the Public Records Law.
The test, conducted as part
of Sunshine Week, requested
salary information from sheriffs,
school superintendents and county
administrators in each of Florida's 67
Of those agencies that responded,
86.5 percent complied with the law.
The audit was conducted anonymously
via email, with a "Florida taxpayer"
requesting the information. Previous
audits have been anonymous but made
by volunteers in person at government
Seventy-one of the 148 agencies
who responded provided records
promptly and free of charge. Several
agencies requested payment, ranging
from 50 cents to $240.
Sunshine Week is a national effort
to highlight the public's right to know.
It was founded by the Florida Society
of Newspaper Editors.
Source: Associated Press
University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
S UNIVERSITY of
Metadata ruled records under FOIA is Fla. next?
In a recent Southern District of New York case,
National Day Laborer Organizing Network v. United
States Iia,,,i, o,ti,. .,, and Customs Enforcement Agency,
a federal court held that metadata connected to
electronic public records must be produced pursuant to
the Freedom of Information Act (FOIA). Metadata is
data about data. This opinion held that key metadata
fields are integral to public records.
The plaintiff submitted FOIA requests to several
government agencies. The government agencies Catheri
produced five unsearchable PDF files. All of the metadata
had been stripped from the PDF files. Despite the confusion
surrounding the form of document production, the court found
that the government only had a "lame excuse" for failing to
produce the records in a usable format. The court held that
"certain metadata is an integral or intrinsic part of an electronic
The record." Thus, "such metadata
B c is 'readily reproducible' in the
B ack P a FOIA context." Notably, a
By Catherine Losey determination regarding what
metadata must be produced
ultimately depends on the type of electronic public record at issue
(e.g., Word documents, email, Excel spreadsheets) and how the
government agency maintains the record. The court held that "[m]
etadata maintained by the agency as a part of an electronic record
is' p.. nti-,n,. / pIodiuicibli under FOIA..."
The court created guidelines for "the minimum fields of
metadata that should accompany any production of a significant
collection of ESI [electronically stored information]." The
minimum required metadata fields that must be provided for
email messages include: to, from, CC, BCC, date sent, time sent,
subject, date received, time received and attachments.
Similar issues have been addressed by state courts, including
New York, Washington and Arizona. These courts uniformly held
that metadata is a part of public records and must be disclosed.
In the 0 'Neill v. City of Shoreline case from Washington, the
"to" and "from" lines of a forwarded email became an issue in
the case, and the court concluded that the embedded metadata of
an electronic public record was subject to disclosure under the
state's public records act. Similarly, the metadata of an electronic
public record was at issue in the Arizona case of Lake
v. City of Phoenix. In that case, the plaintiff requested
metadata attached to the electronically stored notes of his
supervisor because he suspected that the supervisor had
been backdating the notes. The court held that the public
had a right to access metadata.
The Southern District of New York, in its recent
opinion, stated that all forms of electronically stored
information, including Word documents and Excel
Losey spreadsheets, should include these metadata fields:
1. Identifier: A unique production identifier of the item.
2. File Name: The original name of the item or file when collected
from the source custodian or system.
3. Custodian: The name of the custodian or source system from
which the item was collected.
4. Source Device: The device from which the item was collected.
5. Source Path: The file path from the location from which the
item was collected.
6. Production Path: The file path to the item.
7. Modified Date: The last modified date of the item.
8. Modified Time: The last modified time of the item.
9. Time Offset Value: The universal time offset of the item's
modified date and time based on the source system's time zone
and daylight savings time settings.
To date there are no opinions from Florida similar to the ones
from New York, Washington and Arizona. Nonetheless, a Florida
court would likely adhere to the general trend towards requiring
the production of metadata of electronic public records. The
0 'Neill court expressed the need for this requirement quite clearly
when it said that the public records law "exists to ensure that the
public maintains control over their government, and we will not
deny our citizenry access to a whole class of possibly important
government information." Similarly, Florida citizens would
likely be given access to metadata when making a public records
request. Florida government agencies should consider exploring
how they would comply with a request for the metadata attached
to electronic public records.
Catherine Losey is a !, I ,i,. ,,i attorney at the Orlando office
ofAkerman Senterfitt. Catherine is an alumna of the University of
Florida, Levin College ofLaw.
ACCESS MEETINGS CONTINUED
Hospital board won't appeal Sunshine Law ruling
NEW SMYRNA BEACH The
hospital board whose merger with a
private health system was overturned
by a circuit judge due to Sunshine Law
violations has decided not to appeal
the judge's decision. Last summer, the
Southeast Volusia Hospital District board
approved a plan to merge publicly owned
Bert Fish Medical Center with the private
Adventist Health System.
But the 21 closed 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
However, the second merger decision
was overturned due to a failure to
adequately address the concerns raised by
the closed meetings. The board recently
voted to refrain from appealing the
The hospital district has spent almost
$1 million in legal fees defending the
merger and is expected to be ordered
to pay the plaintiff's legal fees in the
Sunshine Law lawsuit.
Source: The Daytona Beach News-
City turns off cameras during public comment
RIVIERA BEACH City council
members concerned that the public
comment portion of council meetings
were being used for city candidates to
campaign have decided not to televise
that portion of council meetings.
The meetings are aired on Riviera
Beach's television station, RBTV
During public comment, speakers
Visit The Brechner Center 's
websitefor more information
about media law in Florida. You
Our Open Government
Pledge, which you can pass on to
your elected officials.
Florida lawmakers' voting
records on open government
Sample public records
The Citizen's Guide
downloadable PDF and video.
Details on open government
prosecutions in Florida dating
back to 1977.
The latest news on the
Brechner Center for Freedom of
Information's open government
can use three minutes to make general
comments. Those comments will no
longer be televised.
"Nobody should be campaigning on
the taxpayers' dollar," Councilwoman
Judy Davis said. "People come just to
talk with the people in TV land. That
should not be."
But city council candidate Lynne
Hubbard disagreed. "We're turning
Riviera Beach into a dictatorship,"
Hubbard said. "We get three minutes to
tell people what the deal is. They want to
stifle the information we're getting out to
City attorney Pamala Ryan suggested
the council implement a "campaign-free
zone" for council meetings prior to the
Source: The Palm Beach Post
Citizens challenge shade meetings
ST. PETE BEACH At least two "When a commission makes an
lawsuits against the City of St. Pete Beach unconditional offer which, if accepted,
allege that the city commission violated would finally settle a case without further
the Sunshine Law during meetings with its action at a public hearing, the commission
attorneys. has violated the Sunshine law by deciding
In the first suit, resident Bruce Kadoura to settle a case during a shade meeting
sued the city, claiming that a settlement without public input or discussion," the
offer was rejected and a counter offer First Amendment Foundation brief stated.
made during a private meeting. A trial A separate lawsuit centers on
judge later found that "most" of the subsequent meetings not included in
meetings involved litigation strategies and Kadoura's suit. In that case, resident Jim
discussions of potential strategies. Anderson seeks a similar ruling that the
Kadoura has appealed that decision city violated the Sunshine Law during
to the 2nd District Court of Appeal. The shade meetings.The city maintains that it
Florida First Amendment Foundation filed did not violate the Sunshine Law.
an amicus brief on Kadoura's behalf. Source: Neighborhood Times
Council denies taping rights
CAPE CORAL A proposal that would
have required organizations holding public
meetings on property rented from the city
to allow anyone to film the meeting won't
proceed, after a 4-4 vote on the issue.
The motion stems from a meeting of a
private organization, the Cape Coral Civic
Association. The organization rented
property from the city to hold its meeting.
It allowed television stations to film the
meeting, but not a private videographer
who films events and posts them on the
The videographer complained to the
city council. Councilman Bill Deile
wanted the civic association to issue an
apology and agree to let future meetings
Civic association President Lyndia
Bradley said they denied the videographer
permission to film because it wouldn't
have an opportunity to refute what might
be done with the video.
Source: News-Press (FortMyers)
2 The Brechner Report May 2011
FREEDOM OF INFORMATION
MOUNT DORA -A former
member of the Mount Dora City
Council faces two non-criminal
infractions for allegedly violating
the Public Records Law.
James Homich, who was recently
recognized by his fellow council
members with a plaque for eight
years of service on the council, is
accused of taking an unreasonable
amount of time to fulfill a public
an unreasonable amount.
The charges stem from a request
for all of Homich's city-related
Homich estimated it would take
hours to fulfill the request, which
was for hard copies of the emails,
and would cost $100.
Homich called the accusations
If he is found in violation of the
Public Records Law, he could face
fines of up to $500.
Source: Orlando Sentinel
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 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
Supreme Court rejects Navy's
stance on FOIA
WASHINGTON -The U.S. Supreme
Court rejected the Navy's claim that a
Freedom of Information Act (FOIA)
exemption applies to maps sought by a
The case, Milner v. Department of the
Navy, involves the FOIA exemption for
"internal personnel rules and practices
of an agency." The government claimed
the exemption applies to the documents
requested by Glen Milner. Milner wanted
maps that show what the damage would
be if there were an explosion at the Navy's
primary West Coast ammunition dump.
The ammunition dump is located on
Indian Island, near Washington state's
western coast. Milner argued that people
who live nearby should know if they are in
The Court, 8-1, rejected the application
of the exemption to the maps. Justice
Elena Kagan, writing for the Court,
said that if the Navy was concerned
about releasing the maps, it could take
other measures, such as classifying
the information or relying on another
Source: Associated Press
Survey: Obama halfway there
WASHINGTON A new study of
how the Obama administration is living
up to its promises of transparency found
that it is about halfway there.
The Knight Open Government Survey,
conducted by the National Security
Archive, found that 49 of 90 federal
agencies made notable changes in their
FOIA procedures. Last year, only 13
agencies had complied with Obama's
"The Obama administration told us
last year that one year was too short a
time to show real change," Tom Blanton,
director of the National Security Archive,
said. "This year's Knight Survey reveals
a glass half full of open government, and
some persisting deep problems including
FOIA requests marooned for years in
never-ending referrals among agencies."
Obama issued a memo to all federal
agencies on his first day in office,
instructing them to "usher in a new era of
Sunshine Week organizers recently
gave Obama a transparency award, which
he accepted at a secret meeting. Open
government advocates attended the
meeting, but it was not listed on Obama's
calendar and the press was not allowed in.
Source: National Security Archive, The
SANFORD In light of an appellate
court ruling that the Sunshine Law doesn't
give the public a right to participate at
public meetings, two Central Florida
cities have passed measures expressing
commitment to public participation.
The cities of Lake
Helen and Sanford each FIR
passed an ordinance that
noted each city's "firm AMEN
commitment to ensure that
the rights of those who speak or otherwise
publish their views as citizens or members
of the press are honored and protected."
Each ordinance also pledges "to ensure
that the public may fully participate in"
meetings and government operations.
The Sanford ordinance was prompted
in part by a public meeting on a police
department issue that prohibited public
comment. The city is also considering
allowing public comment prior to the
adoption of items on the consent agenda.
Speakers would be
yT allotted up to three
minutes to comment on
)MENT consent-agenda items.
Sanford city attorney
Lonnie Groot urged the city commission
to be flexible with the time constraints.
"Some people struggle to speak and some
have more to say than others," Groot said.
Source: West Volusia Beacon, Sanford
The Brechner Report 0 May 2011
Cities pass ordinances promoting
right to speak at public meetings