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THE


BRECHNER


REPORT

Volume 35, Number 6 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
June 2011

Audit: Fla. leads nation in website transparency


ALEXANDRIA, Va. -Non-profit
watchdog group Sunshine Review
announced the results of a national audit
of government websites,
showing Florida as the A C (
national leader in website


Cx


transparency. KL r J
Using a 10-point
checklist, the Sunshine Review ranked
more than 6,000 websites. The checklist
considered the ease of use of websites
and the availability of information on
budgets, contracts, open meetings and


1]


R


other public information.
State and local governments who
received perfect scores were given
"Sunny Awards" for their
E SS transparency. Twenty-one
winners were from Florida,
DS followed by Texas with 12.
Top-rated Florida
government entities were: Brevard
County, Charlotte County Public
Schools, Duval County, Escambia
County School District, Hillsborough
County Public Schools, Indian River


School District, Lake County, Marion
County Public Schools, Miami, Orange
County Public Schools, Osceola County
School District, Palm Beach County,
Palm Beach County School District,
Pinellas County, Polk County School
District, Putnam County, Seminole
County Public Schools, St. Johns County
School District, St. Lucie County School
Board, Sumter County and Volusia
County.
Source: Daily Commercial (Sumter
County), Sunshine Review


Court: Shield law protects reporter from deposition
HOMESTEAD The 3rd District Court whether through a public records request other sources, such as the city's public
of Appeal struck down a trial court's order or a leak at the city. records custodian or other recipients
compelling a television reporter to testify The appellate court, using the three- of the diskette. Also, Shehadeh didn't
in a deposition, citing Florida's shield law. part test established by Florida's reporter's show that a compelling interest existed
The deposition was related to a suit privilege law, ruled that Shehadeh could in questioning a reporter rather than
between former Homestead City Manager not depose Burnside. seeking the information
Mike Shehadeh and the city for breach The court found that SH IE L D from people who are not
of an employment contract. Shehadeh while the first element professional journalists.
wanted to depose WTVJ-NBC 6 reporter of the test to overcome LAW "The record presented
Jeff Burnside. the privilege was met-the here is precisely the kind
Burnside had reported on a diskette he information was relevant to the case- of scenario in which the assertion of the
received with Shehadeh's personal text Shehadeh failed to meet the other two privilege should be upheld," the court's
messages. elements. opinion stated.
Shehadeh contended that he wanted Specifically, he did not show that the Source: WTVJ-NBC 6 v. Shehadeh
to know how Burnside got the diskette, information couldn't be obtained from (Case no. 3D10-3438)

Teen's attorneys want to keep cameras out of court


FORT MYERS Lawyers for a could negatively impact his right to a
14-year-old boy accused of killing fair trial. "We believe the presence of
his parents are asking a judge to keep television cameras will indeed prejudice
cameras out of the courtroom, the jury pool in the event this case goes
Alexander Crain has pleaded C O R T S to trial," Brian Bieber,
not guilty to two manslaughter J an attorney for Crain,
charges for the December 2010 said.
shooting deaths of his parents. Some attorneys in Southwest Florida
Crain could face up to 30 years in prison questioned whether a ban on cameras
for each charge. Prosecutors are trying would be instituted by the judge,
him as an adult, according to The News-Press (Fort
The case is still in the early stages of Myers).
prosecution, but Crain's attorneys fear "The judge has to weigh the public's
that allowing cameras at pre-trial hearings right to know against the detrimental


effect of having cameras in the courtroom
with a 14-year-old child," longtime
criminal defense attorney Michael
Hornung, who is not associated with the
case, said.
Florida's laws on cameras in the
courtroom are some of the most access-
friendly in the nation.
The party requesting cameras
be excluded must prove the camera
coverage would have a substantial effect
that is qualitatively different than other
types of media.
Source: The News-Press (FortMyers)





THE

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


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Media fights back against
New Jersey's public access law emerged from the
Stone Age in 2002 after the Asbury Park Press and our
Gannett newspaper group waged a five-year battle against
the dark lords of government secrecy. It wasn't easy and
it wouldn't have been possible without the support and
encouragement from the Brechner Center and its staff.
My first foray into fighting government concealment of
public documents was in 1997 with a series called "The
Right to Know Nothing." It won the Brechner Freedom of
Information Award that year and gave us the boost to take PaU
the effort to the next level. D'Amb
In 1999, we surveyed more than 600 public bodies
to prove how dismal our antiquated open records law was. The
"Public Access: Denied" series won a second Brechner award, but
we didn't stop there. We spent the next three years writing almost
daily stories and editorials on why lawmakers won't change the
law. The pressure worked. In 2002, our new Open Public Records
Act, or OPRA, was passed. It was like a bucket of water had been
The tipped on the head of the wicked
B ack age of paper, computer database
By Paul D'Ambrosio and payroll was open to the
public. Moreover, officials had
to turn over documents within seven days of the request or face
the prospect of a lawsuit. If the plaintiff won in court, all legal fees
would be paid by the offending government body.
Happy ending, right? Nope. In 2009, we published an expose
about New Jersey's destructive property tax system called "The
Tax Crush," the winner of this year's Brechner FOI Award our
third. My staff and I filed about 100 Open Records requests for
all the salary and overtime reports in the towns that we cover.
Many towns complied. We found outrageous examples of police
chiefs in towns with fewer than 10,000 people making more than
the head of the Philadelphia police department. We found huge
payouts for public employees that topped $200,000.
But in some cases, we found nothing. We couldn't. A number of
towns told us we could have the information, but for a price. A big
price. One small town said their payroll would cost us $1,100.
This is the new bureaucratic game of "keep away."
They can no longer deny requests for public information, but
they can assess citizens a "programming" or "special service" fee.


t privatization of records
Many towns have turned their most public records, such
as the payroll, over to private vendors for processing.
The vendors, who are not covered by OPRA, can charge
any price they want to a requestor.
This is just plain bad for the public and bad for
freedom of information. This is also a new wrinkle in the
law, one that, I am sorry to say, has won some protection
in court. The Press filed suit against one town claiming
that letting a private company control access to public
ul documents is tantamount to denying access to the public.
rosio A trial judge dismissed the case out of hand, saying
there was no basis to compel the town to give us the records for
a nominal cost. We appealed. We won sort of. The higher court
sent the case back to the judge and ordered him to hold a trial.
I am certain that we will have to appeal and ultimately have the
state Supreme Court issue a final ruling.
This privatization of government documents is a growing
concern not only for us, but across the country. I have run into
increasing resistance from government bodies for electronic
copies of payrolls. The honest ones tell me they don't want to
see us post them on the web. Others dared us to sue, saying, "we
have no canned report for what you are seeking." Another said it
would cost $910 to have its private vendor produce a spreadsheet
of 750 employees about $1.21 per employee. One begrudgingly
turned over a disk after two months and many letters from our
lawyers, but refused to give us the code sheet so we can translate
the job and department codes into English.
All this is a cautionary tale in vigilance. There are many ways
to obfuscate the intent of the law, which the dark lords of no-
information skillfully use. Yet there are few citizens who have the
means to hire a lawyer in the hopes of winning a suit two or three
years down the road.
While New Jersey's public access law is better today than it
was in 1997, it can always be better tomorrow. Whenever public
officials seek to hide their dealings from the public, we, as the
media, must be there to fight for their right to know.

PaulD 'Ambrosio is the Regional Editor I,. i, ,i ii-'" i and
Interactive Media, for the Asbury Park Press. "Tax Crush" won the
2010 Brechner FOI Award and was afinalist for the 2010 Pulitzer
Prize in Public Service. Read it online at www.app.com/TaxCrush.






ACCESS RECORDS CONTINUED


Judge: Irions doesn't have to turn over hard drive
ST. PETERSBURG After hearing to turn over his hard drives and the user records from the five years Irions also
from both sides of a public records name and password for his Yahoo e-mail served as head of the county agency. The
dispute, a circuit judge has declined to account or explain why he should not county authority hired a forensic audit
force the former director of the Pinellas have to. Circuit Judge W. Douglas Baird company which last year reported that
County Housing Authority to turn over later decided to allow the parties to Irions forwarded public e-mails to his
his personal hard drives, continue discovery but not to force Irions private e-mail address and deleted e-mail
Darrell Irions, chief executive officer to turn over his personal computer. from the government server.
of the city housing authority and former The decision is part of a public records Irions denies deleting records and
head of the Pinellas County Housing lawsuit filed by the county housing contends that he fulfilled records requests.
Authority, was initially given 20 days authority against the city authority over Source: St. Petersburg Times

Man sues Zephyrhills, claims book is public record


ZEPHYRHILLS A man is suing
the city over the book Zephyrhills A to Z,
claiming the city is overcharging for what
he considers a public record. The book, a
collection of microfilm, family histories,
interviews and newspaper clippings
complied over a decade by city workers, is
available for $29.95 plus tax.
Robert Chandler, who was interested


in purchasing the book for his mother, a
longtime resident of Zephyrhills, thinks
that $29.95 plus tax is an illegal charge for
public records. The Public Records Law
allows reasonable charges for records.
"The taxpayers have already paid for
this book," Chandler said. "The book's
just the format. They're profiting from the
production of a public record and charging


Official faces records charges
DEERFIELD BEACH A Deerfield nonprofit, allegedly solicited her brother
Beach commissioner is facing five counts for a loan to purchase tax certificates
of falsifying public records for failing to on delinquent properties owned by the
properly disclose a conflict of interest. nonprofit. Her brother was reportedly
Sylvia Poitier is accused of failing to to receive 10 percent interest from the
properly reveal a financial relationship nonprofit for the loan.
between herself, her brother and a The charges are first-degree
nonprofit association that handles low- misdemeanors, each punishable by up to a
income housing funds for the city. year injail and a $1,000 fine.
Poitier, on behalf of the housing Source: South Florida Business Journal

Hillsborough County seeks

more uniform records policy


TAMPA Hoping to make public
records practices more uniform across
the county, Hillsborough County
commissioners unanimously approved
recommendations by a public records
design team.
The team was led by county Tax
Collector Doug Belden and its goal is to
develop a "systematic, legally compliant,
transparent and consistent process" for
responding to records requests.
The problems that prompted the
recommendations were based in part on
a countywide survey of agencies about
their processes for records requests.
"Fees varied widely," Jennifer Castro,
Belden's executive administrator, said.
"Some agencies had manual logging,


some tracked some things, other things
not. There were also different ideas
about what were public records."
After nearly a year of research, the
team issued recommendations for more
consistent practices, including training
a records custodian and alternate for
each department, adopting a single fee
structure, spelling out when an attorney
has to review a request and mandating
that nearly all requests be logged into a
countywide computer system.
Belden said the recommendations
should be implemented in six months.
If the system is successful, Belden
said it could be a basis for statewide
policy.
Source: The Tampa Tribune


sales tax." Chandler calculated the city's
cost at $23.74 per book.
City Manager Steve Spina
acknowledged that the printing cost was
$17.89 per book. "I don't even mind
lowering the price," Spina, who said he
considered the book more of a public
service than a public record, said.
Source: St. Petersburg Times


ACLU sues for

school records
COLLIER COUNTY The
American Civil Liberties Union
(ACLU) is suing the Collier County
School Board for records related to a
2009 "Kick-a-Jew-Day" incident at a
middle school.
The ACLU alleges the school
board failed to comply with repeated
requests for public records related to
the incident involving 10 middle school
students who imitated an episode of
the television show "South Park." The
"South Park" episode featured a satire
on bigotry where elementary school
students held a "Kick a Ginger Day"
and kicked red-haired students. The
Collier students were punished with one
day of in-school suspension.
Documents were provided in
response to the ACLU's request for
records related to the incident, but they
didn't contain a description of what
occurred. The ACLU then requested
that the students' disciplinary records be
produced with identifying information
removed. The school district declined
to produce the redacted disciplinary
records, citing the federal student
privacy law, the Family Educational
Rights and Privacy Act (FERPA).
Source: Naples News


2 The Brechner Report U June 2011






FREEDOM OF INFORMATION


Officials balk at

private meetings
BROOKSVILLE Meetings
between individual Hernando County
Commissioners and constitutional
officers to discuss next year's budget
were canceled after the commissioners
balked at the idea of conducting public
business in private.
The meetings were to take place at
an attorney's
ACCESSoffice. While
a meeting
MEETINGS of one
commissioner
and five elected constitutional officers
would not technically be a violation
of the Sunshine Law, there could be a
problem if the constitutional officers
passed a commissioner's comments
to another, Florida First Amendment
Foundation Director Jim Rhea said.
The meetings were requested by the
constitutional officers after the county
administrator sent a memo stating that
a $5 million budget shortage would
need to be split among constitutional
officers and county departments.
"There is nothing that we would
discuss in private that would not be
appropriate to discuss in a public
setting," Commissioner Dave Russell
said. "In the spirit of openness and
transparency, the public should be
involved in these talks."
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
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


New site tracks FOIA lawsuits


SYRACUSE, N.Y. A new website
will track the status of Freedom of
Information Act (FOIA) lawsuits
nationwide. The site, FOIAproject.org,
was launched by the Transactional Records
Access Clearinghouse (TRAC) at Syracuse
University.
The website was prompted by TRAC's
own problems with FOIA lawsuits. Some


features of the site include a geographic
view of FOIA suits with links to filings in
the cases. The court filings are updated
daily.
Future tools might allow visitors to see
trends in suits, agency-specific breakdowns
and possibly a forum for users to add
personal experiences with FOIA denials.
Source: RCFR org


PETA sues for circus records


WASHINGTON People for the
Ethical Treatment of Animals (PETA) is
suing the U.S. Department of Agriculture
(USDA) over records related to the deaths
of two circus animals and the beating of
another.
PETA alleges that the USDA is
improperly withholding records related
to the government's investigation of the
incidents. In the Freedom of Information
Act lawsuit, PETA describes three cases
involving Ringling Bros. and Barnum &


Bailey Circus.
The USDA investigated the cases,
which included the deaths of a lion and an
elephant and the beating of another young
elephant, but did not take any enforcement
action. The USDA is responsible for
enforcing the Animal Welfare Act.
PETA wants the USDA to hand over
records it contends are not covered by the
exemptions cited by the USDA, including
the personal privacy exemption.
Source: Courthouse News Service


iPhone privacy case filed in Tampa
TAMPA The controversy over Apple to use location-based maps and restaurant
iPhones tracking users' locations could be recommendations.
decided in Tampa. A lawsuit was filed in However, some security consultants
federal court in seeking to create a class- contend that Apple iPhones and iPads keep
action suit and names logs of customer locations
two Apple customers- PRIVA CY even if the tracking
Vikram Ajjampur of V function is turned off. The
Tampa and William suit alleges that Apple is
Devito of New York. collecting highly personal data without
The suit alleges violation of privacy customer consent and benefitting from the
and violation of state and federal laws. value of the information.
Apple iPhones track customer locations The suit is pending in the U.S. District
for reasons such as helping customers Court for the Middle District of Florida.
find lost phones and allowing customers Source: The Tampa Tribune

Newspaper blocks commenter
CRYSTAL RIVER -The Citrus remove the posts and prohibit her from
County Chronicle temporarily suspended posting for one week, according to the
a candidate for county commission from Citrus County Chronicle.
commenting on its website due to remarks Christopher-McPheeters apologized for
she posted. the comments but stood by her beliefs.
Renee Christopher-McPheeters, Other Sound Off users posted
a frequent user of the "Sound Off' comments asking for removal of the posts
feature of the Chronicle's website, is a from the site and to ban Christopher-
Republican in the 2012 race for county McPheeters from making posts.


commission.
Her remarks questioning a public
official's sexual preference and about
homosexuals in general prompted the
Chronicle Online managing editor to


Chronicle Online Managing Editor
John Murphy said a complete ban on posts
from Christopher-McPheeters could be
possible if similar comments continue.
Source: Citrus County Chronicle


The Brechner Report U June 2011 ]