Group Title: Annual freedom of information report, the Brechner Center at the University of Florida
Title: Annual freedom of information report
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Title: Annual freedom of information report
Series Title: Annual freedom of information report
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Language: English
Creator: Brechner Center for Freedom of Information
Publisher: Brechner Center for Freedom of Information, University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2002
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TH BRECHNER CENTER


ANNUAL FREEDOM OF INFORMATION REPORT


Published by The Brechner CenterforFreedom ofl,, f ..... ir.., College ofJournalism and Communications U University ofFlorida
2001 -- 2002


Legislature approves 15

new access exemptions


The Florida Legislature passed 15 new
public records exemptions during the
regular 2002 legislative session and in
special sessions in December and May.
Many of the exemptions passed in
2001-2002 were describedby the lawmak-
ers as addressing either security or
identity theft concerns.
During the main legislative session,
the Legislature passed a blanket public
records exemption for all social security
numbers collected by state agencies. It
allows commercial entities to access the
social security numbers if the company
uses the numbers in the course of normal
business and makes a written request.
After Oct. 1, 2002, court records must
maintain social security numbers on a
separate sheet, which will not be filed or
recorded. Social security numbers
appearing on records on the Internet will
be removed at the request of the indi-
vidual. The law also prohibits government
agencies from collecting social security
numbers unless the agency is authorized
by law to collect them.
The eight other public records
exemptions that passed during the regular
legislative session included:
An exemption for social security
numbers and financial account numbers
contained in Department of Banking and
Finance.
An exemption for building plans,
drawings and blueprints of public
buildings, arenas, stadiums and water
treatment facilities.
An exemption for personally
identifying information about participants
inthe Public Employee Optional Retire-
mentProgram.
An expanded exemption to include
the identity of parents who leave their
newborn infants at emergency medical
services stations.


An exemption for certain business
information received under state and local
tax refund programs. The information is
exempt for the duration of the tax refund
agreement or 10 years, whichever is
earlier.
An exemption for workpapers held
by Florida's Department of Insurance as
part of performance examinations of
insurers.
An exemption for information
gathered by a taxing authority in connec-
tion with an audit of public service taxes
collected by telecommunications service
providers.
An exemption for bank account
numbers, debit, charge and credit card
numbers, and other personal financial and
health information collected by the
Department of Insurance.
Four exemptions passed during the
Special Session C inDecember including:
public records and open meetings
exemptions for discussions of security
system plans and hospital emergency
response plans; a public records exemp-
tion for police requests for public records
during active criminal orintelligence-
gathering investigations; and a public
records exemption for information about
the amount and type of Florida's pharma-
ceutical stockpiles.
In Special SessionE, two exemptions
passed. One creates an exemption for
personally identifying information of
participants in the Florida Alzheimer' s
Center and Research Institute as well
patient medical records, trade secret
information, donor identities and any
information that is otherwise confidential.
The other requires military discharge
records to be removed from the Internet.


Amendment

would require

two-thirds vote
A proposed constitutional amendment
would raise to two-thirds the number of
votes required for the Florida Legislature
to pass a public records or open meetings
exemption.
During the 2002 legislative session,
Florida lawmakers passed the bill that will
place the

constud LEGISLATURE
tional
amendment on the ballot during the next
general election. Currently, only a simple
majority vote is required to create an
exemption.
If passed, however, the amendment is
unlikely to slow the number of exemptions
passed annually by the Legislature.
During the last four legislative sessions,
exemptions were passed by such a high
majority that only one would have failed
to have sufficient votes under a two-
thirds rule.
Senate changes rules
to allow secrecy
During a special session in October,
the Florida Senate approved changes to
its rules that allow committees to meet in
secret to discuss security and terrorism
issues. A committee-approved plan
would have kept some votes secret, but a
last minute compromise makes public
"records, research, information and
remarks" after 30 days. Votes, bills and
amendments will also be open.
The Senate president, however, can
keep the information sealed past 30 days.
"Hopefully, we never have to invoke it,
but should it be a necessity I think we'd
be glad to have that ability," said Senate
President John McKay, R-Bradenton.
Annual FOI Report U 2001 2002 B








Attorney General tackles Internet issues


Using an online bulletin board to
exchange opinions between members of a
water management district board is a
violation of the state's Open Meetings
Law if the bulletin board does not allow
for public participation, according to
Florida Attorney General Bob
Butterworth. However, sending factual
informationvia e-mails to other city
council members does not necessarily
constitute a violation of the state's Open
Meetings Law.
Integrating the Internet into existing
state Open Meetings and Public Records
laws was the subject of several official
access opinions issued by Butterworth
during 2001 and 2002. These technology
and access opinions included:
E-mail communication between city
council members (AGO 01-20)- E-mail
messages containing factual information
that are sent from one city council
member to another are public records and
must be retained for public inspection and
copying. As long as the e-mail conveys
factual information and does not result in
an exchange of comments or responses,
the e-mail does not constitute a meeting
under the state's Open Meetings Law.
E-mailing position statements (AGO
01-21)- The attorney general's office
discouraged the council members of the
City of Port Orange from e-mailing
position papers to other council members.
However, as long as the council members
do not discuss or debate the statements
among themselves, it is not an automatic
violation of the Open Meetings Law. But
if one commissioner's statement is a
response to another's statement, then it
could violate the law.
Conducting discussions and work-
shops on the Internet (AGO 01-66)-
Members of an airport authority can
conduct informal discussions and
workshops over the Internet as long as
the authority provides proper notice and
offers interactive access to the public.
The authority must provide not only
online access to the meeting, but also
access to computer terminals with
Internet connections made available to
people without computers or Internet
connections. If the airport authority
intends to take official action, a quorum of
members must be physically present in

2B Annual FOI Report U 2001 2002


Other notable access
HAutopsy photographs (AGO 01-27)-
Medical examiners may show autopsy
photographs to public agencies as part of
professional training sessions. Autopsy
photographs cannot be shown to private
entities without a court order. When
showing photographs, the medical
examinermust
not disclose the ATTORNEY
name of the
deceased and GENERAL
must attempt to
disguise the OPINIONS
recognizable
features of the
deceased. Autopsy photographs do not
include crime scene photographs.
Anyone petitioning the court for access
to an autopsy photograph is responsible
for contacting the next of kin. A court
order is not needed to use autopsy
photographs in criminal or administrative
hearings but is needed in civil procedures.
Security plans (AGO 01-74)-
Security plans and security needs
assessments on file with public agencies
are exempt from public records law.
Subpoenas issued by criminal justice
agencies to other government agencies as
part of ongoing investigations are exempt.
Law enforcement agencies gathering
informationfrom other government
agencies do not have to respond to public
records requests that might reveal the
existence of an ongoing investigation or
intelligence operation.
Foster home records (AGO 01-54)-
Licensing records and department
assessment records are open to public
scrutiny even if they include references to
abuse, abandonment or neglect. The
identity of any victims must be redacted
before reports are released.
SAutomobile accident reports (AGO


the meeting room.
Online bulletin board meeting (AGO
02-32) The Peace River BasinBoard's
bulletin board was a violation of the
state's Open Meetings Law because the
bulletin board was up for an extended
period of time 22 days and because it
did not allow for direct public participa-
tion. The basin board did publish advance


-related opinions
01-59) The owner of a vehicle involved
in a crash can receive a copy of the report
immediately.

Schools:
Charter schools (AGO 01-23) -Not-
for-profit corporations granted charter
school status are governed by the state
Open Meetings and Public Records laws
even if the school has not yet opened.
School advisory councils (AGO 01-
84) School advisory council members
who knowingly violate the Sunshine
Laws can face criminal penalties.
School police officer reports (AGO
01-64) -A felony complaint/arrest
affidavit created by a Miami-Dade County
school police officer about juvenile
student is a public record unless the
report contains active criminal investiga-
tive or intelligence information. Active
information must be deleted and the
remainder of the report released to the
public.
School readiness coalitions (AGO
01-86) School readiness coalitions are
subject to the state Public Records Law.
School board records (AGO 02-37)-
The Pasco County School Board cannot
require that all production and copying of
its public records only go through a
private company.
Voting:
Absentee ballots (AGO 01-07 &
AGO 01-16) -Exemptions forvoter
registration records do not apply to and
do not exempt voter signatures, witness
signatures or voter information located on
the back of absentee ballots.
Segregatingballots (AGO 01-37)-
The Supervisor of Elections must use the
county's optical scanning equipment to
segregate overvote and undervote ballots
even if the ballots have been segregated
manually.

notice of the bulletin board and the
discussion topics and provided public
access terminals. The discussion was also
archived and treated as a public record.
Similar bulletinboard meetings might not
be violations if the online discussions
occur at a specified, limited time and the
public is allowed to directly participate in
the meeting.







Escambia County commissioners charged


FourEscambia County commissioners
face multiple misdemeanor counts of
violating Florida's Open Meetings Law as
part of wide-ranging charges brought
against the commissioners regarding
questionable land purchases.
Meanwhile, formerEscambia County
School Board member Vanette Webb, the
first public official to servejail time for
violatingthe Public Records Law, will
return to court for a retrial in her case.
Gov. Jeb Bush suspended Escambia's
Mike Bass, W.D. Childers, Willie J. Junior
and Terry Smith after they were arrested
forbribery, racketeering, theft and
sunshine violations. Real estate agent Joe
Elliot and his wife, Georgeann, were also
arrested.


Earnhardt autopsy
Two separate lawsuits are challenging
a public records exemption for autopsy
photographs that passed during the 2001
legislative session.
The Earnhardt Act, named after late
race car driver Dale Earnhardt, exempts
public release of autopsy photographs
without a court order. The law was
retroactive, covering all autopsy photo-
graphs, including Dale Earnhardt's, taken
before the law passed in March 2001.
Two lawsuits are challenging the statute,
claiming it is overbroad and unconstitu-
tional.
The first lawsuit, brought by The
Independent Florida Alligator, was filed
after the student-run newspaper at-
tempted to get access to Earnhardt's
autopsy photographs. Judge Joseph G.
Will, 7th Judicial Circuit, ruled against the
newspaper, saying that law was "valid
and constitutional" and the retroactive
provision was constitutional.
The Alligator appealed Will's ruling,
and a three-judge panel of the 5th District
Court of Appeal heard oral arguments in
May.
A second lawsuit was filed in Broward
County by the Orlando Sentinel and the
South Florida Sun-Sentinel. The papers
had requested autopsy photographs of
never identified corpses and had been
denied access under the statute.
Almost a dozen other media outlets
and access organizations have joined the
Sentinel's lawsuit including four Florida
newspapers owned by The New York


Elliot reportedly made a gross profit of
$700,000 by selling two properties to the
county. All four
commissioners were
A cCESS chargedwith multiple
misdemeanor counts of
CASES violations of the
state's open meetings
law. Each misdemeanor
count is punishable by a maximum of 60
days injail and a $500 fine.
Webb was convicted in 1999 of
violating the Public Records Law for
withholding public records following a
request from parent Susan Watson.
Escambia County Judge Patricia Kinsey
sentenced Webb to 11 months and 15
days injail but later suspended all but 30


A $60 million sewer construction
contract between Monroe County's
Florida Keys Aqueduct Authority and
Ogden Water Systems was voided when
Judge Sandra Taylor, 16th Judicial
Circuit, ruled that a technical evaluation
panel involved in the selection of Ogden,
now Covanta Energy, had violated the
Open Meetings Law. Another circuit
courtjudge awarded more than $26,000 in
legal fees to a local citizens group
involved in the Sunshine lawsuit.
Miami-Dade prosecutors dropped a
Sunshine Law case against Golden Beach
town councilman Adalberto Paruas after
he agreed to pay a $500 fine. Paruas had a
resident thrown out of a committee
meeting, and said later that he didn't
realize the meeting was open to the
public.
Miami-Dade County Judge Henry

Times, The Tampa Tribune and its
television affiliate, WFLA-TV, the Society
for Professional Journalists, the Reporters
Committee for Freedom of the Press, the
Student Press Law Center, the Florida
Society of Newspaper Editors, and the
First Amendment Foundation.
Judge Leroy Moe, 17th Judicial Circuit,
heard testimony in the case in March.
During the hearing, Moe asked state
Solicitor General Tom Warner, "What can


days of the sentence.
Webb served seven days of the
sentence. After Kinsey recused herself
from the case, County Judge William
White overturned Webb's conviction.
The 1st District Court of Appeal over-
ruled White, reinstating the conviction.
The Florida Supreme Court refused to
hear the case.
Webb's case is again before Judge
White, who has granted Webb a new
trial. The prosecution asked the judge to
remove himself from the case, saying
White has become an advocate for
Webb. When he refused, the prosecution
appealed the decision, and the start of
the new trial was postponed until the
appeals court rules again.


Leyte-Vidal acquitted two members of the
Miami Code Enforcement Board of
charges they violated the state's Open
Meetings Law. Angel Gonzalez and Eladio
Armesto-Garcia, a former state representa-
tive, were accused of talking about two
codes enforcement cases outside a public
meeting. After two days of testimony and
reviewing tapes and transcripts, Leyte-
Vidal ruled that prosecutors had not
proven their case.
U Judge L. Haldane Taylor, 4th Judicial
Circuit, ruled that Nassau County officials
did not violate the state's Open Meetings
and Public Records laws when they
decided to build a new courthouse in
Yulee. However, Haldane said the
commissioners did violate the Open
Meetings Law by allowing Clerk of the
Court J.M. "Chip" Oxley Jr. to attend
closed meetings between April 1996 and
December2000.
you do to convince me to save this
legislation.?" Moe seemed skeptical of
the argument that saving families the pain
of public autopsy photographs was more
important than the state's open-records
law. He interrupted Assistant Attorney
General Scott Masel at one point, saying
"I'm not too sure the Constitution
protects hurt feelings. The Constitution
of the state of Florida trumps those
feelings."


AnnualFOIReport U 2001-2002 3B


photo law faces two challenges


Other notable cases and lawsuits






Grand jury

wants change

in philosophy
The Florida Constitution guarantees
that documents made or received by any
of the three branches of government are
presumed open to public scrutiny unless
the documents are specifically exempted
by the State Legislature. However, citing
privacy concerns on the Internet, a
statewide grand jury investigating identity
theft recommended not only more re-
stricted access to certain public records
but urged the state to change its underly-
ing philosophy
"[P]rivate informa- regarding access.
tion collected from The grand jury
recommended
citizens should be h he presum
that the presump-
presumed tion of openness
confidential and be reversed.
non-disclosable "That is, private
unless there is a information
statutory ground for collectedfrom
its release." citizens should
- Statewide grand be presumed
Confidential and
jury report non-disclosable
unless there is a
statutory ground for its release. We are
not convinced that doing so would violate
the spirit and intent of the First Amend-
ment."
The grand jury was especially con-
cered that official records being made
available on the Internet by county clerks
contained information such as social
security numbers that could be used by
Web-savvy thieves to commit identity
theft. However, the grand jury offered no
evidence that public records were being
used to steal private information. It
indicted 33 people on 419 counts related to
identity theft, but the information used in
the scams was stolen from driver's license
offices, private businesses and directly
from the victims, not from public records.
In related legislative action, the
Legislature passed bills that created an
exemption for social security numbers,
increased the penalties for using public
records to commit crimes, set up a
statewide task force to study public
records issues, and ordered counties to
withdraw certain documents from the
Internet.


4B AnnualFOIReport U 2001 2002


Statewide panel to study


public records issues
The Florida Legislature is funding a 1, 2003, the committee will be made up of
committee to study public records and 22 members, nine of whichwill be non-
privacy issues, voting members. The members willbe
The committee is charged with appointed by the governor, the president
examining the privacy and public access of the state Senate, the speaker of the
issues related to court records, especially state House of Representatives, the chief
electronic access to court records, justice of the Supreme Court, and the
In particular, the Florida Association of Circuit Court
committee will look at Clerks and Comptrollers.
whether courts require LEGISLATURE The Judicial Manage-
participants to provide ment Council of Florida
excessive and unnecessary information already investigated some
and whether types of information such as issues related to privacy, court records
financial statements, psychological and the Internet and recommended to the
evaluations, and the names and ad- state Supreme Court that it impose a
dresses of children should be exempt moratorium on electronic access to
from public disclosure, certain court records until a statewide
The committee will make recommenda- policy is developed and implemented.
tions about what information should be The Judicial Management Council also
accessible to whom and under what recommended the Supreme Court appoint
circumstances and suggest any needed a separate committee to investigate
changes in laws or policies. Internet records.
Required to make a final report by Jan.


Gag-order series winsBrechner


FOI award


A series of stories documenting the
Arkansas Democrat-Gazette's five-month
struggle with a juvenile court judge over
a gag order and a subsequent contempt
of court citation won the 2001 JosephL.
Brechner Center forFreedom of Informa-
tion Award.
The $3,000 cash award annually
recognizes excellence in reporting about
freedom of information, access to
government-held information or the First
Amendment
The newspaper's battle began in May
2000 when 12-year-oldboy, walking
toward his school inPrairie Grove, Ark.,
carrying a shotgun, exchanged gunfire
with a police officer. Within days,
juvenile court Judge Stacey Zimmerman
issued a gag order that prevented the
media from publishing the names or
photographs of the boy, his family or the
injured police officer even though the
media had legally obtained and already
published the boy's identity.
The Democrat-Gazette continued to
use the boy's name and published
photographs of him and his family taken


outside the courthouse. Zimmerman held
the Democrat-Gazette in contempt and
fined the paper $100.
Joined by other members of the media,
the Democrat-Gazette fought the gag
order to the state Supreme Court, which
ruled that the order was overly broad and
said it was a "plain, manifest clear and
gross abuse of discretion."
Brechner award judges pointed to the
quality of the project's writing and
research and its impact on the public's
right to information.
"With school gun violence an all-too-
common threat to children, a more timely
and important defense of the public's
right to know can scarcely be imagined,"
said one of the judges. "The Democrat-
Gazette 's commitment of time and
resources necessary to prevent the
erosion of vital protections is an example
of public service journalism at its finest."
Griffin Smith Jr., executive editor of the
Democrat-Gazette, accepted the award
on behalf of the newspaper at an April
ceremony inGainesville, Fla.




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