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
Physical Description: Serial
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: 2004
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Bibliographic ID: UF00090021
Volume ID: VID00003
Source Institution: University of Florida
Holding Location: University of Florida
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THE BRECHNER CENTER


ANNUAL FREEDOM OF INFORMATION REPORT


Published by The Brechner Center for Freedom oflI ..i... r..,, College ofJournalism and Communications U University ofFlorida
2004


Florida Legislature approves 14 new

access exemptions during session
The Florida Legislature passed 14 new children( 2004-348).
public records exemptions during the The eleven other public records
2004 legislative session. This number exemptions that passed during the
represents considerably more exemptions legislative session include:
than have been passed Anexemptionfor
in the past few years. building plans and
During the session, LEGISLATURE blueprints held by a public
the Legislature passed agency relating to specific
a bill prohibiting the government and facilities ( 2004-317).
private persons, with limited exceptions, An exemption for personal
from compiling or keeping any record of information of certain hospital employees
privately-ownedfirearms. Furthermore, ( 21'i 4-41 4).
the bill required the destruction of any An exemption for information that
such list or registry by July 12 ( 2004- would identify or help locate a child who
155). participates in government-sponsored
Another bill passed by the Legislature recreationprograms ( 2004-635).
revised an exemption for personal An exemption for information
information contained in a motor vehicle contained in patient safety data or other
record. This revision exempts personal records maintained by the Florida Patient
information from such records unless the Safety Corp. ( 2004-702).
subject elects to make his or her record An exemptionfrompublic records
subject to the public disclosure ( 2004- and public meetings requirements for the
1737). Florida Institute for Human and Machine
In addition, the Legislature passed a Cognition, Inc. ( 2004-951).
bill that exempts personal identifying An exemption for manuscripts or
information contained in records of U.S. other archival materials held by an official
Attorneys and Judges. archive of municipality or county
Home addresses, telephone numbers, ( 1 2'i1 4-1,2 ,).
Social Security numbers and An exemption for written valuations
photographs of current or former of state-owned land determined to be
attorneys and judges, their spouses and surplusland( 2004-1833).
their children are all exempt under this An exemption for specified records
bill. It also creates an exemption for their of military installations and missions
spouses' places of employment and the subject to the U.S. Department of
names and locations of the schools and Defense Base Realignment and Closure
day care facilities attended by their 2005 process ( 2004-2496).
An exemption for personal
SPECIAL UPDATE identifying information of a child held by
a children's service council or juvenile
.\ n' k I-. in o -. cr n h I n welfareboard(2004-2704).
IJJ1J r. r! bi -.hni nr1.- '1 '- l An exemption for certain records
-irIt ir. in -II t if rh1ui obtained by the Department of Revenue
Iiptc'Lc t uil'. I .u.l -11n 1t ., i ,r under insurance claim data exchange
i.i ini 4 th, 14 n' pu l ,I system( 2004-2826).
t-.cJr- -.mptrnp. n- An exemption for user
i lick ,n .ut Jd-riicr ,ir identifications and passwords held by
,- I --- 1.iin co ,- i theDepartmentof State ( 2004-3006).


Audit: Agencies

refuse to comply

with requests
A statewide investigation revealed
that a large percentage of Florida
agencies refuse to comply with records
requests according to the Open Records
Law.
In January, reporters and other media
employees from
about 30 Florida
newspapers posed ACCESS
as citizens at 234
local agencies in 62 RECORDS
Florida counties.
They asked for
records such as 911 call logs from
sheriff's offices, city managerjob
reviews, county administrator e-mails and
school superintendent cell phone bills.
The goal of the investigation was to
see how regular citizens are treated when
asking for public records.
The study revealed that 43 percent of
the agencies audited made unlawful
demands or refused to comply with
records requests. Many officials
demanded to know who the volunteers
represented and what they planned to do
with the information, which are clear
violations of the law.
"The results were disappointing for a
state that prides itself on being a leader
in open government," State Attorney
General Charlie Crist said. "My hope is
that once the results of the audit become
known, this will become an educational
opportunity."
The Florida Public Records Law
guarantees citizens access to public
records. The public can inspect any
document generated by the government
unless it carries a specific exemption.
The audit was organized by the
Florida First Amendment Foundation, the
Sarasota Herald-Tribune and the Florida
Press Association. The Herald-Tribune
analyzed the results of the audit.


Annual FOI Report U 2004 B







Suspected felons

list released,

errors found
In July, a state court judge ruled that
the Florida board of elections must
release a list of nearly 50,000 suspected
felons to Cable News Network (CNN).
CNN had sued
A CCESS Florida's Division
of Elections for
R ECORDS access to the list
ECORDS- which contained
the names of
people who were possibly ineligible to
vote in the presidential election because
they were felons, had multiple
registrations or died since the last
election. The state responded to the
lawsuit, claiming the list was preliminary
and should not be released publicly.
The list is a public record, but
according to state law, only certain
people and groups such as political
parties or candidates can get copies.
CNN, in addition to members of the
general public, was invited to view the
records at the division's headquarters,
only under the condition that there was
no photocopying or note-taking.
"The right to inspect without the right
to copy is an empty right indeed," Leon
County Circuit Judge Nikki Clark said.
"Whether the public chooses to inspect
or copy [the list] is not the choice of the
governmental agency which has custody
of the record. It is the choice of the
person who has requested access."
A few days after the ruling, Secretary
of State Glenda Hood said she was
scrapping the controversial list. An error
in the list failed to identify thousands of
Hispanics who were registered to vote
but possibly had criminal histories, she
said.
In the 2000 election, Florida state
officials purged voter rolls of more than
173,000 names identified as felons or
otherwise ineligible to vote. According
to CNN.com, many civil rights activists
and county election supervisors have
charged that those lists contained
numerous errors and that these errors
prevented thousands of voters from
casting ballots in the election. Nearly all
of the people wrongfully purged from the
voter list were Democrats and more than
half were African-Americans, saidBBC
reporter Greg Palast. President Bush
edged opponent Al Gore in Florida by a
margin of 537 votes to win the state and
the national election.

2 B Annual FOIReport U 2004


State Attorney General addresses


Open Meetings Law issues
The state's Open Meetings Law and equipment acqu
applies to a nonprofit corporation funds from Escambi
established by the Legislature to lease departments aren't
and manage the correction work merely because they
programs of the funding
Department of Corrections, purpose
according to Florida A TTORNEY through
Attorney General Charlie with tl
Crist. PrisonRehabilitative G ENERAL a servi
Industries and Diversified V
Enterprises (PRIDE) must f n Tt TT Tt' TO Associ


give reasonable notice,
open its meetings to the
public and record minutes (AG
This was just one of many
opinions Crist issued during 2
opinions pertaining to the sta
Meetings Law included:
Volunteerfire department
meetings (AGO 04-32)- The
Meetings Law applies to the I
directors of volunteer fire dep
because they hold "official cc
governance meetings" and "p
firefighting services to and us


^#I 1.i1'


SILIN 3 (AGO


ired with public
a County." The
subject to the law
Receive county
g, but because their
;e is accomplished
h an arrangement
he county to provide
ce to county citizens.
olunteerFiremen's
nation, Inc. meetings
04-32)-The


Firemen's Association is an
O 04-44). organization that solely provides an
access opportunity to discuss common
004. Other concerns, and therefore, its forum would
te's Open not, by itself, be subject to the Open
Meetings Law.
it board Risk management committee
Open meetings (AGO 04-35) A meetingby a
board of city's risk management committee is
artments exempt from the Open Meetings Law only
,rporate when such a meeting is held to review
provide certain proposed claim settlements under
e facilities the city's risk management program.


Other notable access
Copies of voted ballots (AGO 04-11)
- Designated persons are not required to
provide photocopies of the actual
optically scanned ballots cast in a
municipal election to comply with a
public records request.
Audio recording of staff meetings
(AGO 04-15) Audio tape recordings of
Expressway Authority staff meetings
made by a secretary to prepare minutes,
when requested by the executive
director, are public records subject to the
Public Records Law. Even when the
meetings are not subject to the
Government in the Sunshine Law and
there is no legal requirement that minutes
be kept, any records made at the request
of the executive director is considered an
independent record of the proceedings,
thereby subject to the law.
Anonymous letters (AGO 04-22)-
The state law requires officials to
disclose anonymous letters alleging
employee misconduct, even if the author
is unknown and village leaders say the
accusations are false and malicious.
Disclosure of name and address of
security system owner (AGO 04-28)-
The names and addresses of applicants
for alarm permits, all people and
businesses cited for violation of the
city's alarm ordinance and the addresses


-related opinions
of all police runs to alarms are private
information. Releasing such information
would reveal the existence of security
systems, which would violate the state
law.
*Forwarding mail to private
residences of the mayor (AGO 04-43)-
Mail addressed to the mayor or a city
council member at City Hall should not
be forwarded, unopened, to the private
residences of the official. Rather, the
original copy of the mail, which
constitutes a public record, should be
maintained at city offices for public
inspection and copying.
Records obtained bythe police (AGO
04-51) -Besides obscene material, any
materials seized by a police department
that are part of a criminal investigation
are public records.
Sheriff's offices and the motor
vehicle records exemption (AGO 04-54)-
In the 2004 session, the state Legislature
passed a bill that exempts disclosure of
personal information contained in motor
vehicle records. This exemption applies
only to personal information contained
in motor vehicle records of the
Department of Highway and Safety and
Motor Vehicles. It does not authorize a
sheriff's office to exempt such
information from its records.


I | I I







2004 lawsuits focus
During 2004, there were several
important cases relating to Florida's
Sunshine Law. Below are summaries of
the year's most notable lawsuits.
In April, the 4t District Court of
Appeal ruled that a Palm Beach County
grievance panel violated the state
Sunshine Law when it decided to fire a
senior secretary behind closed doors.
The appellate panel decided the Palm
Beach County's Department of
Community Services' grievance
committee "exercised decision-making
authority," which makes them subject to
the Sunshine Law. Since the ruling, two
additional formerPalmBeach County
employees have filed a lawsuit seeking to
overturn the firings of nearly 300 county
workers in the past four years.
In April, North Bay Village Mayor
Alan Dome and City Commissioner
Armand Abecassis resigned after being
arrested on second-degree misdemeanor
charges of violating the Open Meetings


on Florida's Open
Law. The two men were accused of
meeting privately to discuss firing City
Manager James Vardalis because of his
cooperation with an investigation of
formerpolice Chief Irving Heller. Both
wrote one-line letters to Gov. Jeb Bush
announcing their

A C CESS departures and city
commissioners


CASES


appointed
replacements for
both Abecassis and


Dome in late April.
In June, the State Attorney's Office
cleared Lee County School Board
members of any Sunshine Law violations.
Board members were accused of
conspiring to oust former Superintendent
John Sanders and replace him with
current Superintendent James Browder.
The allegations were made by a former
board employee, but the State Attorney's
Office review found only
"uncorroborated and contradicted


Meetings Law
hearsay" in witness depositions, said
Dean R. Plattner, assistant state attorney
for special prosecutions. Plattner said
there was no evidence to support a more
formal investigation.
In August, Sugarmill Woods
residents Teddi Bierly and Robert
Roscow won a lawsuit against the state
for holding secret meetings about
Suncoast Parkway 2. The lawsuit charged
the Florida Turnpike Enterprise with
violating the Sunshine Law by allowing
an advisory committee to meet behind
closed doors. Opponents of the parkway
said the Environmental Resource and
Regulatory Agency Group (ERRAG) had
influence over the proposed route of the
toll roads, which should make the
meetings public, Bierly said. Circuit Court
Judge Janet Ferris made it clear that the
ERRAG arm of Turnpike Enterprise is
covered under the Sunshine Law. The
state was ordered to pay the legal
expenses of Bierly and Roscow.


Series on super-sealing wins 2004 Brechner Award


A groundbreaking series by the
Daily Business Review won the 2004
JosephL. Brechner Center for Freedom
ofInformationAward.
The articles, written by federal court
reporter Dan Christensen, exposed how
federal judges were suppressing civil
and criminal cases by wiping them off
the public record.
At the core of Christensen's
reporting were two cases in the U.S.
District Court in South Florida one, a
terrorism-related investigation and
habeas corpus petition, the other a
narcotics case.
Typically, even sealed cases appear
on the public docket, but in these
instances, judges tried to conceal their
existence from the public.
The practice, referred to as super-
sealing, hides cases completely by
veiling even the case numbers that
would normally allow them to be tracked
on the court's docket.
"Christensen and the Review
attacked one of the most serious yet
under-reported problems affecting First
Amendment rights since 9/11: Secrecy
in the courts, in which the judiciary and
the executive are complicit," said
Richard J. Peltz, a Brechner Award
judge and associate professor at
University of Arkansas' WilliamH.
Bowen School of Law.


Christensen discovered the practice of
super-sealing when he happened upon
the case ofMohamed Kamel Bellahouel, a
young Arab man detained by authorities
followingthe Sept. 11,2001, terrorist
attacks.
Bellahouel was a waiter at a South
Florida restaurant frequented by several
Sept. 11 hijackers. He was imprisoned for
five months on an immigration charge
until authorities decided he was not a
threat and released him. Bellahouel's
habeas complaint, filed while he was in
custody and sealed by a judge,
continued on in secrecy.
Christensen reported on similar
practices in federal cases relating to
Fabio Ochoa's narcotics trial inMiami,
where one defendant was prosecuted,
convicted and imprisoned in complete
secrecy.
Christensen's reporting fueled an
intense, nationwide public discussion of
the previously-unknown brand of
secrecy.
The Review's coverage led to the
formation of a public-interest coalition of
23 media, legal and labor organizations
that sought to intervene in Bellahouel's
case in order to protect public access to
court proceedings.
Similarly, coverage of issues in
Ochoa's drug case prompted several
groups to file separate friend-of-the-court


briefs opposing the use of secret
dockets.
"The articles sparked editorials in
newspapers around the country, a legal
challenge by lawyers representing the
press and public and debate over a
practice that threatens to undermine
government accountability, the
separation of powers and public
confidence in an independent judiciary
- all of which are essential to our
democratic tradition," said Seth
Rosenfeld, a Brechner Award judge and
San Francisco Chronicle reporter.
"Christensen's vigilant coverage of the
court beat unearthed a major national
story that he and his paper then
pursued with enterprise."
"This series of stories is a bone-
chilling reminder of what can happen
when we sacrifice civil liberties for the
perception of security," said Anthony
L. Fargo, Brechner Award judge and
assistant professor at Indiana
University's School of Journalism.
"This story needed to be told."
The annual award was established
by the late Joseph L. Brechner, an
Orlando broadcaster.
Previous winners include: The San
Francisco Chronicle, The Washington
Post, the St. Petersburg Times, The
Dallas Morning News and the South
Florida Sun-Sentinel.


Annual FOI Report 2004 3B







Order causes clerks to take online records off Web sites


The Florida Supreme Court issued an
order in February, calling for a
moratorium to online access of court
records.
The order attempted to clarify a
November 2003 order for clerks who
"overreacted" by shutting down their
Web sites and for other clerks who did
not restrict access enough, said First
Amendment Foundation attorney Jon
Kaney.
The order made it clear that clerks who
were providing Internet access to court
case documents must stop the practice
due to privacy concerns. Clerks may


only provide documents through a
terminal in the clerk's office or in
response to an e-mail request for a
document. In response, Sarasota County
Clerkof Court
A cc ESS Karen Rushing
and Manatee
RECORDS County Clerkof
RECORDS CourtR.B.
"Chips" Shore
terminated Internet access to public
records through their sites.
"It looks like the Web's got to come
down," Rushing said.
Both counties had been in the


forefront of making court records
available online for the public.
According to clerks, having records
online eliminated the long lines of people
seeking records. Professionals such as
attorneys, journalists, apartment
managers and employers used the Web
sites daily.
"I've just always felt they're the
public's records and the public should
have access to them," Shore said.
The order is in effect until a committee
develops new rules for access to online
court records, which is not set to happen
before July 2005.


Federal courts review Freedom of Information cases


This year, the U.S. Supreme Court
and U.S. District Courts reviewed
several cases dealing with access
issues. Below are the most important
cases the courts reviewed or ruled on
during2004.
In January, the Court declined to
hear an appeal by groups seeking
access to the government's records on
hundreds of foreigners detained after
Sept. 11, 2001. The decision allowed
the government to continue
withholding the names of detainees and
information about their arrests.
The Center for National Security
Studies, the American Civil Liberties
Union and several media organizations
had petitioned for the release of the
information, claiming the Bush
administration was violating the
Freedom of Information Act (FOIA) and
their freedom of the press rights.
Government officials argued that
they needed to withhold the information
so that terrorist organizations wouldn't
discover their strategies and tactics in
the war against terrorism.
In 2003, a three-judge panel of the
U.S. Court of Appeals for the District of
Columbia Circuit agreed that the
administration's claim to protect the
information from terrorists was
"reasonable."
In February, the Court declined to
hear the case of Mohamed Kamel
Bellahouel, an Algerian native whose
legal status was kept secret because of
the government's war on terrorism.
Bellahouel waited tables at a
restaurant in Delray Beach at the same
time that several terrorists were training
in South Florida for the Sept. 11, 2001,
attacks. Federal agents detained him in
October 2001 on an immigration hold,


believing he may have served two
hijackers food and possibly attended a
movie with one of them. FBI agents
investigated him and found no reason to

A cCESS Bellahouelwas
released on an
CASES oimmigrationbond, but
CASE his entire case was
kept off of public
records. His case number did not even
officially exist.
His case was accidentally discovered
by a reporter for the Daily Business
Review and has been closely watched by
civil libertarians since.
In March, the Court rejected
attorney Allan Favish's attempt to show
postmortem photos of Clinton
administration lawyer Vince Foster,
claiming privacy concerns supersede
public disclosure when it comes to death
pictures. Favish sought the photos,
claiming they might prove Foster was
murdered as part of a White House
cover-up.
The Court's decision weakened the
FOIA, which allows reporters and others
to obtain some unclassified federal
records. Justices ruled for the first time
that a part of the law that allows the
government to withhold records applies
to survivors. They said that when
requested information contains visuals or
details that could cause pain to
someone's survivors, there must be
proof of government wrongdoing to
justify the invasion of privacy.
Both Foster's family and the Bush
administration battled to keep the
pictures private.
In April, U.S. District Judge Paul L.
Friedman ordered the Bush
administration to release thousands of


pages of records on Vice President Dick
Cheney's energy task force
deliberations. Friedman ruled that
records kept at the Energy and Interior
departments must be disclosed to the
public under the Freedom of
Information Act.
The suit stemmed from the creation
of the National Energy Policy
Development Group by President
George W. Bushin2001.
The energy task force, chaired by
Cheney, was considered exempt from
the open meetings and open records
requirements set forth by the Federal
Advisory Committee Act if it consisted
entirely of government officials.
The lawsuit argued that Cheney and
his team met behind closed doors with
non-government officials such as
lobbyists from the oil, coal, gas and
nuclear industries
In June, the Court ruled that the
U.S. Court of Appeals in Washington,
D.C. must reexamine a case involving
two lawsuits filed by public interest
groups Judicial Watch and Sierra Club
for access to Cheney's energy task
force records.
In July 2003, the appeals court ruled
it would not hear the case unless
Cheney and the other government
defendants either asserted executive
privilege or complied with the trial
court's discovery orders.
In a 7-2 decision, the Supreme Court
justices said that the court of appeals
should rule on the case before further
proceedings in the trial court, primarily
because the case involves important
questions of separation of powers and
because of the burden that would be
placed on the executive branch to
comply with the discovery order.


Annual FOI Report U 2004




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