2007 FREEDOM OF INFORMATION REPORT
Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida
Reporting duo's "super-sealing" series wins honor
The Brechner Center for Freedom of Danner and Christensen's reporting
Information announces the winners of the revealed that the Broward courts had
22nd annual Joseph L. Brechner Freedom improperly removed more than 100 civil
of Information Award. cases from the court docket since 2001.
The Miami Herald's Patrick Danner Some criminal cases were also left off
and Dan Christensen are -r- the docket, and some
this year's recipients for B R E C H N E R judges did not follow
their work to uncover the law when sealing
illegal case-sealing AVWA LR) 2007 records.
practices in the Broward Danner, a business
court system and beyond. Christensen desk reporter, originally uncovered the
won the Brechner Award in 2004 as a illegal docket practices after a routine
reporter for the Miami Daily Business court check into a divorce case involving
Review for his investigation of secret prominent local personalities. His
dockets at the federal level, industrious reporting revealed that
the lawsuit had disappeared from the
Broward Circuit Court's public, searchable
Danner and Christensen investigated
and filed records requests, which led to
a suit by The Miami Herald for the case
numbers and party names of more than
100 sealed cases.
Danner and Christensen's thorough
and diligent use of court records revealed
serious problems in the case sealing
practices of the Broward courts. However,
the impact of their work reached far
beyond Broward and spurred statewide
Fate of false light delayed until March 2008
TALLAHASSEE The Florida some guidance to Florida attorneys as to
Supreme Court was set to hear oral the status of false light, which provides a
arguments Oct. 10 in the false light cause of action when published materials
invasion of privacy case involving portray a person in a "false light" even if
Pensacola businessman the information is true.
Joe Anderson Jr. and the p D I T A C Y The First District Court of
Pensacola News-Journal, L V 1 Appeal inAnderson reversed
but the Court decided an $18.2 million verdict in
to delay arguments until March 6, 2008, Anderson's favor, holding that the case
so that arguments could be heard at the was essentially a libel claim and therefore
same time as the case Jews for Jesus Inc. subject to libel's two-year statute of
v. Rapp. limitations. False light claims have a four-
The outcomes of the two appeals to year statute of limitations as "unspecified
the state's highest court should provide torts" in Florida.
The Fourth District Court of Appeal in
Rapp reversed a lower court's dismissal
of Edith Rapp's false light claim alleging
a Jews for Jesus newsletter implied that
she converted to Christianity. The Fourth
District also certified to the Florida Supreme
Court a question of great public importance:
"Does Florida recognize the tort of false
light invasion of privacy, and if so, are the
elements of the tort set forth in section 652E
of Restatement (Second) of Torts?"
The 2007 legislative session saw two
bills that would have eliminated the false
light tort in Florida, but neither bill passed.
Experimental records program gets approval
MANATEE COUNTY The Manatee
County Clerk of Court launched a one-
year pilot program in public access to
paperless court records.
The Florida Supreme Court, which
halted all other electronic access initiatives
in the state because of privacy concerns,
granted Manatee County a "modified
limited moratorium," allowing it to serve
as the testing ground for public access to
electronic court records.
Manatee Clerk of Court R.B. "Chips"
Shore said the program is intended to The Florida Bar News.
demonstrate to the Court and skeptics that The program will provide experimental
it is possible to protect AC C SS electronic access to court records
confidential information L i 3 through its Web site in order to
while opening court COURTS gather information for the court
records to public scrutiny so it can develop rules for access
through online convenience, based on real data.
"I need the public to be involved to test Shore said he hopes Manatee County's
the system so we can report to the Court pilot program will be the basis for the rest
what works and what doesn't. This needs of the state to open up their records. More
to work for the public because these are information about the pilot program is
their records," Shore said, according to available at www.manateeclerk.com.
Annual FOI Report E 2007
2007 FREEDOM OF INFORMATION REPORT
TALLAHASSEE Attorney General
Bill McCollum issued opinions this year
on open government issues ranging from
city commission e-mails to accident scene
photos. Full-text opinions are available at
Regional planning council: Is it a
violation of the Sunshine Law for two
county commissioners who are also board
members of a regional planning council
to attend and participate in planning
council,.... i,,i, ,, h, those planning
council issues may later arise at county
commission i",_. 0,, 9
advice from attorney general
the sheriff's office required to release the
name and addresses ofparents ofjuvenile
misdemeanor offenders when asked for
such information in a public records
AGO 2007-19: Assuming section
985.04(2) (governing juvenile records
where the juvenile has committed what
would be equivalent to, if he was an
adult, three or more misdemeanors or a
felony) does not apply, the sheriff's office
is not authorized to release the names
and addresses of the parents of a juvenile
misdemeanor pursuant to a public records
13: Two county ATTORNEY
are also planning GENERAL OPINIONS
may take part
in council meetings and express their personnel "for the pu
opinions without violating the Sunshine records exemption in
Law. However, they should not discuss (4)(d)1, Florida Statu
these issues outside the Sunshine as either chief ofpolice when r
commissioners or council members, police department offi
E-mails and e-mail addresses: Are AGO 2007-21: Th
e-mails sent by city commissioners that to protect law enforce
contain undisclosed or blind recipients their families. Althou|
and their e-mail addresses public records? personnel" is not cleal
Ifso, how should these records be includes law enforce
maintained? who, for the purposes
AGO 2007-14: An e-mail sent by the records exemption, ap
commissioner in connection with official sworn personnel but n
business is a public record, regardless of Photographs of law er
whether the e-mail contained undisclosed are exempt, but not co
or blind recipients. Records custodians chief of police should
should comply with Florida statutes there is a statutory or
and internal procedures regarding the releasing the photos.
maintenance of electronic records. How does the Publ
Business expansion/relocation plans: apply to e-mails sent
Does section 288.075, Florida Statutes, ffic icl.\ ?
requiring an economic development Informal Opinion,
agency to keep business plans confidential E-mails made or recei
upon written requestfrom the business, employees in connect
preclude the agency from disclosing the business are public re(
existence of the written request and other Meetings Law also ap
confidential documents? among public officials
AGO 2007-15: A written request is no interaction amor
for confidentiality under 288.075(2) an e-mail sent by one
may contain information required to county commissioner
be confidential. The records custodian to be no violation of t
must determine on a case-by-case basis Law.
whether the request or part of the request Are local health co
falls under the statutory exemption. The provided for in section;
custodian may cite 288.075(2) as the Statutes, subject to tht
reason for withholding the document Law?
(implicating its existence) without AGO 2007-27, Jun
violating the confidentiality required by Yes. In determining v
the statute. organization is subject
Juvenile misdemeanor records: Is Meetings Law, the Att
Who is considered
poses of the public
tes? What limits the
'leasing photos of
cers and employees?
is exemption seeks
ment personnel and
gh "law enforcement
rly defined, it
of the public
pear to include
lot support staff.
policy need for
ic Records Law
June 8, 2007:
ved by agency
ion with official
cords. The Open
plies to e-mails
;. As long as there
ig officials related to
public official (i.e., a
, then there appears
he Open Meetings
uncils which are
n 408.033, Florida
SOpen -lf.,. i, ,
ie 26, 2007:
whether a private
t to the Open
Office usually looks at factors related to the
relationship between the private entity (the
local health council) and the public entity
(such as the Department of Health and the
Agency for Healthcare Administration).
The local health councils are established
pursuant to statute, play an integral role
in the decision-making process of the
AHCA, their costs are paid by assessments
collected by the state, and they are
included within the definition of a regional
government entity for purposes of the
Florida Governmental Conflict Resolution
Act. Therefore, local health councils are
subject to the Open Meetings Law.
May the request by the attorney for an
entity to meet in private pursuant to an
exemption to the Open I... i, o'';, Law be
made during a special ,,.. ii,,'
AGO 2007-31, July 10, 2007: Yes. The
request for a closed attorney-client meeting
may be made during a special meeting as
long as the special meeting is open to the
public, notice has been given, and minutes
Are photographs taken by the medical
examiner 's. o,, i, r ii. i-, at the site of an
automobile accident exemptfrom disclosure
under Florida s Public Records Law?
Informal Opinion, July 25, 2007: Yes.
In AGO 2001-47, the opinion concluded
that crime scene photographs were not
included within the scope of the Fla. Stat.
s. 119.07(1) exemption for autopsy photos.
However, the exemption would still apply
to photographs taken by the medical
examiner as part of the autopsy process.
May city commissioners, outside a
public, ,1, '... exchange documents that
they wish other members of the commission
to consider on matters coming before the
commission for offic il action, and ifso,
what limitations exist?
AGO 2007-35: Yes. However,
commissioners are not permitted to respond
to the exchange of documents or interact
with each other related to the documents
prior to the public meeting.
Is a "Notice of Claim made under
section 768.28(6), Florida Statutes,
confidential and exempt from the Public
Records Law until termination of all
i, ii,,i., ,i and settlement of all claims
arising out of the same incident?
AGO 2007-47: Nothing in the statute
expressly includes or excludes the notice
as a part of the claims files exempt from
public disclosure. The public agency must
make a good faith determination of whether
the notice is exempt.
2Annual FOI Report U 2007
2007 FREEDOM OF INFORMATION REPORT
State launches new initiatives
TALLAHASSEE 2007 was a good
year for open government policy in
Florida, boosted by several new initiatives
at the state level.
First, in January, Gov. Charlie Crist
announced the creation of the Office of
Open Government within his executive
office. The goal of the office is to ensure
compliance with the Public Records
Law and Sunshine Law. The office also
assists in training government agencies on
"Respecting the public trust that is
bestowed upon all of us who serve the
people of Florida is a top priority for me
and for my administration," said Crist,
who took office Jan. 2, 2007.
In June 2007, Crist appointed a
nine-member Commission on Open
Government to review and evaluate the
public's right of access to government
meetings and records. The commission's
findings and recommendations garnered
at a series of public hearings will be
presented to the governor Senate
president and speaker of the House of
Representatives by the end of 2008.
The commission is comprised of media
representatives, attorneys and government
officials from throughout the state.
Crist's successor as attorney general,
Bill McCollum, also took steps to
keep Florida "in the Sunshine" with
the announcement of a new project at
his office. McCollum launched the
Government Accountability Project (GAP)
in partnership with Professor Sandra
Chance, executive director of the Brechner
Center for Freedom of Information.
The first phase of GAP was completed
in the fall of 2007 and identified records
that are difficult for citizens to obtain. In
the second phase, GAP will work with
state and local governments to increase
access to records.
"Florida is a national leader in
providing open government for the
public," McCollum said. "It is my hope
that this project will serve as an example
for other government entities to follow."
Berl, Josh, and
Center s 30th
The Summit also
drew FOI experts
the country to
FEMA releases aid information
FORT MYERS Two months after a
court ruling in its favor, The News-Press
(Fort Myers) finally received disaster aid
information from the Federal Emergency
Management Agency (FEMA).
In June, a panel for the 11h U.S. Circuit
Court of Appeals ruled that FEMA must
provide The News-Press and other Florida
newspapers with addresses of households
that received disaster aid between 1998
Before it released the information,
FEMA spent $1.1 million to notify the aid
recipients that their addresses would be
Based on the first set of data released by
FEMA on Aug. 27, The News-Press found
that many Floridians received less than
$10 in aid.
Analysis of the information also
showed that of more than 1 million
people who requested FEMA aid after the
devastating 2004 hurricanes, fewer than
one in three received cash assistance.
In opposing the release of the
information, the government argued that
disclosure would violate the privacy of
aid recipients, stigmatize victims and
potentially be used for identity theft.
The media argued that specific
information was necessary to investigate
claims of abuse of the system.
6 in Fla. FOI
Hall of Fame
The 2007 Florida FOI Summit
offered an opportunity not only to
discuss the current condition of
open government laws, but also to
recognize those whose efforts have
helped make Florida's laws the
toughest in the nation.
The six Florida Freedom of
Information Hall of Fame inductees
are: James C. Adkins Jr., Marion
B. Brechner, Talbot "Sandy"
D'Alemberte, H.G. "Buddy" Davis,
Louis Michael "Skip" Perez and
Gregg D. Thomas.
The late James C. "Jimmy"
Adkins Jr., a Florida Supreme Court
justice, earned the nickname "Justice
Sunshine" for his interpretations of
Florida's fledgling Open Meetings
Law in favor of the public.
Philanthropist and former media
executive Marion B. Brechner was
inducted for her continuing support of
FOI and the First Amendment.
President Emeritus of Florida
State University Talbot "Sandy"
D'Alemberte was a key figure in
several important events in the
history of freedom of information in
Florida including the passage of the
Sunshine Law and the success of the
cameras in the courtroom experiment.
Longtime journalism professor
at the University of Florida and a
Pulitzer-Prize winning editorialist, the
late H.G. "Buddy" Davis Jr. played
a key role in the development of
Florida's Open Meetings Law, which
he helped draft.
Louis Michael "Skip" Perez,
executive editor of The Lakeland
Ledger, has consistently fought for
the right to government information
and has been a leader in Florida's FOI
Gregg D. Thomas is a media
attorney with the law firm Thomas
& LoCicero in Tampa. Thomas has
spent the past 30 years advocating for
the media in courtrooms across the
state and in the U.S. Supreme Court.
More information about the 2007
class of Hall of Fame inductees can
be found at www.brechner.org.
Annual FOIReport U 2007 2
2007 FREEDOM OF INFORMATION REPORT
Lawmakers pass 11 new exemptions in 2007
TALLAHASSEE The following is a discussed or presented. (Llorente, R- Underwriting Association, Inc. that are
summary of laws passed during the 2007 Miami) 1) underwriting files; 2) claims files until
legislative session that created exemptions HB 853 Exemption/Historic St. termination of all litigation and settlement
to the Public Records and Open Meetings Augustine Donors: Creates a public of all claims arising out of the same
laws. Chief sponsors of the bills are in records exemption for the identity of a accident; 3) records obtained or generated
parentheses at the end of the summaries, donor or prospective donor to the historic by an auditor pursuant to a routine audit
SB = Senate Bill; HB = House Bill; CS = preservation of St. Augustine if the donor or investigation until such is complete;
Committee Substitute. or prospective donor wishes to remain 4) proprietary information licensed
HB 63 Exemption/Domestic anonymous. (Proctor, R-St. Augustine) to the association under contract; 5)
Violence State Employees: Creates CS/SB 1034 Exemption/Physician medical records; 6) records relating to an
a public records exemption for personal, Workforce Surveys: Creates a public employee's participation in an employee
identifying information contained in records exemption for all personal, assistance program; 7) information
records documenting an act of domestic identifying information contained relating to negotiations for financing,
violence that is submitted to an agency in workforce surveys completed by reinsurance, etc., until conclusion of the
by an agency employee. Also exempts physicians as a condition of license negotiations; 8) reports provided to or
written requests for leave submitted by an renewal by the Department of Health, submitted by the association regarding
agency employee and agency time sheets Allows disclosure under certain specified suspected fraud or other criminal activity
reflecting such circumstances, until any investigation into such activity
requests until one C T (Atwater, R-North is closed; (9) payroll information and
year after the leave LE G SLA I V Palm Beach) client lists of employee leasing companies
has been taken. SESSION REPOR'I CS/HB 1405 received from the Department of Revenue;
(Porth, D-Coral Exemption/ and 10) records prepared by an association
Springs) Historic attorney reflecting a mental impression,
CS/HB 131 Exemption/Florida Landmarks Donors: Creates a public conclusion, litigation strategy, or legal
Opportunity Fund: Creates a public records exemption for identifying theory of such. Allows disclosure under
records exemption for 1) materials relating information about a donor or prospective certain specified circumstances. Requires
to methods of manufacture or production, donor to publicly owned house museums that all portions of meetings discussing
potential trade secrets, or patentable designated National Historic Landmarks if confidential information be recorded and
material received, generated, ascertained, such persons desire anonymity. (Bullard, transcribed, but creates an exemption for
or discovered during the course of D-Miami) such information. (Reagan, R-Bradenton)
research conducted by universities or SB 1510 Exemption/Sunshine State HB 7193 Exemption/U.S. Census
other publicly supported organizations One-Call: Creates a public records Information: Creates a public record
in Florida; 2) information identifying exemption for proprietary confidential exemption for U.S. Census bureau
investors or potential investors to the fund business information held by Sunshine information, including maps showing
who desire anonymity; 3) information State One-Call which describes damage structure location points, address
received from another state or nation to an underground facility or use of the verification records, and address error
that would otherwise be confidential or member ticket management software or omission records held by an agency
exempt; and 4) proprietary confidential system. Prohibits disclosure if the pursuant to federal law. Allows for
business information regarding alternative information 1) is treated by the company disclosure under certain specified
investments for 10 years after termination as confidential; 2) would be used by circumstances. (Attkisson, R- St. Cloud)
of the investment. Exempts portions a competitor to harm the company's HB 7201 Exemption/Economic
of meetings of the fund board and the interests; and 3) is not otherwise readily Development Agencies: Creates an
Institute for the Commercialization ascertainable or publicly available by exemption for 1) proprietary confidential
of Public Research at which exempt proper means from another source in business information held by an
information is discussed. Requires that the same configuration as provided to economic development agency until such
such meetings be recorded but creates Sunshine State One-Call of Florida, Inc. information is no longer treated as such by
an exemption for portions containing (Aronberg, D-Greenacres) the proprietor; 2) trade secrets and federal
confidential information. Allows access HB 7159 Exemption/Lifeline identification numbers; 3) unemployment
under certain specified conditions and Assistance Plan: Creates a public record compensation account numbers, or Florida
stipulates that any lawsuit to compel exemption for personal identifying sales tax registration numbers held by an
access must be brought in Orange County. information of participants in the Lifeline economic development agency (EDA).
(Grant, R-Port Charlotte) Assistance Plan held by the Public Service In addition, creates an exemption for
CS/HB 463 Exemption/High School Commission. Provides for disclosure certain specified information held by
Drug Tests: Creates a public records when authorized by the customer, an EDA pursuant to the administration
exemption for records relating to random necessary for billing purposes, or required of an economic incentive program for
drug tests of high school athletes. Allows by the court. (Reagan, R-Bradenton) qualified business, stipulating that the
disclosure to certain persons, including HB 7169 Exemption/Worker's exemption applies only for the duration
a student's parents and administrators. Compensation: Creates public record of the incentive agreement and expires
Exempts portions of a meeting at which exemptions for records held by the if the incentive agreement is terminated.
confidential and exempt records are Florida Workers' Compensation Joint (Attkisson, R- St. Cloud)
4 Annual FOIReport E 2007