2008 FREEDOM OF INFORMATION REPORT
Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida
Florida Supreme Court rejects false light tort
TALLAHASSEE Florida does not
recognize false light invasion of privacy
claims, according to a November 2008
Florida Supreme Court decision.
In a duo of cases,
the Court held PRIVA(
individuals can sue
under libel and defamation laws, false light
claims are superfluous.
In a case against Jews for Jesus, Inc., the
court issued a 37-page opinion saying false
light could potentially chill free speech.
"Because the benefit of recognizing the
tort, which only offers a distinct remedy
in relatively few unique situations, is
outweighed by the danger of unreasonably
impeding constitutionally protected
speech, we decline to recognize a cause of
action for false light invasion of privacy,"
wrote Justice Barbara Pariente.
Y Edith Rapp, the stepmother of
a Jews for Jesus employee, sued
the group after it published an
article claiming she was affiliated with it.
A separate ruling upheld a lower court's
decision to throw out a case against the
Pensacola News Journal. Contractor Joe
Anderson sued after the Journal published
a story allegedly implying he murdered his
wife, whom he shot unintentionally while
hunting. Authorities ruled the shooting
was accidental. Anderson was awarded
$18 million by the lower court.
"Today the Court shut the courthouse
door to every Floridian who is falsely
accused by a newspaper when they publish
words that are literally true but carefully
crafted to include thinly veiled accusations
of wrongful conduct," said Anderson,
according to the Journal.
"It's a big deal to everybody in the
media, not only a victory for us," said
Journal President and Publisher Kevin
Doyle, according to the Journal.
Source: Pensacola News Journal and
The Reporters Committee for Freedom of
Attorneys general support federal shield law
WASHINGTON Forty-one attorneys
general, including Florida Attorney
General Bill McCollum, urged U.S.
senators to support an act creating a
qualified federal shield law.
The Free Flow of Information Act
gives journalists a qualified privilege from
disclosing sources to federal prosecutors,
defense attorneys, and civil litigants.
In a letter, the attorneys general
explained the FFIA would extend under
federal law the same protection already
provided in the laws of 49 states and the
District of Columbia.
WASHINGTON The Supreme
Court ruled that offering or seeking child
pornography is a federal crime, even
where no such pornography exists.
U.S. v. Williams, a
7-2 decision, upheld the
2003 PROTECT Act
and said the material is
not free speech.
Justice Antonin Scalia
"offers to provide or reque
child pornography are cate
The "lack of a corresponding federal media who provide that information, and
reporter's privilege law frustrates the this proposed legislation would protect
purposes of the state recognized privileges journalists who are attempting to preserve
and undercuts the benefit to the public that that freedom."
the states have sought to bestow through The FFIA, stalled in the Senate because
their shield laws," said the letter, it was not scheduled for a full vote,
The public P r O T > R S passed the Senate Judiciary
must "have VL Committee by a 15-4 vote.
access to PRIVILEGE The U.S. Justice Department
information objected that the FFIA would
pertaining to their government to hold interfere with law enforcement.
it accountable," said McCollum in a Source: St. Petersburg Times and The
statement obtained by the St. Petersburg Reporters Committee for Freedom of the
Times. "Often it is members of the Press
upholds pornography law
excluded from the First Amendment."
The law applies to simulated sci.\ullI
explicit conduct" where the actors
involved are real children, and
the "portrayal must cause a
FI R ST reasonable viewer to believe
that the actors actually
AMENDMENT engaged in that conduct."
One critic feared
vrote that prosecutors could still use the law to
sts to obtain punish innocent people. Such use would
gorically put people "through a terrible ordeal," said
National Coalition Against Censorship
executive director Joan Bertin, according
to the Pensacola News-Journal.
"Perhaps I am wrong, but without
some demonstration that juries have
been rendering exploitation of children
unpunishable, there is no excuse for
cutting back on the First Amendment,"
said Justice David Souter, joined by
Justice Ruth Bader Ginsburg, in dissent.
Source: The Palm Beach Post and the
Annual FOIReport U 2008
2008 FREEDOM OF INFORMATION REPORT
Attorney general issues opinions
TALLAHASSEE Attorney General Care District is not a named party but a
Bill McCollum issued opinions in 2008 on non-profit holding company it created is?
open government issues ranging from city AGO 2008-17: Because the district is
council members participating on private a real party in interest in the litigation, it
Web sites to the release of emergency can hold private meetings for settlement
medical services records, negotiations or litigation expenditure
Relocating meetings temporarily:
May a city council temporarily relocate
its chambers for public meetings in an
adjacent municipality while a new city
hall is being built? If not, could the
city council enact an ordinance for a
referendum to amend the city charter
to allow the city
council to meet ATTOR
in an adjacent R
01: Based on the
Florida Constitution and Florida statutes,
the city council would be required to
seek legislative authorization to hold
the meetings extraterritorially. The city
council cannot grant itself extraterritorial
authority through local legislative action.
Private websites: What are the
guidelines for city council members
maintaining and contributing to a
privately-owned Web site for citizen
discussion of local political issues?
AGO 2008-07: City council
members can post comments on a private
electronic bulletin board or blog, and they
can also serve as webmasters of those
sites. However, board or commission
members cannot use Web site blogs or
message boards to exchange information
about issues that could foreseeably
come before the board. Any electronic
materials created or received regarding the
transaction of public business are subject
to the Public Records Law, whether they
are made on public or private computers.
A city council member's postings and
e-mails regarding his public duties would
also be subject to the Public Records Law.
The city council member who creates and
posts the comments on the website has
control over the records and must ensure
he maintains them in accordance with the
Public Records Law.
Closed sessions: May the Board
of Commissioners for the Health Care
District of Palm Beach County enter into
closed attorney-client sessions to discuss
settlement negotiations and litigation
expenditure strategies where the Health
strategy sessions. Any action to approve
the settlement or expenditures must be
voted on in a public meeting.
Police academy: Is a police academy
composed of citizens for the purpose of
involving citizens in the functions of the
police department subject to the Open
NEY if two or more
DPINIONS enroll and attend?
18: The citizen
police academy is not subject to the Open
Meetings Law when two or more elected
officials participate. However, if more
than one city council member attends
the classes or programs at the academy,
the council members cannot engage
in discussion or debate about police
Patient records: Can an emergency
medical services transportation licensee
release records of emergency calls, which
include the patient's name, address,
and medical information, to a local law
enforcement agency that does not have
regulatory or supervisory responsibility
over the licensee?
AGO 2008-20: The emergency
medical services licensee can release the
records. Florida statute 401.30(4) does
not limit the release of information to
only those agencies with regulatory or
Patrol trip sheets: Are patrol trip
sheets and the information on the sheets
the officer, the location and hours he or
she works, and the locations to which the
officer responded for emergency or non-
emergency reasons exempt from public
AGO 2008-23: Patrol trip sheets are
not generally exempt from disclosure
because they do not reveal surveillance
techniques, surveillance procedures,
or surveillance personnel. Entries on
the patrol trip sheets revealing such
confidential information would be exempt
from disclosure and may be redacted
School board records: Must the
school board disclose information exempt
from public inspection and copying to
certified bargaining representatives in a
defined "bargaining unit"?
AGO 2008-24: The school board need
not disclose to the certified bargaining
representatives exempt information such
as home addresses and other protected
personnel information of the spouses of
law enforcement personnel employed by
the school board.
Property Appraiser records: Must
the Property Appraiser provide a list of
the names of individuals who have made
written requests for protection of their
personal information and whose home
addresses are exempt from public records
AGO 2008-29: The Property
Appraiser must provide a copy of any list
it maintains of the names of individuals
whose home address is exempt from
disclosure under the Public Records Law.
The list must be provided in the format
in which it is ordinarily maintained.
However, the public records custodian
does not have to reformat any records to
comply with a request.
Correctional officers: Is a list of
law enforcement officers placed on
administrative duty subject to inspection
or copying, or is the information on the list
confidential, if it identifies the officers who
are subjects of an internal investigation?
AGO 2008-33: Public records
identifying correctional officers placed on
administrative duty are not confidential
and are subject to inspection and copying.
They do not constitute exempt complaints
filed against an officer or information
obtained pursuant to the investigation of
such a complaint.
Meetings in a private home: Does
holding public meetings in a private home
violate the Open Meetings Law?
Informal: Agencies should avoid
meeting in places not easily accessible to
the public. The choice of location also
must not chill the public's willingness
to attend. The meeting facility must be
large enough to accommodate the number
of members of the public reasonably
expected to attend. If the largest available
room cannot accommodate all expected
to attend, using video technology may
be appropriate. The meeting location
2Annual FOI Report U 2008
2008 FREEDOM OF INFORMATION REPORT
AG OPINIONS CONTINUED
also must be accessible to the physically
Law enforcement officer exemption:
Who may disclose information about the
identity of a law enforcement officer?
Informal: Certain information about
a law enforcement officer and his or her
spouse and children typically is exempt
from disclosure. Agencies may release an
officer's name, but information such as his
or her home address or telephone number
is exempt. However, the exemption only
applies to records held by a public agency
or private entity acting on behalf of a
public agency. Private companies may
release information about law enforcement
officers unless they are acting on behalf of
a public agency.
Health plan records: Does the Public
Records Law preclude releasing health
insurance plan information identifying
school district employees and their
Informal: Information about an
insurance plan participant's medical
condition is exempt from disclosure.
However, the participant's name, address,
age and other non-medical information
should be disclosed. If there is doubt, the
Public Records Law should be resolved in
favor of access.
Value adjustment boards: Does the
Open Meetings Law apply to orientations
given by county officials for special
magistrates hired to hear value adjustment
AGO 2008-63: The Open Meetings
Law does not apply to training sessions
for special magistrates hired to hear value
adjustment board petitions because there
is no meeting of a board or commission
at which official business will be
conducted. Nothing precludes the county
from allowing the public to attend the
Annual FOI Report U 2008
FORT LAUDERDALE- The
Federal Emergency Management
Agency will pay 75 percent of the
South Florida Sun-Sentinel 's attorney
COUTRTS following a
OURlT 0 legal battle
identities of disaster-aid recipients of
the 2004 Florida hurricane season.
FEMA agreed to pay more than
$146,000 to the newspaper, ending the
legal battle that began in March 2005
when FEMA refused to release the
names or addresses of aid recipients
because of privacy concerns.
In a related suit with The News-
Press (Fort Myers), FEMA agreed to
pay it more than $100,000 in attorney
Source: South Florida Sun-Sentinel
Access statutes receive additional exemptions
TALLAHASSEE The following five being accessible by the public. (Rich, & Tissue Donor Registry: Creates
bills enacted during the 2008 legislative D-Sunrise) Approved by Gov. Crist May exemption for donor-identifying
session create new exemptions or expand 28. information in the organ and tissue donor
existing exemptions to the state Public registry. Allows disclosure under certain
Records and Open Meetings laws. The CS/HB 863 Exemption/Direct- circumstances to organ, tissue, and eye
bills become law unless vetoed by Gov. Support Organization/DVA: Amends procurement agencies certified by the
Charlie Crist. Copies of the legislation s. 292.055, F. S., creating a public records Agency for Health Care Administration
are available at the Florida Legislature's exemption for the identities of, and or persons conducting research. (Oelrich,
Web site (www.leg.state.fl.us). Chief information about, certain donors and R-Gainesville) Approved by Gov. Crist
sponsors of the bills are in parentheses prospective donors to the direct-support June 23.
at the end of the summaries. SB=Senate organization of the Department of
Bill; HB=House Bill; CS = Committee Veterans' Affairs, including those parts of HB 7033 Exemption/Complaint of
Substitute. direct-support Discrimination: Amends s. 119.0711(1),
GT I' L E TG I A T ITV E organization F.S., expanding exemption for complaints
CS/SB 766 L G IJ L L meetings and other records about discrimination
Exemption/Judicial SESSION REPORT during which relating to race, color, religion, sex,
and Administrative the donors' national origin, age, handicap, or
Officials: Amends or potential marital status in connection with hiring
s. 119.071, F.S., creating a public donors' identities are discussed. (Reagan, preferences, position classifications,
record exemption for home addresses R-Sarasota) Approved by Gov. Crist May salary, benefits, discipline, discharge,
and telephone numbers of general 28. employee performance, evaluations,
magistrates, special magistrates, judges of or other related activities, to any
compensation claims, administrative law CS/HB 1141 Exemption/Sexual governmental agency as defined in ch.
judges of the Division of Administrative Violence Victim: Amends s. 741.313, 119, F.S., until a finding is made regarding
Hearings, and child support enforcement F.S., expanding exemption to include probable cause, the investigation about
hearing officers, and the home addresses, certain records and time sheets the complaint becomes inactive, or the
telephone numbers, places of employment, documenting leave due to acts of sexual complaint or record is made part of the
and/or schools and daycare facilities violence, submitted to an agency by an official record of any hearing or court
of the spouses and children of these employee who is the victim. (Jenne, proceeding. (H. Government Efficiency
officials, if the official provides a written D-Davie) Approved by Gov. Crist July 2. & Accountability Council and Gardiner,
statement that he has made reasonable R-Orlando) Approved by Gov. Crist June
efforts to protect the information from CS/SB 2610 Exemntion/Organ 10.
. . . 1l" . . . . . . . .
2008 FREEDOM OF INFORMATION REPORT
House and Senate approve bill
TALLAHASSEE Committees in
both the Florida House and Senate passed
separate versions of a bill to increase
access to records of the Department of
Children and Family Services.
Both bills passed without debate and
with virtually no questions, according to
the Pensacola News Journal.
The bills propose making it possible for
children and adults who have been through
DCF's child care system to obtain their
own records from the agency.
Many DCF records are confidential and
often contain sensitive medical histories,
but the blanket rule also prohibits people
from accessing their own records.
"When I found out people could not
even get their own records from DCF,
I couldn't believe it," said Sen. Paula
Dockery, R-Lakeland, according to the
Pensacola News Journal.
Dockery sponsored the Senate Bill,
SB 2762, and Rep. Will Weatherford,
R-Wesley Chapel, sponsored the House
Bill, HB 1467.
Source: Pensacola News Journal
Doctors' records made public
TALLAHASSEE Patients have a right
to check records on past mistakes made
by their doctors and hospitals regardless
of when the files were created, the Florida
Supreme Court ruled.
In a 4-3 opinion, the justices rejected the
hospitals' argument that patients only have
the right to inspect such records created
since November 2004, when voters adopted
a "patient's right to know" amendment.
The Court also held unconstitutional
parts of a law that aim to restrict access to
records created before the amendment's
The majority opinion held the
amendment applied to existing and future
records because it refers to "any" records
and "any" adverse medical incidents.
Florida Justice Association President
Frank Petosa said the Court's decision
reflected the voters' intent. "[Medical
mistakes] should not be swept under the
rug in a cloud of secrecy," Petosa said,
according to the Charlotte Sun.
In dissent, Justice Charles Wells wrote
the majority's view "is contrary to the law
and fundamental fairness."
Wells cited another state law keeping
hospital's peer review records secret
and prohibiting their use in civil cases,
an exemption intended to help medical
personnel speak in confidence about past
errors in order to prevent future mistakes.
Source: Charlotte Sun
SARASOTA-Florida doctors and
hospitals sued three state agencies in
federal court to keep records of medical
errors from the public.
Thirty-seven Florida hospital groups
and the Florida Medical Association sued
the Department of Health, the Agency
for Health Care Administration and the
Attorney General's Office, saying federal
medical privacy laws trump state law.
Amendment 7 to the Florida
Constitution lets patients access records
by any "health care facility or provider
relating to any adverse medical incident."
The medical groups said the law
conflicts with the 1986 federal Health
Care Quality Improvement Act, which
enabled hospitals to report malpractice
cases and hospital privilege revocations
to the National Practitioner Data Bank
The Attorney General's Office said
the HCQIA allows disclosure by parties
authorized under state law.
The groups also claimed satisfying
the over 400 requests already filed would
be costly and time-consuming because
HIPAA, the federal medical privacy law,
requires removing all patient-identifying
information before disclosure.
While supporters say enforcing the law
will reveal mistakes hidden by doctors
and insurers, the medical groups and
some safety advocates say the law will
discourage reporting errors and violate
standing confidentiality agreements.
"We feel strongly that it is not fair
to open up records that were held
confidential by previous court actions over
30 years," said Bill Bell, general counsel
for the Florida Hospital Association.
Source: Sarasota Herald-Tribune
TALLAHASSEE In a survey
released in March 2008 to coincide
with Sunshine Week, the Florida First
Amendment Foundation found only
50 percent of 34 state agencies passed
a four-part public records test.
Volunteers from the foundation,
who presented themselves as average
citizens, requested the same routine
record a copy of the most recent
travel reimbursement form filed by
the agency's chief administrative
The volunteers documented
whether they were asked to give their
name, present identification, provide
a reason or purpose for the request or
provide the request in writing all
things prohibited by Florida's Public
Thirty-two percent of the state
12 percent had two. Only the
Department of Transportation had
The most common violation -
requesting the record requestor's
name occurred in one-third of the
state agencies. Just more than one
quarter of the agencies required the
request in writing. Only two agencies
required that the requestor provide a
reason for the request.
The only agency to fail the audit
completely was Visit Florida. The
agency denied the requestor access
to the agency's office because of
"renovations," according to the
First Amendment Foundation. The
requestor was unable to find anyone
to talk to about her public records
The audit also found that the
attitude of government employees
toward those making public record
requests has "dramatically improved,"
according to the foundation, which
cited the efforts of Gov. Charlie Crist
and his Office of Open Government
to facilitate transparency.
Source: The Ledger (Lakeland)
SAnnual FOI Report U 2008
Groups sue to prevent public
release of medical errors