Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00034
 Material Information
Title: Brechner report
Series Title: Brechner report
Physical Description: Serial
Language: English
Creator: Brechner Center for Freedom of Information, College of Journalism and communications, University of Florida
Publisher: Brechner Center for Freedom of Information
Place of Publication: Gainesville, Fla.
Publication Date: October 2002
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00034
Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.


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Volume 26, Number 10 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom oflI.',,,' .i.. ..,, College ofJournalism and Communications U University ofFlorida
October 2002

Judge orders convicted official to pay $5,000 in fines, fees

PENSACOLA A judge refused to
overturn a Sunshine Law verdict against
suspended Escambia County
Commissioner W.D. Childers' and cleared
the way for a retrial of Childers on a
second Sunshine Law charge. The judge
also ordered suspended Commissioner
Terry Smith to pay almost $5,000 in fines
and legal costs for violating the Open
Meetings Law.

Court weighs

taking photo case
Supreme Court has asked lawyers
involved in the challenge of the state's
autopsy photo law to file briefs outlining
their arguments.
The Independent Florida Alligator
has sued to gain access to the autopsy
of race car ACCESS
Eamhardt, RECORDS
challenging a
law barring public access to autopsy
photographs that passed in the wake of
Earnhardt's death. The state Supreme
Court was asked to rule on the issue after
the 5th District Court of Appeal upheld
the law, citing privacy concerns.
However, the appeals court also certified
the question to the Supreme Court.
The Supreme Court said it would not
make an immediate decision on whether
to take the case and, instead, directed the
opposing attorneys to submit briefs of
their arguments in the case.
The Orlando Sentinel and the South
Florida Sun-Sentinel have filed a
separate challenge to the law, which is
currently before the 4th District Court of
Appeal. Tom Julin, the Alligator's
attorney, said Sentinel attorneys are
trying to get their case merged with the
Alligator's case. (7/31/02)

Childers was convicted in June of Oct. 7. Childers also is facing a felony
violating the state's Open trial on charges of bribery and
Meetings Law. (Brechner A C C E SS (money laundering. At a
Report, September2002) sentencing hearing, Maney
He was acquitted on two MEETINGS rejected the prosecutors'
other counts, and the jury recommendations that Smith
deadlocked on a fourth charge. spend 60 days injail. Maney ordered
Okaloosa County Judge T. Patterson Smithto pay $4,987.64 in fines and fees
Maney let the mistrial stand, and and ordered him to perform 250 hours of
Childers will be retried on the charge on community service. (9/11/02 9/19/02)


Question politicalcandidates

about opinions on access issues

In preparation for the November 2002
general election, the Brechner Center for
Freedom of Information and the First
Amendment Foundation encourage
citizens and the media to question local
candidates about their stances on public
access to records and meetings.
The organizations suggest that
political candidates be asked the
following questions:
What are your views on the
public's right to oversee its government
through access to government records
and meetings? What would you do, if
elected, to strengthen and support this
The state Legislature continues to
pass new exemptions to the state's
Public Records and Open Meetings
Laws. What, if any, records or meetings
that are currently open would you like to
see closed? What, if any, records or
meetings that are currently closed would
you like to see opened?
Do you support the proposed
constitutional amendment (Amendment
4) to require that any future public
records or public meetings exemption
pass the Legislature only with a two-
thirds majority?


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What are your views on electronic
access to public records, including a
public agency's e-mail? Should the
public be asked to pay for electronic
access to public records?
Do you think it is possible for the
state to provide online access to public
records while respecting an individual's
right to privacy?
Should the government be allowed
to sell public records, or should it be
limited to recovering only the cost of
disseminating public records?


Panel rules notes are not public

TALLAHASSEE A three-judge
panel for Florida's First District Court of
Appeal upheld a trial court opinion that
vote sheets and handwritten notes used
by judicial nominating commissions are
exempt from Public Records Law and that
judicial nominating commissions do not
have to comply with the Public Records
The Justice Coalition and its founder,
Ted Hires, sued in February 2001 to get
access to notes, vote sheets, ballots and
tally sheets used by the judicial
nominating commission for the First
District Court of Appeal.
Judge L. Ralph Smith, 2nd Judicial
Circuit, dismissed the lawsuit in July

2002, ruling in part that the Public
Records Law did not apply to the
commission and that the written records
were part of the commission's
deliberations and thus were exempt under
the Florida Constitution.
Hires and the Coalition appealed the
dismissal, but the appellate panel
affirmed the lower court's decision.
The appeals court rejected The Justice
Coalition's argument that deliberations
are oral only and cannot include vote
sheets or committee members' notes.
(8/1/02; The Justice Coalition v. The
First District Court ofAppeal Judicial
,'. iii,,,,,i, Commission, Case No. 1D01-

AGO: Probable cause needed for release

TALLAHASSEE- Complaints filed
with the Florida Real Estate Commission
of the Department of Business and
Professional Regulation are exempt until
10 days after probable cause has been
found, according to Attorney General
Bob Butterworth.
Butterworth issued an Advisory Legal
Opinion after receiving a question from
the Town of Ponce Inlet.
If a town files a complaint against a
licensed professional that complaint is

exempt from the state's Public Records
Law until 10 days after a probable cause
panel decides that probable cause exists,
The complaint can be released earlier
if the subject of the investigation waives
confidentiality. If the panel decides
probable cause does not exist, the
complaint remains exempt.
However, other files related to the
complaint may notbe exempt, he wrote.
(AGO 2002-57, 8/21/02)

Brechner Center

wins national

Sunshine award
The Brechner Center for
Freedom of Information was
honored by the Society of
Professional Journalists (SPJ) with
its Sunshine
Award at the NEWS
organization's NOTES
convention in Forth Worth, Texas.
The award recognizes outstanding
contributions to freedom of the
Terry Hynes, Dean of UF's
College of Journalism and
Communications, and Sandra
Chance, director of the Brechner
Center, were recognized for the
Center's efforts to protect the First
Amendment and the free flow of
information and the creation of a
public service ad campaign
promoting freedom of information.
SPJ, with 10,000 members around
the U.S., is considering adopting
the public service ad campaign as a
model for the rest of the country.

Opinion: Precinct register signatures cannot be copied

TALLAHASSEE Voter signatures
on precinct registers are exempt from
copying, according to an Advisory Legal
Opinion from Attorney General Bob
Butterworth issued the opinion in
response to a question from Flagler
County Attorney Carl E. Kern.

The Flagler Elections Office was
approached by a member of the media
who wished to copy the signature of a
particular voter in connection with an
investigation into alleged voter fraud.
Citizens can inspect, but not copy,
county voting registers under Florida
Statutes, section 98.095.

Newspaper settles lawsuit with DCF

MIAMI The South Florida Sun-
Sentinel settled a lawsuit with the
Department of Children and Families that
the newspaper filed to get copies of 22
missing children's case files.
Under state law, files concerning
children in DCF care are confidential, but
the newspaper argued in its lawsuit that
the law allows for exceptions in cases
where access to the files benefits the
public and outweighs privacy concerns.
"The public needs to know why DCF
was unable to locate these children,"

according to the lawsuit.
When the paper and the DCF faced off
in Judge Phil Bloom's courtroom, the
judge scolded both sides and sent them
off for further negotiation. Bloom said the
newspaper lawsuit was intended "to
inflame the judge and to inflame the
community." The judge ordered the two
sides to confer before he ruled in the
case. The agency and the paper settled,
and the DCF released the documents
about 10 days after the hearing in front of
Bloom. (8/14/02- 8/27/02)

In the opinion, Butterworth said that
precinct registers, which are brought to
the polling precincts on election day in
place of the county registration books,
"would appear to constitute a
registration record" and are exempt also
from copying under Florida law. (AGO


Copies of case opinions, Florida
Attorney General opinions, or
!,.i, ,lt,. ,i reported in any issue as
"on file" may be obtained upon
requestfrom the Brechner Center for
Freedom of Information, College of
Journalism and Communications,
3208 Weimer Hall, P.O. Box 118400,
University ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.

2 The Brechner Report U October 2002


Golf course will follow opinion Commissioninsists
A -. '^ "^l WAI ^.- ^^^^

STUART The Martin County Golf
and Country Club will not challenge an
opinion from Attorney General Bob
Butterworth that it should operate in the
open, said Bob Sokel, the golf board
Stephen Fry, an attorney for Martin
County, requested the official opinion
from Butterworth, asking if the not-for-
profit corporation that runs the golf
course must abide by the state's Open
Meetings and Public Records Laws.
(BrechnerReport, September2002)
Butterworth said since the not-for-
profit corporation is operating the golf
course in place of the county and since


the lease agreement states that the
records of the corporation should be
"fully accessible" to the county, the
corporation's records and meetings
should be open to the public.
"We're definitely going to comply,"
Sokel told The Stuart News. "We're not
going to evade anything."
A former golf course board was
accused of not allowing county
representatives to attend meetings.
"You're not allowed to call a special
board meeting, close the doors and not
take minutes," said Commissioner Dennis
Armstrong. "That's all we were really
concerned about." (8/21/02)

Judge denies request for gag order

BARTOW A circuit court judge
denied a gag order request by the Polk
County Sheriff's Office to keep The
Ledger of Lakeland from publishing the
name of an undercover deputy who shot
and killed a suspect during a drug raid.
Circuit Judge Charles Curry granted a
temporary injunction against the
publication of the deputy's name.
However, at a hearing for a permanent
injunction, Judge Ron Herring denied the
request for permanent injunction and
lifted the temporary injunction, saying
the Sheriff's Office had not met the

government's "extremely heavy burden"
of proving the need for a gag order.
Herring, aformerpolice officer and
prosecutor, said we "live in an open
society. We don't have a secret police in
our society."
Herring also noted that the officer's
name could become public when the drug
case that led to the raid and the shooting
goes public.
The Ledger published the name of the
deputy after the state attorney cleared
him of wrongdoing in the suspect's
shooting. (8/21/02)

Court: Immigration hearings should be open

CINCINNATI A federal appeals
court ruled that the Department of Justice
cannot automatically close all post-
September 11 immigrationproceedings it
deems "special interest" cases.
The ruling by the 6th Circuit U.S.
Court of Appeals affirmed a trial court
order in the case of Rabih Haddad, who
was detained after September 11.
The Detroit News, The Detroit Free
Press and Rep. John Conyers challenged
the closure of hearings involving
The Justice policy of closing "special
interest" proceedings without first
holding a hearing to determine if closure
was necessary to protect a compelling
interest was unconstitutional, the
appeals court wrote.
Public oversight was the only way to

check "extraordinary governmental
power," according to the three-judge
"Today, the Executive Branch seeks to
take this safeguard away from the public
by placing its actions beyond public
scrutiny. Against non-citizens, it seeks
the power to secretly deport a class if it
unilaterally calls them 'special interest'
cases. The Executive Branch seeks to
uproot people's lives, outside the public
eye, and behind a closed door.
Democracies die behind closed doors,"
the court wrote.
Immigrationhearings are
administrative proceedings.
However, the court said the hearings
have judicial characteristics and judicial
openness protections should apply.

LEE COUNTY At the insistence of
the chairman of the Lee County
Commission, the Southwest Florida
International Airport's Qualifications
Committee will be open to the public.
The Qualifications Committee, which
is made up of airport employees, has met
in private for 10 years. However, the
committee now will select contract
finalists in public following a meeting
airport officials had with Commission
Chairman Bob Janes and County
Attorney JimYaeger.
The five members of the Lee County
Commission operate the airport as the
Port Authority Board. The commissioners
said they were not aware that the
Qualifications Committee was meeting in
Yaeger said he believes the county
could defend the closed meetings in
court, but recommended that the
meetings take place in public and record
of the meeting be maintained.
"I told them I don't want to get into
whether it's legal or not to do it in
private. I told them it's a matter of public
perception. It's particularly so since we
are about to go through a one-half billion
dollar bidding process in the expansion
project," Janes said. (8/9/02 8/10/02)

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The Brechner Report U October 2002 3

Support initiative to require two-thirds vote on exemptions

Access to public information is a basic right in Florida.
Our constitution guarantees us the right to attend public
meetings and see public records.
Florida voters passed the Public Records and
Meetings Constitutional Amendment by a landslide in
1992. They understood the importance of this
amendment, which guarantees us the right to attend
The public meetings and see
S T, .- public records so we can

D>.. U,.,., /i ,. ^

make the best decisions
for ourselves, our families and

By ucn urau CU nce ourcommunities.
The voters understood that legislators would be susceptible
to special interest groups to keep more information secret. The
constitutional amendment makes it more difficult for them to pass
new exemptions to the law.
On Nov. 5, another constitutional amendment to promote
open government will be on the ballot. This amendment doesn't
really add a new amendment to our constitution. It simply
strengthens the existing Public Records and Meetings
Constitutional Amendment.
The "Protect Open Government" Amendment is the fourth
amendment on the ballot and is sometimes referred to as
Amendment Four. This amendment will make it harder to restrict
the public's constitutional right of access by requiring that
exemptions to the open government policy be passed by two-
thirds vote of each chamber. The joint legislative resolution,
sponsored by Sen. Jack Latvala and Rep. John Carassas, passed
the Senate unanimously with only four dissenters in the House.
It seems even the members of the Legislature realized how
quickly legislators were passing new exemptions during the past
few years, weakening one of the country's strongest open
government laws. Last year, 136 bills were introduced that would
have restricted our right to know about government activities.
Many of these proposals were hastily considered, rarely debated
and passed with blinding speed. While most of them didn't pass
both chambers this legislative term, they'll be back next session.
In a state that has always taken great pride in its century-old
tradition of open government, one legislator even suggested
removing the word "Sunshine" from our signs on the state's
borders. The signs would then read, "Welcome to the State."
If it weren't true, it might be funny. That's why it is so

important for voters to understand this amendment and
why they should vote for it in November. Not much has
been written about the amendment in the state's
newspapers. In fact, one of the state's leading
newspapers reviewed the ballot amendments and
completely overlooked Amendment Four. It ran a
correction a week later endorsing the amendment, calling
it an easy call.
Chance This past summer, the state's media groups, including
the Florida Society of Newspaper Editors, the Florida
Press Association, the Florida Press Club, the Brechner Center for
Freedom of Information, the Florida First Amendment Foundation,
and representatives from the National Association of Black
Journalists, the National Association of Hispanic Journalists, and
the Florida Bar Media Law Committee, gathered at the Poynter
Institute in St. Petersburg to explore the creation of a coalition.
The Sunshine Coalition's primary mission will be to educate the
public about the importance of access to information.
This group decided to focus on Amendment Four as its first
project. The Brechner Center is coordinating these efforts. We
hope you'll support us by covering the amendment, writing
editorials endorsing it and encouraging your readers to support
this important referendum on open government.
The Coalition is also working on a Web page, more public
service ads, sample editorials, information about the amendment
and talking points for editors who are speaking to civic groups.
The Web site's address will be: www.sunshinecoalition.org and
should be launched the first part of October. If you'd like more
information about the Coalition, please call the Brechner Center.
In the words of one of Amendment Four's sponsors: "An
open government is the best government." Write an editorial,
give a speech, run a public service ad, explain the amendment to
your friends and neighbors, challenge candidates to support
open government. The proposed amendment gives us a
wonderful opportunity to remind many of our legislators that the
citizens of Florida cherish their Sunshine Laws and understand
that an open government is the best government.

Sandra Chance is the director of the Brechner Center for
Freedom oflInformation, an associate professor of media law
in the College of Journalism and Communications and
coordinator of the new Sunshine Coalition.

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