Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00039
 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: March 2003
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00039
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 27, Number 3 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,, .. .i. 1, .. College ofJournalism and Communications U University ofFlorida
March 2003

Court rules records in harassment case are public
TAMPA The Florida Supreme Court was upheld by the 2nd District Court of Ward was accused of sending
ruled onFeb. 13 that memos and e-mails Appeal, stating the documents were not sexually explicit e-mails to Circuit Judge
involving sexual harassment allegations official judicial records and therefore not Claudia R. Isom and judicial assistant
against formerHillsborough Circuit public. Michelle Boylan in 1998. He was also
Judge Ed Ward are public records and The Supreme Court reversed the accused of kissing Circuit Judge Vivian
should have been released E -decision, ruling that the C. Maye and inviting herjudicial
to the media organizations A C C E SS documents werejudicial assistant to drink beer in his chambers in
that requested them. records generated in the 1999.
The ruling reverses a RECORDS course of Alvarez's official Ward resigned in 2000 after the
prior decision in a case courthouse business. Judicial Qualifications Commission
brought by The Tampa Tribune to obtain "When an individual complains to a charged him with misconduct.
records kept by former Chief Justice F. chief judge about judicial misconduct Ward's successor, Manual Menendez
Dennis Alvarez, who investigated the involving sexual harassment or sexually Jr., said many of the requested records
harassment claims against Ward. inappropriate behavior, any records made have already been released by the
Alvarez denied the request, saying the or received by the chief judge constitute Judicial Qualifications Commission.
records were confidential. The decision public records," according to the Court. (2/14/03)

Official records

on Internet
CITRUS COUNTY- As of Jan. 13, the
Citrus County Clerk of Courts Office has
made images of official records available
to the public on the clerk's Web site,
The initiative is the result of a law
passed during the 2002 Florida legislative
session, which requires the clerk to place
the images of official records on a
publicly available Web site.
Additional law provides for the
removal of Social Security numbers from
an image or copy of an official record if a
person requests the clerk to do so.
The official records available include
liens, agreements, satisfactions and
documents pertaining to land
transactions, such as mortgages and
deeds. (1/10/03-1/12/03)

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City commissioners reach plea deal
KISSIMMEE-Two city court costs.
commissioners charged with violating the The two men were charged in
Sunshine Law accepted a October after failing to
deal to plead no contest to A notify the public about
misdemeanor charges, a stateA C C E SS meetings in which they
attorney's official said. MEETINGS discussed providing
Commissioner Wendell sister city Santa Maria,
McKinnon and former Peru, with city support.
Commissioner Bob Makinson both made In a separate investigation, both
last minute pleas to avoid a criminal McKinnon and Makinson were cleared
record. Instead they pleaded guilty to by the state Ethics Commission.
civil violations and will face $50 fines and (1/25/03)

Transit decisions to be televised

Suncoast Transit Authority will join
other major government entities in
Pinellas County which televise their
meetings so that the taxpaying public has
an alternative to attending public
Until the televised meetings of the
transit authority, those interested in the
multimillion dollar decisions made by the
PSTA had to attend the meetings on the
third Wednesday of the month at 9 a.m.
"We make a lot of decisions that affect
mass transit in Pinellas County and
spend a huge amount of money," said

John Bryan, a PSTA board member and a
St. Petersburg council member. "We
need to let the citizens see what we are
To allow for the taping of meetings, an
outside vendor must come in to set up
cameras and microphones. Then a
production company will create a TV-
ready tape to distribute to every
municipal agency that has a contract
with cable television.
After the meetings are taped, it's up
to individual cities to make sure the
PSTA meetings get on the air.






group sues for

access to

library room
TAMPA An Orlando-based
religious group filed a lawsuit in federal
court in Tampa after a public library in
Dunedin denied the group use of its
meeting room.
The library's policy makes the room
available on a first-come, first-serve basis
to non-profit tax-exempt groups or
organizations of an educational or
cultural nature. It does not allow
political, religious and formal social
meetings and programs to use the room,
exercising separation of church and state.
The religious group, Liberty Counsel,
filed two requests in August and
November to hold a lecture on America's
Christian Heritage in the library's meeting
room. Meeting room coordinator
Dorothy Noggle denied both requests in
writing, citing the library's policy.
The Liberty Counsel is seeking to bar
the library from prohibiting religious
groups from using its meeting space.
"One of the clearest issues in
constitutional law is the concept of equal
access to public facilities," said Mathew
D. Staver, president and general counsel
for the Liberty Counsel. "Of all places, a
public library should welcome diverse
City Attorney John Hubbard defends
Dunedin's policy.
"The city still believes in separation of
church and state, and that's how we run
our city facilities," said Hubbard.


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

Right to question jurors appealed
WASHINGTON The Reporters was affirmed. The appellate court
Committee for Freedom of the Press, expanded the order to prohibit
along with several other media communications with the press initiated
organizations, filed a friend-of-the-court by the discharged jurors. This order
brief Jan. 21 with the U. S. Supreme remained in effect until after Neulander's
Court requesting review of a New Jersey retrial and conviction one year later.
Supreme Court decision upholding a The brief urging the U. S. Supreme
judge's right to prohibit the press from Court to review the decision contends
interviewingjurors aftertrial that the order prohibiting juror interviews
proceedings. is unconstitutional and serves as a prior
The case involves Fred Neulander, a restraint that s.c\ c ic l\ restricts the First
rabbi and former community leader, who Amendment rights of the press and limits
was accused of murdering his wife in the exchange of information about the
Camden County, N.J.. Neulander faced administration of justice in our society."
the death penalty, and when the first trial The brief also states the order is contrary
ended in November 2001 with a hung to the right to open public trials and the
jury, the judge prohibited the press from public's right to receive information.
interviewing or contacting the "We hope the Supreme Court will use
discharged jurors. this case as an opportunity to reinforce
The Philadelphia Inquirer challenged the First Amendment rights of journalists
the judge's order and lost at the trial and jurors," said Lucy A. Dalglish,
court level. On appeal to the New Jersey Reporters Committee Executive Director.
Supreme Court, the lower court decision (1/21/03)

Confederate symbols banned from school

Advisory Council at Kirby-Smith Middle
School voted 8-1 at a special meeting to
impose a ban on students, faculty and
staff from wearing clothing decorated
with the rebel flag.
The ban comes after students made
comments about racial tensions in the
"Apparently comments were made by
both black and white students and some
of them went to a guidance counselor
saying the two factions were planning to
fight one another after school," Principal
Elnora Atkins said. "The guidance

counselor came to me and said we had a
According to Atkins, heated words
were exchanged at the SAC meeting and
some parents argued that Confederate
symbols are part of their Southern
"Some parents said they were opposed
to the ban and I think one of them said
something about filing a lawsuit," Atkins
Incidentally, the Jacksonville school is
named after Confederate Gen. Edmund
Kirby-Smith, whose statue represents
FloridaintheU.S. Capitol. (1/30/03)


Judge will not bar
PUNTA GORDA Ajudge decided to
allow the public to attend a DUI pre-trial
hearing involving the death of a popular
Port Charlotte bar owner despite defense
Dabney H. Young III is accused of
driving under the influence when he hit
andkilled motorcyclist Tim Spieldenner,
co-owner of GatorzBar& Grill, last year.
Young's attorney, Mark De Sisto,
asked Judge Sherra Winesett to bar the
public and press from a hearing to
suppress evidence about his blood-

public from hearing
alcohol level, arguing that further press
coverage might hinder Young's chance
of a fair trial.
Judge Winesett ruled against De
Sisto, saying he had not shown that
closing the court was imperative, and
that she did not think it necessary to
prevent an imminent threat to justice.
"There is little justification for closing
this hearing," Winesett said in the
The hearing will be open to the public
and is set for March 7. (2/12/03)

2 The Brechner Report U March 2003

Prosecutors ch

high school hat
PUNTA GORDA A Charlotte High
senior who wrote a racially inflammatory
letter and handed it out at school was
arrested and accused of violating a
Florida statute that makes it a first degree
misdemeanor to publish anonymously
any written materials that expose
individuals or religious groups to hatred,
contempt, ridicule or abusive language.
Prosecutors are currently challenging
that statute, however, claiming it was
ruled unconstitutional several years ago.
The letterwrittenby 17-year-old
Daniel W. Lynn uses racist terms and
asks "rednecks" to unite in an attack
against black students. Lynn then
anonymously distributed 150 copies of
the letter at school.
Charlotte County sheriff's deputies
arrested Lynn, charging him with
publishing a hate document, disrupting a
school function and violation of
The statute Lynn was accused of

Circuit judge turned down a request by
Alliance Capital, a New York based
investment firm accused of losing more
than $300 million in Florida state pension
money during the Enron crash, to keep
some records secret.
The state sued Alliance in May,
claiming mismanagement by the company
when it purchased nearly 3 million Enron
shares for the state's pension fund,
resulting in serious losses. The Tampa
Tribune and the St. Petersburg Times
joined the state in December in pursuing
access to documents Alliance has
provided to the state as part of the trial.
The state is also seeking release of
documents as part of its lawsuit to force
Alliance to pay the state at least some of
the money that was lost.
Florida's State Board of
Administration claimed the documents
being sought by the Tribune and the
Times should be publicly available

illenge statute in

te speech case
violating was ruled unconstitutional in a
Broward County case in which an
anonymous letter was sent to the
Broward commissionerin 1999 including
anti-Semitic comments. The 4thDistrict
Court of Appeal upheld the decision,
ruling that the statute "violates the First
Amendment because it is impermissibly
content-based, overbroad and vague."
"We're bound to follow that (ruling),"
assistant state attorney Daniel Feinberg
said. "We can't charge any individual
under that statute."
The Sheriff's Office spokeswoman
Sgt. Donna Black said deputies consult
the most recent statute books before
making arrests, and the statute in
question is still on the books.
There is a right to speak
anonymously, said University of Florida
law professor Lyrissa Lidsky. "It's very
hard for a statute to regulate hate

because they are related to Alliance's
work for the state. But Alliance argued
the documents are confidential since
they were provided for the lawsuit and
not the state contract.
Alliance also claimed the documents
should remain secret because they
contain information concerning the
company's decision-making and could
harm its competitive advantage.
"They have essentially argued that
this is like the formula for Coca-Cola,"
state board attorney Guy Burns said.
Circuit Judge Nikki Ann Clark denied
Alliance's request to keep documents
secret, saying any claims Alliance wants
to make about trade secrets will have to
be dealt with one document at a time.
The judge also said the board is a
government agency and the trial involves
official business, which makes trial
documents in the board's possession
public records.


The Brechner Report U March 2003 3



Extension Upheld
WASHINGTON In a 7-2 court ruling,
the U.S. Supreme Court upheld the 20-year
copyright extension act, declaring the
extensionfell clearly within Congress'
constitutional authority.
Congress passed the Copyright Term
Extension Act in 1998 which extended
copyright terms from 50 years after the
death of the work's author to 70 years after
the author's death. In 1999, Eric Eldred, who
archives digitized works by long-dead
authors, challenged the new law as
unconstitutional, claiming it is not only an
infringement on free speech, but also a
violation of the clause in the constitution
authorizing copyrights.
Delivering the majority opinion, Justice
Ruth Bader Ginsberg said that Congress
does have the authority to extend
"As we read the Framers' instruction, the
Copyright Clause empowers Congress to
determine the intellectual property regimes
that, overall, in that body's judgment, will
serve the ends of the Clause," she said.
"We are not at liberty to second-guess
congressional determinations and policy
judgments of this order, however debatable
or arguably unwise they may be," she
Without the protection of extended
copyrights, movies such as "Casablanca,"
"The Wizard of Oz" and "Gone With the
Wind" would be at risk, as well as the
original version of Mickey Mouse. (1/16/03)


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Circuit judge denies request to

keep Alliance records secret


Court rules phone records are

TALLAHASSEE An appeals court
has ruled that cellular phone records of
work-related calls made by state
employees are public records, even if the
phone and cellular services were paid for
by a third party.
The ruling comes after The Tampa
Tribune and the Orlando Sentinel sued
the then-House Speaker Tom Feeney, R-
Oviedo, in 2002 after the Republican
Party of Florida took over payments for
cellular service of five upper-level House
Feeney argued that since the phones
were no longer being paid for by the
state, they should not be open to

taxpayer scrutiny.
Shortly before a trial court hearing in
2002, House attorney Barry Richard
agreed to provide the Tribune with
House employee's cellular phone
records. But all of the phone numbers
were redacted, as well as the calls
deemed to be personal.
The decision written by Judge Ricky
Polston said the Tribune is entitled to the
phone numbers made in the course of
state business, but personal phone calls
could remain redacted.
The issue arose during last year's
legislative session when it was reported
that Feeney aide Bridgette Gregory was

using taxpayer-financed phones and
computers to assist in Feeney's campaign
for Congress. Feeney denied any wrong-
doing, and Gregory reimbursed the state
$350 for personal calls made on a state
Media attorneys said the ruling sets an
important precedent for access to public
"In so many public-records cases,
principle is paramount," said Gregg
Thomas, attorney for the Sentinel and the
Tribune. "What the court now says is
that all the calls that were of governmental
business are available to us. That is really
what we wanted." (2/22/03)


Legislature to debate more than 30 Sunshine bills

legislature will consider more than 30 bills
dealing with Florida's Sunshine law
during this year's session, which
convenes on March 4.
Below is a list of bills which were
taken from the Florida Legislature's home
page, Online Sunshine, at huIp " '
leg.state.fl.us. Chief sponsors of the bills
are in parentheses next to the bill

SB 74 (Campbell, D-Tamarac)
SB 76 (Campbell, D-Tamarac)
Pharmaceutical Adverse Incidents -
SB 76 would create a public records
exemptionfor informationof
pharmaceutical adverse incident reports
to the Department of Health. SB 74
defines "pharmaceutical adverse
incident" and would require the
pharmacists to report adverse incidents
to the Department of Health.

SB122 (Smith, D-Gainesville)
Child Abuse Public Records Would
amend Florida Statute 39.202 to expand
the list of persons to whom child abuse,
neglect and abandonment records held
by the DCF may be granted to include
staff of child advocacy centers.

SB 126 (Campbell, D-Tamarac)
Victims of Sexual Offense Would
exempt any photograph, videotape,
digital image, electronic image, recorded

image or other visual image of any part of
the body of a sexual offense from Public
Records Law.

SB 142 (Smith, D-Gainesville)
Criminal Records Would prohibit the
Department of Law Enforcement from
expunging criminal history records that
concern a defendant who was found
guilty of, or who pled guilty or nolo
contender to the offense of voyeurism.

SB 192 (Lynn, R-Ormond Beach)
HB 251 (Patterson, R-DeLand)
Library Records Would reverse
confidentiality provisions of public
library registration and circulation
records to authorize disclosure of
information to parents or guardians of
library patrons under the age of 16 for the
purpose of collecting fines or recovering
overdue materials.

SB 238 (Saunders, R-Naples)
Ethics Commission- Would exempt
proceedings relating to information or
referrals received by the Commission on
Ethics regarding ethics code violations
from public records and public meetings

SB 252 (Comprehensive Planning
Accidental Release Prevention
Program Would amend and reenact the
public records exemption for information

that constitutes a trade secret and is
submitted as part of a risk management
plan or found in records or reports
obtained during an investigation,
inspection, or audit under the Accidental
Release Prevention Program.

SB 254 (Comprehensive Planning
Municipal Personnel Records -
Would amend and reenact the public
records exemption for personnel records
of a municipal employee's participation in
certain alcohol, drug or mental health

SB 256 (Comprehensive Planning
County Personnel Records Would
amend and reenact the public records
exemption for personnel records of a
county employee's participation in
certain alcohol, drug or mental health

SB 274 (Committee on Health, Aging and
Long-Term Care)
AHCA Adverse Incident Would
amend a public records provision
exempting informationcontained in
notification of adverse incident provided
to the Agency for Health Care
Administration by a facility licensed
under Hospital Licensing & Regulation
laws, authorizing the use of the
information as part of certain disciplinary

4 The Brechner Report U March 2003



SB 282 (Committee on Banking and
Employee Records Would repeal a
public records exemption concerning
information identifying an ill or injured
employee which is contained in a report
of injury or illness held by the
Department of Insurance.

SB 284 (Committee on Banking and
Workers' Compensation Law Would
amend a public records provision
exempting investigatory records of the
Department of Insurance concerning an
employer's compliance with the Workers'
Compensation Law, clarifying that a
record containing personal identifying
information of a confidential source
remain confidential after an investigation
is complete.

SB 288 (Committee on Governmental
Oversight and Productivity)
Employee Assistance Program
Records Would create a public records
exemption for personal identifying
information contained in records relating
to a state employee's participation in an
employee assistance program.

SB 290 (Committee on Governmental
Oversight and Productivity)
Housing Assistance Program
Records Would revise a public records
exemption concerning information
furnished by an applicant for or
participant in a housing assistance
program. It would also delete an
exemption for bank account numbers,
credit card numbers and telephone

SB 298 (Committee on Health, Aging and
Florida Kidcare Would reenact a
public records exemption for information
that identifies applicants of the Florida
Kidcare program, expanding the
exemption to include records that identify
any applicant or enrollee in the program.
Also would authorize confidential
information to be disclosed to another
governmental entity if the receiving
agency maintains the confidentiality of
the information.

SB 304 (Argenziano, R-Crystal River)
HB 451 (Hogan, R-Jacksonville)

Public Utility Customers -
Would create a public records
exemption for information held by public
utilities of their customers' personal
identifying information.

SB 306 (Committee on Health, Aging and
Long-Term Care)
Provider and Subscriber Assistance
Program Would create a public records
exemption for information that identifies a
subscriber under the Statewide Provider
and Subscriber Assistance Program.
Would also remove the exemption that
includes information identifying the
spouse, relative or guardian of a

SB 462 (Committee on Agriculture)
Rabies Vaccinations Would reenact
the public records exemption for
confidential information contained in a
rabies vaccination certificate that
identifies the owner of the animal

SB 1026 (Committee on Criminal Justice)
Videotaped Statements Would
create a public records exemption for
information in a videotaped statement
held by a law enforcement agency that
reveals the identity of certain minors. It
would provide for disclosure to other
governmental entities, but that entity
must maintain the confidentiality.

SB 1028 (Committee on Criminal Justice)
Executioner I.D. Would clarify a
public records provision exempting an
executioner's identity and other persons
involved in an execution from public

SB 1052 (Smith, D-Gainesville)
Autopsy Records Would allow
survivors of the deceased to designate
an agent to view or obtain autopsy
records from a medical examiner.

SB 1074 (Crist, R-Tampa)
Sexual Predators Would require the
Department of Law Enforcement to
classify sexual predators according to
five levels of dangerousness.

SB 1082 (Smith, D-Gainesville)
Criminal Records Would expand the
list of offenses that cannot be expunged
or sealed to include such offenses that
meet the statutory criteria of sexual
predator, sexual offender and career

offender designation.

SB 1182 (Dockery, R-Lakeland)
Security System Plans Would create an
exception to the public records exemption of
security system plans for any property
owned by or leased to the state or any of its
political subdivisions or for any privately
owned or leased property for which the
security system plan is held by an agency.

HB 3 (Gelber, D-Miami Beach)
Honest Government Would create
"Citizens' Right to Honest Government Act"
which provides criminal penalties for official
misconduct, criminal misuse of official
position, disclosure or use of confidential
criminaljustice information, andbid

HB 11 (Mahon, R-Jacksonville)
Paternity Records Would create a
public records exemption for information
contained in paternity registry maintained
by CFS Department.

HB 69 (Rich, D-Sunrise)
Firearm Records Would create a public
records exemption for specified records
pertaining to buyer or transferee of firearm
and duty of the Department of Law
Enforcement with respect to maintaining
such records do not apply to pawnbroker
transaction forms that record a transaction
involving firearm.

HB 123 (Dean, R-Inverness)
Law Enforcement Personnel Would
create a public records exemption for
electronic mail address, cellular telephone
numbers, electronic pager numbers,
specified ID numbers and access codes, and
billing records of active or former law
enforcement personnel, including
correctional and correctional probation
officers, and specified personnel of
government agencies.

HB 387 (Ambler, R-Tampa)
Moffitt Cancer Center Would revise the
public records exemption for proprietary
confidential business information owned or
controlled by not-for-profit corporation
which governs and operates H. Lee Moffitt
Cancer Center and Research Institute or
subsidiaries of corporation to include
specified materials, potential trade secrets,
potentially patentable material, actual trade
secrets, business transactions, or
proprietary information.

The Brechner Report U March 2003 5

Commitment to keep Florida in the Sunshine

Florida's heritage of open government is a
tradition in the Sunshine State. The Florida
Constitution and statutes provide a guarantee of public
access that is unique in breadth and scope. However,
while the vast majority of public officials support our
strong open government laws, this support is not
The uniform. Some
heargue that the
Back Page broad reach of
~ the Sunshine
By Charlie Crist Laweliminatesthe
opportunity for private
informal debate among board members that could foster
solutions to problems outside the glare of publicity. For example,
it is argued that if two members of a city commission are
concerned about the city manager's performance, they should be
able to meet privately to discuss their concerns rather then air
their misgivings at a public meeting.
Thirty years ago, Florida Supreme Court Justice James C.
Adkins responded to the concern that the Sunshine Law could
be an impediment to the efficient performance of agency
responsibilities. He warned that "even though their intentions
may be sincere, such board and agencies should not be allowed
to circumvent the plain provisions of the statute [because] [t]he
benefit to the public far outweighs the inconvenience of the
board or agency."
As Justice Adkins forcefully emphasized in a series of key
court decisions, the desire of government officials to meet in
secret to handle difficult issues is fundamentally at odds with
principles of accountability and full public participation in
governmental processes. The open government laws may make
governmental decision-making a more cumbersome procedure,
but they also make it more democratic. The key to democracy is
an informed citizenry. Private discussions among public officials
about public business may be the rule in other jurisdictions, but
it is not the way we do business in Florida. Our Sunshine Laws
demand accountability and give the public the right to know at all
levels of the decision-making process.
As attorney general, I will be on the side of open government
and I urge all public officials to do the same. The next four years
will bring many challenges in Florida, but the steadfast

commitment to open government will remain unchanged.
L We will continue to prepare the Government in the
Sunshine Manual as a guide to the open government
laws on an annual basis. In addition, the open
government mediation program will be available as an
alternative for those seeking to resolve public access
disputes. Last year dozens of public access disputes
between citizens and public agencies were resolved
through the mediation program.
Those wishing to contact my office about open
government issues may reach the Attorney General's Office at
850-487-1963. For more information about the Sunshine Manual,
please contact the First Amendment Foundation at (850) 224-
4555. For more on open government mediation you can contact
General CounselPat Gleasonat 850-245-0157.

Charlie Crist is Florida's 35th Attorney General. Prior to
becoming Attorney General in January 2003, he served as
Florida's Commissioner ofEducation.


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