Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00042
 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: June 2003
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00042
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 6 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofIr .. .i. ,1..,, College ofJournalism and Communications U University ofFlorida
June 2003

Escambia commissioner sentenced

to jail for sunshine violation
PENSACOLA- SuspendedEscambia projects while reserving the right to
County Commissioner W. D. Childers appeal both counts.
was sentenced to 60 days injail, the FormerEscambiaCommissionerMike
maximum penalty, for one count of Bass was also sentenced for two
violating the state's Sunshine Law. sunshine offenses, but avoided jail time
Childers is the first elected and ordered to pay $4,143.69
official to bejailed for A C C E SS in total costs.
violating the open meetings Assistant State Attorney
section of the law. MEETINGS Bobby Elmore called Maney's
On a second count, decisionto jail Childers

Judge T. Patterson Maney also ordered
Childers to pay a $500 fine along with
$376 for court costs and $3,227.85 forthe
cost of the state's investigation and
A Pensacola jury last year convicted
Childers of discussing redistricting in a
telephone call with the county election
supervisor while another commissioner
listened on a speaker phone. He later
pled no contest to speaking with two
commissioners about county building

"I'm pleased that the judge imposed a
sentence that shows that men of wealth
and power and position are not above
the law," Elmore said.
Vanette Webb, another Escambia
official, was the first official to be jailed
for violating the public records section of
the Sunshine Law. She served a week of
her 30-day sentence before being
released, pending her appeal.

Student newspaper comes to a halt
DELAND Stetson University shut Michelle Espinosa, dean of students,
down its student newspaper and fired said.
the entire editorial staff because of an The fake issue satirized a lecture
April Fools' Day issue series designed to
including profanity, FIR ST promote racial dialogue
racist jokes and a sex with an article about a
column advocating rape AMENDMENT racist Civil War enthusiast,

and domestic violence.
The school's newspaper, The
Reporter, has traditionally poked fun at
itself, faculty members and students with
an April Fools' edition renamed The
Distorter. School officials say students
went too far this year.
The university suspended publication
of The Reporter for the rest of the school
year and gave editorial staff members 15
minutes to clear their belongings from
the office.
"There's not much in this year's
Distorter that you can laugh about,"

and included a weekly sex
column written in Ebonics and phony
advertisements with profanity.
Some students said they thought the
punishment exceeded the crime.
It1 \\ a little offensive, but it was
obviously ajoke," said Liz Burdett, a
freshman. "What happened to the First
School officials said they believed in
students need for autonomy. However,
"students do assume responsibility for
their editorial decisions," according to
Espinosa. (4/11/03-4/12/03)

Man arrested at

county meeting
resident John Schestag was
handcuffed and arrested after
speaking out at a public Pinellas
County meeting under new
decorum rules. He was held injail
in lieu of $1,000 bond.
Schestag called the county
commissioners' new rules
censorship and called the county
attorney a liar. He initially refused
to stop speaking after
Commissioner Susan Latvala told
him to be quiet or be removed.
Schestag started to leave the
meeting, but once he was out of the
assembly room, he stopped in the
foyer and would not move when
deputies told him to keep going.
He was arrested and charged with
disorderly conduct, resisting arrest
without violence and disrupting a
public assembly.
The arrest was the first test of
the county's new rules, which were
approved in April. Commissioners
said they proposed the rules after a
group of critics began appearing at
county meetings.
denied that the new rules limit free
"You can say anything you
want to say, but only once every 30
days," he said. "He continued with
the personal attacks...At some
point, you just have to draw the
The new rules also say people
can't make "irrelevant, impertinent
or slanderous remarks." If they do,
they can be removed or asked to
stop. (5/7/03)





Ruling gives public more potential access to records

NEW JERSEY A federal magistrate
judge's ruling in a class action suit
against the New Jersey Division of Youth
and Family Services gives the public and
the media potential access to material
kept secret by protective orders.
The decision by U.S. Magistrate
Judge John Hughes found that The New
York Times and the Star-Ledger of

Judge seals records
PANAMA CITY Bay County Judge
Thomas Welch ruled that search warrants
issued in the arrests of "Girls Gone Wild"
video producer Joe Francis and three of
his employees remain sealed.
In his ruling, Welch cited a 1998 1it
District Court of Appeal opinion citing
that the warrants and accompanying
sworn statements must remain closed to
the public because they are part of an
open investigation.
The News Herald of Panama City and
a private investigator asked to view the
documents relating to the April 3 arrests
of Francis and his employees. Francis
was charged with racketeering related to
prostitution and commercial sexual
exploitation of children, and trafficking in
Welch said before he became aware of
the appellate court's ruling, he
considered the documents to be public
records and routinely allowed them to be
copied. The Florida Supreme Court had
accepted an appeal of the district court
decision, but The Florida Times-Union
of Jacksonville, the newspaper that
initiated the action, withdrew the
complaint before justices could address
the issue. (4/10/03).


Copies of case opinions, Florida
Attorney General opinions, or
!,.i, 'i,,. '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 ofFlorida, Gainesville, FL
32611-8400, (352) 392-2273.

Newark demonstrated a public interest
that overcame the protective order and a
statute barring the release of documents
in the case.
"[The defendants] need to do more
than assert nonbinding state
confidentiality statutes to support their
contention that release of case records
may compromise the privacy interest,"

Hughes wrote in the decision.
As a result, when the state enters
litigation in federal court, the public will
have potential access to more documents,
regardless of exemptions in the Open
Public Records Act or individual
regulations that would otherwise keep
them secret, according to a report in the
Miami Daily Business Review.

Police officer testifies to shredding records

PINELLAS PARK A police sergeant
testified under oath that he was asked to
change a police report and shred original
documents pertaining to the suicide of
City Manager Jerry Mudd.
Mudd died the morning of Feb. 11
after stabbing himself in the chest. The
St. Petersburg Times requested copies of
the suicide note and other records from
the day. They filed suit when the city
Pinellas Park police Sgt. DanLevy said
that he gave a superior officer copies of
all records in the Mudd file, except for
one report. The report in question
included a list of people in the Mudd
home the morning he killed himself. His
testimony also revealed that the city
applied different rules when the media
request public records.
OfficerDonna Saxer and Detective


Mike Lynch also testified that they had
collected their notes about the suicide as
required by a subpoena, but higher-
ranking officers took possession of those
records. It is unclear where the records
Levy testified he helped Saxer change
the official police report to omit wording
from the suicide note. He then took the
original report and a copy Saxer turned in
and "they went in my shred pile... They
ultimately got shredded," he testified.
Pinellas-Pasco State Attorney Bernie
McCabe said he will conduct a
preliminary investigation to see if there is
any criminal activity when the report was
changed and shredded.
It's a misdemeanor to destroy or alter
public records punishable by a fine of up
to $1,000 and up to a year injail.

Hospice sued for releasing information

LARGO A lawsuit was filed against
Hospice of the Florida Suncoast claiming
the non-profit company violated state
laws by intentionally releasing medical
and personal information about
thousands of patients and their families.
The suit was filed by Jonathan Alpert,
the same attorney who filed a suit in
February accusing Hospice of diverting
charitable donations to its for-profit
software company, Hospice Systems Inc.
The current lawsuit claims that
Hospice released patient information
over the last several years to help
demonstrate, market, sell and train people
to use a software product developed to
be used by other hospices around the
"They've released names, diagnoses,
Social Security numbers," Alpert said.
"And instead of fixing the problem,

they're trying to cover it up. It's
becoming Hospice-gate. It's sad and
unfortunate." Some of the information
was put on the Internet and is still
accessible, according to Alpert.
Hospice spokesperson Michael L. Bell
said Hospice works hard to protect
patient information.
"The one thing I would stress," he
said, "is confidentiality of patient and
family information is now and has always
been a basic value of hospice. In
response to this ongoing legal action,
we've gone to even greater lengths to
assure that our systems and procedures
safeguard the privacy of those we
Bell declined to respond when asked if
patient information had ever been
released to those not authorized to see it.

2 The Brechner Report U June 2003


Aisenberg transcript records remain sealed on appeal

TAMPA A U.S. district judge lifted
a stay that was preventing the release of
records in the Aisenberg case. Federal
prosecutors, however, filed a motion with
the appeals court asking for a stay to
delay the release of the records.
The motion asks for a stay until the
11h U. S. Circuit Court of Appeals
upholds or overturns U.S. District Judge
Steven Merryday's order to release the
transcripts in the Aisenberg case.
Prosecutors argue that releasing the
transcripts will compromise the ongoing


investigation of the disappearance of the
Aisenberg's daughter, Sabrina.
Prosecutors also want the transcripts to
remain sealed until the appeals court can
rule on issues raised by Merryday's
orderto pay $2.87 millioninlegal
expenses to the couple.
Barry Cohen, attorney for the
Aisenbergs, said federal prosecutors are
using the idea of an ongoing
investigation "to continue to hide the
truth. There is no investigation. That's a

After the Aisenberg's daughter
disappeared in 1997, the couple became
the main suspects, and investigators
received a judge's permission to place
listening devices in their home. A federal
judge later questioned the government's
evidence and how it was collected, and
the tapes were thrown out as evidence.
It could be weeks or months before the
appeals court makes a decision on
whether or not to allow the records to be

Judge refuses to close hearings in Miami conspiracy trial

MIAMI A district judge rejected a
defense request to close all hearings
during deliberations in the corruption
trial of 11 Miami police officers.
However, U.S. District Judge Alan
Gold warned he might close the court to
all spectators because of complaints from
the jurors about someone claiming to be
a journalist contacting them.
"I have received a number of notes
from thejury ... complaining about

contacts at their homes during the
deliberative process," Gold said on the
eighth day of deliberations.
Media attorney Sandy Bohrer said
The Miami Herald's subscription
department made two calls to one of the
deliberating jurors and denied any
journalists made the disputed calls.
In a later hearing on the closure issue,
Gold said the defense request to close
everything short of the verdicts was

"overly broad" and "without
justification." Gold also rejected the idea
of sequestering the jury in the middle of
the deliberation process.
The officers in the case are accused in
the conspiracy trial of allegedly planting
guns on unarmed suspects after four
police shootings and then covering up
the alleged misconduct. The shootings
left three men dead and one wounded
from 1995 to 1997. (4/4/03-4/8/03)


Secrecy gives false sense of security

The list goes on and on.
Unfortunately, the Bush
administration has reversed the
presumption of openness, starting with a
policy that information should be
withheld in order to protect the public. If
the question is posed as to whether
information can be used maliciously, then
it will be nearly impossible to ever
achieve an open society since inevitably
someone could use information to cause
In a democratic society, we recognize
openness can create risks and we take
steps to limit such risks without
undermining the democratic tenets that
we believe in, such as the public's right
to know. Thus, we must always start
from the principle that government
information should be publicly
accessible, putting the onus on those
who demand otherwise. After all,

information is the currency of democracy.
Yet the government has used the
tragedy of 9/11 to broaden its penchant
toward secrecy. While the public tires of
close-door, back-room deals like those of
the Vice President's energy task force,
the Bush administration persists in its
antipathy towards openness. For
example, the President has issued an
executive order making it more difficult to
obtain past presidential papers. Even the
White House daily press briefings are
very guarded.
As Scott Armstrong, a writer and
advocate for sunshine in government,
puts it, reporters, sharp-eyed critics, and
the general public have a right to ask
questions and obtain responses from
their government. These conversations
are crucial to making ourselves safer.
Only then can we get to the problems
before the terrorists do.

The Brechner Report U June 2003 3

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Secrecy gives false sense of security

An open society that promotes the
public's right-to-know produces a safer
environment than one that relies on secrecy.
Put another way: you can withhold
information about vulnerabilities in our
communities, but the vulnerabilities will still
exist. If you don't agree, just ask a few dozen
nuclear plant security guards who because of
disclosure about work conditions now have a GaryD. Bass
safer plant.
It started with security guards at nuclear plants complaining
about the long hours they were putting in to meet increased
security needs, but
The government officials
Back Page dismissed the guards'
complaints. At the same
By Gary D. Bass and time, published media
Rick Blum reports were highlighting
that nuclear facilities,
including one at Indian Point near Manhattan, New York, pose
an enormous threat to human lives if a worst-case accident
occurred at one of them. One story included a map showing the
human casualties expected in the communities around Indian
Point if there was an accident.
The Project on Government Oversight, a watchdog
organization based in Washington, DC, set up meetings with
officials at the Nuclear Regulatory Commission where security
guards told stories of how fatigue made them ill-prepared to
defend the plants. Only then did government officials recognize
the safety problems created by an under-trained and over-tired
security workforce and decide to reduce workload and
strengthen training for security guards.
Ironically, interventions like this one along with concrete
safety improvements are much less likely when information is
not disclosed. Since the attacks of 9/11, federal and state
officials are putting in place restrictive policies designed to stem
the free flow of information. The logic is that safety demands
Nonetheless, the federal government has vastly expanded the
zone of secrecy. A questionable doctrine that secrecy makes us
safer is quietly replacing years of progress on the free flow of
information about decisions affecting our safety and the public's

ability to prevent wrongdoing and hold
government accountable.
Roughly a year ago, White House Chief
of Staff Andrew Card instructed federal
agencies to re-examine public availability of
information on weapons of mass destruction
and "other information that could be misused
Rick Blum to harm the security of our nation and the
safety of our people." Using language that
has alarmed press groups and national security experts, agencies
were asked to carefully consider disclosure of "sensitive but
unclassified" information without defining the term. The Office
of Management and Budget plans to publish additional clarifying
guidance, which it now calls "Homeland Security information."
Attorney General John Ashcroft issued a memorandum on
October 12, 2002, urging federal agencies to exercise greater
caution in disclosing information under the Freedom of
Information Act. In general, the Ashcroft memo has helped to
establish a culture of secrecy in federal agencies.
The Environmental Protection Agency removed from its web
site information about chemical plant worst-case scenarios,
which is exactly what industry had been lobbying for even before
9/11 and is exactly the type of information that helped reduce
the vulnerabilities at the Blue Plains plant in Washington D.C.
At the urging of the Bush Administration, Congress passed
a new FOIA exemption as part of the law that creates the
Department of Homeland Security. Not only is "voluntarily
submitted" critical infrastructure information withheld from
disclosure, but the same information is protected in civil liability
cases, preempted from state disclosure, and can be shared in ex
parte communications with the Department. Moreover,
whistleblowers who disclose this information can face criminal
penalties. This was a wish list of industry and will lead to much
greatersecrecy. (CONTINUED ONPAGE 3)

Gary D. Bass is the Founder and Executive Director of 0MB
Watch, and Rick Blum is the Director of the Freedom of
Information Project. 0MB Watch is a nonprofit research and
advocacy yi,,,i:,t,..,i that promotes increased citizen
participation in public policy and greater government

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