Volume 27, Number 7 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,,l ~..a.'. College ofJournalism and Communications U University ofFlorida
DAYTONA BEACH- A circuit
judge has refused to throw out a
lawsuit against three Ormond
Beach commissioners accusing
them of violating the Sunshine
Attorneys for the
commissioners asked Circuit Judge
AC CESS to throw
MEETINGS out the
by the News-Journal Corp. claiming
commissioners JeffBoyle, Joyce
High and Jim Privett illegally
coordinated the firing and
subsequent rehiring of City
Manager Isaac Turner.
The commissioners' attorneys
argued that the News-Journal Corp.
had failed to prove that anything
illegal had occurred. Jake Kaney, a
News-Journal attorney, told the
judge that circumstantial evidence
is enough to allow the newspaper
to proceed with asking the court to
prevent commissioners from future
Sunshine Law violations.
The lawsuit was filed in
response to comments made by the
three commissioners to rehire
Turner less than eight hours after
voting to fire him in January 2002.
Kaney believes the matter will
likely be tried in front of ajury
before the end of the year.
House attorney challenges AGO
TALLAHASSEE- An attorney for the House.
House Speaker Johnnie Byrd said that "He [the attorney general] can state
Byrd does not have to follow a legal his opinion all he likes," Tedcastle said.
interpretationfrom "That's his
Florida Attorney ( Z T AT U RE opinion. The only
General Charlie Crist _L___VL persons who have
in regards to the two- constitutional
thirds vote requirement for exemptions to authority to determine if a two-thirds
Florida's Open Government Laws. requirement is required by the House and
Rep. John Carassas, R-Miami, asked Senate are the Speaker and the Senate
Crist if the two-thirds vote requirement President."
for closing records applied to renewing In addition, Tedcastle said Crist's
exemptions as well. Crist, in an official opinion didn't matter because Carassas,
Attorney General's Opinion (AGO 2003- and not Byrd, requested it.
18), wrote that all exemptions require a The two-thirds majority requirement
two-thirds vote by both chambers, even was adopted as a Constitutional
for renewals. Amendment in 2002 as a way to protect
House General Counsel Tom open government by making it more
Tedcastle said the Attorney General's difficult to pass new exemptions.
Opinion does not apply to the Speaker of (5/7/03-5/9/03)
Judge rejects attempt to seal
court records on disabled woman
ORLANDO A judge reje
attempt by the state to seal c
in the case of a mentally disal
who was raped while in a stat
Circuit Court Judge Lawre
Kirkwood ruled that the case
involve an ongoing
investigation and most of
the information had already
been made public.
The case involved the
issue of legal guardianship
of the woman's fetus. Gov. J
the Department of Children ai
argued that the fetus is desert
Both the Orlando Sentine
Miami Herald filed a motion
the state's request. Tim Fran
Sentinel's editor, argued that
has a right to know about the
;cted an "... [T]his case involves profound
ourt records legal issues for state government and the
led girl courts, and we believe the public has a
e-licensed right to be present to witness the
courtroom debate on this matter,"
nce Franklin said.
did not The DCF argues that the case should
be closed because of health
A C C E S privacy laws and because the
S woman was sexually
RECORDS "Since the public has
already gained access to this
eb Bush and information, sealing the file at this stage
nd Families would offer no protection," Kirkwood
ving of legal wrote in the court order.
The Christian Coalition of Florida,
1 and The who filed a brief asking the judge for
objecting to protection of the fetus, said a dozen
klin, the adoption agencies and 15 families are
the public interested in adopting the baby after it is
case. born. (5/14/03-5/27/03)
ACCESS MEETINGS CONTINUED
of public records
PINELLAS COUNTY- Aboxofpublic
records that was turned over to Pinellas
County officials by the ex-husband of a
fired county official has initiated a
County budget analyst Clark Scott,
who inspected the records, said they
appear to be original public records. In
the sample he inspected, he found
applications dating from 1997 to 1999
from people applying for welfare, job
benefits. It is
RECORDS not knownif
requested help by filling out the records
actually got it.
John Simms, Clearwater attorney for
the former county official, Kelly Mooney,
said he knew nothing, and that her ex-
husband may have turned over the
records because he is angry with
Mooney over their divorce.
Investigators are also looking into a
report from the ex-husband alleging that
other records may have been destroyed.
County Attorney Susan Churuti said
whoever took the records could be faced
with obstruction of justice if the records
relate to any of the three lawsuits
involving WorkNet Pinellas, the county's
welfare andjob training agency.
Copies of case opinions, Florida
Attorney General opinions, or
i,., 'l. '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.
County decorum rules suspended
County commissioners have suspended
their new decorum rules, saying they
went too far in limiting free speech.
The rules were in effect for
approximately one month as a result of a
group of citizens making broad
accusations about corruption in the
county government. The most vocal
citizen, John Schestag, was arrested
under the new rules for calling the
county attorney a liar and refusing to
leave the assembly room foyer.
CommissionerBob Stewart, who
pushed to overturn the rules, said one
person's "irrational and irreverent
behavior" was difficult for
"But I don't think that justifies
(limiting) the freedom for an individual to
get up and say what they think," he said.
"I think we need to just allow the
individuals to have their say."
The rules barred "irrelevant,
impertinent or slanderous" comments and
limited each speaker to addressing a
topic once every 30 days.
Commissioners suspended the rules
unanimously, and said they plan to
review other government's decorum rules
and possibly write new rules.
Oak Hill official pleads no contest
DELAND An Oak Hill city
commissioner has pleaded no contest to
charges that he violated the Open
Commissioner Bob Jackson was
accused in November of illegally meeting
person or by telephone between Oct. 1,
2001, and May 7, 2002, to discuss several
issues scheduled to come before the
County Judge Mary Jane Henderson
ordered Jackson to pay $250 in fines, take
a Sunshine Law class, and withheld
adjudication of guilt.
Henderson also rejected arguments
from the attorney representing Jackson
and Mercer claiming they did not break
the law because there were not enough
people at their meetings to vote on any
of the issues discussed.
"That does not make sense,"
Henderson said, adding it is clear the
state Legislature did not contemplate the
need for more than two members or a
quorum of a governing body be present
at a meeting for a Sunshine Law violation
Mercer maintains he did nothing
wrong, and his case will come to trial later
Former Welaka town official guilty
of violating Sunshine Law
WELAKA A Putnam County judge not using a town park and that the town
found former Welaka town official Steve should seek grant money for purposes
Richardson guilty of violating Florida's other than the park.
Open Records Law and ordered him to "That's a slap on the wrist and an
pay a $150 fine. inappropriate slap on the wrist," Ford
Judge Peter Miller withheld said. "This was only one prosecution of
adjudication of guilt, so Richardson will many violations. The town of Welaka
not have a criminal record in continues to practice a
the case. A C C E S totalitarianformof
The suit came when Bob C E L- government."
and Pat Ford accused RECORDS A 2001 state audit cited
Richardson of refusing to the town for 21 improper
let them inspect a sign-out sheet of personnel, accounting and record-
recreational equipment, which according keeping practices, and in February of this
to the complaint, was accessible year, Welaka Mayor Gordon Sands pled
immediately. no contest to violating the Open Meeting
Ford said he wanted to inspect the Law and was ordered to pay a $500 fine.
document to show that residents were (5/17/03)
2 The Brechner Report July 2003
FCC approves new broadcast
Judge says group
ownership rules and regulations cannot fly banners
WASHINGTON, D.C. -In a 3-2 vote,
the Federal Communications Commission
approved new broadcast ownership rules
that will alter media concentration limits
on both the national and local levels.
The vote marks the most comprehensive
review of media ownership regulation in
the agency's history.
The proposed changes include
increasing the national television
ownership cap to 45 percent, permitting
crossownership of broadcast stations
and daily newspapers in the same market,
and permitting ownership of three
television stations in markets with 18
stations. The proposed change of
prohibiting duopolies between any of the
market's four top-rated stations was also
The FCC states that the new limits are
carefully balanced to protect diversity,
localism, and competition in the
Chairman ofthe FCC Michael Powell
TALLAHASSEE- The Florida
Supreme Court agreed to hear arguments
over whether e-mail messages sent or
received by government employees are
subject to Florida's Open Records Law
by virtue of being housed or sent
through a government-owned computer.
The St. Petersburg Times argued that
the e-mail messages are public records
and should be open to public
inspections. Attorney General Charlie
Crist's office supported this argument.
The computer system "is the people's
property," argued Solicitor General Chris
Kise, the state's top lawyer in cases
before the Supreme Court. "The people's
interest is making sure the people have
access to a record of the use of the
Attorneys for the city of Clearwater
argued that personal e-mails of city
employees should not be considered
public records. The city clarified that e-
stated that the rule change was
"Keeping the rules exactly as they are,
as some so stridently suggest, was not a
viable option. Without today's surgery,
the rules would assuredly meet a swift
death," Powell said in a press statement.
Commissioners Michael Copps and
Jonathan Adelstein dissented.
"I dissent because today the FCC
empowers America's new media elite with
unacceptable levels of influence over the
media on which our society and our
democracy so heavily depend...I see
centralization, not localism; uniformity,
not diversity; monopoly and oligopoly,
not competition," Copps said.
The FCC received comments from
nearly 750,000 people before the changes
were passed. More than 99 percent
opposed allowing more media
consolidation. The commission passed
the proposed changes despite the
mails sent or received by city employees
are not public unless they meet certain
requirements as official business. The
city also said that public records, as
defined by the law, are documents and
other materials related to laws or
otherwise made "in connection with
transaction of official business."
The city attorneys further said that
the law goes by content and not who is
in possession of the material, stating that
individual employees should be
responsible for deciding whether the
content is related to official business.
The suit originated when the Times
requested all e-mails of two city
employees during a 16-month period in
1999 and 2000. The city gave the paper
some, but said others were personal in
nature and could not be released.
The Supreme Court didn't say when it
expected to rule on the case.
ORLANDO A federal judge rejected
a conservative Christian group's attempt
to remove a no-fly zone over Walt
Disney World in order to fly planes
trailing anti-homosexual banners during
The Virginia-basedFamily Policy
Network filed a suit challenging the no-
fly zone claiming it restricted their First
FIRST free speech
ANEND EN group wanted
to trail banners
that read: "JESUS CHRIST: HOPEFOR
HOMOSEXUALS.COM" overthe park.
U.S. District Judge Anne C. Conway
said the group did not meet the burden of
proof necessary to provide a temporary
restraining order against the Federal
Aviation Administration's restrictions.
The no-fly zone was adopted to prevent
possible terrorist attacks and states that
planes must remain at least 3,000 feet
above the park or stay at least three
nautical miles away.
Disney said the "safety and
enjoyment" of its guests were the
reasons the company wanted the no-fly
zone over the park, and want it
The 13t annual Gay Days celebration
is a four-day event and draws more than
100,000 gay and lesbian tourists.
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The Brechner Report July 2003 3
ACCESS RECORDS CONTINUED
Supreme Court weighs question of
city e-mails as public records
New medical privacy laws block access to records
If you've been to any doctor lately, you were
handed a sheet telling you about the new privacy laws.
Maybe you read the first couple of lines, scribbled your
name on the form and didn't give it another thought.
If you're a reporter, you may also have had the
recent experience of trying to either get public records
The health care
Back Page facility or
provider or you
By Michael J. Glazer were seeking
what previously was a
simple report on an accident victim only to find your request
delayed or denied. There have been reports of parents unable to
get information on the medical condition of adult children; offices
that no longer allow memos announcing baby showers or 'get
well' cards because of privacy concerns; doctor's offices afraid
to have sign-in sheets or call out patient names in the waiting
room and on and on.
The reason for all of these experiences is the same.
Comprehensive new federal privacy regulations implementing the
Health Insurance Portability and Accountability Act of 1996
(HIPAA) went into effect April 14,2003.
Health care plans and providers have watched these new regs
evolve over the last several years with trepidation because of
their length, complexity and the extensive cost of implementation.
Penalties for violating HIPAA can be severe. Sanctions can
range from $100 to, in extreme cases, fines of up to $250,000 and
10 years in prison. A new industry of consultants and lawyers
has evolved to deal with the issues surrounding HIPAA.
The regulations are far too extensive to describe, but there are
a few things to know that may be helpful.
First, HIPAA covers protected health information (PHI). PHI
includes (1) information created or received by a health care
provider, health plan, employer or school; (2) that relates to past,
present or future physical or mental health of an individual or the
provision or payment for health care to an individual; and (3)
identifies or can lead to the identity of the individual.
We recently called an agency asking about the license of a
facility. What was previously a routine question went
unanswered based on "the new privacy laws." The question
didn't come close to touching any PHI, but this is the
kind of confusion that exists. If you run into that
problem, find an official that understands that you don't
One part of HIPAA that will affect medical information
provided to the media is a rule relating to a facility
directory. Facilities such as hospitals can disclose
certain information so long as the individual is informed
in advance and has the opportunity to agree or limit the
Glazer disclosure. If there is no objection, the facility can
generally provide name, location within a facility (i.e.
intensive care unit) and a general description of condition, but
only to people that ask for the individual by name. The
American Hospital Association has developed some common
medical condition descriptors that are beginning to appear in
some media guides. If a patient is unable to be given the
opportunity to agree or restrict directory information, and
depending on the circumstances, some facilities may now be
unwilling to release even this limited information.
What all this really means is that under HIPAA, the best way
to obtain medical information will be through the patient and her
family, either directly or through a detailed authorization to the
provider. However, even authorizations must now be far more
specific than in the past. For stories that are worth the effort,
obtaining this authorization may well be the only way to get
HIPAA is so much more than what is discussed here. The
federal government has an excellent website at: http://
HIPAA has already caused and will continue to be a source of
both intended and frustrating unintended consequences. The
goal of HIPAA- protecting the privacy of our medical
information- is laudable. It's breadth will not make the job of the
media any easier.
Michael J. Glazer is a shareholder with Ausley & McMullen.
He is a long-standing member of the Media & Communications
Law Committee and also past Chair of the Health Law Section
of The Florida Bar. He currently serves on the Bar's Board of