to the FCAT
TALLAHASSEE- The state
Department of Education has asked the lst
District Court of Appeal to review a lower
court ruling that allows parents access to
test questions and answers of the Florida
AC ES S Comprehensive
RECORDS Last year,
parent of a high school student who failed
the FCAT, sued the Department of
Education after it refused to release his
son's questions and answers from the
test. Leon County Circuit Judge Janet
Ferris ruled that questions and answers
should be released.
"Providing parents or guardians
reasonable access to such materials,
especially where their child has 'failed'
the test, does no violence to the integrity
of the testing process," wrote Ferris.
The state has asked a three-judge
panel to overturn Ferris' ruling. A lawyer
for the DOE, Daniel Woodring, argued
that the Legislature never intended to let
test questions and answers become
public, noting that the law makes it a crime
for teachers or administrators to release
Woodring noted that releasing the
information would cause a number of
problems for the state. The state would
have to review the test every year, forcing
the costs up, he said.
Mark Herdman, the lawyer representing
Cooper, said that without seeing the
FCAT questions and the student's
responses, it is extremely difficult to
evaluate the learning process.
"The score is meaningless without the
underlying data," Herdman told the court.
Government can exempt private calls
TALLAHASSEE- A ruling that
government workers can determine
which telephone records are private,
even if the calls are made in public
places using government
phones, was allowed to A C(
stand after the Florida
Supreme Court refused to RE C
hear the case.
The lower court decision came after
three Florida newspapers attempted to
obtain cellular phone records for five
staff members in the office of former
House Speaker Tom Feeney. Feeney's
office responded to the records request
by providing phone logs in which all
five employees blacked out phone calls
they considered to be private.
Feeney's attorney, Barry Richard,
argued that while calls concerning
government business are always public,
private calls canbe exempt. The lower
court agreed, ruling that
E SS personal calls fall outside
the current definition of
RD S public records.
The three newspapers,
the Orlando Sentinel, The Tampa
Tribune and The Palm Beach Post asked
the Florida Supreme Court to review the
"This basically creates a license for
government officials to edit public
records, and that has never been state
law," said David Bralow, attorney for the
Orlando Sentinel. (9/16/03)
Earnhardt case goes to Supreme Court
newspaper has petitioned the U.S.
Supreme Court to overturn a lower court
decision that restricts access to autopsy
In its petition to the Court, the
Independent Florida Alligator argues
that the law barring public
access to autopsy photos A
passed after the death of A
race car driver Dale
In March 2001, the 5t District Court
of Appeals ruled that the viewing of any
autopsy photos violates the privacy
rights of families. The newspaper then
took the case to the Florida Supreme
Court, which declined to review the case
without explanation, allowing the
appellate court's decision to stand.
The Alligator and other papers
requested the autopsy photos of
Earnhardt after questions arose over
how he died and if better safety
equipment might have prevented the
death. Earnhardt's widow, Teresa,
fought to keep the photos private and
lobbied to pass a law restricting access
to autopsy photos. Under the 2001 law,
those who view or copy autopsy photos
without authorization can be fined
"The Alligator was
trying to get the records to
find out ifNASCAR was
telling the truth. The trial
court said that was not a
good enough reason," said
Tom Julin, attorney for the paper.
Jon Mills, attorney for Teresa
Earnhardt, said he expected the
newspaper's publisher, Campus
Communications, to go to the U.S.
Supreme Court, but believes the Court
will back the Florida court rulings.
"The state of Florida and the Florida
courts have always been generous on
open records and the First Amendment,"
but they agree that autopsy photos
should remain private, he said.
Volume 27, Number 11 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofr I,, .. a., U College ofJournalism and Communications U University ofFlorida
ACCESS RECORDS CONTINUED
ACLU sues prison Newspaper challenges Sunshine
WEST PALM BEACH- The
American Civil Liberties Union has filed a
public records lawsuit against a
maximum-security prisonfor girls.
The lawsuit charges the Florida
Institute for Girls juvenile prison in
suburban West Palm Beach with "illegal,
malicious and willful" evasion of the
Public Records Law. The institute is run
by a private company, Premier Behavioral
The attorney who filed the suit, Frank
Kreidler, requested a variety of records
from the prison after hearing inmates'
complaints about their treatment. Premier
Behavioral Solutions released some of
the records, but would not provide
information including its profit margins,
records of internal staff investigations,
information about its school curriculum
and the names of its teachers.
Since the request of the records, staff
members of the prison have been
accused of sexual misconduct and
breaking the arms of two inmates while
Kreidler says the public has the right
to know more about the private
company's finances. He wants to review
the records to make sure the company is
following a rule that prohibits it from
using its contract earnings for political
"They need to be produced for the
benefit of the taxpayers of Florida," he
Premier Behavioral Solutions won a
$5.2 million annual contract from the state
in2000 to openFlorida's only maximum-
security prison for girls. The contract
was renewed this year. (9/20/03)
Copies of case opinions, Florida
Attorney General opinions, or
!., i,. 'ii 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.
Law exemption in appeals court
TALLAHASSEE The Baker County
Press has asked the 1t District Court of
Appeals in Tallahassee to review a 1998
statute that exempts meetings and
business records of certain community
hospitals from the Sunshine Law.
The state statute in question allows
not-for-profit, public hospitals to operate
behind closed doors, and was cited by
the Indian River Memorial Hospital as
exempting its leaders from Sunshine
violations. If the Baker County Press
succeeds in the appeals court, the ruling
could have legal weight elsewhere in the
state where not-for-profit corporations
want to run publicly owned and funded
hospitals out of the public eye.
Those who support the exemption for
not-for-profit public hospitals say that
doing business in the public puts those
hospitals at a competitive disadvantage
with private for-profit hospitals.
But Baker County Press attorney
Robert Dees said corporations running
hospitals built and owned by the public
also have inherent advantages.
A Daytona Beach attorney argued the
exemption was unconstitutional in a 2002
Volusia County case. The hospital lost
in circuit court, but declined to appeal.
County employees cleared of violation
TALLAHASSEE- The state
attorney's office has determined that
three Escambia County employees did
not violate the state Open Meetings Law
during the Development
Review Committee process. A C C
A complaint was filed
with the state attorney's MEE]
office in mid-August by
local developer Dan
Gilmore. The complaint alleged that
Keith Wilkins, Taylor Kirschenfeld and
Brent Wipf broke the Open Meetings
Law when they met to discuss
development review matters with the
After an investigation, state attorney
office investigator Allen Cotton said the
procedures used by the
ESS Committee did not violate the
NGS Conversations with staff
have never been subject to
Sunshine Laws, said County
Attorney Janet Lander.
Despite the findings, the county plans
to "carefully rework" the committee's
process with the help of staff input,
Landers said. (9/6/03)
Security officer sues Sears for privacy
PALM BEACH- A former Sears placed on top of the box to conceal it.
employee has filed a lawsuit against the McMahan confronted his supervisor
store, claiming Sears violated his right to about the camera, who admitted to
privacy by taping him without his installing the camera. McMahan then
consent and for firing him after he reported the incident to police and filed
complained about it. an internal Sears incident report.
Carl McMahan, a Subsequently, McMahan
former part-time security PRIVA CY was placed on probation
officer at a Sears store, and fired a month later.
found a hidden video StevenGrover,
camera on top of a filing cabinet in a
comer of the security office. According
to the suit, the problem wasn't the
camera taping McMahan, it was the
camera's audio recording. It is illegal to
record someone without his or her
consent in the state of Florida, according
to the suit.
The camera was placed in a box with a
small hole cut out of a comer with a bag
McMahan's attorney, said Sears should
have known better.
"Employers videotape employees all
the time, but you just can't record
people's conversations without telling
them," Grover said. "It's unfortunate
that when an employee speaks out about
their rights, they can fall victim to
something like this."
2 The Brechner Report U November 2003
Group may pursue constitutional claim RIAA sues for
TAMPA A federal appeals court has
ruled that a federal judge in Tampa erred
when he threw out a case brought by a
conservative Christian group against a
public transit authority that refused to
display advertisements at bus shelters
for an anti-homosexuality conference.
The three-judge panel of the 11 tU.S.
Circuit Court of Appeals said that the
Focus on the Family group may pursue
its claim that the Pinellas Suncoast
Transit Authority violated the group's
First Amendment rights by not posting
ads about the 2000 "Love Won Out"
convention. The ads discussed
homosexuality and the theory that it can
The transit authority contracted Eller
Media, who owns and manages 500 bus
shelters. The authority, however, retains
PHILADELPHIA- Afederal appeals
court has issued an emergency stay
delaying the new Federal
Communications Commission media
ownership rules from going into effect.
The petition to stay the new rules was
brought by a coalition of media access
groups called the Prometheus Radio
Project, a group that advocates
community radio stations.
The new rules would have allowed a
single company to own newspapers and
broadcast outlets in the same city as well
as allowing a broadcast network to own a
group of stations reaching 45 percent of
the national audience, up from 35
final say on shelter advertisements.
The question in this case is whether a
government entity working though a
private company can reject ads they
don't want, even if the agency feels the
ads may be offensive. The group's
lawsuit claimed that the government can
not limit advertisements regardless of
whether they believe they will offend
Focus on the Family was refunded
nearly $5,000 that was paid to install the
advertisements in the shelters before the
"What the case really says is the
government can't hide behind a private
company when it violated the
Constitution," said Erik Stanley, the
attorney representing Focus on Family.
Judge orders do-not-call list be enforced
WASHINGTON A three-judge panel Oklahoma City ruled that the FTC lacked
of the 10h U.S. Circuit Court of Appeals authority to enforce the list. As a result
has blocked a lower court's decision that Congress passed legislation that was
ordered the Federal Trade Commission to signed into law explicitly granting the
stop operating the national do-not-call agency the authority.
list. A U.S. District iudge ruling in Denve
The judges' decision will allow the
FTC to begin enforcing the list of more
than 50 million telephone numbers of
people who do not want to receive calls
The telemarketing industry had scored
legal victories in two lower federal courts
before the appellate court's decision.
First, a federal District Court judge in
followed. Thatjudge determined the do-
not-call list was unconstitutional because
itblocked commercial telemarketing calls,
but allowed calls from charities.
The three-judge appeals panel stayed
the lower court's ruling, saying that the
FTC was likely to be successful in having
The stay preserves the current rules
while the 3rd U.S. Circuit Court of
Appeals conducts a review on the new
In granting the stay, the three-judge
panel wrote: "The harm to petitioners
absent a stay would be the likely loss of
an adequate remedy should the new
ownership rules be declared invalid in
whole or in part. In contrast to this
irreparable harm, there is little indication
that a stay pending appeal will result in
substantial harm to the Commission or
other interested parties."
WASHINGTON- The Recording
Industry Association of America has
filed 261 lawsuits across the country
against people who share music over the
Internet, charging them with copyright
Called the heaviest crackdown on
illegal song swapping, the lawsuits are
expected to be followed by thousands
more in an attempt to discourage people
from downloading copyrighted material
from the Internet.
The lawsuits were aimed at what the
RIAA described as "major offenders"
who illegally distribute on average more
than 1,000 copyrighted music files each.
The trade group used a search technique
that allows anyone using file-sharing
services to view what files users made
available to others.
A sampling of people using file-
sharing services such as Kazaa, Imesh,
Blubster, Grokster and Gnutella were
named in the lawsuits. The RIAA
obtained the names and addresses of the
users because of a court decision that
ruled Verizon had to turn over the names
and addresses of its customers whom the
trade group wanted to subpoena.
U.S. copyright laws allow for damages
of $750 to $150,000 for each song offered
illegally. The group has already settled
with a few song-sharers, with most
settlements in the $3,000 range. (9/9/03)
I .III. I \ l I.l .l 1 II 1 4
i, , ,, ll. I I ,1 4''''
I h Ii ,
I... I I I I I .u
I ,,UIIII.% II i, F ''h'i I
The Brechner Report U November 2003 3
Appeals court issues stay on FCC rules
Publishing the name of an undercover deputy
The Ledger of Lakeland ended a year-long tussle
with the Polk County sheriff over publishing the name
of an undercover deputy. The 2nd District Court of ..
Appeal rejected the sheriff's lawyers' arguments
favoring an unconstitutional attempt at censorship.
I have received numerous phone calls and
The letters about the
ik P topic, most of
B ack Pe them critical. I
SPerez have written to Skip
By Sip erez those who have called,
explaining The Ledger's position. Following is an edited version
of the letter:
Dear Mr. Smith,
Thank you for your letter concerning The Ledger 's decision
to print the undercover deputy's name. It was my decision, as
executive editor. Permit me to explain my thinking.
First, it is my strong belief that the role of the press is to hold
all levels of government including law enforcement -
accountable for actions that have a serious impact on its citizens.
The shooting and killing of a drug suspect by an undercover
drug agent falls into that category.
The Ledger knew the name of the undercover deputy for
several weeks before we published his name. I paid the Sheriff's
Office the unusual courtesy of notifying them, well in advance, of
our intent to publish, so they could take whatever measures they
felt might be necessary, including transferring the deputy out of
As this is written, the Sheriff's Office has chosen not to do
that. (The deputy was moved to an agriculture unit a year later.)
One might conclude, then, that our publishing the name did not
pose the immediate serious threat, as first claimed. If it did, why
not transfer the deputy to a less perilous job?
Initially, we were told by the Sheriff s Office that there were
credible threats against the deputy's life. But during a court
hearing on the situation, the deputy's supervisor said under oath
that the threats were unsubstantiated, and could neither be
proved nor disproved.
In a personal meeting with the undercover deputy and his
supervisor before we published the name, I was told by the
deputy several times that one reason he opposed publication of
L his name was because he had worked hard to get
assigned to the undercover job, enjoyed that form of
S work and was proud to work for this elite unit. He did
also claim there were threats against him, but I found it
revealing that he stressed his opposition to a transfer
because he worked hard to get this job.
I think I understand why law enforcement
sometimes argues so strongly for secrecy, and in some
rare cases the arguments may be legitimate. But
Perez government agents acting secretly and killing people
secretly without a trial (even when justified) is not what America
is all about. There are plenty of examples of other societies in our
history where government agents had or still have unbridled and
unaccountable power, and the citizenry was abused as a result.
Fortunately, in their wisdom, our founding fathers saw the
dangers of that, and courts since then have repeatedly reaffirmed
why an open society is the best society.
The press has an important and historical role and an
obligation to uphold these principles. And one of the ways we
do this is by printing names of people, including police, who
shoot or kill other people. Police should understand the public
nature of their work and its perils. (Even undercover agents must
testify in open trials using their true names).
A point of curiosity for me is that many or most people
understand the press's role and may even respect the press's
role when it comes to scrutinizing major government actions.
But when that government is law enforcement, a different
standard is sometimes applied. And, what I find curious, is not
only that some people hold law enforcement to a lower standard
of exposure, they automatically accept law enforcement's
arguments as being sound and valid as if law enforcement is
exempt from questioning, or being required to defend or prove its
arguments for secrecy.
Our system of government has a forum for testing those
arguments the courts. As you know, The Ledger's arguments
were tested in the courts and we prevailed. In my view, the law-
enforcement arguments were not sound on any level. So we
published the name and will continue to when we deem it
Skip Perez is executive editor of The Ledger ofLakeland. The
complete story ran in The Ledger Sunday, Sept. 28, 2003.