Title: Brechner report
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00090012/00049
 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: January 2004
 Record Information
Bibliographic ID: UF00090012
Volume ID: VID00049
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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Supreme Court has agreed to review the
issue of whether a local Palm Beach
judge, instead of a Tallahassee-based
judge, should have been allowed to rule
in a case involving the release of
Department of ChildrenandFamilies'
(DCF) records.
The case stems from a record request
made by the South Florida Sun-Sentinel
to get investigative files involving a
West Palm Beach couple in a neglect
case. The Department of Children and
Families delayed the request, and a South

Florida judge later denied the
The newspaper's failed re
since spurred a legal dispute
Supreme Court, questioning
Palm Beachjudge rather
than a judge in Tallahassee,
where the DCF is based,
should have been allowed
to decide on the request.
Lawyers for the DCF and
agencies told the Court that i
judges around the state were
decision-making power, chac
and hassle could ensue.

quest has

Florida Solicitor General Christopher
Kise said he fears the Palm Beach case

in the state set a precedent that could destroy a 50-
whether the year-old legal doctrine mandating that
petitions for public records
A C C E S be brought only to the courts
closest to an agency's
RECORDS headquarters.
Attorneys for the Sun-
other state Sentinel and other newspapers said the
f local "home venue privilege" is outdated, and
given such in cases like this one, makes it too easy
)s, expense for government officials to hide
investigative files. (11/5/03)

Official fined for Jury decides newspaper must pay

Sunshineviolation $18.28 million in false light lawsuit

Hill City CommissionerRonMercerwas
ordered to pay a $500 fine for violating
the state's
ACCESS open meetings
law nearly two
MEETINGS years ago.
Mercer was
fined for a conversation he had with
Commissioner Bob Jackson, stating that
he would not support him as the city's
mayor. While Mercer claimed he never
violated the law intentionally, County
Judge Mary Jane Henderson ordered the
fine for the noncriminal infraction.
"I believe the state Legislature
specifically established a noncriminal
penalty for Sunshine Law violations
because it realized officials might
unintentionally break the law in casual
conversation and they need to be aware
of that danger," Henderson said.
Mercer's attorney James Markel plans
to appeal the decision. Jackson, the
other commissioner, pleaded no contest
to the violation in May and was fined
$250 and ordered to attend a Sunshine
Law class.

Journal was ordered to pay
to a road paver who claimed
article portrayed him in a fal
A jury awarded the mon
Anderson Jr. after deciding
published in the News Jour
FloridaDepartment of Envir
Protection (DEP) denying A
permit for a cement plant.
The article was part of
a five-day investigative
series on Anderson
Columbia Co., the Lake
City-based road-paving con
founded by Anderson. Alt
Anderson conceded the arti
factual, he complained that
sentence about a hunting ac
he had "shot and killed" his
note the death was an accid
sentences later.
Anderson claimed that th
overall effect was to depict
murderer with political con
away with it.
Attorneys for the news
that it would be unfair to ho

sacola News at fault for publishing information that
$18.28 million Anderson acknowledged was true. One
I a newspaper attorney for the paper, Dennis Larry,
se light, noted that the reader would have to stop
ey to Joe reading after the sentence that said
that an article Anderson "shot and killed" his wife to
nal led to the consider the death anything but an
onmental accident.
nderson a Anderson claimed that because of the
article, he was denied a permit for a
Suwannee County cement
TPRVACY plant in 1999 because DEP
Secretary David Struhs
thought he was a murderer.
npany Anderson also claimed that GE Capital
hough withdrew plans for $90 millionin
cle was financing for the cement plant after
the first reading the article.
;cident where The jury was unable to decide
wife didn't whether punitive damages should be
ent until two awarded to Anderson. Circuit Judge
Michael Jones declared a mistrial on the
ie article's issue of punitive damages and said he
him as a would conduct a hearing later on how to
sections to get proceed. Larry said the defense team
might ask for a mistrial in the entire case,
aper argued and not just on the issue of punitive
ild the paper damages. (12/13/03)




Volume 28, Number 1 U A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofr I,~ 1 .1.. a., U College ofJournalism and Communications U University ofFlorida
January 2004

Florida Supreme Court reviews records procedures


AIM supporters Journalism group seeks access to

file complaint terrorist suspect's case records

against city
American Indian Movement (AIM)
supporters James Wright and Daniel
Callaghan filed a complaint in Pasco
County Court to see how much the city
spent this year to host the Chasco Fiesta
festival. Both the city of New Port
Richey and Mayor Frank Parker are
named in the complaint.
Local members of the AIM are critical
of the Chasco Fiesta, saying it promotes
stereotypes and is demeaning to
American Indians.
The two men are seeking records that
detail how much it cost the city and
taxpayers to provide police, fire services,
parks, cleanup and advertising for the
event. City staff said there is no report
tallying labor costs for special events.
Callaghan filed a written request in
January 2003 asking how much the city
spent on the 2002 festival. The city
produced the information, but City
Manager Gerald Seeber claimed
Callaghan did not pick it up. That
request did not ask for a tally of man
hours, as the request for the 2003 event
"We can go back and research and
add it up from payroll accounts," said
city finance director Rick Snyder. "As far
as having a public record for this type of
event, we don't."
Only the city manager or City Council
can direct the finance department to
research and produce a tally of man
hours for the event. As of yet, the
council and manager have not asked the
department to do this. (11/14/03)


Copies of case opinions, Florida
Attorney General opinions, or
!,., i'a,. ,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.

MIAMI- A national journalism group
has filed a friend-of-the-court brief urging
the U.S. Supreme Court to open sealed
records in the habeas corpus case of
Deerfield Beach resident Mohamed K.
The Reporters Committee for Freedom
of the Press claims that the press and
public have the right to know why
Bellahouel has been detained and now
deported. The brief also states that the
case "could spark a healthy debate about
the means by which the government is
conducting the war on terrorism."
Bellahouel was detained by authorities

in 2001 and 2002 in connection with the
government's post-Sept. 11 terrorism
investigation. In March 2002, he was
released after filing a habeas petition. A
ruling by the 11 U.S. Circuit Court
ordered that the Bellahouel case be kept
In the 12-page document, the
Committee asks justices to overturn the
11t Circuit's sealedjudgment. It
encourages the court "to clarify that the
public has a constitutional right to
access to habeas corpus proceedings
and records."

Sunshine lawsuit to go forward

TALLAHASSEE- Circuit Judge
Janet Ferris refused to dismiss a
lawsuit claiming a state agency
allowed a Suncoast Parkway 2
advisory group to violate
the Sunshine Law.
Ferris denied a motion A C
by the Florida Department
of Transportation (FDOT) ME
to dismiss a suit filed by
community members Teddi
Bierly and Robert Roscow. The two
alleged that the Environmental and
Resource Agency Group (ERAG), a
branch of the state's Turnpike
Enterprise, met privately inviolation
with the state's Sunshine Law.
FDOT is conducting a study to


determine if a suitable route can be
identified to build Suncoast Parkway
2, a toll road constructed entirely in
Citrus County. Bierly and Roscow
argue that ERAG is a
E SS multi-agency group that
E gg ^ will greatly influence
whether to build the
INGS Suncoast Parkway and
where it will go. The
FDOT claims that ERAG is not a
decision-making body and is,
therefore, exemptfromthe law.
The ruling by Judge Ferris allows
Bierly and Roscow's lawsuit to move
forward in their quest to be admitted
inERAG meetings.

City Council complaint investigated

MAITLAND CITY- A complaint
filed by two city residents has
prompted state prosecutors to launch
an investigation of the Maitland City
Council to determine if its members
violated the state's Open Meetings
One of the complainants is former
Maitland Mayor Homer Hough, who
found four of five Maitland council
members dining with top staffers
before a scheduled meeting. They
were seated in a small conference
room visible from the Maitland City
Hall lobby, but the doors leading to

the back of the room were locked.
Maitland Mayor Sascha Rizzo said
the council did nothing wrong and
that the doors were accidentally
locked and that members never
brought up city business during the
dinner. Maitland's city attorney, who
attended the dinner, said it amounted
to a social event and is exempt from
Florida's Sunshine Law.
Rizzo would not comment on the
investigation although he said that
"it's entirely plausible" the council
will review the practice ofpre-meeting
dinners. (11/4/03)

2 The Brechner Report January 2004



Judge rules city did not violate law Ashcroft defends

MIAMI- Miami-Dade Circuit Judge
Gill Freeman ruled that the city of Miami
Beach did not violate Florida's Sunshine
Law when it awarded $7.8 million
contract to Motorola for an emergency
communications system.
Freeman rejected competing bidder
M/A Com's demand for a temporary
injunction to halt the project, accusing
the city of negotiating the deal with
Motorola behind closed doors. It
claimed that a specially appointed city
committee cut the deal with Motorola
after M/A Com's bid for an emergency
system was lower.

Court declined to rule on whether judges
should review libel evidence during a
pretrial, in a case involving negative road
test ratings.
Justices declined to stop a lawsuit
against the publisher of Consumer
Reports magazine, therefore refusing to
clarify free-speech protections for
journalists who have been sued after
criticizing people or products.
Automobile company Suzuki had filed a
lawsuit against the magazine after it
published negative road test ratings on
the Suzuki Samurai.
Given that the Supreme Court declined

Freeman said the city did not violate
the Sunshine Law, a key burden to meet
if the injunction was to be upheld.
"The evidence shows that the [city]
staff was not delegated any decision-
making authority, but was merely to
negotiate the contract itself," Freeman
said. "Further, there was no evidence
that the staff was acting as a board or
appointed to a committee or had any
recommendations to the City Manager."
While it lost its injunction bid, M/A
Com continues to demand damages
against the city and Motorola, according
to court documents. (11/27/03)

Florida Supreme Court restricts

electronic -
Supreme Court issued an ad
order for circuit court clerk:
to the electronic disseminate
The court fears that too i
and confidential
informationmight be
available over the
Internet. Records will
remain available for
public viewing under state
statutes, but only in the clei
The order, effective imm
change legal operations and
difficult for the public to ac
information about civil and

Success to public records
Florida cases.
Iministrative "Current regulation of confidential
s to put a halt informationis minimal atbest," Chief
ion of court Justice Harry Lee Anstead said.
"Because it will take time to develop a
much privacy uniform policy, I am directing that bulk
electronic distribution of court
A C C E SS records cease temporarily."
Among exceptions to this
RECORDS order are "chiefjudges of the
courts to authorize distribution
open records of documents that have been properly
rk's offices, screened and are of significant public
ediately, will interest," Anstead said.
make it more Clerks have until Jan. 1, 2004 to
cess comply with the order, which will be in
criminal effect for at least 19 months. (11/26/03)

to hear the case, "virtually any product
evaluation is at risk and this valuable
journalistic genre is seriously
compromised," news groups told the
court in a filing.
Previously, the 91 U.S. Circuit Court of
Appeals ruled that Suzuki had the right
to argue that the magazine acted
maliciously to damage its reputation.
Suzuki attorneys claimed that Consumer
Reports employees designed road tests
to get the Samurai to tip.
Jim Guest, president of Consumer
Union, the nonprofit publisher of the
magazine, said that the company stands
by its magazine's report. (11/4/03)

Patriot Act at UF
GAINESVILLE- Attorney General
John Ashcroft spoke to an audience of
about 550 at the University of Florida
about the U.S.A. Patriot Act, while more
than 100 demonstrators gathered on
Ashcroft spoke of the benefits of the
controversial legislation that expanded
government surveillance capabilities,
saying it is one of the keys to the
successful war on terrorism.
Numerous students and members of
local civil liberties groups, however,
"He's taken away our civil liberties
with the Patriot Act," said Erika Gubrium,
a UF graduate research assistant.
Some protesters carried signs that
read "Stop fascism" and "How many
innocents have you deported or
imprisoned" before Ashcroft's speech at
the annual banquet of Florida Blue Key.
Ashcroft noted that no U.S. court has
cited an abuse to the act.
"While there has been much
misrepresentation of the Patriot Act,
today Americans are engaged in a great
debate about the preservation and
protection of our liberty," Ashcroft said.
"We are asking good and necessary
questions about how best to defend our
freedom in the face of a very real threat."


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The Brechner Report January 2004 3


Supreme Court passes on speech issue

SARS epidemic offers valuable lesson in secrecy

Early in 2003, rumors started flowing from the south
China city of Guangzhou of a new form of avian flu that
was killing hundreds of people
On Feb. 9, the Swiss pharmaceutical company
Hoffmann-La Roche Ltd., held a press conference in
Guangzhou to announce it had a new drug that
e addressed the avian flu.
B k P The government forbade
Ba Page news outlets from
Reporting the

By Kobert Leger

announcement and


accused Roche of promoting the drug by starting rumors of
hundreds of deaths. Only when free and independent Hong
Kong reporters began to press did truth start to emerge. By then,
it was too late.
As Dan Kubiske, co-chair of SPJ's International Journalism
Committee and a former resident of Hong Kong, notes: "Because
the Chinese government banned all reporting of any flu-like
epidemic, no one knew what he/she had. They were then allowed
to travel and spread the disease...." Even then, it took two more
months before China acknowledged how big the problem really
was. SARS had spread around the world.
There is a moral in this story for the Bush administration.
Openness is good. The more information in people's hands, the
more they can protect themselves or insist that their
government do the things it should to protect them. Protecting
our rights to access information is also good.
While the Bush administration may not go to the extremes of
the Chinese, it shows the same tendency to believe that secrecy
is best. It was on that path before Sept. 11, 2001, and the attacks
on the World Trade Center and the Pentagon only accelerated
the trend.
Consider that one of the first reactions to the attacks was to
pull information off the Internet. Information on the safety of
dams was yanked. So were reports that detailed which chemicals
were stored at industrial plants, or how much toxic material they
emitted each year.
I suppose it's possible that terrorists might have plotted an
attack using that information. But it's no less likely now that the
information has been pulled from sight. For instance, it's common
knowledge that sewage plants store a lot of chlorine, a deadly
gas. What else does a terrorist need to know?

Hiding information about such chemicals hurts the
public far more than it protects us. When the data was
on a Web site, people living downwind from a plant
could do their research and press the plant to use less
toxic alternatives or use the information to press for
tighter security.
Congress sure isn't. As National Public Radio
recently reported, the Senate rejected a measure that
would have required industries to beef up security and
begin substituting less deadly chemicals.
Leger And it's just going to get worse. In November 2002,
Congress railroaded to passage a bill creating the Department of
Homeland Security. The bill includes what Sen. Patrick Leahy, D-
Vt., termed the biggest hole in the Freedom of Information Act in
35 years. The law promises confidentiality to companies that
voluntarily submit "information" to the department regarding
vulnerabilities in critical infrastructure.
In April 2003, the Homeland Security Department released its
proposed rules for implementing the law. Bad got ugly.
Although the law defines what will be considered critical
infrastructure information, the proposed rule indicates the
department will let the company submitting information decide
whether it meets the act's definition.
The department also intends to stretch the law farther than
Congress intended. Other federal agencies that receive critical
infrastructure information from businesses would be required to
give it to the Homeland Security Department, where it would
become subject to the law even if it was immediately returned to
the other agency. This flies directly in the face of legislative
intent. During debate on the bill, the House voted down an
amendment that would have made all federal agencies subject to
the FOI exemption.
SPJ and otherjournalism groups submitted comments against
these anti-openness rules. We will speak against them at every
opportunity. I urge you to do the same.
"Democracy dies behind closed doors," Helen Thomas
reminds her audiences. There is no democracy in China. If Bush
keeps closing doors, it will be endangered here, too.
Robert Leger is the immediate past president of the Society of
Professional Journalists and editorial page editor of the
Springfield, \. ) News-Leader. The article was originally
printed in the May 2003 issue of Quill magazine.

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