Volume 28, Number 6 E A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofr I,,~ 1... a. College ofJournalism and Communications U University ofFlorida
on Sunshine Law
Village Mayor Alan Dome and
Commissioner Armand Abecassis
surrendered to state investigators on
charges that they violated the state's
Authorities said the two men met
ACCESS March 16 to
James Vardalis. The Sunshine Law
requires that the public be notified when
any meeting is held between two or more
The charges against the officials
follow two other arrests on the North Bay
Robert Dugger was charged with official
misconduct, in addition to seven
misdemeanor counts related to votes he
cast as commissioner.
In June 2003, David Fleischer was
charged with bribery and corruption by
threat of a public servant. Gov. Jeb Bush
removed him from office and he
subsequently received four years of
probation after a plea deal.
"To have to arrest two more public
officials of North Bay Village is avery
sad occasion for this small community,"
State Attorney Katherine Fernndez
Soon after they were arrested, Dome
and Abecassis resigned from public
office. Prior to their resignation, they
both faced suspension by Gov. Bush.
"We've heard about it and we're
waiting for the [Miami-Dade] state
attorney to give us all the info on the
case," Bush spokesman Jacob DiPetre
Judge orders release of Cheney files
WASHINGTON-U.S. District Judge legal efforts to obtain information on the
Paul L. Friedman ordered the Bush task force, which developed an energy
administration to release thousands of policy at the beginning of the Bush
pages of records on Vice President Dick administration. Environmental groups
Cheney's energy task force deliberations, argued that Cheney and his team met
Friedman ruled that behind closed doors with
records kept at the Energy AC C E SS lobbyists from the oil, coal, gas
and Interior departments -i A and nuclear industries.
must be disclosed to the RECORDS The General Accounting
public under the Freedom Office, the research branch of
of Information Act. The agencies have Congress, first filed a lawsuit seeking
until June 1 to release files that detail the information on who met with Cheney. A
work of Cheney's energy task force. federal judge ruled against the agency,
"This is a real affirmation of the and it dropped the claim. Two other suits
public's right to know how its have moved forward. One involving the
government is operating," Sharon Sierra Club and Judicial Watch is now
Buccino, a lawyer for the Natural before the Supreme Court, and the other,
Resources Defense Council (NRDC), which involves NRDC and Judicial
said. Watch, is pending further action.
The NRDC's case is just one of three (4/02/04)
Court ruling exempts nonprofit entity
from Sunshine, Public Records laws
BAKER COUNTY- The 1stDistrict
Court of Appeals ruled that a private
nonprofit entity is not required to turn
over records to The Baker County Press.
A three-judge panel agreed with the
trial court that Baker County Medical
Services Inc. (BCMS), which runs Ed
Fraser Memorial Hospital and Wells
Nursing Home inMacclenny, is exempt
from Florida's Sunshine and Public
In 2002, The Press asked a trial court
to order BCMS to release its financial
records and minutes of every board
meeting since 1993. The company
claimed that because it is a private
corporation leasing a public health care
facility, it was entitled to exemptions
under two separate laws, Section
395.3036 and 155.40. The newspaper
challenged the constitutionality of the
two laws, but the trial court rejected The
Press's request. To pass constitutional
muster, the law's language had to justify
the scope and necessity of the
Later, the appeals court found Section
155.40 unconstitutional, but upheld
Section 395.3036. The ruling was not a
practical benefit for the newspaper
because Section395.' 1-1 still \I Icnptsl
BCMS from turning over its records.
"My feeling is the decision is a pretty
harsh blow to the Sunshine Law," The
Press attorney Robert Dees said. "The
ruling doesn't have any effect, just as if
the court ruled against all of the issues."
Publisher Jim McGauley said the
newspaper will ask the court for a
"The taxpayers of Baker County
continue to pour more than three-
quarters of a million dollars into the
hospital and nursing home operations
annually," he said. "As long as that
situation exists, it will be the position of
this newspaper that the public should
have access to meetings and records of
Baker County Medical Services Inc."
ACCESS MEETINGS CONTINUED
Residents sue city, Florida Crown Workforce director
violated state law
residents filed a lawsuit against the city,
claiming it violated the state Sunshine
Law when the Public Safety Department
merged with the Broward Sheriff's Office
Attorney MarilynBonilla Krantz filed
the suit in Broward County Circuit Court
on behalf of her husband Stuart, Michael
Lucente, Amy Conza and Natalie
The suit says that Vice Mayor Ricky
Gordon, Commissioner Diane Weissman
and Commissioner Michael Udine
violated the law by participating in a
backroom deal withB SO officials that
gave the sheriff's department control to
Florida's Sunshine Law prohibits
elected officials from discussing
business without notifying the public.
"We just feel that this whole process
wasn't performed correctly, or in the best
interest of the city," Krantz said. "It's like
it was a done deal from the beginning."
The suit specifically asserts that
"Gordon and Udine had prior private
conversations directly or indirectly
through staff, the city manager or Sheriff
[Ken] Jenne," without any input from
Mayor Robert Marks, Commissioner
Debby Beck or city residents. The
plaintiffs are asking a judge to require
commissioners to follow the Sunshine
Law and overturn the contract with the
Sheriff's Office. Udine denies any
wrongdoing, claiming "I haven't
reviewed the lawsuit, but I know I didn't
violate the Sunshine Law." (3/11/04)
Copies of case opinions, Florida
Attorney General opinions, or
!,.i,. J ,,i reported in any issue as
on file" may be obtained upon
requestfrom 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.
won't contest Sunshine infraction
LAKE CITY- John Chastain,
executive director of the Florida Crown
Workforce board, which helps secure
jobs for those needing employment,
decided not to contest a civil infraction
for aiding and abetting a Sunshine Law
Assistant State Attorney Bob Dekle
said he was told Chastain acknowledged
the violation, brought on by the State
Attorney's Office, as an "error in
judgment" and he is "on the path to
On the recommendation of Florida
Crown board attorney Paul Silverman,
Circuit Judge Vernon Douglas fined
Chastain $100 for court costs.
Silverman said there was no harm to
the public by Chastain's violation and
that Florida Crown has taken actions to
better educate its board members about
the Sunshine Law to make sure it doesn't
"We are very sensitive now to[the]
sunshine Law," he said.
The State Attorney's Office filed a
civil complaint against Chastain in
December 2003. According to a report
from James Matthews, the Agency for
Workforce Innovation inspector general,
Chastain sent an e-mail in July 2002 to
certain board and staff members asking
how to "get around" the Sunshine Law in
order to hold a meeting with short notice.
In his December complaint, Dekle said
that Chastain "did then and there
unlawfully and willfully" cause Florida
Crown board members to violate the
Silverman said he still believes that
the meeting mentioned in Chastain's e-
mail was never held and Chastain would
have won a trial, had he decided to
"Mr. Chastain decided it was not in
the best interest of the board to have a
trial," he said.
Agency releases confidential records
to public in Ronnie Simmons case
TAVARES The Department of and court files should be opened "just
Children& Families (DCF) released so the public can have a complete and
confidential records to the public, clear picture of all sides of the story,
following a court order not just from DCF's records."
in the case of Ronnie A C E SS Judge G. Richard Singeltary
Simmons, an8-month- agreed, and ordered the DCF to
old baby whose father RECORDS open its files.
says he buried him in "I think the judge recognized
the Ocala National Forest.
Jaclyn Hale, the baby's mother, and
her family wanted to know why Ronnie,
who had been under state supervision,
was taken from their custody and given
to his father Christopher.
Simmons' attorney Scott Wynn said
his client did not object and asked "to
let the sunshine in," apparently
referring to Florida's Public Records
Law, which gives the public broad
access to government records.
Children's DCF and dependency
records generally are closed. The
agency agreed to open its records in
the Simmons case but asked that all
names be omitted and, in addition,
objected to opening court files.
Rachel Fugate, attorney for the Star-
Banner, argued that both DCF records
the interest in this case and did the
right thing and allowed the public
access not only to DCF's file but also
to the court file," Fugate said.
The records revealed that a positive
home study was filed with the court on
Feb. 10, 2003. The report said Simmons
was employed, had a clean criminal
record and his apartment was suitable
for Ronnie and his half-brother, Jordan
But, a follow-up report on Oct. 10,
2003, indicated Simmons was located by
DCF case workers three times without
Ronnie in custody. After the workers
made a couple of requests for arrest
warrants, Simmons was eventually
arrested in Texas. He claimed he buried
Ronnie in the forest after the baby died
of natural causes. (3/11/04)
2 The Brechner Report U June 2004
ACCESS RECORDS CONTINUED
Attorney releases annexation documents
CRYSTAL RIVER-According to the view them within the city's limits.
St. Petersburg Times, City Attorney The Attorney General's Office offered
David LaCroix released his annexation to hold a voluntary mediation, but
records, e-mails and computer files to LaCroix did not reply, indicating he did
City Hall, in response to complaints that not wish to participate.
he wasn't complying with Florida's Bartell viewed the public records,
Public Records Law. which included documents pertaining to
Annexation opponent Joanne Bartell Realticorp, the annexation developer,
had filed a complaint with the state annexation materials, consent forms and
Attorney General's Office inFebruary, information on the count of parcels.
stating that LaCroix was not complying LaCroix said his release of the files
with the law. The city attorney offered to does not represent a new trend in public
make the documents public in his office records requests, and he will make files
location in Brooksville, but Bartell argued available in the future depending "on the
that, by law, citizens should be able to circumstances." (2/14/04)
Reporters ordered to erase recordings
WASHINGTON- The Reporters materials possessed by a person
Committee for Freedom of the Press reasonably believed to have a purpose to
wrote a letter to Attorney General John disseminate to the public a newspaper,
Ashcroft after a marshal ordered two book, broadcast or other similar form of
reporters to erase recordings of a speech public communication,' the Reporters
made by Supreme Court Justice Antonin Committee claimed inthe letter.
Scalia. The committee
According to the PR VACY emphasized that the
committee's press release, guidelines in28 C.F.R.
Deputy U.S. Marshal Section 50.10 require that
Melanie Rube forced reporters from The "all Department employees obtain
Associated Press and The Hattiesburg approval of the Attorney General before
American to erase their recordings of seeking to compel a journalist to turn
Scalia's speech, made at the Presbyterian over materials."
Christian High School in Hattiesburg, The letter requested that U.S.
Miss., on April 7. Marshals be reminded of and follow the
"[The Privacy Protection Act] states Privacy Protection Act and the
that government officers and employees guidelines set forth in 28 C.F.R Section
investigating a criminal offense may not 50.10.
'search for or seize any work product (4/08/04)
Judge dismisses First Amendment suit
KEY WEST A federal judge misdemeanor for anyone involved in a
dismissed a First Amendment suit police investigation to publicly reveal
against the city of Key West, overruling information about the investigation.
a federal magistrate's Criminal charges against
recommendation that the FIR Cooper were dropped, but the
city be found liable for American Civil Liberties
violating the plaintiff's AMENDMENT Union pushed to have the
rights. AN NN statute struck down by suing
Journalist Dennis Dillon and the city, on behalf
Reeves Cooper, editor of Key West The
Newspaper, sued the city and former Key
West police chief Gordon "Buz" Dillon,
after being arrested for publishing
allegations of a police cover up.
Cooper had filed a lawsuit against the
police department, claiming wrongdoing
in a 1997 internal investigation. Later, he
reported detailed portions of the
complaint in his articles. Dillon arrested
the journalist, claiming an obscure
Florida statute, the "gag law," makes it a
InNovember2003, federal magistrate
John J. O'Sullivan wrote that Dillon had
violated Cooper's First Amendment
rights and that the city should be found
liable. However, U.S. District Judge
James Lawrence King struck down the
legal challenges to the "gag law" after
city lawyer Michael Burke successfully
argued that the statute did not impinge
on free speech.
Couple sues paper
SARASOTA A Sarasota couple filed
a lawsuit against the owner of the
Sarasota Herald-Tribune, claiming the
newspaper defamed them and cast them
in a bad light.
In their lawsuit, Jeffrey and Naomi
Pincus, who lived with murder suspect
Joseph P. Smith, said the newspaper
published "lies and half-truths" in a story
about a Web site and video business
linked to the couple. In addition, they
claimed the newspaper inflicted
emotional distress and engaged in unfair
business practices, for which the couple
seek unspecified monetary damages.
After Smith was arrested at their
house for probation violation, the
Pincuses gained national attention. Days
later, Smith was charged with the
abduction and murder of 11-year-old
A Feb.14 article in the Herald-Tribune
mentioned a Web site called "Minc's
Fantasy Fighting Girlz," which sold
videos of women fighting. The article
also said Jeff Pincus' name was listed on
The lawsuit said the article contained
"false, scandalous and defamatory"
Attorney David McCraw, who
represents The New York Times Co., said
the company will fight the lawsuit.
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I .11. 1 IIL.n, \. 1 1-,, .111
.I The Brechner Report June 2004
I I . .. I I .I I ,
Attorney General's Office: Open government mediation
A catering business proprietor asks a city recreation consuming litigation.
department for reservation data regarding park facilities. The following are some of the issues addressed in the
The director refuses to release the records unless the mediation program: May a city require a citizen to show
business owner writes a letter explaining why she wants a driver's license or furnish identification before
the information. providing records? Resolution: No.
In another part of the state, a homeowner, concerned May an agency require a citizen to fill out a form or
about stadium lighting at a nearby high school, asks the submit a written request before receiving public records?
school district to produce records disclosing whether it Resolution: No.
The obtained a zoning May an agency require a citizen to state why she
B a k P a variance to install the Pat Gleason wants a public record? Resolution: No.
lights. The district says that it May an agency require a citizen to obtain computer stored
By Pat Gleason will not provide the zoning data in hard copy, or is the agency required to provide the data
records because the stadium on disk, if available? Resolution: Data should be provided on
lighting plans constitute a "blueprint" which is confidential disk if available in that form.
pursuant to a statutory exemption passed in the aftermath of the Must an agency provide access to individual evaluations
Sept. 11, 2001, attack on the World Trade Center. prepared by board members of the city manager, or may the
A journalist requests copies of automobile crash reports from agency provide access to a compiled version of the evaluation
a law enforcement agency but is told that these reports are only? Resolution: Individual evaluations must be made
confidential for 60 days. The reporter points out that the statute available.
specially exempts news organizations from the 60-day waiting Is an agency required to prepare a transcript of a board
period but the agency refuses to change its position. meeting? Resolution: No. The Sunshine Law requires minutes,
A former state employee is unable to obtain a copy of a report not a transcript.
that he prepared when he worked at the agency. May an agency exclude potential bidders from a meeting
In each of these cases, the citizen obtained the records after subject to the Sunshine Law? Resolution: No.
contacting the Attorney General's Office to participate in open Must a university police department provide a copy of an
government mediation. The mediation program is established in arrest report to a reporter for the campus newspaper?
section 16.60, Florida Statutes, as an alternative for the resolution Resolution: Yes.
of public access disputes. The program is voluntary and both Must an agency provide copies of applications for a new
sides must agree to consider mediation if the program is to be position within the agency? Resolution: Yes.
initiated. In 2003, 149 cases were handled in the mediation When both parties are committed to resolving a public access
program. Of these, 110 or 74 percent were successfully resolved dispute through negotiation, open government mediation can be
through the program. While a majority of mediation requests a cost-effective and efficient way to achieve a positive result for
came from private citizens or organizations, small businesses, both sides. The resolution of public access controversies
journalists and governmental agencies also used the program to without litigation results in a cost savings to the governmental
resolve public access controversies, agencies and helps the public to secure access to public records
In most cases, the process concludes with the citizen and meetings, as mandated by Florida statutes and the
receiving records that were requested. However, in a few Constitution.
instances, the program helps to explain why the agency is not Pat Gleason is General Counsel in the Office ofAttorney
required to produce the records. In all cases, however, the goal General Charlie Crist. She is also the editor of the Government
is the same-to provide an informal process that allows a citizen in the Sunshine Manual. For more information about
and a governmental agency to resolve a public access mediation, you may contact her at:
controversy without having to resort to expensive and time- pat- .1.... -t,...i .t.t.. t7 , or (850) 245-0203.