Volume 29, Number 3 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom ofI,,r 1..... a,. College ofJournalism and Communications U University ofFlorida
CAPE CORAL A citizen group
amended its lawsuit against the Cape
Coral Commission, claiming that city
leaders violated the state's Sunshine Law
by failing to notify property owners
about water and sewer expansions.
The group, Cape Coral Watchdogs,
originally filed the case in federal district
court in 2003, but a judge said the court
ACCESS jurisdiction to
ACCE S hear the case.
the case in state court, where a judge
dismissed the suit in November to allow
the group time to amend its complaint.
The lawsuit alleges that the city failed
to provide adequate notice, which
resulted in an unconstitutional taking of
property from city residents without
The lawsuit is a result of the city's
2003 expansion of existing sewer and
water lines in southwest Cape Coral.
Senator's records remain under seal
TALLAHASSEE- Administrative over campaign-law violations.
Law Judge Jeff Clark ruled that state The republican senator, who is from
Sen. AlexDiaz de laPortilla's financial Miami, faces more than $17,000 infines
records from the as a result of the violations.
previous four years will (C( T The Elections Commission
remainclosed. - uses a politician's assets as
The Florida Elections one of the determining
Commission requested copies of his tax factors when assessing fines.
returns, credit-card bills, bank Diaz de la Portilla's attorney asked
statements and investment listings in the judge to refuse disclosure of the
late 2004. records to prevent the "embarrassment
The request to examine Diaz de la of having his personal financial records
Portilla's finances arose from a dispute made public."
Court declines school records petition
TALLAHASSEE A ruling by the 5th problems on Seminole County buses.
District Court of Appeals that exempted After the school district denied
school bus videotapes and requests, WFTV filed suit to
student records from the A C C E SS get access to the records.
state's Public Records Law A U 3 After losing at trial, the station
will stand after the Florida RECORDS appealed to the 5t District.
Supreme Court refused to The appeals court ruled
take the case.
The lawsuit, WFTVv. Seminole
County School Board, began in 2001 after
the television station requested school
disciplinary records and surveillance tape
from the buses for a story on disciplinary
Protestor, city settle obscenity case
GAINESVILLE-Aprotesterwhowas prosecutors later dropped the charges.
arrested for c\lpoing minors to obscene "I'm not going to stop protesting,"
material" willreceivemorethan$17,000 he said. "It's my right."
fromthe Gainesville City Commission. The American Civil Liberties Union
Charles Chiodo filed suit of behalf of Chiodo,
settled the lawsuit, FIR ST claiming he had a right to
which stemmedfrom protest. The group argued
a May 2004 protest ofAMENDMENT that the poster didn't meet the
President Bush. legal standard for obscenity.
Gainesville police arrested Chiodo for As a result of the settlement,
displaying a sign depicting the American Gainesville officers will now be required
flag protruding from the buttocks of an to photograph or buy materials
animated character after they noticed believed to be obscene and then get
children glancing in Chiodo's direction, approval through the chain of
Chiodo spent the night injail, but command before arresting someone.
that student records are
confidential and exempt from the Florida
Public Records Law because a state
statute says "every pupil or student shall
have a right of privacy with respect to the
educational records kept on him or her."
suit against paper
DAYTONABEACH --Circuit Judge J.
David Walsh dismissed the second of two
defamation lawsuits filed against the
Daytona Beach News-Journal.
Randy Brewer took action against the
paper after it reported that he and Dean
Gast acted as conduits
I L for the Ormond Beach
L I City Commissioners in
about the firing and rehiring of City
Manager Isaac Turner.
Brewer's lawsuit was dismissed with
prejudice, meaning he is not able to re-file.
FIRST AMENDMENT CONTINUED
LEE COUNTY- A legal battle
between the Lee County School District
and a former employee, who accused the
district of firing him because he
criticized the district, has ended.
The district settled with Ernie Scott,
the former safety director, for about
$565,000, afterhe claimed his First
Amendment right to free speech and his
due process rights were violated when
he was terminated for blowing the
whistle on safety violations.
Incoming Superintendent James
Browder fired Scott in 2003, shortly after
he reported problems with air quality,
fire safety concerns and the presence of
asbestos in the district's schools.
A jury in the case awarded Scott
more than $400,000 in damages, but the
school district initially balked at the
sum. The parties reached the
compromise, which included $232,000 in
attorney's fees and $333,000 in
damages, shortly before an appeal was
scheduled to be heard.
Supreme Court refuses to hear lawsuit
regarding anti-abortion license plates
Court declined to consider whether
state license plates with anti-abortion
messages are constitutional.
The case started as a result of the
South Carolina Supreme Court's
decision that anti-abortion plates were
unconstitutional without the option of a
The decision leaves lower courts in
nearly a dozen states, including Florida,
divided about whether the plates violate
the First Amendment rights of pro-
In most states, the license plates,
which often read "Choose Life," do not
have a pro-choice counterpart for
drivers to select.
The U.S. Supreme Court's decision
not to hear the case has no direct effect
on the Florida license plates.
Choose Life, Inc., the Ocala-based
nonprofit who created the design for the
South Carolina license plates, said it
was disappointed with the Supreme
Court's refusal to grant certiorari.
Filter blocks RateMyTeachers.com
MANATEE COUNTY- School
district officials in Manatee County have
admitted that the district's filtering
software has restricted access to a
teacher-rating Web site created by
Hussey accused the district of stifling
students' free-speech rights by
intentionally blocking the site, where
students can post comments about
classes and teachers.
However, district officials say the
Web address, RateMyTeachers.com, was
not specifically targeted.
Although the filtering software has
blocked one address, students can still
access the site through a second address
that has not been picked up by the filter.
Abortion providers desire buffer zone around clinic
WEST PALM BEACH -Abortion
provider Mona Reis has asked city
officials to enact a 30-foot buffer zone at
the entrance of her clinic.
The designated area would provide
space to allow patients room to walk
without being physically approached by
other persons seeking to dissuade them
from having an abortion.
Copies of case opinions, Florida
Attorney General opinions, or
!,.i Jha. 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.
"If this was any other kind of facility,
the city would realize that it needs
protection," she said.
Protestors have argued that any
enactment by the city would violate their
First Amendment right to free speech.
"If I can't hand somebody information
here, where else can I not give
information out?" said Susan Pine, who
visits the clinic every Saturday in an
attempt to change women's minds.
City officials have asked the clinic to
provide better security measures before
addressing the issue through an ordinance.
In 1994, the U.S. Supreme Court ruled
that a state court injunction establishing a
36-foot buffer zone around a Melbourne
clinic was constitutional.
TALLAHASSEE- The following
proposed legislation for the 2005 session
would create new exemptions to the state
Public Records and Open Meetings laws.
Copies of the legislation are available at
the Florida Legislature's Web site,
Online Sunshine, at www.leg.state.fl.us.
Chief sponsors of the bills are in
parentheses next to the bill numbers.
SB 306 (Fasano, R New Port
Law Enforcement Officer/Public
Records Provides that a law
enforcement officer's personal and
private records which are in possession of
a law enforcement agency because of a
complaint investigation, are exemptfrom
the public records law.
SB 676 (Saunders, R Naples)
Public Records and Meetings Exempts
from public disclosure certain personal
information concerning child fatalities
investigated by State Child Abuse Death
Review Committee, local committee, or
panel or committee assembled by state
committee; provides that information made
confidential under act retains its
2 The Brechner Report U March 2005
LEGISLATIVE PREVIEW CONTINUED
SB 698 (Sebesta, R St. Petersburg)
Records Creates exemption from public
records requirements for information
obtained by Financial Regulation Office
ofFinancial Services Commission in
connection with active investigations
and examinations under Florida
Consumer Finance Act.
Fla. Prepaid College Program/Public
Records (Open Government Sunset
Review) Revises public records
exemption provided for information that
identifies purchaser or beneficiary of
said program; eliminates reference to
advance payment account activities;
clarifies that such records are exempt
from specified provisions; amends
provisions of Florida College Savings
Program to revise public records
exemption provided for information that
identifies beneficiary of program.
SB 942 (Peaden, R Crestview)
Public Records Exemption- Expresses
legislative intent to revise laws regarding
the public records exemption.
School Readiness Records Specifies
that exemption from public records
requirements provided for records of
children in school readiness programs
applies to personally identifiable records
of children enrolled in programs; extends
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exemption to records held by certain
contractors of early learning coalitions.
SB 1082 (Miller, D Tampa)
HB 449 (Ambler, R Tampa)
H. Lee Moffitt Center/Public Records
- Clarifies exemptionforproprietary
confidential business information owned
or controlled by not-for-profit
corporation operating H. Lee Moffitt
Cancer and Research Institute and its
subsidiaries regarding trade secrets.
SB 1098 (Smith, D Gainesville)
Child Abuse/Neglect Cases/Public
Records Amends provision regarding
confidentiality requirements for reports
and records in cases of child abuse or
neglect to provide that staff members of
child advocacy center who are providing
services of center to child may have
access to records.
SB 1142 (Argenziano, R Crystal
Trade Secrets/State Agency/Public
Records Exempts trade secrets held by
state agencies from public records
requirements; requires that written
declaration be submitted to state agency
verifying that information is trade secret;
specifies requirements for such
declaration; exempts any portion of
meeting at which information concerning
trade secret is discussed from public
meetings requirements; provides for
SB 1144 (Argenziano, R Crystal
Public Records and Public Meetings -
Transfers general exemptions from
requirements regarding inspection and
copying of records not otherwise
transferred by this act to specified
provision; reorganizes and classifies
exemptions under headings of "agency
processes," "agency personnel
identifying information," "other personal
identifying information," and "security";
revises standards and guidelines for
review and repeal of exemptions.
Seaport Security Plans (Open
Government Sunset Review) -
Postpones until Oct. 2, 2010, expiration
for exemptions from public records
disclosure provisions for Seaport
Domestic Security Oversight/Public
Records Provides that portions of
meetings of Domestic Security Oversight
Council are exempt from public meetings law
if information is discussed which concerns
active criminal investigations, intelligence
activities, or security plans; requires that
chair of council disclose reason for closing
meeting of council; requires that closed
session be recorded.
HB 185 (Harrell, R-Port St. Lucie)
Public Records and Public Meetings
public records requirements for information
contained in specified records that relate
solely to child fatalities and are created by
the State Child Abuse Death Review
Committee, a local child abuse death review
committee, or a panel or committee thereof;
provides an exemption from public meetings
requirements for specified portions of
meetings or proceedings of the State Child
Abuse Death Review Committee, a local
child abuse death review committee, or a
panel or committee thereof.
SB 58 (Campbell, D Tamarac)
HB 217 (Barreiro, R -Miami)
Public Records Creates an exemption
from public records requirements for the
home addresses, telephone numbers, social
security numbers, and photographs of
current or former personnel of a crime
laboratory or medical examiner's office and
their spouses and children, and the names
and locations of schools and day care
facilities attended by the children of such
HB 627 (Detert, R Venice)
Public Records Creates an exemption
from the public records requirements for
information obtained by the Office of
Financial Regulation of the Financial
Services Commission in connection with
active investigations and examinations
conducted under the Florida Consumer
HB 729 (Goodlette, R Naples)
Public Records and Meetings Exemptions
- Exempts from the public records and
public meetings requirements the records of
the Florida Self-Insurers Guaranty
Association, Incorporated, and meetings of
the board of directors of the association or
any subcommittee of the association's
board of directors.
The Brechner Report U March 2005 3
Journalist uncovers America's underground courts
After years of covering the courts, I thought I knew the That morning in Miami, a three-judge panel of the 11 U.S.
basics. Crimes are charged and prosecuted. Lawsuits are Circuit Court of Appeals heard the scheduled cases and took
filed and fought, and every case is publicly accounted for a recess. During the break, the courtroom was closed, and
on the court's docket. U.S. Marshals were posted outside the courtroom doors.
But some federal courts keep a second set of dockets Inside, Bellahouel's hearing proceeded in secret. Gag orders
the public doesn't see. And as I discovered, these secret prevented anyone from commenting. The Miami Federal
dockets have been used to hide newsworthy cases. Public Defender's Office wouldn't even acknowledge that
Super-sealing is the practice of withholding information they represented Bellahouel.
about the existence of a case from the public record. Even At that point, I didn't have Bellahouel's name because I
case numbers are confidential. Dan Christensen had thrown away the early calendar. I plugged the case
No explicit legal authority exists to implement such number into the court's electronic docket and got lucky: his
extreme secrecy, and authorities have yet to explain the name was listed. But it wasn't there for long. Within hours,
need for it. The use of a secret docket runs counter to the U.S. his name was again underground.
judicial system's long tradition of openness. Bellahouel's case went all the way to the U.S. Supreme Court.
Judges seal sensitive matters every day shielding grand jury Along the way, it stirred a national debate. But last February,
proceedings, preserving trade secrets, protecting government without explanation, the court declined to hear Bellahouel's case.
informants but the absolute, unexplained secrecy imposed when Review of the Supreme Court file shows that virtually all of the
cases are super-sealed is more chilling. Reporters can no longer pleadings that U.S. Solicitor General Ted Olson filed were under
assume that every important case is disclosed, seal, something that's extremely rare.
We know about this because of the super-sealed habeas corpus Have federal prosecutors made these radical arguments
case of Mohamed Kamel Bellahouel. Bellahouel, an Algerian living elsewhere to hide other newsworthy cases? We don't know. Will
The in South Florida, was detained they in the future? We may never know.
B ck P a e without criminal charge by federal So, how widespread is the use of secret dockets? We know it's
agents in the aftermath of the not confined to Florida and the 11th Circuit. In state courts, secret
By Dan Christensen September2001 terror attacks. dockets have been exposed in Connecticut and Maine involving
FBI agents investigating the embarrassing civil matters such as divorces. A.J. Kramer, a federal
dead September 11th hijackers took Bellahouel into custody. He public defender in Washington, D.C., told me a secret docket is in
was detained on an immigration charge overstaying his student use there to hide the existence of cases in which the lives of
visa and spent five months in federal custody in Miami. At cooperating witnesses who plead guilty may be in danger.
some point the government considered him a material witness in Secrecy has always been an occupational hazard forjournalists.
the case, but he was eventually released around March 1, 2002, A court super-seal, though, casts a total information eclipse that's
without any criminal charge being filed, both extraordinary and pernicious. Reporters must combat it by
While in custody, Bellahouel had filed a habeas corpus petition
seeking his release. Traditionally, such cases are open, but Miami
U.S. District Judge Paul C. Huck immediately sealed his case. It
would have remained secret had it not been for a mistake by an
appeals court clerk a year later. Bellahouel's name and case number
were included erroneously on a public hearing calendar. I noticed
the clerk's attempt to cover up the mistake by deleting Bellahouel's
name from a later edition of the calendar, and decided to go to the
March 5, 2003 hearing.
becoming more aggressive. Judges and clerks should be put on the
spot. Practicing attorneys should be asked if they are aware of any
secretly docketed cases. Journalists should watch court records for
clues that might flush important cases from the dark covers we
now know exist in some of our nation's courthouses.
Dan Christensen won the 2004 Brechner Award for his series
on the secret federal courts. He has been a reporter for 25 years
and currently writes for the Daily Business Review.