Volume 30, Number 6 0 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
DAYTONA BEACH Florida Hospital
DeLand does not need to comply with
Florida's open government laws, according
to a ruling issued by the 5" District Court
The Daytona Beach News-Journal
sought access to the hospital's meetings
and records in a Sunshine Law debate
that began in 1994, when the corporation
created to run the hospital decided to
keep information private. In 1999, the
Florida Supreme Court held that the leased
hospital's meetings should be open.
However, the latest ruling found that the
hospital is not subject to open government
laws since Memorial Hospital-West
Volusia Inc. bought the hospital from the
West Volusia Hospital Authority taxing
district in 2000.
"Since the sale, Memorial is no longer
'acting on behalf' of the Authority," Chief
Judge Robert J. Pleus Jr. wrote. "And
therefore is not
ACCESS subject to the
MEETINGS Act and the
The News-Journal's attorney, Jon
Kaney, said the ruling focuses on the
ownership of the hospital rather than its
function of serving the public.
The Florida Legislature has since
passed a bill allowing corporations that
purchase public hospitals to be exempt
from open government laws.
"The real issue here is the
constitutionality of that exemption and,
I'm afraid to say, the viability of the
constitutional standard" requiring public
necessity to justify exemptions to open
government laws, Kaney said before the
bill was passed.
"If [the constitutional standard]
continues to be watered down and
gutted...we may have to send the signature
gatherers back into the public parking lots
to amend the Constitution," Kaney said.
Ethics complaints dropped
against Polk commissioners
BARTOW Two Polk County documents available to the public.
commissioners have been cleared of A former Winter Haven city
ethics allegations stemming from the commissioner, Jim Lear, filed the
release of a memo that was exempt from complaint in May 2005.
the Public Records Law. The memo concerned a landowner's
The state Commission attempt to change the zoning
on Ethics found no probable A C C E SS for 10 acres from residential
cause to find that Jack Myers to industrial. A community
and Paul Senft abused their RECORDS group opposed the move.
positions by providing the The memo, written by
memo to a landowner who sought a Polk County Attorney Joseph Jarret,
zoning change from the commission, recommended a denial of the zoning
The commissioners had reportedly request. Because it was in anticipation of
been told by their lawyer that they had litigation, the memo was exempt from the
the authority to make such confidential Public Records Law.
Ten board members found guilty
BARTOW Ten members of the Polk
County Opportunity Council were found
guilty of violating the Sunshine Law.
County Judge Anne Kaylor ordered each
board member to pay a $250 fine and
$28.60 in court costs.
The non-criminal charges stemmed
from a closed September meeting during
which the board discussed former
executive director Carolyn Speed.
Following the closed meeting, the
board returned to the public meeting,
where they voted to reprimand Speed
for accepting a controversial training trip
to Las Vegas. Speed was later forced to
"I don't believe that this violation was
done willfully or intentionally with any
nefarious scheme to perpetrate any kind of
a fraud or secret upon the public," Kaylor
said during sentencing.
Kaylor said she would s.oonglI
recommend" Sunshine Law training for
the board members.
The PCOC is a nonprofit agency
dedicated to helping the area's poor.
Attorneys: Meeting not a violation
TALLAHASSEE Attorney General
Charlie Crist, along with State Attorney
Willie Meggs, have concluded that a
closed meeting about Leon County voting
equipment did not violate the Sunshine
Crist and Meggs wrote letters to the
Tallahassee Democrat in response to
concerns with the March 13 meeting.
Reporters were kept from the meeting
between Florida Secretary of State Sue
Cobb and Leon election officials. County
Commissioner Bob Rackleff was asked
to leave the meeting because another
commissioner was already there.
Leon County gave notice that the
meeting would be open, but Cobb asked
the media to leave in order to expedite the
Crist also commented that reporters
"have cause to feel wronged" if threatened
with arrest, but he noted that there had
been conflicting accounts of whether this
Ormond Beach installs "no-triple-repeat" policy
ORMOND BEACH Citizens
who want to speak their minds to the
Ormond Beach City Commission may be
choosing their words more carefully.
The commission has adopted a
policy that seeks to prevent those who
speak during audience remarks from
making the same point at three different
According to the new policy, Mayor
Fred Costello can ask speakers to provide
new information or switch topics if they
attempt to make the same remarks about
a subject at a third meeting.
"We're not trying to keep people from
expressing their opinions or stifle debate.
I just don't want people to invest other
people's time in personal issues that
don't impact anyone else," Costello said.
Ormond Beach's "repeat" policy
applies to the portion of commission
meetings when residents are permitted five
minutes to talk about any matter not already
on the agenda.
Commissioner Troy Kent expressed
concern about the policy.
"I want to make sure we're not shutting
people down or making them feel they
shouldn't bother coming to meetings," Kent
ACCESS RECORDS CONTINUED
University president prevails in records lawsuit
GAINESVILLE University of
Florida President Bernie Machen's
inadvertent failure to provide some public
records was not a violation of the Public
Records Law, a circuit judge ruled.
Charles Grapski, a UF doctoral student
and instructor, alleged in his lawsuit that
Machen failed to provide documents
related to UF Homecoming, Florida Blue
Key and Gator Growl.
Circuit Judge Robert Roundtree Jr.
ruled that Grapski did not prove that
OCALA- The Ocala Star-Banner
was successful in its petition to access
court documents and Department of
Children and Families records related
to the beating death of a 5-year-old
Coreyon Graham died Feb. 16, and
police have issued an arrest warrant
for the boy's father, Richard Crawford.
Crawford is wanted on charges of first-
degree murder and aggravated child
abuse. The Medical Examiner's Office
determined that Coreyon's death was
a result of blunt force trauma from a
"We want to tell Coreyon's story,
records he thought were public existed.
"The mere fact that an e-mail is
received by a public agency or official
does not make it a public record,"
Roundtree wrote. He also stated that e-
mails to public officials commenting on
their performance "may or may not" be
Grapski, 40, contends that Blue Key,
the leadership organization that sponsors
Gator Growl, should not receive student
fees because it is not open to all students,
and we want the information so that
we can do just that," said Star-Banner
Executive Editor Robyn Tomlin.
Though he had previously been
under DCF supervision, Coreyon was
not under DCF supervision at the
time of his death because the agency
had enacted a case plan giving his
Circuit Judge Stephen Spivey did
not immediately grant the Star-Banner
access to DCF case records involving
Coreyon prior to his death. Spivey said
he would review DCF's recommended
redactions of those records and make a
ruling at a later date.
according to The Gainesville Sun.
"If this judge's ruling is maintained,
there is no Public Records Law in the state
of Florida," said Grapski, who is running
for a seat in the Florida House.
Grapski will have to pay the university's
court costs of approximately $1,300.
In May, Grapski was arrested after
Alachua's city manager accused him of
illegally taping a meeting. The purpose
of the meeting was to discuss Grapski's
request for election records.
line must offer
MIAMI A Miami judge has ordered
Carnival Cruise Lines to disclose its sexual
assault records during a three-year period.
The records, sought by an abuse victim's
lawyer in a civil case, will not immediately
be made open to the public.
James Walker represents the family of a
girl who alleged she was fondled by a crew
member during a 2000 vacation. She was
12 years old at the time of the incident.
The crew member pleaded guilty to
criminal charges later that year.
The Miami Herald reported that it
would challenge Miami-Dade Circuit Court
Judge Gill Freeman's decision to keep the
City uses exemption to keep business talks private
FORT PIERCE The Fort Pierce Florida law contains a public records Port St. Lucie did so to keep discussions
City Commission has voted to create an exemption for economic development with a major research institution secret.
economic development agency, a move agencies. Only one Fort Pierce commissioner, R.
that will keep talks with prospective The creation of such an agency by "Duke" Nelson, voted against the economic
employers from public view for up to neighboring city Port St. Lucie prompted development agency measure, citing the
two years. Fort Pierce to create one. need for transparent government.
2 The Brechner Report U June 2006
Newspaper wins records suit
to tell story of slain youngster
ACCESS MEETINGS CONTINUED
ORLANDO The Airlines/Airport
Affairs Committee, a group of airline
executives who have veto power
over part of the Orlando International
Airport's budget, will no longer record its
The Sunshine Law does not require the
group's meetings to be open to the public.
However, it has traditionally kept
recordings of meetings available through
the Greater Orlando Aviation Authority.
The Orlando Sentinel reported that
after the newspaper requested tapes of
the meetings, the group decided to stop
making the recordings.
An airline spokeswoman defended the
privacy of the meetings. "The meetings
of the AAAC are private because much of
the information discussed is proprietary,"
said Southwest Airlines spokeswoman
Randy Gillespie, properties manager
for Southwest, is chairman of the AAAC.
In addition to airline executives
such as Gillespie, the meetings are also
attended by senior staff of the Aviation
These staffers make recommendations
to board members of the Authority,
according to the Sentinel.
Brechner Center for Freedom of Information
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College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
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Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Christina Locke, Editor
Alana Kolifrath, Production Coordinator
The BrechnerReport is published 12 times a
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Foundation The Brechner Report is ajoint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association, the
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ety of Newspaper Editors and the Joseph L Brechner
Lehigh planning group asks
attendees to leave meeting
LEHIGH A community planning against a member. Approximately 15
group asked members of the public residents who attended the meeting had
and press to leave its meeting, after to leave.
consulting the Lee County attorney One Lehigh resident, David Adams,
and getting his opinion that the group felt it was unfair that a non-board
does not operate under the Sunshine member was allowed to attend the
Law. executive session to give advice on
According to Chairman Bo parliamentary procedure. Turbeville said
Turbeville, since the planning group that Robert Anderson was actually the
never received money from the county group's parliamentarian.
and is not an official advisory board At least one county commissioner
to the county, it does not fall under the cautioned against closure.
Sunshine Law. "You could get into all kinds of legal
The planning group voted to have a entanglements," warned Commissioner
closed session to discuss a complaint John Albion.
Synagogue: City met illegally
to decide fate of residential site
HOLLYWOOD A synagogue based
in a residential neighborhood has sued
city commissioners, alleging they "pre-
agreed" on how to shut down the place of
The Chabad Lubavitch claims that an
executive session with the commission,
city attorney and city manager violated
the Sunshine Law.
The reported reason for the closed
meeting was to discuss an earlier lawsuit
that had been filed by the synagogue.
The Chabad's attorney, Franklin
Zemel, contends Hollywood Mayor Mara
Giulianti polled commissioners to get a
majority to agree on a course of action to
shut down the synagogue.
MONROE COUNTY The State
Attorney's Office is finishing up its
investigation of the February firing of
the county attorney. Richard Collins
was fired at a Feb. 15 meeting after the
action was added to the agenda at the last
Two commissioners objected to the
issue, and one, George Neugent, accused
three commissioners of discussing
the matter before the meeting. Those
commissioners denied that allegation.
Commissioner Sonny McCoy, who
"Let me ask each person, because
we don't put it on the agenda for us to
decide until we know we have some
kind of consensus, otherwise we have
an argument until 6:30 in the morning
and a whole bunch of people getting
up and talking about it," Giulianti said,
according to a transcript of the closed
The Chabad bought two homes in
Hollywood Hills in 2001 and converted
one into a synagogue.
Prompted by neighbors' complaints
about parking, noise and garbage,
the Hollywood commission moved
to remove the synagogue from the
center of probe
made the motion to buy out the remainder
of Collins' contract, cited concerns about
the county attorney's health and job
The Monroe County State Attorney's
Office sought the help of the public in the
investigation. "The reason for it is we are in
the final stages of the investigation... if there
is one of your readers who can give us hard
facts related to this case, we want to hear
those," Matt Helmerich, spokesman for the
State Attorney's Office, told The Florida
The Brechner Report U June 2006
University of Florida
Brechner Center for Freedom of Information
3208 Weimer Hall Gainesville, FL 32611
Psuedo-secrets threaten the public's right to know
The formal records classification system in recent
years has witnessed unprecedented secrecy, with more
classification last year 15.6 million classification
decisions, up from 9 million in 2001 than in any year
since the government began keeping records. But there
is also an informal strain of secrecy taking root in the
executive branch, largely unseen and unchecked, which
potentially poses an even greater threat to the public's ,1
right to know and to our security: pseudo-classification. Kris
The National Security Archive recently issued a report
analyzing this trend. We asked agencies for their policies
and procedures on protecting unclassified information that they
identify as posing a security threat. The results were alarming.
In examining 37 federal agencies and offices, we found 28
The distinct policies for protecting
B k sensitive unclassified
ack a e information and little, if any,
B Kristin Adair coordination between agencies
By Kisti Aa evidenced by the broad
range of different designations that agencies use, from For
Official Use Only (FOUO) to Sensitive But Unclassified (SBU),
Sensitive Security Information (SSI) and many more. As these
and other curious acronyms increasingly find their way onto
page after page of government documents, agency prescriptions
for marking, protection and decontrol of designated sensitive
materials are vague and disparate.
In comparison to the classification system, which is monitored
and evaluated annually by a central office, sensitive unclassified
information may fall into a black hole far from the view of
the public, Congress, other agencies and state and local first
responders who may need the information to keep us safe.
Moreover, the diversity of ambiguous policies and the lack of
monitoring or oversight mean that neither Congress nor the
public can tell whether these policies are working to safeguard
our security, or are being abused for convenience or to cover-up
embarrassment or wrongdoing.
Among the 28 policies, none provide for monitoring or
reporting on the use of the safeguarding procedures, nor do any
include a mechanism to challenge the protection of particular
documents under these policies.
So what about the effect on FOIA? A number of policies
explicitly state that the marking of a document as
FOUO or SBU has no bearing on whether it may be
withheld from public requesters. But the implications
in practice are unclear: sensitive unclassified safeguards
may actually be functioning as a "tenth exemption,"
motivating reviewers to search for justifications to
withhold sensitive information when they might not
otherwise have done so.
And human nature suggests that FOIA reviewers
Adair without specific knowledge of national security matters
may look at a brightly-colored cover page, ominously
labeled "Sensitive Security Information," and on that basis opt
not to approve release. After all, there is no statutory sanction
for improper withholding of information, so the unsubstantiated
possibility that a document could jeopardize our security or assist
a terrorist makes the choice an easy one.
The next step must be to at least get some hard numbers. How
many people are marking sensitive information? How many
records are affected? How do the markings affect the review of
records under FOIA? At two hearings, Congressman Christopher
Shays has sought answers to these questions and the only thing
he has determined is that government ,fc ia l. have no answers.
Moreover, there must be some government-wide rules
about who can apply protective markings and how they can be
challenged, and the rules must be enforced by someone other than
the individual holding the stamp.
President Bush, in a December 2005 memorandum, directed
federal agencies and offices to develop standard policies on
SBU information, to "promote appropriate and consistent
safeguarding" and to facilitate information sharing of homeland
But to date, no proposals have been publicly disseminated. In
the meantime, a rash of pseudo-secrets is spreading through the
government; and without even knowing the full extent of this
epidemic, we are powerless to cure it.
Kristin Adair is a Freedom oflInformation Associate at the
National Security Archive. She recently completed her graduate
work at the George Washington University, where she received
both her JD. and her M.A. in International In 1no '.