Volume 31, Number 5 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
on secret cases
TALLAHASSEE In response to
reports of "supersealing" court cases,
the Florida Supreme Court issued an
opinion on the issue and adopted new
rules making it more difficult for civil
cases to be sealed.
Chief Justice R. Fred Lewis initiated
an inquiry into the practice of sealing
cases and excluding them from dockets
after reading of the problem in a series
of articles by The Miami Herald.
Lewis sought advice from clerks of
court and the
ACCESS Florida Bar.
COURTS also held a
on the matter.
The new rules require written
requests to make cases secret. They
also allow judges to impose sanctions
on a party who files a motion to seal a
case "without a good-faith basis."
The Court rejected a
recommendation by the media to
require advance notice to the public of
motions to seal civil cases.
In its opinion, the Court praised the
media's contributions to the changes.
"[T]he free press has shown its
value to the people of Florida by
helping the judiciary identify and
quickly correct unintended practices
that tended to undermine public trust
and confidence in our courts," the
First Amendment attorney Tom Julin
praised the Court's decision. "This
may well be the strongest ruling of its
kind in the country," Julin said.
"I think this is going to stand not
only to improve the process here, but as
a beacon to others on the value of open
government," Julin said.
Bureau, paper settle records suit
TAMPA The Tampa Tribune received governmental function of preparing the
$28,106 from the Tampa Bay Convention bid to the bureau, the documents were
& Visitors Bureau to pay the newspaper's public records.
legal fees in connection with a public The bureau released the records
records lawsuit against the bureau, approximately two weeks after The
The payment ended the dispute Tribune's initial request. The documents
between the newspaper and the visitors detailed how millions of taxpayer dollar,
bureau over bid preparation
documents for the 2008 A C(
Convention. Tampa lost to REC
Minneapolis in its bid to host
The bureau initially refused to release
the documents to The Tribune. The
newspaper then filed suit, claiming
that because the city delegated the
-r- ~ would be used to host the
L S convention.
The bureau, which did not
D S use public money to pay the
attorney fees, said the payment
was not an admission of wrongdoing. The
Tribune's Executive Editor, Janet Weaver,
said that despite the bureau's denial of
wrongdoing, the newspaper can use the
payment as leverage in future disputes.
Federal recordings to go online
WASHINGTON, D.C. In a step
toward increasing access to its courts,
the federal judiciary is launching a pilot
program to offer free audio recordings of
court proceedings. The recordings will be
Currently, recording devices are
barred in federal court rooms, although
the Supreme Court does release audio
recordings of oral arguments in some
The Judicial Conference, the federal
judiciary's policy-making entity, approved
the pilot audio program.
Participation will be voluntary, and
judges will still have discretion to stop
recording when certain witnesses, such as
FBI informants, testify.
However, the program is not designed
as a stepping stone toward allowing
cameras in federal courts, cautioned
Chief Judge Thomas F. Hogan, executive
committee chairman of the Judicial
The program is set to begin sometime
Hall of Fame nominees sought
In celebration of its 30th anniversary,
the Brechner Center is currently seeking
nominations for the Florida Freedom of
Information Hall of Fame. The deadline
for nominations is July 1, 2007.
The Hall of Fame honors individuals
who have helped develop and defend
Florida's public records and open
meetings laws, and the public access
Nominators must describe the
nominees' contribution to Florida's
freedom of information and government
in the sunshine. To submit a nomination,
please visit brechner.org. You may
submit the nomination online or
download a nomination form.
The Brechner Center's 11-member
inaugural class included the late Florida
Gov. Lawton Chiles, Ralph Lowenstein,
Pete Weitzel, and Joseph L. Brechner, for
whom the Center is named.
FREEDOM OF INFORMATION
Audit: Agencies hesitant to release disaster plans
WEST PALM BEACH -A
nationwide audit of public officials'
compliance with the federal Emergency
Planning and Community Right-to-
Know Act, a law requiring disclosure of
community disaster plans, found that 1 in
3 requests for the plans were denied.
The law has been in effect for the past
20 years, but in light of post-Sept. 11
events, many government workers were
Study finds that
CHICAGO President George W.
Bush's December 2005 executive order
calling for quicker compliance with the
Freedom of Information Act has not
reduced the response time for requests,
according to a study by the Coalition of
Journalists for Open Government.
"Requests remain heavily
backlogged," according to the study, due
to cutbacks in personnel assigned to FOIA
work and increased costs associated with
hesitant to release the information.
The informal audit consisted of nearly
400 requests by reporters, students
and members of the League of Women
While some participants were given
the information with no problem, others
reported being followed by police, told
it would take several weeks and $1,700
to obtain a copy of the report, or being
required to sign an oath.
"[Y]ou don't look like a terrorist," said
one South Florida government employee,
when asked to supply an emergency plan.
Terrorism was a frequently cited reason for
not releasing the disaster plans, according
to the audit report.
About one-fourth of requests in
the South, including Florida, were
Bush's order not helpful to FOIA
FOIA performance is actually at
the lowest point since 1998, the study
found. The drop could not be attributed
to a significant increase in requests, and
requests have actually decreased since
they hit a record high in 2000.
Backlogs of requests as high as 238
percent for the Agency for International
Development and 127 percent for
Housing and Urban Development result
in increased waiting times for requesters.
The oldest request dates back to 1989.
Federal agency Web sites also received
low marks in a recent study. The 1996 E-
FOIA required agencies to put more public
information online in an effort to save
money and reduce waiting time. However,
the National Security Archive found that
only 1 in 5 federal agency Web sites actually
post all of the required records, and only 6
percent post instructions on how to request
information not appearing on the site.
Online submission forms for FOIA requests
are only a feature of 1 in 4 of the Web sites.
Attorney General's Office weighs in on PCOC
LAKELAND Board members of the
Polk County Opportunity Council found
guilty of violating the Sunshine Law
appealed their civil infraction convictions
to the 2nd District Court of Appeal, but
the Attorney General's Office has asked
the court not to hear the case.
The 2nd District requested the advice
of the AGO prior to deciding whether to
take the case. The AGO advised that the
court should take a case only when there
is "an inherent illegality or irregularity,
and an abuse of judicial power, or an act
of judicial tyranny... resulting in a gross
miscarriage of justice."
The PCOC, an agency that assists
disadvantaged populations in the Polk
County area, was unsuccessful in its first
appeal to a circuit court judge.
The 10 board members convicted and
fined $278.60 each held a closed meeting
on Sept. 15, 2005 to discuss disciplining the
PCOC executive director. The members
then returned to a public meeting already
in progress and voted to reprimand the
executive director. Members contend the
Public Records Law does not apply to them.
Federal judges unseal records in mining suit
BIRMINGHAM, Ala. A three-judge
panel of the U.S. Court of Appeals for
the 11th Circuit ordered the unsealing of
records in a lawsuit involving allegations
that an Alabama coal company was
responsible for the murders of three labor
union leaders in Colombia.
The company, Drummond Ltd.,
operates a mine in Colombia. A
Colombian union filed the lawsuit in
2002, accusing Drummond Ltd. of
paying paramilitaries to carry out the
2001 slaying of three union leaders
representing Drummond workers.
Drummond has denied any role in the
U.S. District Judge Karon Bowdre
overstepped her authority and sealed too
many documents, according to the 11th
Circuit. Bowdre issued $500 contempt
fines for four attorneys she accused of
leaking documents to The Miami Herald.
These were also overturned.
"The public has a right to access these
documents that is more than powerful
enough to overcome the negligible interest
of Drummond in preventing public access,"
Circuit Judge William Pryor wrote. "The
reasons given for sealing the documents
by the district court were conclusory and
speculative, and sealing these documents
was an exaggerated remedy for the harms
the district court identified.
2 The Brechner Report May 2007
TALLAHASSEE The Florida
Elections Commission has changed its
stance on a Wakulla County newspaper
it once accused of violating state election
The Wakulla Independent Reporter
mentioned two county political candidates
in the newspaper's first issue, prompting
the Elections Commission to classify
the publication as an "electioneering
communication" subject to registration
and other requirements under state
law. The commission did not fine the
Independent Reporter at that time but put
publisher Julia Hanway on notice that
future issues could violate the law.
Hanway and the ACLU sued the
commission in federal court, alleging it
violated the First Amendment guarantees
of a free press and free speech. The
commission responded to the lawsuit
by pledging not to further investigate
the publication, which it decided was a
newspaper after Hanway identified herself
as the publisher in subsequent issues of
The commission stands behind
its original investigation because of
Hanway's failure to identify herself as
the publisher. Hanway is still seeking an
injunction prohibiting the commission
from taking further action.
Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Christina Locke, Editor
Alana Kolifrath, Production Coordinator
Kimberly Lopez, Production Assistant
The BrechnerReport is published 12 times a
year under the auspices of the University of Florida
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
Florida Association of Broadcasters, the Florida Soci-
ety of Newspaper Editors and the Joseph L Brechner
Police remove secrecy oaths
from internal complaint forms
FORT MYERS The police
department removed a provision in
its internal affairs inquiries forms that
prohibited witnesses from revealing
what they told investigators.
The "secrecy oath" uses language
from a Florida statute barring witnesses
in police misconduct investigations
from discussing the case after talking
to investigators. The U.S. Court of
Appeals for the 11th Circuit has struck
down similar laws in other states.
The language in the Fort Myers Police
Department's forms drew attention after
police fatally shot a man.
"No one has been prosecuted under
[the Florida] statute in recent history,"
said Fort Myers City Attorney Grant
Alley. Alley thanked the ACLU for
pointing out the conflict between the
"secrecy oath" and the decisions of the
State offers new access Web sites
TALLAHASSEE The state has
launched several new Web sites to
provide increased access to government
records, but one has drawn criticism for
its difficulty to navigate.
The online directory of lobbyists and
how much they were paid by businesses
is up and running at www.leg.state.fl.us,
but a St. Petersburg
Times report found that A C C
finding information is
difficult because there RECORI
is no way to match
with the firms they work for. The site is
prepared by the Lobbyist Registration
Barbara Petersen, president of the First
Amendment Foundation, told the Times
the site was "practical obscurity at its
very worst." Lawmakers have promised
to improve the lobbyist database.
Florida teachers also will be the
subject of an Internet database scheduled
to be online by this fall. The Web site, www.
myfloridateacher.com, will make it easier for
parents to access public records regarding
disciplinary actions against teachers. More
than 3,000 teachers are referred to the
Department of Education each year for
In another effort to promote government
transparency, the Office of Open
S Government has established a
S Web site with links to contact
S information for public records
officials at each state agency.
The site, www.flgov.com/
og_home, allows visitors to e-mail public
records requests directly from the site.
In the same order establishing the Office
of Open Government, Gov. Charlie Crist also
ordered the implementation of an initiative
to produce more government documents in
"plain language." The Plain Language Web
site, www.flgov.com/plhome, provides
guidelines for state agencies in planning
ways to simplify bureaucratic language.
MIAMI A television reporter for the
Uruguayan station Teledoce was fined
$1,000 for using his cell-phone camera to
capture federal court proceedings. Martin
Sarthou pleaded guilty to contempt of
court charges and is banned from entering
federal courthouses in the Southern
District for the next year.
Cameras are prohibited in federal
courthouses. Most people are not allowed
to bring cell phones to court, but Sarthou
managed to get his past courthouse
Sarthou used the camera on his cell
phone to photograph the October 2006
extradition proceedings of Juan Peirana
Basso. Basso is accused in Uruguay of
participating in an $800 million South
American banking scandal.
Images from Sarthou's phone were
broadcast on Teledoce. Uruguay's request
to extradite Periana from the United States,
where he was arrested a year ago, was not
resolved at the hearing.
The Brechner Report U May 2007 3
Reporter fined for camera phone
A decade later, agencies still not in line with E-FOIA
In 1996, Congress recognized the potential of the
Internet and new technology to bring the plodding,
backlogged, inefficient FOIA system into the
technological present and passed the Electronic Freedom
of Information Act Amendments (E-FOIA). The hope
was that by requiring agencies to make most government
documents available online, the public would have
instant access to important government records without
having to file a FOIA request. Cat
E-FOIA called for agencies to post on their Web sites Ni
three traditional categories of reading room records:
opinions and orders, policy statements, and staff manuals. And,
in what is perhaps the most forward-looking provision of the bill,
it created a fourth category of records that agencies are required
The to post-frequently requested
k P records, defined as documents
B a k Pa e that have been or are likely to
Si be subject to multiple FOIA
By Nielsen requests. The amendments also
envisioned reducing the administrative burden on agencies and
better informing the public about the FOIA process. To this end,
E-FOIA requires agencies to post on their Web sites guidance
for making a FOIA request as well as comprehensive indexes to
Ten years later, a number of agencies still have failed to
implement key provisions of E-FOIA. The National Security
Archive recently issued a Knight Open Government Survey
report titled File Not Found: 10 Years after E-FOIA, Most
Federal Agencies are Delinquent. The Archive examined federal
agency compliance with E-FOIA's mandate that agencies use
technology to make the ideal of an open government a reality.
We conducted a review of 149 agency and component Web
pages, evaluating each site to determine compliance with the
law and assessing agencies' progress in using the Internet to
further the goals of the Act. Our data indicated a striking level of
noncompliance with both the letter and the spirit of the law.
We found that agencies have clearly failed to keep pace with
the revolution in access to information. Only 21 percent of
agencies post all four categories of records required by E-FOIA.
Only 6 percent include on their Web sites sufficient guidance for
FOIA requesters. Many agencies do not employ helpful
online tools to ease their FOIA processing burden, and
many agency FOIA Web sites are poorly organized and
difficult to navigate. Even on sites that provide some or
all of the required materials, users may be unable to find
the information they seek because agencies have not
made an effort to design user-friendly FOIA sites.
i In spite of this grim picture, we did find some
*rine outstanding agencies whose efforts in complying with
sen E-FOIA demonstrate that the burden of the law is not
too high. For example, the National Aeronautics &
Space Administration has proactively posted records of great
interest to the public, like those related to the Space Shuttle
Unfortunately, however, the audit identified a much larger
number of agencies that are delinquent in complying with E-
FOIA. Perhaps the worst case of non-compliance with E-FOIA is
the Air Force. Its FOIA information is split between two distinct
Web sites, one of which is not accessible from the agency's
home page, and neither site contains the records required under
E-FOIA. The Air Force attempts to pass off its responsibility for
maintaining an electronic reading room by providing links-at
least 139 of which are broken-to other Web sites.
For 10 years, the E-FOIA amendments have languished
largely unfulfilled and unenforced, while backlogs of pending
FOIA requests at federal agencies grow dramatically. FOIA has
been marginalized, under-funded, and at times ignored in many
federal agencies. As a result, the promise of a revolution in access
to government information through the use of the Internet has
never materialized. Moreover, no authority has compelled federal
agencies to comply with the E-FOIAAmendments. This dearth of
Executive Branch leadership and Congressional oversight on E-
FOIA has allowed many agencies to remain far from compliance
for far too long. Increased oversight and direction will bring
FOIA into the 21st century and fulfill E-FOIA's transformative
Catherine Nielsen is the FOIA Coordinator at the National
Security Archive. She monitors the U.S. government compliance
with the FOIA and researches freedom of information policy.