Volume 32, Number 4 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
Fines suspended pending appeal of contempt order
WASHINGTON, D.C. Three judges day for a week, would eventually have the Justice Department upon whom she
for the U.S. Court of Appeals for the increased to $5,000 a day.
D.C. Circuit granted a stay for former Walton also prohibited Locy from
USA TODAY reporter Toni Locy, who accepting assistance to pay the fines.
was ordered to pay According to the
steep fines by a REP O RTER'S Reporters Committee for
U.S. District Court Freedom of the Press, no
judge after she PRIVILEGE judge has ever officially
refused to reveal ordered that a reporter
confidential sources for a series of stories may not accept financial assistance from
she wrote on the September 2001 anthrax an employer or others to pay for fines
attacks, levied as a result of a contempt citation.
The court granted the stay pending
Locy's appeal of U.S. District Court
Judge Reggie Walton's contempt order.
The fines, which began at $500 a
When Locy said she could not
remember who her specific sources were,
Walton ordered her to reveal the names of
up to a dozen confidential sources within
A coalition of about two dozen media
companies and non-profit journalism
organizations filed an amicus brief
Locy, who is currently a professor of
journalism at West Virginia University,
said, "I'm relieved and thankful that
the Court of Appeals has found that
my legal arguments are worthy of its
consideration," according to USA TODAY
Locy faces a possible prison sentence if
she fails to name the confidential sources,
according to the Reporters Committee.
Source: USA TODAY
Council made 'technical or noncriminal' violations
JACKSONVILLE An unsealed
grand jury report found evidence that
Jacksonville City Council members
committed "technical or noncriminal"
violations of Florida's Open Meetings Law.
However, State Attorney Howard
Shorstein said he will not prosecute
members of the council unless there is
evidence of a kickback to a Jacksonville
City Council member or other criminal act.
"I do not think I would ever charge
anybody without a clear criminal intent,"
said Shorstein, according to the Florida
Shorstein said he has the option to
pursue noncriminal charges against council minutes.
members, which are punishable with fines The grand jury's investigation wid-
up to $500. ened to look at problems with no-bid city
However, Shorstein said he is unlikely contracts awarded to companies owned by
to do so because he is friends of Mayor John Peyton.
occupied with the prosecution A C C E SS The investigation did not
of violent crimes and find any illegal activities, and
cannot devote time to civil MEETINGS all former and current council
infractions, members who testified denied
The grand jury investigation was
prompted by a 2007 Times-Union
investigation, which documented dozens
of meetings held by the Jacksonville City
Council that concerned public business
but had little to no public notice or written
FDLE denied unlimited access to
TALLAHASSEE The U.S. House
of Representative's legal office denied
the Florida Department of
Law Enforcement access A C (
to former U.S. Rep. Mark
Foley's computers as the RECC
agency continues to investigate
his illicit sexual messages to male
Instead of providing unfettered access
to Foley's computers, the House legal
office offered FDLE the option to submit
search terms, which the House legal office
would use to review Foley's e-mail.
However, findings from the search
would first be screened
ESS by Foley's attorneys, who
could deny the release of
LDS information they considered
"I'm sure anyone being investigated
by FDLE would like the opportunity
to review and filter evidence before
providing it to us. The only appropriate
course to ensure an independent and
violating the law, according to the Times-
The Times-Union reported skepticism
on the part of the grand jury foreman as to
the truthfulness of some of the testimony.
Source: Florida Times-Union
objective criminal investigation is
direct access to these computers," said
FDLE Commissioner Gerald Bailey in
a statement, according to the Sarasota
FDLE first sought access to Foley's
computers when then-House Speaker
Dennis Hastert asked FDLE to investigate
whether Foley had violated any state laws
with his lurid e-mails to congressional
pages. Foley resigned in 2006 following
news accounts of the e-mails.
Source: Sarasota Herald Tribune
NATIONAL SUNSHINE WEEK
Audit of state agencies finds flaws, improvement
TALLAHASSEE In a survey of 34 request in writing all things prohibited the audit was Visit Florida. The agency
state agencies, 50 percent passed a four- by Florida's Public Records Law. denied the requestor access to the agency's
part public records test conducted by the Thirty-two percent of the state agencies office because of "renovations," according
Florida First Amendment Foundation. audited had one violation, and 12 percent to the First Amendment Foundation. The
Volunteers from the foundation, who had two. Only the Department of requestor was unable to find anyone to talk
presented themselves as average citizens, Transportation had three violations, to about her public records request.
requested the same routine record a copy The most common violation The audit also found that the attitude
of the most recent travel reimbursement requesting the record requestor's name of government employees toward those
form filed by the agency's chief occurred in one-third of the state agencies. making public record requests has
administrative officer. Just more than one quarter of the agencies "dramatically improved," according to
The volunteers documented whether required the request in writing. Only the foundation, which cited the efforts of
they were asked to give their name, two agencies required that the requestor Gov. Charlie Crist and his Office of Open
present identification, provide a reason provide a reason for the request. Government to facilitate transparency.
or purpose for the request or provide the The only agency to completely fail Source: The Ledger (Lakeland)
ACCESS MEETINGS CONTINUED
Legislator kicks photographer
DENVER The Colorado House of According to The Associated P
Representatives censured a legislator Bruce has described his action as
for kicking a newspaper photographer "nudge," but Manzano said the lei
who took his picture during the session's brought his shoe down hard on th
Rep. Douglas Bruce, R-Colorado
Springs, kicked Rocky Mountain News
photographer Javier Manzano. Bruce was
later sworn in as a midterm replacement.
photographer's bent knee and said, "Don't
do that again."
The censure was the first ever in the
Colorado Legislature's history.
Source: The Associated Press
Fish fry raises Sunshine issues
LEON COUNTY The Tallahassee of the media, as he had the year b
Democrat questioned Leon County Desloge told the Democrat tha
Commissioner Bryan Desloge about understands the purpose of the Or
possible Open Meetings Law violations as Meetings Law, but he said, "[I]t's
a result of his second-annual fish fry at his forcing you not to socialize."
beach house for fellow commissioners and
senior county staff.
According to the Democrat, Desloge
pledged that guests would not discuss
public business. The event was not open to
the public, but Desloge did invite members
Commissioner Bob Rackleff, who
attended the fish fry last year, told the
Democrat, "There's a lot more to life than
county government. Believe it or not,
that's not all we talk about."
Source: Tallahassee Democrat
City settles with ex-police chief
SNEADS The City of Sneads agreed Nelson said the suit was never about
to pay its former chief of police $10,000 seeking money damages.
and his attorneys $25,000 seven years "I wasn't out to hurt anybody, and I
after he filed a civil suit alleging the city didn't want this to keep costing the city
violated Florida's Open Meetings Law. money... I did this to prove a point that
Former Police Chief William Nelson you have to have government in the
said he was fired by the town council sunshine," Nelson said, according to the
during a special meeting to which, he Floridian.
alleged, the public was not given proper Sneads City Manager Ed Kilpatrick
notice, said the settlement should not be read as
"It was wrong the way they did this, an admission of any wrongdoing by the
and I just hope that this will encourage city.
them to always conduct business in the In the face of additional court costs, he
sunshine. If this action accomplished that, told the Floridian that settling with Nelson
I consider it a great success," Nelson told was "the fiscally sound thing to do."
the Jackson County Floridian. Source: Jackson County Floridian
2 The Brechner Report April 2008
HALLANDALE BEACH City
Commissioners have agreed to pay
a former Hallandale Beach Police
officer more than $100,000 to settle a
lawsuit alleging, in part, that the city
board held an illegal meeting.
In 2005, former Hallandale Beach
Police Officer Talous Cirilo was
charged with three misdemeanor
counts of battery on a prisoner.
Although Cirilo was acquitted, the
city refused to reinstate him on the
Cirilo filed two lawsuits against
the city, one of which alleges the city
civil service board held an illegal
meeting outside City Hall one week
before a scheduled hearing on his
Others allegations include
falsification of evidence and
persuasion of a felon to lie under oath
"This case was an abomination
from the very beginning and good
officers were hurt. It could ultimately
have a chilling effect on officers who
want to protect themselves and their
colleagues but are afraid because
they could get in the same type
of situation," said Alberto Milian,
Cirilo's attorney, according to the
South Florida Sun-Sentinel.
The settlement includes Cirilo's
Source: South Florida Sun-Sentinel
ACCESS RECORDS CONTINUED
Records reveal sexual messages
SEBRING Highlands County fired
three budget department employees for
sending sexually explicit instant messages
to each other on the county computers
The voluminous messages, which are
public record, were discovered during a
routine financial audit of expenditures for
the 9-1-1 emergency call system.
Jared Lee, the budget department's
budget analyst, Christine Edwards,
a budget technician, and Treasa
Handley, coordinator of non ad-valorem
assessments, each said they were
"flabbergasted, "shocked" and "couldn't
believe" their dismissals, according to
"The three of us are very good friends
and we often have conversations," Handley
told Today about their use of instant
messaging at work.
Lee told T,. 1i iut ilt messages were
of a "personal nature and, I guess, to them
(county officials), they were excessive"
Edwards said that she, Handley and
Lee all knew that their instant messages
could, and probably would, be monitored,
according to Today.
Bob Jamison, the senior director of
business services in the clerk of court's
office, said the discovery was accidental.
"We did not target them or any other
employees," he told Today.
Source: Highlands Today
Reporter subpoenaed for source
WASHINGTON, D.C. A federal "He has an agreement of
grand jury subpoenaed a New York Times confidentiality with his sources and he
reporter in what his lawyer said was an intends to stand by that in the highest
apparent attempt to have him reveal his degree of journalistic traditions," Kelle
sources for a 2006 book about the Central said, according to the South Florida Su
Agency. REP RTER'S According to the Sentine
Attorney PRIVILEGE Times spokeswoman
David N. Catherine Mathis said her
Kelley said the newspaper "strongly suppo
subpoena seeks the source of information Mr. Risen and deplores what seems to
used in a chapter of James Risen's book, be a growing trend of government leak
"State of War." investigations focusing on journalists,
Kelley said Risen plans to fight the particularly in the national security area
subpoena. Source: South Florida Sun-Sentinel
HIGHLANDS COUNTY The 2nd
District Court of Appeal ruled that public
records providers can include both salary
and benefits when calculating their special
service charge for responses to extensive
public records requests.
The case stemmed from a 2005 public
records request by Preston Colby, who
asked for public documents related to the
county's hurricane preparedness.
The city charged Colby approximately
$65 in advance to cover the estimated
costs of locating the records. Preston
paid the required amount but protested the
legitimacy of the charge.
He filed suit, alleging the county failed
to make the records available to him and
that he should not have been required to
prepay for the records search.
The same day the suit was filed,
the city delivered part of the requested
documents to Colby and offered him a $30
refund because the search took less time
than estimated. Colby refused the refund.
According to the court's opinion,
the city later made the remainder of the
requested records available to him, but
Colby never "availed himself of this
Source: News Sun; also see The
Brechner Report Dec. 2005 issue.
Sentinel wins access to confession
BROWARD COUNTY The South However, the statement was not
Florida Sun-Sentinel successfully argued included in the transcript of the confession.
against a court order banning the public Imperato also issued a gag order at
from a hearing in which the confession the onset of the proceedings, prohibiting
of one of three men who allegedly beat attorneys, law enforcement officers
a homeless man to death two years ago and witnesses from discussing the case
would be played from a publicly.
prerecorded tape. C O U RT S "This court believes that
Circuit Court Judge some extra-judicial comments
Cynthia Imperato initially closed the may very well have already been
hearing in response to a request by a prejudicial to the respective parties'
defense attorney but later modified her rights," Imperato said, according to the
order in response to a challenge by the Sentinel.
She allowed the media to attend the
hearing if they did not copy or duplicate
the accused's statement.
According to the Sentinel, the accused,
William "Billy" Ammons, 20, could be
heard on the tape saying, "I thought it was
funny," referring to the beating.
However, Imperato later clarified and
limited the gag order in response to a
challenge by the Sentinel.
The clarified order prohibits attorneys,
law enforcement officers and witnesses
from discussing the case publicly until a
jury has been sworn in.
Source: South Florida Sun-Sentinel
The Brechner Report April 2008
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Taxpayers pay dearly for FEMA's obstinance, arrogance
It shouldn't have been this hard to get judges found nothing invasive about reporters
information from the government when we're knocking on doors to ask questions: "on
entitled to it. But bureaucrats made everything balance, the modest annoyance of a 'no
way too hard. In the end, it cost taxpayers comment' is simply the price we pay for living
dearly. The Federal Emergency Management in a society marked by freedom of information
Agency (FEMA) recently paid four Florida .. laws, freedom of the press, and publicly-funded
newspapers more than $250,000 in legal fees "E I disaster assistance."
after three years of contentious litigation. The The ringing appellate endorsement of the
newspapers Gannett's The News-Press (Fort Kate Chuck press as watchdog on government should have
Myers), FLORIDA TODAY, and Pensacola Marymont Tobin ended FEMA's resistance. Instead, it kicked off
News Journal, and Tribune Co.'s South Florida eight more months of foot-dragging and FEMA
Sun-Sentinel filed two lawsuits against FEMA under the federal propaganda. Throughout the summer and fall, instead of releasing
Freedom of Information Act (FOIA). the information as ordered, FEMA:
The newspapers sought information about the $5.6 billion Sent letters to more than a million Floridians telling them
in FEMA aid to Floridians the newspapers had asked for their Social Security numbers. The
The following the devastating newspapers had not done so.
B ack P age 2004 hurricane season. More Told aid recipients in California and North Carolina that the
than $30 million went to the Gannett newspapers had asked for information about them. The
By Kate Marymont Miami-Dade area, even though Gannett newspapers had not asked for any information outside of
& Chuck Tobin none of the hurricanes passed Florida.
through there. Prosecutors Announced that despite the appeals court ruling that the law
indicted a dozen people for fraudulently taking federal relief requires FEMA to release this type of information, FEMA "will
money. A congressional investigation concluded that FEMA's continue to protect the names and addresses of disaster victims in
system for distributing aid was fraught with inefficiency. No the future..."
one knew the precise extent of the waste of taxpayer funds. The Ultimately, a direct order from the federal judge in Fort Myers
newspapers had to build this story from the ground up. So they wrenched the information from the government. And even though
asked FEMA for the names and addresses of all aid recipients in FEMA later agreed to reimburse the newspapers more than a
Florida. quarter-million dollars in legal expenses, the agency did not
FEMA took refuge in FOIA's privacy provision. FOIA permits release any money to Gannett until two months later, after the
the government to withhold these types of records only when newspapers threatened to again report the agency to the court.
disclosure "would constitute a clearly unwarranted invasion The FEMA records led not only to closer investigative scrutiny
of personal privacy" that substantially outweighs the public's by the newspapers, but also to an outpouring of personal stories
interest. FEMA argued that having journalists probe individual submitted to the newspapers' Web sites. You can view these
homeowners invades people's privacy, examples of citizen journalism at its finest by visiting: news-
One federal judge in Florida sided with the agency. The other press.com/fema. Telling important stories like these shouldn't be
sided with the newspapers. And in a groundbreaking June 2007 this hard. Hopefully, the next time it won't be.
decision, a three-judge appeals court sided with the notion of
transparency in government. Kate Marymont is executive editor of The News-Press (Fort
Announcing that it "cannot find any privacy interests here Myers), a Gannett newspaper. Attorney Chuck Tobin chairs
that even begin to outweigh this public interest," the appeals the Holland & Knight national media practice team, which
court ordered FEMA to disclose the addresses. The appeals represented the Gannett newspapers in the, ri ,r. 1,,