Volume 32, 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
Americans find government secretive, survey says
WASHINGTON, D.C. -Almost 90 "very or somewhat secretive." This is an The Press reported that 50 percent of
percent of Americans want to know increase of 13 percent from two years ago, respondents said their state government is
their presidential and congressional according to The Associated Press. secretive, while 44 percent found it open.
candidates' position on open government, Seventy-five percent of those surveyed Forty percent of those surveyed said their
according to the Sunshine Week Survey also believe that the federal government local government is secretive up six
2008, which polled has opened the mail or percent from last year.
more than 1,000 R1 1 Un () \/ monitored the telephone The Press said that survey respondents
adults. The survey
was conducted by
News Service and 01
released in March as
Almost 75 percent
also think the federal
A.- tA A A conversations of
OF INFORMATION Americans, although
only 25 percent said they
hio University and thought it happened to them personally,
part of Sunshine according to the survey. Two-thirds of the
respondents think members of the media
t of those surveyed have been monitored in this manner,
Government is according to The Press.
Councilman guilty of violation
MARCO ISLAND A Collier County e-mails by putting them in a recycling
judge found a Marco Island city council bin. It would archive them and they could
member guilty of a non-criminal public come back at any time," Kiester said,
records violation for deleting e-mails that according to the Naples Daily News.
contained information about city business However, Kiester's computer contained
from his personal computer. software that periodically
Collier County Judge Mike A C C E SS ) emptied the recycling bin,
Carr ordered council member making it impossible for a
Chuck Kiester to pay the RECORDS regular user to recover the files.
maximum $500 fine. Kiester argued that he didn't
Carr said Kiester had technically destroy the e-mails
"made a mockery of the law" by failing to because forensic computer technicians
maintain proper records of e-mails to and were eventually able to recover the
from constituents, according to the Naples roughly 1,000 deleted e-mails.
Daily News. The court rejected his argument and
The complaint against Kiester was said there was no difference between
filed in March 2007, before which, Kiester destroying the e-mails and emptying
said, he regularly deleted e-mails from his the recycling bin in which they were
personal inbox. contained, according to the News.
"I was told I could safeguard the Source: Naples Daily News
Records policy contradicts state law
WILDWOOD Sumter County law harassment and aggravated battery to
enforcement agencies were providing petition for their names and contact
victims of certain violent crimes the information to be removed from the public
opportunity to remove their names from record for five years.
the public record, contrary to Florida law. This was the state of the law before
Ric Ridgway, chief assistant state 2004 when it was replaced with language
attorney for the Fifth Judicial Circuit, that allows victims to request the removal
told the Orlando Sentinel that his office's of their contact information but not their
Victim Witness Unit provided the Sumter names. Ridgway said his office plans to
agencies with forms that permitted victims change the language on the forms.
of domestic violence, aggravated stalking, Source: Orlando Sentinel
expressed an interest in increased access to
information on concealed handguns, police
reports on local crimes, and information
about local lawmakers' meetings.
The complete survey is available
Source: The Associated Press
reopens Web site
SAN FRANCISCO A federal
district court judge in San Francisco
shut down a "whistleblower" Web
site, then, citing First Amendment
and jurisdiction concerns, reopened
it one month later, according to The
U.S. District Court Judge Jeffrey
White ordered a San Mateo, Calif.-
based domain name registrar, Dynadot,
to take down the Wikileaks.org
domain name, effectively shutting
down Wikileaks.org, which allows
people to post leaked documents that
expose "unethical" corporate and
governmental behavior, according to
The New York Times.
The initial order to shut down the
Web site was a response to a complaint
by a Cayman Islands bank that claimed
an ex-employee had stolen documents
and given them to Wikileaks.org.
Wikileaks.org posted the documents
online and alleged that they exposed
"asset hiding, money laundering and
tax evasion," according to The Times.
The Web site is available at http://
Sources: The New York Times & The
COLLIER COUNTY Ave Maria
University disclosed student grade point
averages, test scores, exit interviews
and research paper evaluations online
in an apparent contradiction to federal
education privacy laws, according to the
Naples Daily News.
The files were among hundreds of
internal assessment documents made
publicly available on the school's Web
site for its Institutional Effectiveness
Committee, which assesses its readiness
for review by national and regional
Most documents were published
without attribution, but in the literature
department's end-of-year report, student's
names were linked to grade point averages
along with extensive assessments of their
oral and written reports.
The federal Family Education
Rights and Privacy Act classifies such
information as private and prohibits the
public disclosure without a prior written
waiver by a student or her legal guardian
if the student is a minor, according to the
U.S. Department of Education.
The university removed the
information from its Web site within
hours of being notified that it was publicly
Jim Bradshaw, a Department of
Education spokesperson, told the
News that when a violation occurs, the
department typically works with the
school to resolve the matter, although the
law does include enforcement options.
Source: Naples Daily News
City meetings streamed online
PANAMA CITY The Panama
City Commission became the first local
government in Bay County to offer live
online coverage of its meetings.
In February, the city launched online
Web casts with an equipment and
software purchase of approximately
City Clerk Mike Bush said the
city's management wanted to stay
"Many cities provide that service
already. Audio feed has been available,
but we want to go to the next step," said
Bush, according to the News Herald.
The City's information technology
director, Jimmy Yates, said he has received
positive feedback from the public since
launching the Web casts.
"(The media) especially were excited
about (the Web casts) because they can get
back to it whenever they need to," Yates
The Web casts are available at htt://
Source: News Herald
e-mails to FBI
WASHINGTON, D.C. The FBI
gained access to e-mail messages from an
entire computer network instead of the one
e-mail address sanctioned for release by a
secret intelligence court during a national
security investigation, according to an
internal report of the 2006 incident.
An unnamed Internet provider turned
over all of the e-mail from hundreds of
accounts on a small e-mail domain for
which it served as host.
FBI officials blamed an "apparent
miscommunication" with the Internet
provider for the mistake.
The individuals whose e-mail was
released were never informed because the
national security investigation is ongoing,
but FBI officials said the records were
"This was a technical glitch in an area
of evolving tools and technology and fast-
paced investigations. We moved quickly
to resolve it and stop it. The system
worked exactly the way it's designed,"
said FBI spokesperson Michael Kortan,
according to The New York Times.
Source: The New York Times
Police ask media
to wear ID tags
BRADENTON BEACH Police
Chief Sam Speciale ordered members of
the media to wear credentials at public
meetings in order to identify themselves.
He eventually rescinded the order he
had sent out by press release to five local
Special said it is not "an actual
requirement. It's more like a request,"
according to the Sarasota Herald Tribune.
The "request" stemmed from
increasing chatter at City Commission
meetings, where members of the public
were speaking loudly and out of turn,
Special told the Tribune.
Special said it was acceptable for
media to speak to one another during the
However, discussion among non-media
members of the audience had become
City commissioners wanted to be able
to distinguish the media from the public,
Source: Sarasota Herald Tribune
2 The Brechner Report May 2008
Court rules blogger is journalist
under Lanham Act exemption
SOUTH CAROLINA- A federal publishes ncI s. reporting or news
court held that a blogger qualifies as commentary," it does not define those
a journalist under the Lanham Act's terms or specify who is protected.
exemption for "forms of news reporting The court ruled there was "no
and news commentary." evidence that the sole purpose of the
Online auction listing company, article was to denigrate BidZirk...
BidZirk.com, sued blogger Philip J. [t]he article posted by Smith concerning
Smith for violation [BidZirk was] for the purpose
of the Lanham Act, FIR ST of conveying information to
defamation and the public...."
invasion of privacy AMENDMENT According to Media
because of postings and Communications, this
Smith made on his blog that criticized appears to be the first published court
BidZirk.com and its president. opinion defining a blogger as a journalist
The Lanham Act is a federal law under the protection provided in the
that governs false statements made in statute.
competition for sales. Although the Source: Media and Communications
act exempts from liability anyone who published by Holland & Knight
Judge denies record-release delay
SARASOTA COUNTY A circuit
judge reaffirmed his denial of a defense
motion to delay for 60 days the public
release of documents about the murder of
Denise Lee, according to the Charlotte Sun.
Circuit Judge Deno Economou rejected
for a second time the argument made by
attorneys for Michael King, who was
charged with abducting and murdering Lee
King's attorney, assistant public
defender John Scotese, argued that the
documents should be kept sealed for a
"reasonable time" to avoid prejudicial
Scotese argued that similar measures
were taken in previous trials that garnered
national media attention, including the
Carlie Brucia murder trial in Sarasota and
the Danny Rolling trial in Gainesville.
Scotese said a delay in the public
release of records related to Lee's murder
would allow King's attorneys to petition
the judge to keep certain records secret.
However, Herald-Tribune attorney
Rachel Fugate argued that the publicity
King's trial has received has not risen to
a level that requires a delay in the public
release of the records.
Source: Charlotte Herald-Tribune
Judge closes hearing about closing
hearing in attorney's case
BUNNELL A circuit judge closed a one of his daughters, Lisa, was arrested
hearing on whether a subsequent hearing and allegedly mistreated there in 2005.
should be open to the public, according to Shorstein has argued for all
the St. i,,, i n i,.- Record. proceedings to remain open to the public
Circuit Judge Kim C. Hammond while Tanner's lawyer, assistant state
cleared the courtroom after the hearing attorney Jonathan D. Kaney Jr., has argued
began to hear arguments from State for the proceedings to be closed.
Attorney Harry Shorstein of Jacksonville Tanner has spent over $400,000 in 14
and attorneys representing State Attorney months to keep the grand jury's findings
John Tanner of Daytona Beach. sealed, arguing they were influenced by
The subsequent hearing was set to
consider whether a Duval County grand
jury's findings about an investigation by
Shorstein should remain sealed.
Shorstein investigated Tanner's
handling of a case involving abuse
allegations at the Flagler County Jail.
Tanner began investigating the jail after
Brechner Center for Freedom of Information
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College of Journalism and Communications
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e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Ana-Klara Hering, Editor
Alana Kolifrath, Production Coordinator
Danielle Navarrete, Production Assistant
Kearston Wesner, 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
Society of Newspaper Editors and the Joseph L
Shorstein's bias against him.
Tanner is currently running for
reelection in the 7th Circuit. The grand
jury's report concerning him remains
No subsequent hearings about the grand
jury's findings have been held.
Source: St. i t-, ,,,i, Record
Judicial conduct complaints open
WASHINGTON, D.C. The "We hope this will bring more
Judicial Conference of the United States uniformity, more efficiency and ultimately
unanimously approved a binding set of more transparency to the process," Carelli
procedures to make said, according to The Reporters
final orders of judicial A C C E SS Committee for Freedom of the Press.
complaints public. The rule changes will allow some
In some cases, RECORDS portions of the judicial conduct and
final orders of cases disability proceeding process to
involving judicial conduct and disability remain confidential and sealed.
proceedings may be placed on a court's An order dismissing a complaint will
public Web site, and, in most cases, final reveal neither the complainant nor the
sanctions will name the judge involved, subject of the complaint. Also, a chief
This is the first time that a uniform set judge of an appeals court will maintain the
of rules dealing with judicial complaints authority to investigate judicial conduct
has been instituted nationwide, according whether or not a formal complaint has
to Dick Carelli, a spokesperson for the been filed.
federal courts. Previously, differing rules Source: The Reporters Committee for
among the states allowed inconsistencies. Freedom of the Press
The Brechner Report U May 2008 2
MIAMI A federal judge who
declared a mistrial for six South
Florida men charged with conspiring
to support al-Qaida imposed a broad-
sweeping gag order to protect efforts
to seat an impartial jury for their
U.S. District Judge Joan Lenard
prohibited the defendants, their
lawyers, prosecutors, and others,
including agents, investigators and
witnesses, from speaking to the media,
according to the South Florida Sun-
The order extended the same
restrictions to Haitian national and
U.S. resident Lyglenson Lemorin, who
was the only defendant acquitted in the
The order also applies to
Lemorin's criminal defense lawyer
and the attorney representing him in
immigration proceedings. Federal
prosecutors contend the order even
applies to Lemorin's wife, who was
once listed as a potential defense
"This is supposed to be America.
Once you're acquitted, it seems to me
you should be able to stand on top of
the tallest building and scream it," said
David O. Markus, a Miami criminal
defense attorney, according to the
Source: South Florida Sun-Sentinel
University of Florida
Brechner Center for Freedom of Information
3208 Welmer Hall, P.O. Box 118400
Gainesville, FL 32611
Permit No. 94
UF I VERSITY of
Executive order meant to improve FOIA fails to deliver
In December 2005, President Bush issued
Executive Order 13,392 on "Improving
Agency Disclosure of Information." The order
purported to address several problems that
have plagued the Freedom of Information Act
(FOIA) system, including excessive backlogs
and delays. It instructed agencies to take a
"citizen-centered" and "results-oriented"
approach to FOIA. Agencies were directed to
review their FOIA programs, identify areas for
improvement, and draft improvement plans
setting goals for reform in several areas, including customer
service, backlog reduction, and use of technology and the Internet
to make information available to the public.
In its latest Knight Open Government Survey, Mixed Signals,
Mixed Results: How President
The Bush 's Executive Order on
Back Page FOIA Failed to Deliver, the
National Security Archive
By Catherine Nielsen examined how agencies have
& Kristin Adair fared in implementing the order.
The Archive focused on new
customer service mechanisms established by the order, as well as
backlog reduction and agency Web sites.
The Archive's audit found that the executive order raised the
profile of FOIA at many agencies, helping them to acknowledge
problems and develop strategies for improvement. The
order, however, did not provide agencies with any additional
resources for achieving their goals and included no enforcement
mechanisms to ensure agencies set adequate goals and succeeded
in meeting them.
Significant gains can be seen across the board in customer
service. The order mandates a new three-tiered customer service
system, featuring FOIA Service Centers, Public Liaisons, and
Chief FOIA Officers at each agency. This system has helped
standardize FOIA customer service, giving requesters a clear
point of contact at each agency. The Archive's experience with
this system was generally positive: most agency representatives
were courteous and helpful, and almost all proved responsive to
the Archive's inquiries about its requests.
But the order falls short in several respects. Some agencies
were able to achieve significant backlog reductions by setting and
meeting ambitious goals. But other agencies fell far short.
Of the agencies and components with
backlogs in 2005, 30 percent reported an
increase in pending requests over the last two
years. Notably, 15 percent of the agencies with
backlogs nine in total actually claimed
to have met all of their backlog reduction
I' rl t goals but still reported an increase in pending
f/ requests during the implementation period. The
Kristin number of pending requests government-wide
Adair was only 2 percent lower at the end of FY2007
than it was before the order was issued.
In its 2007 audit, File Not Found: 10 Years After E-FOIA,
Most FederalAgencies Are Delinquent, the National Security
Archive found that many agencies failed to post essential
guidance information and required documents and had poorly-
designed Web sites that were difficult to navigate. A follow-up
review of the 12 worst agencies identified in File Not Found
revealed that only 42 percent (five agencies) significantly
improved their Web sites, while the same portion, 42 percent,
made no apparent improvement to their Web sites, despite serious
The audit results overall suggest that lack of resources and
insufficient enforcement largely crippled the order's effectiveness,
allowing some agencies to remain deficient without consequences.
Agencies that have historically taken FOIA seriously tended to
show greater diligence in approaching the order, setting goals
calculated to achieve measurable improvement.
Through recent legislation enacted in December 2007 that
amended the FOIA, Congress has provided a mandate with more
teeth and the prospect of genuine oversight. By codifying some
elements of the order and requiring better reporting and tracking
as well as penalties for noncompliance, the amendments establish
the enforcement mechanism that is notably absent from the
president's order. The recent FOIA amendments, however, are just
one of the necessary steps to fixing the many challenges the FOIA
faces. Without more resources and better congressional and public
oversight, some agencies may continue to be unable or unwilling
to bring their FOIA programs into full compliance with the law.
Catherine Nielsen is the FOIA Coordinator at the National
Security Archive. Kristin Adair serves as Staff Counsel at the
National Security Archive.