Group Title: Annual freedom of information report, the Brechner Center at the University of Florida
Title: Annual freedom of information report
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Title: Annual freedom of information report
Series Title: Annual freedom of information report
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Language: English
Creator: Brechner Center for Freedom of Information
Publisher: Brechner Center for Freedom of Information, University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2005
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Volume ID: VID00004
Source Institution: University of Florida
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Published by The Brechner Center for Freedom of Information College of Journalism and Communications U University of Florida

Investigation into pardons wins annual award

The Argus Leader in Sioux Falls, S.D., state business leaders, and former state
was named the 2005 Brechner Award employees and their families.
winner for investigative reports that The pardons were sealed under a 22-
uncovered a veil of secrecy in the South year-old South Dakota law passed during
Dakota governor's Janklow's first term as
office. ZD f BRE CHNER T governor that required
The Argus Leader's -- gubernatorial pardons be
reports of sealed AWARD 2005 sealed and held by the
gubernatorial pardons secretary of state.
kicked off a 17-month The Argus Leader
legal battle that led to a South Dakota first became interested in the governor's
Supreme Court ruling to release 218 clemency records after American Indian
previously sealed pardons. Movement leader Russell Means revealed
At the center of the controversy was to one of the paper's reporters that he had
former South Dakota Gov. Bill Janklow, been pardoned during the last days of
who held the office during two periods Janklow's administration.
for a total of 16 years, the longest The newspaper requested the clemency
gubernatorial service in U. S history. He record, but the pardon was sealed. A legal
was later elected to the U.S. House of battle ensued. Ajudge ruled in favor of
Representatives. In 2004, he resigned plaintiffs who had received pardons and
from Congress and was sentenced to 100 wanted an injunction to keep them sealed.
days in jail on an unrelated vehicular The state's attorney general, Larry
manslaughter charge. Long, joined by the Argus Leader
As governor, Janklow pardoned and 15 other state and national media
crimes and reduced sentences in cases organizations, appealed the ruling.
that ranged from murder and child The South Dakota Supreme Court
molestation to driving while intoxicated overturned the decision in 2004 and ruled
and fishing without a license. Recipients that Janklow had improperly sealed dozens
of the pardons included his son-in-law, of pardons during his four terms in office

when he bypassed the state's Board of
Pardons and Paroles. Chief Justice David
Gilbertson, said that while the governor
has broad authority to pardon criminals,
there is no right to secrecy.
The South Dakota 2003 Legislature did
not wait for the judicial decision. Shortly
after the news broke of the sealed pardons,
it passed a law that requires pardons to
remain open for at least five years.
Patrick Lalley, assistant managing
editor, accepted the award on behalf of the
-Anaklara Hering

The Joseph L. Brechner Freedom
of information Award recognizes
journalists whose.,i .. m,ii ,..
S,-t.'. ,", uncovers stories related to
freedom of information or access to
government ti ....r I,,I and records.
This year 's celebration marks the
20th anniversary. Previous winners
include The Washington Post, the
Houston Chronicle, the St. Petersburg
Times and the Sun-Sentinel.

Miller spends time in jail, resigns from paper

NEW YORK -New York Times re- than twice as long as any other American
porter Judith Miller parted ways with the journalist, agreed to testify before the
newspaper in early November, just a little grand jury after she received word that
over a month after she R her source, I. Lewis
was released from the REPORTER'S "Scooter" Libby, Jr.,
Alexandria Detention PRIVILEGE had released her from
Center in late Septem- her promise.
ber. After Miller testified

Miller spent 85 days in the federal jail
after U.S. District Judge Thomas Hogan
ordered her jailed after she refused to dis-
close the name of a confidential source to
a federal prosecutor who was investigating
the outing of CIA operative Valerie Plame.
Miller, who remained in jail more

as to Libby's identity, journalists around
the nation began to criticize her actions.
Former colleague Maureen Dowd made
reference to Miller as a "Woman of Mass
Destruction" in a column while Times Pub-
lic Editor Barney Calame wrote that nic"
information that suggested the journalistic

practices of Ms. Miller and Times editors
were more flawed than I had feared."
Pulitzer Prize-winning journalist and
former Times reporter David Halberstam
had been critical of the Times' handling of
the Miller situation. He said her departure
marked a "very sad end of a very sad and
incalculably damaging story."
Miller hasn't gone quietly. She has ap-
peared on television and radio, as well as
published letters attacking her antagonists.
In the aftermath of Miller's testimony,
Libby was indicted for providing false
testimony. He pleaded not guilty.
-Amy Kristin Sanders

Annual FOI Report U 2005 1



Attorney General advises about access issues

TALLAHASEE -Attorney General
Charlie Crist's office issued numerous
opinions in 2005 that address freedom of
information issues.
The opinions are detailed below:
Child Abuse Death Review Com-
mittee Records (AGO 05-03) Federal
law prohibits the release of identifying
information received by the State Child
Alb, Tn O+I

Review Committee
when carrying out
its responsibilities
under the Child
Abuse and Neglect I
ment Act. State law,


prevention and Treat-
however, requires the

disclosure of non-identifying information.
Because the repeal of Section 383.410 of
the Florida Statutes has created problems
for the committee, the Attorney General
recommended that the committee work
with legislators to readdress the release of
Advisory Groups to Law Enforce-
ment (AGO 05-05) An advisory group
created by a chief of police to make
recommendations regarding the issues
affecting the police department is subject
to the Government-in-the-Sunshine Law.
The fact that an advisory group is created
by a single official rather than a collegial
body does not affect the applicability of
the Sunshine Law.
Access to Municipal E-mail Corre-
spondence (AGO 05-12) Florida's Pub-
lic Records Law prohibits a municipality
from requiring use of a code in order for
citizens to access e-mail correspondence
between the city's police department and
its human resources department. While
the city may delay producing the records
in order to delete information that may be
confidential or exempt under a provision
of the Public Records Law, no automatic
delay may be imposed and the city may
not use a code in order to frustrate the
public's access to its records.
Identification Requirement for
Meeting Attendance (AGO 05-13) A
municipality may not require persons
desiring to attend the public meetings of
its boards to present identification prior
to their admission. The requirement that
persons present identification could have a
chilling effect on the public's willingness
to attend. In addition, board discussion of
issues pertaining to security matters may
be closed to the public if the issues fall
within a specific exemption to the Sun-

shine Law. Therefore, the need to discuss
such matters does not justify the presenta-
tion of identification to permit attendance.
Applicability to Advisory Council on
Condominiums (AGO 05-18) -Florida's
Open Meetings Law does apply to meet-
ings between a voting member of the
Advisory Committee on Condominiums
and the Director of the Division of Florida
Land Sales, who
N EY 7 serves as an ex
officio non-voting
OPINIONS member of the coun-
cil. Because of this,
all of the law's requirements, including
notice and written minutes, apply to any
meeting where two or more members of
the council discuss matters on which the
board will likely take action.
Applicability of Sunshine Law to
Community College DSOs (AGO 05-27)
Direct Support Organizations that fund
community colleges in Florida are subject
to the state's Government-in-the-Sunshine
Law. Because the Sunshine Law should
be construed liberally to give effect to
its public purpose, DSOs come under its
coverage. In most cases, the DSO may be
permitted to use property and facilities

of the community college and are composed
of members who have been appointed by
directors of the community college. The goal
of the DSO is to operate in the best interest
of the state with the goals of the community
college in mind.
Monetary Deposits for Access to Re-
cords (AGO 05-28) A records custodian
is authorized to retain monetary deposits
collected in connection with the actual costs
incurred in making copies to comply with a
public records request if the requesting party
subsequently advises the municipality that
copies are no longer needed. Additionally,
the custodian would be authorized to bill
the requester for any shortfall between the
deposit and the actual cost of copying in such
a case.
Confidentiality of Social Security Num-
bers in Records (AGO 05-37) A clerk,
when presented with a document that is
required by law to contain a Social Security
number, must record the number in the Of-
ficial Record upon payment of the recording
fee. However, it is the responsibility of the
clerk to ensure that the Social Security num-
bers contained in the records remain confi-
dential and are not released to the public.
-Amy Kristin Sanders

Panel endorses online records
TALLAHASSEE The state panel tronic release of court records primarily
formed two years ago to develop guide- to cases designated as having "significant
lines for Internet access to court records public interest," cases in which a public
offered its final report in August, en- agency is a party and based on individual
dorsing online access as long as privacy record requests.
safeguards are implemented. In addition to its recommendation that
The committee's report is currently electronic access be a goal for the judicial
pending before the Florida system, the committee also
Supreme Court, which is in A C(C C concluded that the Florida
charge of determining what A C LIE Legislature has the opportu-
records will be available REC ORD S nity to have a greater impact
online, according to court on privacy issues by enacting

spokesman Craig Waters.
The Committee on Privacy and Court
Records, comprised of lawyers, judges,
academics and court officials, voted 11-
4 in favor of electronic access.
The committee was formed by the
Florida Supreme Court in November
2003 when a moratorium was placed on
the electronic release of certain types
of court records. Privacy concerns
prompted the moratorium, which is
not likely to end soon. Until privacy
safeguards are established, a proposed
interim policy would restrict the elec-

privacy reform laws.
Specific privacy safeguards recom-
mended by the committee included large-
scale screening and redaction processes to
prevent identity theft; user fees for online
access; and a burden on filers to notify
clerks of any documents containing confi-
dential information or face the possibility
of court sanctions.
The committee also recommended that
most family, juvenile and probate records
be excluded from those made available
-Christina Locke

2 Annual FOI Report 2005


Studies reveal trends in access to information

Major reports released in 2005 on ac- in responding to the requests. It also
cess issues include: includes each agency's record in granting
Report on Privacy of Trial Court requests and meeting statutory deadlines.
Records: The Committee on Privacy The report is available at:
and Court Records issued a report to the
Florida Supreme Court on the status of Combined Reports.pdf
privacy in court documents. The cor- Homefront Confidential: The
mittee reached five conclusions, ranging Reporters Committee for Freedom of the
from judicial responsibility over individ- Press found that in the three years since
ual privacy to implementa- AC-i Sept. 11, the U.S. govern-
tion of access policies in the meant has cinched access to
digital age. REPORTS government information at
The report is available at: an alarming rate. The report
wwwfloridasupremecourt. rates the risk to a free press
org/pub info/index.shtml in issues ranging from covering the War
Coalition of Journalists for Open on Terror to state openness.
Government: The odds are stacked The report of its comprehensive study
against those who appeal FOIA denials on government secrecy is available at:
or sue to get withheld records, according
to a report by CJOG. The Coalition has Environmental Journalists See
developed two new reports on FOIA. FOIA as "A Flawed Tool": The Society
The first provides a detailed look at how of Environmental Journalists compiled
well the federal government has handled a new study of the Freedom of Infor-
FOIA requests. The other is a statistical mation Act. Its reporters experienced
review of FOIA litigation over the past increased difficulties when they attempt-
six years. The performance report shows ed to acquire government information,
FOIA requests topped 4 million in the much of which was routine. Some expe-
2004 fiscal year, and that departments rienced delays of up to a year, witnessed
and agencies fell even further behind heavy-handed redaction of data, and

Federal courts hear
In 2005, numerous cases regarding ates appealed
freedom of information, access, and re- ownership. Th
porter's privilege went before the federal with Fox, CB
courts. The following summary includes federal appeal
some of the most significant cases. their ability to
The U.S. Supreme Court declined broadcast outl
to hear several FOI cases. In January, nies' appeal cl
the U.S. Supreme Court refused without abridged their
comment to consider an appeal in which process rights.
the plaintiffs wanted the Court to release In May, t
grand jury transcripts in
a case where they were FEDERAL
wrongly prosecuted. The
plaintiffs said the release COURT CASES
of the transcripts would
expose the misconduct of local authori- 33-year span s
ties and federal prosecutors. which the Cou
In March, the Supreme Court refused involving repc
to hear a lawsuit regarding anti-abor- In the san
tion license plates. The Supreme Court clined to hear
declined to consider whether state license ing the neutral
plates with anti-abortion messages were Supreme Cour
constitutional. The decision left lower ing by the Pen
courts in nearly a dozen states, including that no such pi
Florida, divided about whether the plates vania. Severa
violate the First Amendment rights of Florida, curre
pro-choice drivers. In June, a
In April, major media conglomer- pleased memb

experienced challenges to the waiver of
fees as required by law.
The report is available at http:/www.
.., ..-; ;.,, SEJ FOIA Report2005.pdf
2005 Secrecy Report Card: Govern-
ment Secrecy Still Growing with Few
Controls: A study by OpenTheGovern-, Americans for Less Secrecy,
More Democracy, found that government
agencies are expanding secrecy in many
areas. For example, the study found that
the executive branch is using the "state
secrecy" privilege 33 times more often than
during the height of the Cold War.
The report is available at:
http:/ *j. hi,.g. .,. o lol,. t1 ,rg
Sunshine Week Survey: The poll,
conducted for Sunshine Week and spon-
sored by the First Amendment Foundation
and The American Society of Newspaper
Editors, found nearly 7 in 10 Americans
cited access to government information as
'crucial.' It also found that more than half
of Americans believe government should
provide more access to its records.
The report is available at:
www. sunshineweek. org/files/
-Anaklara Hering

numerous media law cases

a federal court ruling on
re Tribune Company, along
Sand NBC, appealed a
s court ruling that limited
acquire newspapers and
ets. The media compa-
aimed that the latest ruling
First Amendment and due

he U.S. Supreme Court
declined to hear a case
regarding reporter's
privilege. The decision
to not review Donohue
v. Hoey extended the
ince Branzburg v. Hayes in
rt has not decided a case
,rter's privilege.
ne month, the Court de-
a Pennsylvania case involv-
-reportage privilege. The
t's decision let stand a rul-
nsylvania Supreme Court
rivilege exists in Pennsyl-
1 other states, including
ntly recognize the privilege.
single-justice opinion
ers of the media. Although

Justice Anthony Kennedy denied the peti-
tion of a Florida broadcaster who sought a
review of a prior restraint against publica-
tion, he included critical language in his
opinion regarding the issuance of prior
Also in June, the D.C. Circuit refused
an en banc hearing in a widely-publicized
case that involved reporter's privilege.
New York Times reporter Judith Miller and
Time magazine reporter Matthew Cooper
refused to reveal their confidential sources
to a prosecutor investigating whether se-
nior Bush administration officials illegally
leaked a covert CIA operative's name.
Following the D.C. Court's decision,
the pair of journalists petitioned the U.S.
Supreme Court in an effort to have their
contempt citations overturned. The Court
refused to hear the cases, which left Miller
and Cooper facing jail time. Miller eventu-
ally served almost three months injail.
After her release from jail, Miller testified
to a federal grand jury. Cooper avoided
jail time after he testified to the prosecutor
because his source gave him permission to
reveal his identity.
-Anaklara Hering

Annual FOI Report U 2005


Florida access statutes receive additional

exemptions during 2005 legislative session
TALLAHASSEE During the 2005 files of the Florida Self-Insurer Guaranty and photographs of current and former
session, Florida lawmakers passed 13 Association, stipulating that the records guardians ad litem. (SB 1098)
new exemptions to the state's open became public at the end of all litigation A retroactive exemption for the
government laws. This number is close to and settlement claims arising out of the Social Security number, driver's license
the 14 exemptions same incident. (HB number and Florida ID number of a vot
passed in 2004. L E G ISLA T IV E 729) registration applicant or voter. (HB 159
Nine ofthe 13 SESSION REPORT An exemption A retroactive exemption for the
exemptions were for information records of children enrolled in the state'

passed unanimous-
ly by legislators in both the Florida Sen-
ate and the Florida House of Representa-
tives. In fact, all of the exemptions were
passed unanimously by Florida senators.
The two exemptions that faced the
most resistance by Representatives were
the Funeral, Cemetery and Consumer
Services Board exemption and an exemp-
tion regarding hurricane data. The first
exemption makes some meetings of
the Funeral, Cemetery and Consumer
Services Board exempt. It also exempts
certain investigative records of the board
until investigations are complete. The
hurricane data exemption creates a public
records exception for "reports of hur-
ricane loss data and associated exposure
data" specific to a particular insurance
company, as reported to the state to de-
velop a hurricane loss projection model.
Thirty-nine representatives were opposed
to the funeral board bill; 30 voted against
the hurricane data exemption.
The Florida Consumer Finance Act,
which provided a public records ex-
emption for information pertaining to
an active investigation by the Office of
Financial Regulation of the Financial
Services Commission, was vetoed by
Gov. Jeb Bush.
The 11 other open government excep-
tions passed in 2005 were:
An exemption for portions of records
held by the Child Abuse Death Review
Committee that contain information
identifying a deceased child's surviving
siblings, family members or others living
in the home of the deceased. (HB 185)
An expansion of the current exemp-
tion for confidential business informa-
tion to include potential trade secrets,
manufacturing methods and patentable
material discovered during H. Lee Mofitt
Cancer Center's research. (HB 449)
A public records exemption for claim

in court records
identifying a minor seeking a waiver of
parental notification for an abortion. (SB
A time-limited exemption for inves-
tigative records held by the Independent
Education Commission. (HB 1091)
An exemption for confidential
information held by guardians ad litem
in relation to the best interests of a child.
Also exempts personal information

Sandra Chance, Esq., executive direc-
tor of the Brechner Center for Freedom
of Information at the University of
Florida, was named 2005 Journalism
Teacher of the Year by the Scripps How-
ard Foundation.
The award recognizes outstanding
contributions in the field of journalism
education both in and out of the class-
Chance has taught both undergradu-
ate and graduate media law courses at

New freedom of information resources
have been added to the Brechner Center
Web site,
Visitors to the page can access updated
databases that include information on Sun-
shine Law prosecutions and the amounts
of attorney's fees awarded in Sunshine
Law cases.
The Brechner Center has also produced
a DVD to help citizens understand how
state and federal freedom of information

the UF College of Journalism and Com-
munications for 12 years. Additionally,
she lectures nationally and internation-
ally on open government and freedom
of information issues to lawyers, judges
and media professionals.
Chance was selected from more
than 50 candidates nationally for the
award. It was presented at the Scripps
Howard Foundation's National Jour-
nalism Awards Program on April 15 in
Washington, D.C.

laws operate. It also provides an overview
of the freedom of information resources
that are available to members of the public
who are seeking access to records and
meetings. Visitors can also browse past
issues of The Brechner Report.
In addition, a revised version of the
Brechner Center's Citizen Guide to
Florida's Government-in-the-Sunshine
laws will soon be available in both print
and electronic versions.



voluntary Pre-K program. (HB 1695)
An exemption for parts of meet-
ings of the Domestic Security Oversight
Council. (HB 1801)
An exemption for complaints and
records relating to the complaint and pre-
liminary investigation held by a munici-
pal ethics commission. Records become
public once complaint is disposed of.
(SB 1922)
-Christina Locke

4 Annual FOIReport U 2005

Executive Director recognized

for dedication to teaching skill

Brechner Center offers Internet,

video resources about access

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