The Brechner Report
Volume 19, Number 7
A monthly report of Florida mass media law published by The Brechner Center for Freedom
of Information in the College of Journalism and
Communications at the University of Florida. It is published 12 times a year under the
auspices of the University of Florida Foundation and is a joint effort of The Brechner
Center for Freedom of Information, the University of Florida College of Journalism &
Communications, the Florida Press Association, the Florida Association of Broadcasters,
the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment. The
Brechner Report would like to thank Barbara Petersen and Monroe Trieman for their
Brechner Center for Freedom of Information
- Mary A. Giery Smith, Editor
- Kelly Barber, Production Coordinator
- Michelle Quillen, Production Asst.
- Sandra F. Chance, J.D., Asst. Director
- Bill F. Chamberlin, Ph.D., Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
Agency Must Find,
Release Immigration Decisions
Court Rules On Records
A Review of Legislation Passed -- And Not Passed -- This Legislative Session
Evangelists Allowed To Pass
Ban On Street Begging
Exercising On-Line Editorial Discretion Increased Liability
Public Apology Settles Pignone
Clinics Settle Lawsuit
State Case Might Go To U.S.
Copying Videos Ruled Illegal
State Case Denied Review
Supervisor's Remarks Not
THE BACK PAGE
The Florida Legislature Takes Aim at Public Access
MIAMI -- Judge Wilkie Ferguson, U.S. District Court for the Southern District of
Florida, recently ordered the Justice Department's Executive Office for Immigration Review
to release records of decisions by Immigration Judge Philip Montante regarding the
disposition of Haitian nationals.
The agency had initially refused to search for the records, stating that its computer
system was not set up to identify decisions according to judge and that the agency had no
obligation to create a program to do so.
A federal magistrate who had conducted an initial review and issued recommendations in
the case pointed out that the agency had ignored the possibility of conducting a manual
search of its records. He also suggested that the agency had the obligation to create a
program if necessary because the request did not obligate the creation of any new records.
by Sandra F. Chance
A recent decision issued by the Florida Supreme Court regarding access to judicial
records has potential implications for taxpayers, crime victims and anyone needing copies
of court records. The court ruled against the St. Petersburg Times in the paper's suit to
recover attorneys' fees from Hillsborough Clerk of Courts Richard Ake. The court said that
when clerks are dealing with judicial records, they are bound by the state Constitution to
follow judicial rules rather than the Public Records Law.
The implications sparked debate among media lawyers and lawyers for the state's clerk
of courts. Court rules allow greater access to records than the Public Records Law,
according to Alison Steele, an attorney for the Times. The ruling, which exempts clerks
from the statutory 15-cents-per-page limit, could bar access to citizens unable to afford
higher fees. (Decisions on File, Times Publishing v. Ake, No. 84,513 (June15, 1995))
By Mary A. Giery Smith
The Electronic Records Act (HB 1163) and a related bill addressing remote access to
electronic records (HB 1149) provide clarification of the definition of electronic public
records and contain strong statements of legislative intent clearly indicating it is the
duty of a public agency to provide access, including remote access, to electronic records.
HB 1163 provided a clarification that the form in which the records exist does not affect
their status as open public records.
Two bills, SB 496 and SB 819, create exemptions for crime victims. SB 496 exempts all
court records, including testimony, that could identify a victim of child abuse or sexual
crimes. It also prohibits publication or broadcast of identifiable photographs or voice
recordings. The bill criminalizes the release of such information by a public employee and
provides the victim with a right to file a civil lawsuit against any person or entity that
intentionally communicates exempt information to the public prior to open judicial
HB 819 creates an exemption for the home address, telephone number, listings of assets
and other information that could be used to identify or locate victims of specified
crimes. The crimes include sexual battery and aggravated child abuse, battery, stalking,
harassment or domestic violence. The exemption, which prohibits disclosure for five years,
is available upon written request of the victim and verification that the crime actually
occurred. B 819 was one of few open records-related bills actually signed into law by Gov.
Chiles. A revision of the Open Government Sunset Review Act will require a one-time
automatic review of all new or significantly amended Public Records Law and Sunshine Law
exemptions five years after the exemptions are enacted.
The laws affecting fees charged by clerks of circuit court have remained unchanged,
however SB 764 codified how the funds collected may be used. Clerks of court may charge $1
for the first page and 50 cents for every subsequent page of court documents other than
judgments and notices of lis pendens. The law requires that every clerk's office must
provide an annual report indicating that the funds were used for equipment, equipment
maintenance, furniture or supplies pertaining to the upkeep or improvement of the public
records system. The law specifically prohibits use of the funds for expenses unrelated to
the public records system. The University Limited Access Records Act (SB 2404)limits the
records that universities are entitled to designate as "limited access." The law
mandates that universities adopt rules that provide definition and procedures for denoting
a record as a limited access record, as well as rules governing the content and custody of
The bill states that the only records that may qualify for exemptions are academic
evaluations of employee performance, investigations into charges of employee misconduct,
disciplinary proceedings and grievances regarding collective bargaining agreements. The
investigatory records are public once there is a final decision. The bill specified that
student evaluations of instructors are public records. A summary of each open government
bill presented during this session follows in our legislative update, part two of our
The following bills became law this legislative session:
- CSHB 5. Allows the public to speak with, or write to, local public officials
about any matters on which the officials take action; removes the assumption of prejudice
that had accompanied unofficial communications between officials and interested parties as
long as such communications are disclosed prior to final action being taken.
- HB 29. Amends open meetings law to require reasonable notice of any meeting;
provides that conduct engaged in by officials out of state that would violate open
meetings law if conducted in the state is a misdemeanor.
- HB 257. Exempts the Spaceport Florida Authority from open meetings law when
discussing trade secrets; exempts any records generated at such meetings.
- HB 263. Exempts information gathered during investigations of non-profit
organizations by the Department of Legal Affairs as long as the investigations are active;
- HB 279. Exempts the Lottery Commission from the open meetings law when
confidential matters are discussed; exempts any records generated at such meetings; allows
the commission to determine what is confidential. HB 291 Expands the exemption of trade
secrets and proprietary confidential information received by request or subpoenaed by the
Department of Agriculture and Consumer Affairs during investigations of alleged violations
of the Motor Fuel Marketing Practices Act.
- CSHB 819. Exempts identifying information of victims of certain specified crimes
for five years upon written request of victims and official verification that the crime
- CSHB 1149. Stipulates that fees for remote electronic access to public records
are permissible rather than mandatory; includes statement of legislative intent that it is
the duty of all agencies to provide remote electronic access to records.
- CSHB 1163. Codifies the Public Records Mediation program in the Attorney
General's Office; adds statement of legislative intent regarding automation of public
records; amends definition of public records to include e-mail and software; requires an
agency to provide a copy of a record in the medium requested if the record is maintained
in the medium; includes statement of legislative intent that it is the duty of all
agencies to provide electronic access to records.
- CSHB 1269. Prohibits binding agreements between a public entity and private
entity or person who requests confidentiality, until 90 days after the information about
the agreement has been made public.
- CSHB 1485. Exempts identifying information obtained by the Department of Elderly
Affairs about elderly persons; prohibits such information from being disclosed publicly.
- SB 166. Exempts meetings by public hospitals when discussing HMO contracts;
requires that transcripts of the meetings be kept and eventually made public.
- CSSB 226. Expands health care facilities' exemption for documents that identify
specific patients; closes meetings of grievance and appeal proceedings of such facilities
when such documents are considered but requires a court reporter at the meetings.
- SB 496. Exempts court records revealing identifying information of victims of
certain sexual crimes; creates a civil right of action for victims against any entity or
individual communicating such information prior to open judicial proceedings.
- SB 1664. Exempts open claims files and related minutes of the state-run property
insurance pool, the Residential Property and Casualty Joint Underwriters Association;
closes meetings relating to the evaluation or compromise of claims but requires a court
reporter at closed portions of meetings.
- SB 1784. Expands current exemption for prepaid limited health service
organizations to include proprietary financial information contained in contracts entered
into with such organizations; exempts information obtained during an investigation until
the investigation is complete or no longer active.
- SB 1818. Reenacts exemptions for the F. Lee Moffitt Cancer Center; closes Center
meetings unless discussing state-funded expenditures; exempts minutes of such meetings
from current or future review; opens some records.
- SB 2404. Narrows the limited access exemption for certain university personnel
records; requires the creation of rules defining the content and custody of limited access
records; limits universities' ability to determine what will be closed.
- SB 1632. Expanded the exemption of business-related information gathered and held
by the Enterprise Florida Innovation Partnership including information about finances,
proposals and agreements, and information about the organization's affiliates,
subsidiaries and partners.
The Legislature failed to pass the following bills this session:
- HB 109. Would have exempted the names and addresses of jurors in civil and
- HB 137/HB 139. Would have created a Statewide Managed Care Ombudsman Committee;
would have exempted patient records held by the committee and identifying information
about complainants to the committee; would have closed meetings during which the above
information is discussed.
- HB 167. Would have required the Joint Legislative Management Committee to make
specified legislative information, the state Constitution and state statutes available on
the Internet at no charge.
- HB 269. Would have exempted information gathered during investigations by the
Department of Business and Professional Regulation of the pari-mutuel industry until the
investigation was closed or a complaint was issued.
- HB 277. Would have amended the exemption for Department of Revenue audits of the
Professional Golf Hall of Fame to require that the department provide a summary of the
audit including the facility's statutory compliance.
- HB 321. Would have exempted criminal, juvenile and abuse records gathered by the
Agency for Health Care Administration for use in determining moral character of home
health agency and nurse registry personnel, sitters, companions and home-makers.
- HB 365. Would have created the Florida Geographic Information Council to
facilitate the identification, sharing and coordination of geographic information among
federal, state, regional and local agencies.
- HB 423. Would have exempted identifying information about recipients of specific
federal entitlement programs and mandated that such information be used only to prevent
duplicate enrollments; the information would have been exempt from subpoenas and orders
from any agency.
- HB 497. Would have opened all meetings and records of a governing board of a
university health services support organization, and provided exemptions of specific
records including "credentialing" and peer review.
- HB 709. Would have exempted environmental audit reports and documents related to
environmental self audits.
- HB 1739. Would have prohibited clerks of the circuit court form charging more
than 15 cents per page for copies of public records.
- HB 2217. Would have exempted meetings of the probable cause boards that
investigate complaints against funeral homes and cemetery owners.
- SB 342. Would have provided record duplication fees in excess of statutory limits
but authorized by a county and charged by court clerks could be used for purchasing and
- SB 810. Would have exempted trade secrets obtained by the Department of Health
and Rehabilitative Services.
- SB 1034. Would have revised public notice procedures for the adoption of county
and municipal ordinances.
TALLAHASSEE -- The Supreme Court recently reversed the 1st District Court of Appeal's
ruling that held Florida's cross-burning statute unconstitutional, stating that it is
"the extraordinarily threatening mode of expression, not the idea expressed, that is
The high court denied the claim that the statute violated First Amendment rights to
free expression and described an unauthorized cross-burning by intruders as a
"terrifying symbolic threat" with a clear and direct connection to forthcoming
violence. The court held that the statute is "reasonably necessary" to protect
the state's compelling interest in promoting peace, protecting its citizens from threats
of violence and protecting citizens' rights to free expression and association.
The ruling stated that "[f]ew things can chill free expression and association to
the bone like night-riders outside the door and a fiery cross in the yard."
(Decisions on File, State v. T.B. D., No. 84,013 (June15, 1995))
FORT LAUDERDALE -- The Broward County Commission is expected to approve an ordinance
that would implement a recent settlement in a federal lawsuit. The revised ordinance would
require groups to register with airport authorities prior to distributing materials at the
Fort Lauderdale-Hollywood International Airport. Permits would be issued the same day.
The settlement concluded a lawsuit filed in December by the evangelical group
"Jews for Jesus." The religious group challenged a county requirement that
organizations apply for a permit prior to distributing or soliciting at the airport, a
process that could take up to two weeks. Group members contended that the rule violated
their First Amendment rights to free speech.
Although groups still must register, under the settlement they may distribute materials
the same day. No more than 12 members of a group may distribute material at a time and all
must wear badges. In anticipation of the settlement, airport officials set up indoor and
outdoor "First Amendment zones" in February. The zones indicate areas in which
groups may operate without disturbing traffic patterns. Indoors, groups may only
distribute material and are prohibited from soliciting money. Outdoor restrictions are
more liberal. (6/3/95)
ST. PETERSBURG -- The 2nd District Court of Appeal has recently declared
unconstitutional a St. Petersburg ordinance that prohibits begging for money on city
The court said the ordinance, which forbids begging on "any public way,"
infringes on free speech rights more intrusively than is necessary.
The court pointed out that ordinance does not define begging and does not differentiate
between passive and aggressive begging and could therefore be enforced
arbitrarily.(Decisions on File, Ledford v. State, 20 Fla. Law Weekly 876 (1995)
NEW YORK -- Justice Stuart Ain of New York's trial-level Supreme Court recently ruled
that Prodigy, an on-line information service, must defend itself in a pending libel suit
because it screens messages for content. The ruling enables a $200 million suit filed by
Stratton Oakmont, Inc., an investment bank, to proceed. The suit followed a subscriber's
allegation that the bank had committed fraud.
The ruling states that the service's decision to exercise editorial discretion
increased its liability for its users' messages. The judge denied Prodigy's claim that it
functioned more as a bookseller than a publisher, but made it clear that, generally,
computer bulletin boards do not exercise editorial discretion and should therefore be
regarded "in the same context as bookstores, libraries and network affiliates."
Prodigy, jointly owned by Sears and IBM, has changed its editorial policy. (Decisions
on File, Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (May 26, 1995))(5/27/95)
ORLANDO -- Orlando investment banker Rick Fitzgerald accepted a public apology from
former Orange County Commissioner Fran Pignone as part of an otherwise confidential
settlement in Fitzgerald's libel and slander lawsuit against Pignone and her husband.
Fitzgerald initiated the suit after Pignone distributed literature during her
unsuccessful 1994 campaign for the county chair. The literature, mailed weeks after the
Security and Exchange Commission began reviewing county bond issues and contributions to
county political campaigns, implied Fitzgerald had received a large portion of municipal
bond business in return for his work on incumbent chairwoman Linda Chapin's 1990 campaign.
(5/28/95; Brechner Report, June 1995)
MIAMI -- The Center for Special Immunology clinics have settled their 2-year-old
lawsuit against Medical Business for a series of articles alleging the clinics engaged in
unethical practices. After the articles appeared, the stock price of the parent company,
Health Professionals, Inc., dropped and shareholders initiated a class action lawsuit.
According to the Miami Herald, the articles in Medical Business alleged that the
clinics altered research data, performed unnecessary medical tests and over-charged for
some tests. The clinics research and provide treatment for immune system disorders,
including HIV and AIDS. (5/23/95)
MIAMI -- An unsuccessful Congressional candidate has said she will appeal a recent 3rd
District Court of Appeal ruling that a 1992 editorial in a Cuban exile weekly did not
libel her when it labeled her a "Castrista," or Castro sympathizer.
Magda Montiel Davis filed the suit against La Verdad, a Spanish language newspaper, and
the writer, Hilda Inclan, after the paper identified Davis as a Castro supporter. Davis'
suit contends the accusation is highly inflammatory in the volatile emotional climate of
Miami's Cuban exile community. Davis claims that since the columns appeared the public
response has ranged from public contempt to death threats. (5/10/95)
NAPLES -- The 2nd District Court of Appeal recently issued a rebuke to the Collier
County Sheriff's Department and the 20th Judicial Circuit Court in a case involving
allegedly obscene video tapes seized without a warrant. The appellate court ruled that the
circuit court violated a "clearly established principle of law" when it reversed
a county court's order suppressing the videos seized by sheriff's department officials.
Officers had rented three "randomly selected" tapes from a video store,
viewed them at the sheriff's department, copied the tapes and returned them to the store.
They retained the copies as evidence to present to the state attorney. The store's owner,
Carlos Miragaya, was later arrested for possessing and intending to sell obscene films.
The trial court held that the warrantless seizure and duplication of the tapes
constituted an illegal seizure and that the seizure, without a determination of the tapes'
obscenity, amounted to a prior restraint. The circuit court reversed the lower court's
The Court of Appeal, however, agreed with the trial court that there must be a judicial
determination of obscenity prior to seizure and said the officers erred in copying the
videos prior to receiving a warrant. (Decisions on File, Miragaya v. State, 20 Fla. L.
Weekly 1050 (1995)
WASHINGTON - The U.S. Supreme Court recently refused to hear a case brought by a
Sebring woman who claims a state law against obscene telephone calls intended to offend,
annoy, abuse, threaten or harass violated her right to free speech.
In 1992, Sara Gilbreath was convicted for making an obscene telephone call to a postal
employee and fined $50. Earlier this year, the state Supreme Court upheld both the
constitutionality of the law and Gilbreath's conviction. (5/19/95)
TALLAHASSEE -- The 1st District Court of Appeal recently upheld a ruling that the
Department of Agriculture and Consumer Services did not have cause to fire an employee who
tape-recorded a work-related conversation with his supervisors. State law prohibits
recording oral communication unless all parties are aware of the recording.
The court held that the taped conversation about a job transfer he was protesting did
not constitute an invasion of the supervisors' privacy. (5/10/95)
By Sandra F. Chance
A lobbyist friend of mine proudly displays this sign in his Tallahassee office:
"No man's life, liberty or property are safe while legislature is in session."
The quote, attributed to a New York legislator in 1866, could easily apply to this year's
legislative session with a slight modification. "No person's right of access to
governmental information is safe while the legislature is in session."
While there are now more than 550 separate exemptions to public access, the Florida
Legislature routinely seeks to exclude more information from the public and close more
meetings. This session was no exception. Nearly 100 bills were introduced this year.
Lawmakers passed at least 17 new laws that either restrict access to public records and
meetings or expand existing exemptions. Compare this to the six new laws that promote
access and you can begin to appreciate the problem. The trend toward closing entire
records to prevent disclosure of sensitive information, rather than redacting only the
portion that is exempt, was alive and well and very much in operation this session.
This was true in spite of Florida's Constitutional Amendment, guaranteeing access to
governmental information, in spite of Florida's Public Records Law, mandating access to
governmental records, in spite of Florida's Sunshine Law, protecting the right to attend
meetings and in spite of Florida's status as a national leader in Government-in-the
Sunshine. Public access was clearly a casualty during this legislative session, however it
could have been worse.
A few new laws will actually enhance access to records, making it easier and cheaper to
acquire governmental information. The most important guarantees access to public records
on computers. The bill, which died last session because of a controversial fee provision,
specifies that electronic records are public records and governments must ensure
One of the most troubling new laws prohibits disclosure of rape victims' names: a
familiar issue in Florida, but this time in a new package. It seems that the legislators
did not read the Florida Supreme Court's decision declaring blanket prohibitions against
disclosing rape victims' names are unconstitutional. The new law exempts all court records
revealing identifying information of victims of sexual crimes. In addition--and the news
media really need to pay attention to this part--the law creates a civil cause of action
against anyone, including the media, who reveals the information. This could have an
immediate and direct impact on editorial choices.
Are these new exemptions even constitutional? Do they meet the requirements laid out in
the Public Access Amendment to the Florida Constitution? Do they "state with
specificity the public necessity?" Are they "narrowly tailored?"
Maybe the governor and legislators forgot that an overwhelming number of voters
supported the 1992 Constitutional Amendment that guarantees the right of access to public
records and meetings. More than 80 percent of the voters approved the Public Access
Amendment. Maybe they forgot that an informed electorate is essential to a democracy.
Maybe they forgot that unless the voters know how their government is operating, they
can't fully appreciate their elected officials. Maybe they just don't care. If faulty
memory is at the root of this problem, we must, at every opportunity, remind our elected
officials and the general public of the importance of our access laws. If apathy,
ignorance or antagonism is the reason, let's cover this during election interviews and
reveal the candidate's position on public access issues in our editorials.
Finally, let us track officials' responses to legislative proposals. We must hold
accountable those officials who threaten our right to know and recognize those who promote
Sandra Chance is the assistant director of the Brechner Center for Freedom of
Information and an assistant professor in the College of Journalism and Communications.
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