The Brechner Report
Volume 19, Number 8
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 Denise L. Humphrey and Barbara Peterson 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
HMO Reports Ruled Public Records
City Ordered To Reveal
Judge Provides Records,
Denies Gag Order
AGO Releases Two Opinions On
Commissioners Agree To Pay Fines
Fair Officials Question Authority Of Sunshine Manual
Airport Tenant Files Sunshine
Supreme Court Affirms
Lawyer Solicitation Ban
Supreme Court Affirms
Lawyer Solicitation Ban
Court Rules Lack Of Funding Violated Students' Free Speech Rights
Loud Protest Did Not
FOI Seminars On Calendar For Fall
O.J. Mugshot Brings Threat Of
THE BACK PAGE
Record Custodians Need More Access Education
TALLAHASSEE -- Reports chronicling troubles in taxpayer-supported health plans are
public records under Florida law, according to a recent ruling by 2nd Judicial Circuit
Court Judge F.E. Steinmeyer III.
The judge called the case a close one because of conflicts between laws governing
disclosure of medical records. One section appears to allow health maintenance
organizations (HMOs) an exemption and another section does not, creating a conflict in the
statutory provisions, he said. He said he was also concerned about legislative and court
mandates to narrowly construe Public Records Law exemptions.
At the end of March, the state Agency for Health Care Administration released a summary
of the results of its two-month investigation as well as specific reports on each
provider. PCA Health Plans of Florida, one of the 29 Medicaid HMOs state regulators
investigated earlier this year, had moved to have the detailed reports sealed. (Brechner
Report, May 1995)(6/22/95)
NEW SMYRNA BEACH -- Seventh Judicial Circuit Court Judge Patrick Kennedy ordered New
Smyrna Beach city commissioners to make public the initial settlement proposals offered to
developers of The Inlet at New Smyrna condominiums. The developers are suing the city for
the commission's rejection of alterations to a proposed building in the development.
Last July, the commissioners rejected developers' plans to increase the height of a
tower unit from 20 to 29 stories. The developers filed five suits, including one for more
than $20 million in damages.
In March, city officials and the developers agreed to discuss settlements in closed
meetings, citing the section of the Open Meetings Law that allows cities to meet privately
to discuss litigation.
A homeowners' association and The News-Journal (Daytona Beach) separately sought access
to the settlement proposals. Both argued that the law cited had been passed to enable city
officials to meet privately to plan litigation strategies, not to allow secret
negotiations between opposing sides in litigation.
The city has complied with the order and released the initial proposals. However, City
Attorney George Beazley said the newly released proposals and counter proposals are not
current and had never been presented to the commission.(6/15/95-6/24/95)
FORT WALTON BEACH -- Judge G. Robert Barron, 1st Judicial Circuit Court, recently
denied a motion for a gag order forbidding witnesses from discussing their testimony and
ordered the release of police records revealing information about a murder suspect's
position as an occasional police undercover agent.
The judge granted a defense motion ordering the Crestview Police Department to release
records of the dates and times Freddie Wayne McLaughlin served as an undercover drug
Judge Barron also ordered the release of many additional identification records sought
by the defense, including photographic, line-up, video and voice identifications. He
withheld ruling on a motion regarding graphic and potentially inflammatory photographs
until they are offered as evidence.
McLaughlin and Joseph Wiley have been indicted for the drive-by shooting death of
18-month-old Demetrius Ewing. The intended target, Jeffrey Brown, was wounded in the
TALLAHASSEE -- A recent Attorney General's Opinion stated that driver history records
that have become part of court or law enforcement records are part of the public record.
As such, custodians of the records must allow inspection and duplication at fees set by
law. (Decisions on File, Fla. Atty. Gen. Op. 95-38 (June 1, 1995))
In response to a question from Daniel McIntyre, attorney for St. Lucie County, Attorney
General Robert Butterworth wrote that copyrighted materials housed in a county law library
are also public records under Florida law.
Such material is subject to the same duplication fees as any other public records held
by the county and used in carrying out official functions. The fact that the material is
copyrighted does not exempt it from the state's statutes governing fees for copying public
records. (Decisions on File, Fla. Atty. Gen. Op. 95-37 (June 1, 1995))
MIAMI -- Two Dade County commissioners have agreed to pay fines stemming from civil
charges of Open Meetings Law violations.
Bruce Kaplan will pay $500 and Maurice Ferre will pay $250 to settle charges that they
met secretly in December to discuss the selection of a new county manager.
Ferre offered an apology for meeting with Kaplan. Kaplan denied that his meeting with
Ferre and commission Chair Arthur Teele constituted a violation. However, he acknowledged
a lack of judgment and agreed to pay the fine so that he could put the matter behind him.
The secret meeting took place the day before a vote in which the commission elected
county Public Works Director Armando Vidal to the new position by a 7-5 margin.
TAMPA -- A 75-page audit of the state fairgrounds, which exposed numerous problems,
including discrepancies in fair revenues, and alleged that a number of Open Meetings and
Public Records Law violations had occurred at the fairgrounds, led Florida State Fair
Authority officials to question the authority of the Government-in-the-Sunshine Manual.
In preparing the fairground report, auditors cited the manual as a reference for their
allegations of possible Sunshine violations. The Sunshine Manual, prepared by the Florida
Attorney General's Office, compiles and explains the state's Public Records and Open
Meetings laws, and is offered to state agencies as a reference for compliance.
The Florida State Fair Authority's response to the audit, drafted by Fair president
Steve Eckerson and Fair attorney Kirk Gibbons, called the Manual "useful and
informative" but stated that they were "unaware" that it had "been
adopted as Florida law." The response also requested state auditors to indicate in
their final report that no Sunshine violations had occurred. The final report will be
released shortly. (6/27/95)
VERO BEACH -- A Vero Beach business owner has filed suit in the 19th Judicial Circuit
seeking to overturn a decision made by the City Council at what he alleges was an illegal
According to an article in the Press Journal, Frank Zorc, owner of the Vero Airport
Trade Center and a tenant at the Vero Beach airport, and other citizens were refused
admission to a council meeting on May 9, during which the council discussed legal strategy
relating to a consent decree between Piper Aircraft Corp. and the Environmental Protection
Agency. The consent decree concerns the clean-up of a 1978 underground leak of a suspected
carcinogen from a tank on airport grounds.
Zorc's suit alleges that the discussion at the meeting went beyond the consent decree
and that council members mentioned him by name 13 times. He asserts that when he leased
the property in 1985 the city knew about the spill, which occurred about 100 feet from his
property, but neglected to tell him that his property was affected. He said that banks are
hesitant to lend money to potential investors in his center because of the leak. He wants
the court to force the council to include test wells for his property as part of the
The consent decree has already been approved by the Bankruptcy Court judge handling
Piper's bankruptcy proceedings. It is subject to review by the U.S. District Court.
WASHINGTON, D.C.-- In a recent ruling, the U.S. Supreme Court affirmed the
constitutionality of the Florida Bar's controversial ban on attorneys' solicitation of
accident victims within 30 days of an accident or disaster. Justice Sandra Day O'Connor,
writing the opinion of the Court, said the 30-day blackout period does not infringe on
attorneys' First Amendment rights.
The ban prohibits only targeted mailings by attorneys or attorney referral services to
accident or disaster victims, or relatives of victims, within 30 days of the event. The
prohibition does not affect attorneys' ability to send untargeted mailings, mailings to
discrete groups within society or to advertise in any other medium, such as television,
print or billboards.
Justice O'Connor wrote that the Bar instituted the ban not because of recipients'
outrage at receiving the mailings but because of the cumulative negative impact on the
legal profession as a whole which that outrage engenders.
She wrote that ample alternatives to targeted mailing exist for victims if they want to
receive information about potential legal representation. Justices Scalia, Thomas, Breyer
and Chief Justice Rehnquist helped form the majority. Justices Stevens, Souter, and
Ginsburg joined Justice Kennedy's strong dissent, which stated that the decision unsettled
important First Amendment precedents. (6/22/95)(Decisions on File, Florida Bar v. Went For
It, Inc., 9 Fla. L. W. Fed. S 223 (1995))
WASHINGTON, D.C.--The U.S. Supreme Court recently ruled that the University of Virginia
violated the free speech rights of a Christian student group by denying the group funding
that would have subsidized the publishing costs for a religiously oriented magazine.
The ruling stated that by withholding funds the university had discriminated against
the viewpoint, rather than the content, of the magazine. The court declared this
"impermissible" when directed against speech that would otherwise by allowed
within a forum. The Court described the Student Activities Fund, which provides funding to
student organizations that meet certain criteria, as a "metaphysical" public
Justice Kennedy, writing for the Court, rejected the university's contention that no
viewpoint discrimination occurred because the guidelines silenced "an entire class of
viewpoints." He called the argument "simply wrong" and stated that
silencing multiple voices skewed public debate "in multiple ways." (6/29/95)(Decisions
on File, Rosenberger v. University of Virginia, 63 U.S.L.W. 4702 (1995))
CLEARWATER -- The 2nd District Court of Appeal recently reversed a lower court ruling
that held a teen's loud, early morning protest crossed the threshold from protected speech
to conduct that obstructed police officers' ability to carry out an investigation. The
appellate court ruling called the case an example of a police officer viewing as an
obstruction an incident that another citizen would call "an appropriate
The incident occurred when several officers investigating a burglary wakened the
residents of a Pinellas County home before dawn. The suspect, who had been identified to
the police, was known to spend time at the residence. A teenaged occupant of the house
came outside protesting loudly and refusing to answer officers' questions but not making
threats. Police arrested him for disorderly conduct because he refused to stop yelling.
The court held that the teen's decision "to exercise his First Amendment rights
with such enthusiasm" early in morning may have been "youthful
indiscretion" but was neither disorderly conduct nor an obstruction of the officer's
ability to perform a legal duty.
The ruling stated that words exchanged with police are "rarely, if ever"
obstructions if an officer is not legally detaining the speaker, delivering legal
documents or if the officer has not asked the speaker for assistance in an emergency.
(Decisions on File, D.G. v. State, Case No. 94-04063 (June 21, 1995))
TALLAHASSEE -- The First Amendment Foundation will sponsor a series of one-day freedom
of information seminars. They will last from 10 a.m. to 3 p.m. and will include sessions
on access to governmental meetings and records and other media law issues. The seminars
are open to the public.
The registration fee is $20 and includes a copy of the Government-in-the-Sunshine
Manual. Lunch will be available for $5. The dates and locations of the seminars are Sept.
9, Tallahassee; Sept. 26, Sarasota; Sept. 28, Ft. Lauderdale; Sept 30, Stuart; Oct. 2,
Orlando; Oct. 7, Ft.Walton Beach; and Oct. 14, Jacksonville. Barbara Peterson, director of
the Foundation, can be contacted for specific information at 904-224-4555. (7/12/95)
TAMPA--A radio station's billboards and T-shirts featuring police mugshots of two Tampa
disc jockeys along side the famous mugshot of O.J. Simpson attracted some unwanted
attention from Simpson's attorneys. The advertisements for Tampa's WFLZ-FM brought the
threat of a lawsuit for misappropriation of the former football star's likeness and name
and an invasion of his privacy.
Station manager Dave Reinhart agreed to remove the billboards and stop selling the
T-shirts after receiving a letter from Simpson's attorneys. Reinhart stated that he
thought the mug shot, which appeared on the covers of national magazines following
Simpson's arrest last year, was in the public domain. (6/21/95)
by Dave Maehr
Biologists working for the State of Florida are part of an information-rich environment
involving a variety of plants, animals and ecosystems, many of which, such as Florida
panthers, manatees or the Everglades, are controversial. The controversies exist within
and between agencies, and among government organizations and the private sector, and often
involve the interpretation of data. Custodians of these data are in a powerful position to
control the dissemination of information about natural resources. Frequently, the data are
held close to the vest and considered the property of the custodian. Data are infrequently
exchanged among government agencies and excuses are often made to withhold information
from the public. While this protectionism may seem justifiable, sometimes it is clearly
prohibited under the federal Freedom of Information Act and Florida's Public Records Law.
Generally, natural resources issues neither affect state or national security, nor
directly impact public health or welfare. Nonetheless, they generate deep, emotional and
sincere public interest when it comes to endangered species and controversial ecosystems.
Fortunately for the custodians who unknowingly violate the public's right of access to
government records, much of the public is also unaware of its right to obtain what is
often described as privileged information. If this was not the case, agencies would have
long ago reformed the way they handle public interest in their activities.
During my nearly 14 years as a field biologist for the state, I was a part of this
phenomenon of legal ignorance. My undergraduate and graduate school programs did not
include discussions of access to government records. In hindsight, this seems remarkable
since many graduates of natural resource programs, particularly at the land-grant
institutions I attended, become government employees. It is likely that many positions
filled by these graduates will involve handling public records and participating in open
I suspect that part of the problem rests within academia; few faculty members have
worked in agencies where record requests may be routine. Professors of wildlife ecology
and related fields are simply not well-tuned to some of the realities of government,
leaving their students ill-prepared to handle certain situations.
On the other hand, all Florida natural resource agencies employ full-time legal
counsels who, presumably, understand data ownership and access issues. One can only wonder
why the implications of open government laws are not routinely communicated to field staff
and administrators. State and federal laws make clear that the kinds of data maintained by
natural resource agencies are usually not exempt from disclosure.
Solutions to this problem include increasing the awareness of field workers to open
government issues, eliminating barriers to access and enhancing opportunities for public
use of government records.
Enhanced data availability would probably benefit government agencies, and the natural
resources they protect, by decreasing the amount of time spent denying requests and by
encouraging independent interpretations of data to supplement governmental
interpretations. The creation of departments designed to handle requests for information
would enable busy field and office staff to pursue the routine operations that drive
agency agendas. Carefully crafted university curricula, particularly at the graduate
level, could ensure that matriculating students leave campus with an appreciation for
information ownership, open government and how these benefit both the public and the
As information becomes more important globally, and the public and its tools become
more sophisticated, natural resource agencies will find it increasingly difficult to plead
ignorance. Denials of access to information will likely be challenged, eroding the trust
in and credibility of the agencies.
***David S. Maehr is a doctoral student in the Department of Wildlife Ecology
and Conservation at the University of Florida. He spent 14 years as a field biologist with
the Florida Game and Fresh Water Fish Commission.
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