Volume 20, Number 12
A monthly report of mass media law in Florida
Brechner Center for Freedom of Information
- R. Michael Hoefges
- Mary Gallant, Production Coordinator
- Michelle Mader, Prod. Assistant
- Bobbie Stewart, Prod. Assistant
- Bill F. Chamberlin, Ph.D., Director
- Sandra F. Chance, J.D., Asst. Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
exemption applies to workers' comp cases
council meeting results in no charges
Second mistrial delays DeBord
Commissioner will pay own legal
AGO gives broad
reading to victim records exemption
reconsider flat fee for copies of records
State Supreme Court briefs
successful in unsealing state candidate's court file
denies request to seal discovery in tobacco lawsuit
Tapes sealed until trial
in criminal case
AIDS/HIV records allegedly
releases reporter jailed for refusing to testify
Naples reporter must
testify, judge says
State Supreme Court
briefs available on line
The Back Page
State courts need
reminding about First Amendment
MIAMI--A federal district judge in Miami granted a writ of habeas corpus releasing from
jail Miami Herald reporter David Kidwell. Kidwell had been cited for contempt and
sentenced by a Florida circuit court judge to 70 days in jail after Kidwell refused to
testify at a deposition in a high-profile Palm Beach County murder case.
The writ entered by U.S. District Judge Wilkie D. Ferguson Jr. does not end the case
because Kidwell's contempt judgment and sentence remain on appeal to the Florida 4th
District Court of Appeal.
Kidwell turned to the federal court for relief after the 4th District refused to stay
his sentence while his appeal is pending. The federal court had jurisdiction to enter the
writ because Kidwell is challenging the contempt judgment and sentence on First Amendment
Judge Roger B. Colton, 15th Judicial Circuit, found Kidwell guilty of indirect criminal
contempt in October after Kidwell refused to answer questions at a deposition in the
prosecution of John Zile, who is accused of murdering his 7-year-old stepdaughter. (Brechner
Report, October 1996) Prosecutors want to question Kidwell about his 1994 jailhouse
interview with Zile. Statements made by Zile during the interview may differ from a taped
confession that he gave to police.
Kidwell had served 14 days of the sentence before being released by Ferguson's order.
(See related story, p. 4) (9/13/96-10/23/96) (Decisions on File, Kidwell v.
McCutcheon, Case. No. 96-2888-CIV-FERGUSON, October 30, 1996)
A Naples Daily News reporter was ordered to testify for the defense in a triple
murder trial but said she would rather go to jail.
Michelle Worobec was subpoenaed to testify in the trial of Charles Graves, one of two
people accused of killing three Cracker Barrel restaurant employees during a robbery in
Worobec had interviewed Graves' co-defendant, who said the slayings were not planned.
Graves' attorney, Stephen Grozoga, said the reporter's testimony could help clear his
client of premeditated murder.
Worobec said at least one witness had said the same thing, making her testimony
unnecessary. But Circuit Judge William L. Blackwell, 20th Judicial Circuit, refused to
quash the subpoena, calling his decision a "no-brainer" because Worobec was not
being asked to testify about information she had received in confidence.
The reporter said she worried that being forced to testify would damage her credibility
as a fair and impartial news reporter. (10/10/96-10/11/96)
TAMPA - A Pinellas County Health Department worker was fired after he was accused of
taking confidential lists of people with AIDS and HIV to a gay bar and offering to look up
names for friends.
Copies of the computer disks containing the names and anonymous letters implicating
William Calvert were sent to the department, The Tampa Tribune, and the St.
A class-action suit on behalf of people whose names are on the list has been filed by a
St. Petersburg law firm. Meanwhile, the Centers for Disease Control and Prevention in
Atlanta said Florida had the weakest procedures in the nation for handling HIV and AIDS
PLANT CITY - At the request of The (Lakeland) Ledger, County Judge
William Fuente unsealed the criminal court file of Eugene L. Roberts, a state legislative
candidate, concerning his arrest in 1994 on charges of disorderly conduct and resisting or
opposing arrest without violence.
Court records that have been sealed generally may not be released to the public unless
there is a showing of good cause that supports releasing the records.
The Ledger argued that the public has a right to know about criminal charges
that have been filed against a candidate for political office. Fuente agreed that
unsealing Roberts' file would serve the public's interest in being informed about a
candidate for public office before the election.
Roberts pointed out to the judge that the media already had reported that he pleaded
guilty to the charges and paid a $100 fine. He argued unsuccessfully that his file should
remain off limits because there was nothing else for the public to know that had not been
reported. (Decisions on File, Florida v. Roberts, Case No. 94-9638, Div. P, Sept.
WEST PALM BEACH - A circuit court judge denied a request by tobacco companies for a
blanket protective order sealing all documents produced during discovery in the state's
tobacco liability lawsuit. In the action, the state is seeking reimbursement of
approximately $2 billion in Medicaid costs spent on treating illnesses related to smoking.
In the ruling, retired Judge William Rutter, sitting in the 15th Judicial Circuit,
relied on Florida law that requires discovery documents to be open unless closure is
necessary to protect confidential information such as business or trade secrets.
The ruling by Rutter, who has been appointed to oversee the discovery matters in the
complex case, means that discovery documents will be open for public inspection except for
any specific documents that are closed by court order. Tobacco companies still could
challenge the release of specific information or documents on these grounds.
In similar actions in other states, tobacco companies have been successful in obtaining
blanket protective orders sealing all discovery, according to the Miami Daily Business
SANFORD - Audio and video tapes related to an unsuccessful murder-for-hire scheme will
remain under wraps until the trial, a judge has ruled.
Circuit Judge Thomas G. Freeman, 18th Judicial Circuit, agreed to a defense motion for
a protective order to prevent the tapes from being publicized. Freeman refused to allow The
Orlando Sentinel and WESH-TV to argue that the tapes should be made available to the
An attorney for the newspaper and television station said he would advise his clients
to appeal based on the judge's refusal to hear arguments from the media.
Former radio evangelist George Crossley is accused of trying to hire someone to kill a
man who said Crossley was having an affair with the man' s wife. The Seminole County
Sheriff's Office says it taped conversations between Crossley and an undercover agent
posing as a hit man. (9/28/96)
TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that the
pending litigation exemption to the Open Meetings Law applies to a workers' compensation
case in which a claim, known as a petition for benefits, has been filed by an injured
Florida Statute section 286.011(8) allows a board or agency to meet in private with its
attorney to discuss "pending litigation" in which the board or agency is a
party. The discussion must be limited to "settlement negotiations or strategy
sessions related to litigation expenditures."
A workers' compensation matter involving a state board or agency becomes "pending
litigation" for purposes of the exemption once the injured employee files a petition
for benefits, Butterworth wrote.
Butterworth also stated that a board or agency that meets privately to discuss a
pending workers' compensation case may discuss the injured employee's confidential medical
records obtained during the litigation if "necessarily related to settlement
negotiations or to setting strategy for litigation expenditures."
However, Butterworth wrote in the opinion, the exemption requires that a transcript of
a closed litigation meeting be released to the public once the litigation is concluded.
The fact that confidential medical records have been discussed does not change that
requirement, according to the opinion. (Decision on File, Fla. Atty. Gen. Op.
(Sept. 30. 1996))
VERO BEACH - The State Attorney's Office decided not to take action after reviewing a
citizen's complaint that the Vero Beach City Council violated the Open Meetings Law.
Real estate agent Frank Zorc claims that the city council met secretly on May 9, 1995,
and discussed filing a claim in the Piper Aircraft Corp. bankruptcy proceedings. A
chemical plume that originated on Piper property contaminated property leased by Zorc at
the Vero Beach Municipal Airport.
Zorc claims that the May 9 meeting should have been open because a consent decree
already had been entered by the judge in the bankruptcy case. Under an exemption to the
Open Meetings Law, a city council may hold a closed meeting to discuss settlement
negotiations or hold "strategy sessions related to expenditures" in connection
with pending litigation to which the city is a party.
In a letter to Zorc, Assistant State Attorney Nikki Robinson stated that the consent
decree was only the approval of a "tentative compromise" and just the
"first step in resolving Piper's overall bankruptcy proceedings."
Last year, a grand jury cleared city officials of any wrongdoing in connection with
three closed meetings held in 1995, including the May 9 meeting. Zorc filed a civil
lawsuit in 1995 alleging that the city violated the Open Meetings Law. (Brechner Report,
August 1995) (9/29/96-10/8/96)
COCOA - A second mistrial has delayed the case of a Cocoa council member accused nearly
two years ago of violating the Open Meetings Law.
The trial of Ray DeBord was stopped Oct. 2 after it was learned that a juror and her
mother had made disparaging remarks about the judge and the defense attorney to a state
representative, the American Civil Liberties Union and the chief circuit judge while
complaining about delays in the case.
DeBord was accused of calling Mayor Mike Hill to discuss city business. The council
member said that Hill "entrapped" him by encouraging DeBord to call him.
An earlier trial ended in a mistrial when the jurors could not agree on a verdict. (Brechner
Report, October 1995) The retrial was delayed when prosecutors sought an appeal of a
ruling by Circuit Judge Martin Budnick, 18th Judicial Circuit, that threw out most of
Budnick said that a U.S. Supreme Court ruling meant that tapes of the calls between
DeBord and Hill could not be used in court because a violent crime was not alleged. A
three-judge panel of circuit judges overturned Budnick. (9/2/96-10/3/96)
MIAMI - The Dade County Metro Commission voted to spend $16,771 in county funds for
legal fees incurred by a commissioner who pleaded no contest last year to civil charges
that he violated the Open Meetings Law. A week after the vote, however, the commissioner,
Bruce Kaplan, agreed to pay the bills himself.
Kaplan was accused of meeting secretly in 1994 with commissioners Arthur E. Teele and
Maurice Ferre and discussing the selection of a new manager for Dade County. Kaplan
admitted that he met with Teele and Ferre, but denied any wrongdoing.
After pleading no contest to the charges, Kaplan paid a $500 fine. Teele and Ferre each
paid a $250 fine to resolve similar civil charges against them. (Brechner Report,
August 1995, June 1996)
Neither Teele nor Ferre asked the county to pay for their legal expenses. Ferre was one
of the commissioners who voted in favor of the county paying for Kaplan's legal bills.
Teele was not present for the vote. (10/9/96-10/17/96)
TALLAHASSEE - Attorney General Bob Butterworth stated that a Public Records Law
exemption for personal information about victims of certain crimes, including sexual
assault, applies to all records in the possession of a state agency, not just to law
enforcement incident reports.
Butterworth stated that the purpose of the exemption is victim protection, which would
not be served if the exemption applied only to law enforcement records.
Under the exemption, Florida Statutes section 119.07(3)(s), victims of sexual battery,
aggravated child abuse, aggravated stalking, harassment, aggravated battery and domestic
violence may request in writing that their addresses, telephone numbers and information
about their personal assets be sealed for five years after the request. (Decisions on
File, Fla. Atty. Gen. Op. 96-82 (Oct. 10, 1996))
CALLAHAN - The town of Callahan agreed to review its policy of charging $1 per page for
copies of all public records after a weekly newspaper said the policy violated Florida's
Open Records Law. After the Town Council adopted the policy, the Nassau County Record's
managing editor pointed out that the Open Records Law sets the price of most copies at the
actual cost of making them, or 15 cents per page.
Town Attorney Daniel Brim agreed that the town's policy appeared to be in violation of
the Open Records Law after reviewing the Florida Statute section 119.07.
However, Callahan Mayor Danny Johnson said he was waiting for a second opinion from
"the state" before recommending that the policy be dropped. (10/10/96)
State Supreme Court
briefs available online
TALLAHASSEE - The Florida Supreme Court announced that most briefs filed with the court
are available on line. Only briefs that are submitted on computer disk will be available,
but that includes most briefs that are now being filed, according to a court official. The
briefs in a case usually state the parties' legal arguments and cite legal precedent for
the arguments. The site is located at the court's Internet website at:
http://justice.courts.state.fl.us/courts/oacal.html (11/1/96) State courts need reminding
about First Amendment For the second time in two years, a Florida court has jailed a
reporter for doing his job. But Miami Herald reporter David Kidwell may not have served
jail time in vain. On October 21, a United States District Court judge ordered Kidwell's
release from the Palm Beach County jail. Kidwell had served 14 days of a 70-day sentence
for refusing to testify about a jailhouse interview with accused child-murderer John Zile.
(See related story, p. 1) Like Stuart News reporter Tim Roche before him (Brechner Report,
November 1990, December 1991-January 1992, June 1992, July 1992, August 1992, January
1993, March 1993), Kidwell fell victim to a line of cases that began in 1990 with Miami
Herald v. Morejon. (Brechner Report, June 1990) In Morejon, a three-judge panel of the
Third District Court of Appeal -- later affirmed by the Supreme Court of Florida -- held
that the reporter's privilege did not insulate a journalist from testifying if the
reporter was an "eyewitness to a relevant event." Since Morejon, other decisions
have further limited the reporter's privilege. In Gold Coast Publications, decided only
months before Kidwell was jailed, the Fourth District Court of Appeal took the holding of
Morejon -- that there is no reporter's privilege if a reporter is an
"eyewitness" -- and converted it into a legal rule that there is no reporter's
privilege except to withhold a confidential source or confidential information. (Brechner
Report, May 1996) In other words, reporters have no protection from subpoenas seeking to
have them testify about the vast majority of their reporting. Gold Coast treated the
reporter's privilege as if the Florida courts gave it, and the Florida courts could take
it away. Gold Coast ignored dozens of state and federal cases holding that the reporter's
privilege was a First Amendment-protected right, one that the Florida courts cannot take
away, and are indeed sworn to uphold. In the Kidwell case, the trial court judge ruled
that he was bound to follow the high-level appellate precedent of Gold Coast. But the
United States District Court judge in Miami who ordered Kidwell freed, Wilkie Ferguson
Jr., brings unusual experience to bear on Kidwell's case. Ferguson, then a judge on the
Third District Court of Appeal of Florida, was one of the three judges who decided
Morejon. In his relatively new appointment, as a federal judge with the authority to
overrule any number of state court judges, Ferguson has ruled that the Morejon decision
was never intended to signal the beginning of the end of the reporter's privilege, as
Florida state courts have held. On the contrary, Ferguson ruled that the absence of a
confidential source "is irrelevant to the chilling effect enforcement of [reporter]
subpoena[s] would have on information obtained by a journalist in his professional
capacity." Ferguson ordered Kidwell freed while Kidwell's appeals make their way
through the Florida court system. Now Kidwell's appeal is in the Florida Fourth District
Court of Appeal, and could reach the Florida Supreme Court. Meanwhile, Ferguson has
retained jurisdiction over Kidwell's federal action until the appellate process is
completed in the Florida state courts. At that time, if the Florida courts order Kidwell
to complete the 56 days remaining of his sentence, Ferguson will review whether their
decision violates the First Amendment to the United States Constitution. Everyone in
Florida who appreciates good journalism should watch the Kidwell case closely. Kidwell's
jailing and the federal court review it has spawned might lead to the restoration of the
reporter's privilege. Robert Rivas, a Boca Raton lawyer, filed briefs in the Gold Coast
and Kidwell cases on behalf of the Reporters Committee for Freedom of the Press as a
"friend of the court."
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