Volume 21, Number 2
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Mary Gallant, Production Coordinator
- Bobbie Stewart, Production Assistant
- Kelly Kroll, Production 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
Court says sealing
records doesn't require test
records suit to settle fee issue
DCA orders new
trial after article used as evidence
Zile conviction doesn't end
Banker wins $10
million judgment in suit against ABC
Federal judge dismisses
Panel says lawyer could have
Ocoee settles suit over ordinance
Board keeps book in classes,
Annual media-law conference set
Brechner Center awarded grant
Report gets new editor
Judge refuses to stop publication
THE BACK PAGE
not be able to hide their pasts
TALLAHASSEE - Criminal defendants who were not adjudicated guilty
should not have to pass a First Amendment test to get their old court records sealed in
all cases, the Florida Supreme Court ruled.
The Supreme Court said that protecting the public's First
Amendment interest in open court proceedings was important but should be balanced against
other interests, such as the policy of giving people a second chance in cases where a
guilty verdict was withheld. The justices added that trial courts should consider any
constitutional issues that come up in a particular case.
The court's decision struck down a 2nd District Court of Appeal
ruling that required trial courts to apply a three-part test to each request for sealing
records. The 1993 DCA ruling in State of Florida v. P.D.A. said that judges needed
to determine whether sealing the court records would serve a compelling interest; whether
a failure to close the records was likely to harm that interest; and whether closure was
the only way to protect the interest adequately.
The Supreme Court also upheld a state law that requires people
seeking closure of police and other non-judicial records to file a written request with
the Florida Department of Law Enforcement. The FDLE verifies that the person is eligible
to have the records sealed. (State of Florida v. D.H.W., Dec. 19, 1996)
DAYTONA BEACH - The 5th District Court of Appeal ordered a new
trial for a man in Brevard County because the trial judge allowed a newspaper article to
be introduced as evidence without requiring the reporter to testify.
Terry Dollar was convicted for sexual battery on a child and
solicitation to procure a person under age 16 for prostitution. During Dollar's trial,
Judge Alan A. Dickey, 18th Judicial Circuit, allowed the prosecution to enter a Florida
Today article into evidence despite defense objections. The article about Dollar's
arrest included comments attributed to him that the state said constituted admissions of
The Court of Appeal said Judge Dickey was "misled" by
an attorney for Florida Today, who said in a pretrial hearing that the article was
admissible and that the state could not call the reporter as a witness. The judge quashed
a subpoena for the reporter after the hearing.
The appellate court said no reporter's privilege existed in this
situation and that the article by itself constituted hearsay evidence. The article should
have been admitted only if the defense had the opportunity to cross-examine the reporter
about the story's contents, the court said. (Dollar v. State of Florida, No. 95-2537, Dec.
MIAMI - A Dade County prosecutor said the state will continue to
pursue a contempt case against Miami Herald reporter David Kidwell despite the
conviction of the murder defendant Kidwell refused to testify against.
A jury convicted John Zile for the murder of his stepdaughter,
Christina Holt. Kidwell had refused to testify about an interview with Zile and was
sentenced in October to 70 days in jail. A federal judge released him after 15 days
pending an appeal. (Brechner Report, December 1996)
Assistant State Attorney Scott Cupp said the state still had an
interest in making sure witnesses testify when called. (11/20/96)
MIAMI - A federal court jury awarded a South Florida banker $10
million in libel damages over a 20/20 broadcast on ABC that said he misled
Alan Levan, chief executive officer of BankAtlantic in Fort
Lauderdale, sued the network after the 1991 program said he sold investors bonds that ABC
characterized as "junk." Two federal regulatory agencies investigated Levan and
brought no charges, but a civil court jury said Levan was guilty of securities fraud and
awarded $8 million to investors.
However, ABC was not allowed to use evidence about the jury
verdict in the libel trial because Levan settled out of court with the investors on the
condition that the civil trial verdict be vacated. (Brechner Report, November 1996)
Levan said the main issue in the trial was fairness. For example,
his lawyer said an ABC producer met with Levan for five hours and Levan offered to sit for
an on-camera interview after canceling an earlier meeting, but ABC said on the air that he
"wouldn't talk to us." (11/7/96-12/19/96)
LAKELAND - The 2nd District Court of Appeal ruled that a trial
court was hasty when it dismissed a public records suit without determining if the fee
assessed for the records search was reasonable.
Christopher Carden had sued the Clewiston police chief, saying
the chief failed to comply with a public records request. The trial court in Hendry County
denied Carden's petition for a writ of mandamus because the chief had responded to
The Court of Appeal said that while the chief did respond, the
trial court also should have explored the issue of whether the police chief's charge of
$4,000 to search records not on computer was reasonable. The court noted that Section
119.07(1)(b) of Florida Statutes requires that any special charges for records be
"reasonable" and said the chief should be required to explain the cost. The
appeal court ordered the 20th Circuit Court to rehear the case. (Carden v. Clewiston Chief
of Police, Nov. 20, 1996)
BOCA RATON - The state Ethics Commission ruled that it would not
have been a conflict of interest for Florida Atlantic University to hire Florence Snyder
Rivas to teach a media law course, even though her husband was representing the plaintiff
in a suit against the school.
FAU decided not to allow Rivas, a South Florida attorney, to
teach the course in the Fall 1996 semester. FAU said there would be a conflict because her
husband and law partner, Robert Rivas, was representing an FAU professor and former dean
in a public records lawsuit.
Robert Rivas' client, Sandra K. Norton, won her case in
September. She sued after the university president refused to allow her to see documents
related to the spending of a $10 million gift to the university. (Brechner Report,
November 1996) (12/4/96)
OCOEE - The Ocoee City Commission agreed to pay $15,337 in
attorney's fees and costs to resolve a lawsuit over a city ordinance that required
door-to-door canvassers to obtain permits.
Pamela Sue Jones and Marcia Muller challenged the ordinance in
federal court as unconstitutional. Jones, who went door-to-door to share her Christian
faith, and Muller, who distributed free voter information, said the ordinance was vague,
overbroad, and a violation of their rights of free speech and free exercise of religion.
The ordinance made it a crime to sell anything or solicit
donations door-to-door without a permit from the police chief. Permit applications asked
for the applicant's place of residence, recent employment history and physical
description. The chief was required to deny a permit to anyone not of "good moral
Ocoee officials said the law was never intended to affect
political and religious activists such as Jones and Muller, who they said were mistakenly
put through the application process. The city repealed the ordinance in October after
officials gave up trying to rewrite it. (12/18/96)
VERO BEACH - The Indian River County School Board voted to allow
fifth-graders to read an award-winning book despite parental complaints about passages
related to spouse abuse and sex.
The board voted 3-2 to allow Julie of the Wolves, by Jean
Craighead George, to be used at Osceola Magnet School as part of the students' study of
the Arctic. A committee that reviewed the book recommended it be used in classrooms and
kept in the school library.
Parents who object to the book will be able to choose another
FORT LAUDERDALE - A federal judge dismissed a defamation suit
after ruling that the plaintiff, a former radio programming director, was a limited public
figure and had not proved "actual malice."
Gary Bruce sued the Fort Lauderdale Sun-Sentinel and its
TV-radio columnist Tom Jicha for libel. Jicha had written a story about Bruce's firing at
WIOD-AM. Bruce also sued Neil Rogers, a WIOD on-air personality, for slander because
Rogers read the Sun-Sentinel story to his audience.
U.S. District Judge Jose A. Gonzalez Jr., Southern District of
Florida, said Bruce was a limited public figure because of his job deciding what WIOD put
on the air. The judge said Bruce failed to prove that any false statements in the article
were published with knowledge of falsity or a careless and reckless disregard for whether
they were false or not.
Gonzalez also dismissed Bruce's breach-of-contract claim against
WIOD Inc. (10/29/96) (Decisions on File, Bruce v. WIOD Inc., et al., No.
94-6986-CIV-GONZALEZ, Oct. 24, 1996)
Baltimore Sun columnist and author Jack W. Germond and Sam
Reese Sheppard, son of Dr. Sam Sheppard, are among the scheduled speakers at the 23rd
Annual Media-Law Conference set for March 8 in Fort Lauderdale.
The main general session will focus on the moral, ethical and
legal questions the Internet will raise for journalists and lawyers.
Other general sessions will include a look at libel cases from
the plaintiffs' viewpoints and two sessions with Florida Supreme Court justices, one on
electronic access to court information and the other an open question-and-answer session.
Before the libel session, Sheppard will speak about his family's
experiences with the media. Dr. Sam Sheppard was convicted of killing his wife in a
sensational 1954 trial.
The conviction was overturned in a 1966 U.S. Supreme Court
decision, Sheppard v. Maxwell, that sharply criticized the media circus surrounding
the investigation and trial in Ohio. Sam Reese Sheppard is still struggling to clear his
father's name, however.
Conference workshop topics will include publishing on the
Internet, the future of the journalist's privilege in Florida, and the status of the
Public Record and Open Meeting laws.
Registrations for the conference must be postmarked no later than
Feb. 17. Registration information may be obtained by calling Toyca Williams at The Florida
Bar at (904) 561-5766.
GAINESVILLE - The Brechner Center for Freedom of Information has
received a grant to help produce a World Wide Web site for the National Freedom of
Information Coalition. The $5,442 grant was funded by the NFOIC through a grant from the
John S. and James L. Knight Foundation.
The Web site will contain information about state and national
freedom of information laws as well as publications and organizations in each state that
can provide more details. Links will be established to other Web sites devoted to media
The grant will fund a graduate student at the University of
Florida who will work with Joel Campbell, past president of the Utah Foundation for Open
Government, and Dr. Bill F. Chamberlin, director of the Brechner Center, to develop the
Web site. Campbell and Chamberlin are members of the NFOIC executive board.
GAINESVILLE - Anthony L. Fargo, a doctoral student in media law
and policy at the University of Florida College of Journalism and Communications, will
begin serving as editor of The Brechner Report beginning with this issue.
Fargo received his bachelor's degree in English and journalism
from Morehead State University in Morehead, Ky. He received his master of arts in mass
communication with distinction from the UF College of Journalism and Communications.
Before entering UF for his master's degree, Fargo was a reporter
and copy editor at newspapers in Kentucky and Florida. He also was a copy desk chief at The
Fargo plans to focus his doctoral research in the area of First
Amendment theory as it relates to new media.
Fargo succeeds R. Michael Hoefges.
TAMPA - A circuit judge refused to stop The Tampa Tribune
from publishing information it received from a court file in a civil lawsuit.
Judge Manuel Menendez Jr., 13th Judicial Circuit, said it was
unclear whether the judge in the case intended to seal the court file. He noted that the
file in a similar case against the same defendants was sealed.
However, he added that the question was irrelevant because the
defendants in the civil case were seeking an unconstitutional prior restraint on the
Judge Menendez noted that the U.S. Supreme Court has ruled in at
least two cases that a court could not lawfully halt the publication of information
obtained in a judicial proceeding that should have been closed to the public.
The information obtained by the Tribune from the court
file included documents related to a psychiatric evaluation of defendant Gregory Garner.
Statements in the document attributed to Garner indicate he
admitted inappropriately touching minor children while employed at a church day-care
center. The parents of a child who attended the center are suing the church and Garner. (Decisions
on File, L.M. v. First Baptist Church of Tampa/First Baptist Church Daycare and
Gregory Garner, No. 93-8465, Oct. 31, 1996)
Gene Roberts had a dark secret. And he had an obsession with
seeking public office.
In 1996 he announced - for the ninth time - that he would be a
candidate, this time for the Florida House seat representing South Lakeland.
Roberts had never been elected. As the campaign got under way in
mid-summer, it appeared he was getting more support than in years past.
But then The Ledger in Lakeland began reviewing all local
candidates' backgrounds, which included criminal background reports from the Florida
Department of Law Enforcement.
When the Roberts report came back, it showed an arrest in 1994
for disorderly conduct. Yet when The Ledger's editorial page department had asked
all candidates whether they had an arrest record, Roberts returned his questionnaire
A Ledger reporter attempted to get the arrest report from
the police department in Plant City, where the incident occurred. But the reporter was
told that no record existed. Later, a court clerk said the file had been expunged.
In the meantime, Ledger editors asked Roberts in for an
interview to discuss the incident. He obliged, and with his wife at his side, he said he
had had an argument with a male friend and kicked in a door. He said he had no idea where
the person was. And he said he had no idea why the file was unavailable.
Asked why he was deceptive on the questionnaire, he said he made
A news story appeared the week before the first primary election
detailing his version of events. The following week, he posted a strong showing, making it
into the October runoff.
Yet questions persisted: Where were the court files? Did the
records verify his version of the events?
In September, Ledger lawyer Gregg Thomas filed suit in
Hillsborough County Court to gain access to the expunged arrest records. At a hearing
before County Judge William Fuente, Thomas argued that the files should be open based on a
1990 ruling by the Second District Court of Appeal. That ruling outlined the criteria for
opening files, including that "opening the records is in the public interest"
and that there "is no other option other than unsealing records to get the
information to the public."
But the most compelling reason for opening the file, Thomas
argued, was Roberts' candidacy for public office.
Judge Fuente ruled immediately that the file should be made
public. The Ledger had access to it that day. The arrest report and court file
contradicted Roberts' version of events. It showed Roberts asked for the records to be
expunged. It showed the altercation was between him and a female who knew him. It showed
Roberts agreed to an alcohol evaluation because the police officer suspected he had been
drinking the night of the arrest.
The case broke new ground in Florida. For the first time, Thomas
said, a court ruled that an expunged court file of someone seeking public office must be
opened when a showing of "good cause" existed. Here, the "good cause"
was primarily Roberts' decision to become a candidate. The court found that if Roberts was
elected he would represent more than 100,000 citizens in Polk County. Thus the need for
immediate access. (Brechner Report, December 1996)
Three days after The Ledger reported Judge Fuente's ruling
and the contents of the expunged file, Gene Roberts was defeated in the runoff election.
Louis M. "Skip" Perez is executive editor of The
Ledger in Lakeland.
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