Volume 21, Number 3
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 Chamberlin, Ph.D, Director
- Sandra F. Chance, J.D., Asst. Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
Globe returns Ramsey Photos
Judge denies request to kill news story
don't guarantee legislative council meetings will be open
Judge rules in Vero
Beach's favor in meetings suit
Board slammed for secrecy
upholds ruling against city
Ban on tape
board rejects meetings law
law, public record exemptions on agenda
Court actions make
a shield law necessary in Florida
Port St. Lucie
restricts access to city offices, records
records until reasonable-cause decision
released after paper complains
Mazda pays fine
acts during nude dance not protected
Center for 20 years of service
BOCA RATON - The Globe supermarket tabloid returned
crime-scene photos from the JonBenet Ramsey slaying case to officials in Boulder County,
Colo., to settle a lawsuit aimed at stopping further publication of the photos.
The weekly tabloid, which is based in Boca Raton and distributed
nationally, ran five photos from the crime scene in January. In the settlement, the
newspaper agreed to return the originals of the five photos it published and two it did
not. In return, the Boulder County coroner's office agreed to drop the suit and not to
challenge the paper's right to republish copies of the photos it had already used.
Boulder authorities have arrested two men in the sale of the
photos to The Globe for a reported $5,500. A private investigator who went to the
photo lab where coroner's office film was developed and arranged to buy prints of the
photos was charged with obstructing government operations. The photo lab employee who gave
the photos to the investigator was fired and charged with theft, evidence tampering,
obstructing government operations and false reporting to authorities.
JonBenet, 6, who was Little Miss Colorado of 1995, was found
slain in her Boulder home on Dec. 26 after her mother found a ransom note.
FORT MYERS - Judge R. Thomas Corbin, 20th Judicial Circuit,
denied a hospital's request to stop a television station from airing a story.
East Point Hospital Inc. sought an injunction barring WINK-TV
from airing any news program with "known false or misleading facts." WINK
planned to air a story about allegations against the hospital made by former employees in
East Point officials had not seen the story but said a
promotional announcement indicated it would be false. (Decisions on File, East
Point Hospital Inc. v. Fort Myers Broadcasting Co., Case No. CA RTC, Feb. 5, 1997)
GAINESVILLE - Have you written a newspaper or magazine story
about freedom of information, access to government information or the First Amendment? If
so, submit your article or series of articles to this year's Brechner Center for Freedom
of Information Award competition. The winner receives a check for $3,000.
The deadline for the 12th annual Joseph L. Brechner Freedom of
Information Award is March 15, 1997. Send five original tear sheets with a cover letter
explaining the development and impact of the stories.
A national panel of judges will select this year's winner.
Send entries to Sandra F. Chance, Assistant Director, Brechner
Center for Freedom of Information, 3208 Weimer Hall, College of Journalism and
Communications, University of Florida, Gainesville, FL 32611.
TALLAHASSEE - New Florida House rules do not require that
meetings of powerful "policy councils" must be open.
However, the vice chairman of the House rules committee said
Republican leaders intend for all meetings to be open to the public.
Rep. John Thrasher, R-Orange Park, said the omission of language
keeping policy council meetings open was "probably an oversight." He promised
that the problem would be corrected before the rules are readopted on March 4, the first
day of the 1997 session.
The House adopted new rules after Republicans took control of the
chamber in the November 1996 election. House Speaker Daniel Webster, R-Orlando, has
promised that all of the House's proceedings will be open to the public.
The policy councils decide if and when a bill will make it to the
House floor. (1/28/97)
VERO BEACH - A circuit judge ruled that city leaders did not
violate the Open Meetings Law when they met in closed sessions to discuss issues related
to Piper Aircraft's bankruptcy.
Local real estate agent Frank Zorc sued the city after the
council met in executive session in spring 1995. Zorc leased land at the Vero Beach
Municipal Airport that was contaminated by a chemical spill.
City officials said they met to discuss legal strategy concerning
a consent decree between Piper and the Environmental Protection Agency. The decree
concerned the 1978 leak of a suspected carcinogen on airport grounds. The decree was later
approved by the Bankruptcy Court judge handling the aircraft manufacturer's bankruptcy
Zorc said the council's discussion went beyond the consent decree
and that he was mentioned by name 13 times at one meeting. He wanted the court to force
the council to include test wells for his property as part of the decree. Zorc said
potential investors in his Vero Airport Trade Center project had trouble getting loans
because of the leak. (Brechner Report, August 1995)
Judge Robert Makemson, 19th Judicial Circuit, said there was no
evidence the city discussed anything other than a settlement with Piper at meetings on
March 6 and May 9, 1995. Makemson also said that if any Open Meetings Law violations did
occur, a public meeting on June 21 "was a cure" for any violation.
At a meeting after the judge's ruling, City Council members voted
unanimously to seek attorney's fees and court costs from Zorc, who said he planned to
appeal Makemson's ruling.
A grand jury in 1995 refused to indict City Council members and
the State Attorney's Office decided not to take action on Zorc's complaint last year. (Brechner
Report, December 1996)(1/14/97-1/22/97)
TAMPA - Tampa General Hospital trustees have drawn criticism for
meeting secretly to discuss strategic planning, including one occasion in which the board
decided not to sell the hospital.
Attorneys for the St. Petersburg Times and The Tampa
Tribune have questioned the public hospital board's use of an Open Meetings Law
exemption for strategic planning to close half a dozen meetings since September. The
newspapers say the board is interpreting the exemption too broadly.
After the media raised questions about whether the board was
considering selling the hospital, the trustees met secretly again and decided the hospital
was not for sale. An announcement of the decision referred to a vote, although one trustee
later said the decision was the result of an informal consensus.
The exemption for strategic-planning meetings was declared
unconstitutional by a judge in Volusia County in November 1996. (Brechner Report,
January 1997) An appeal is pending. (1/16/97-1/18/97)
TALLAHASSEE - The 1st District Court of Appeal upheld a circuit
judge's order that Fernandina Beach release tapes and transcripts from a 1995 City
Commission executive session.
Tom Northey, a Fernandina Beach resident, sued after a
closed-door meeting called to discuss pending litigation arising out of the city manager's
firing. Northey said he learned that city commissioners also were going to discuss hiring
the manager's replacement.
A circuit judge ruled in Northey's favor and ordered the city to
release tapes and transcripts of the closed-door meeting, but the city appealed the
BONIFAY - A taxpayer-funded non-profit organization backed down
from a ban on tape recorders at its board meetings after a newspaper complained.
Byron Biddle, executive director of the Tri-County Community
Council, told the Holmes County Advertiser in January that a new policy banned
recording devices at meetings. The newspaper sought legal guidance and told the council it
would not abide by the policy.
Two days after his first letter, Biddle reversed himself and said
the newspaper would be allowed to tape the meetings.
The Attorney General's Office has stated that public boards may
not prohibit the use of silent recording devices at public meetings. (1/15/97)
TAMARAC - The board of a homeowners association for a South
Florida community voted not to abide by the state's Open Meetings Law.
Bill Tyson, a board member for First Wellington Inc., the master
homeowners association for the community, proposed adopting a statement promising to abide
by the law in hopes of attracting more public interest in the board.
But other members said the Open Meetings Law would impede the
board's efficiency and make them afraid to talk to each other on the street.
Homeowners associations generally are not covered under the state
Open Meetings Law because they are private organizations. (12/25/96)
TALLAHASSEE - Florida legislators will be debating a number of
bills that affect freedom of information and other media-law issues when the 1997 session
Below is a listing of bills filed through Feb. 7 that affect
public-record and open-meeting laws and other First Amendment issues (chief sponsors are
in parentheses). Bill information was obtained from the Florida Legislature's World Wide
Web site. The site has the full text of bills and information about sponsors, committee
referrals and bill status. The site is at http://www.leg.state.fl.us/
HB 39 (Stabins, R-Spring Hill) - Requires circuit court
clerks to set the fee for photocopying records not recorded in official record books in
accordance with the Public Records Law (15 cents per page for a document 14 by 8.5 inches
or smaller and the actual cost of duplication for other documents).
HB 49 (Albright, R-Ocala) - Deletes language in Florida
Statutes preventing law-enforcement agencies from notifying a community about the presence
of a sexual offender. Requires notification of a community in cases where a "sexual
predator" has been released from custody.
HB 71 (Rojas, R-Hialeah, and Diaz de la Portilla,
R-Weschester) and SB 304 (Sullivan, R-Seminole) - Creates a limited journalist's
privilege not to disclose the identity of a confidential source or information the
journalist has agreed to keep confidential. (Related story, page 4)
HB 75 (Crow, R-Dunedin) and SB 120 (Crist, R-St.
Petersburg) - Requires political advertisements to include information about whether or
not they have been approved by the candidates. Requires political phone pollsters and
solicitors to identify who they work for and makes it a crime to lie about that
information. Requires that a campaign message accessible by computer must include the same
information required of political ads.
HB 95 (Heyman, D-North Miami Beach) and SB 394
(Grant, R. Tampa) - Exempts from the Public Records Law personal identifying information
in Department of Highway Safety and Motor Vehicles records upon the request of the subject
of the records. Provides exceptions.
HB 99 (Miller, D-Tampa) and SB 450 (Grant, R-Tampa)
- Creates an exemption from the Public Records Law for certain proposals and
counter-proposals exchanged between deepwater ports and non-governmental parties relating
to the sale, use or lease of land or port facilities. Sets a time limit for
HB 181 (Greene, D-West Palm Beach) and SB 174
(Rossin, D-West Palm Beach) - Exempts from the Public Records Law any information held by
government agencies or businesses about a crime victim or witness, his or her family and
relocation sites connected to victim and witness protection programs.
HB 187 (Effman, D-Miami) - Requires sheriffs to place an
advertisement in a newspaper each month identifying sexual predators released from prison
in the last 30 days and their most recent local addresses.
HB 243 (Goode, D-Melbourne) - Makes it a felony for a
political candidate to lie about a material fact about an opposing candidate.
HB 281 (Carlton, R-Osprey) - Requires sponsors of
political telephone polls or solicitations to be identified during each call.
HB 313 (Maygarden, R-Pensacola) and SB 214
(Latvala, R-Palm Harbor) - Prohibits local governments from owning or controlling a
telecommunications company or providing telecommunications services except through a
corporation that is not exempt from taxes and fees.
HB 327 (Rojas, R-Hialeah) - Authorizes local governments
to prohibit graffiti and to pass anti-graffiti ordinances that provide for higher
penalties than those provided by state statutes.
HB 403 (Lynn, R-Ormond Beach) - Creates an exemption from
public records requirements for information about drug tests that would be required of
applicants and participants in certain public assistance programs if HB 401, which
requires the testing, is approved.
HB 461 (Thrasher, R-Orange Park) - Amends Florida Statute
limitations on the amount of campaign contributions. Makes numerous changes to other
SB 98 (Williams, D-Live Oak) - Allows signs without
permits for small businesses at road junctions with the state highway system if a hardship
exists because the business cannot be seen from the junction. Sets size limit.
SB 220 (Kirkpatrick, D-Gainesville) - Creates the Florida
Information Council to establish ways to format, enhance and provide information to the
public. Authorizes the council to work with state agencies, local governments and other
public and private agencies to deliver specialized electronic information services for a
fee. Authorizes the council to establish public access outlets for government information.
SB 240 (Forman, D-Hollywood) - Exempts from the Public
Records Law certain personal, medical and financial information furnished by individuals
to agencies in connection with housing assistance programs.
SB 308 (Gutman, R-Miami) - Allows certain law enforcement
officers to intercept a wire, oral or electronic communication without a court order under
certain emergency situations.
SB 354 (Hargrett, D-Tampa) - Exempts from the Public
Records Law personal information and photos of people who the state has licensed to be
family foster parents, as well as their spouses, children and other household members.
SB 364 (Brown-Waite, R-Brooksville) - Exempts from the
Public Records Law any information that would identify a subscriber to the Statewide
Provider and Subscriber Assistance Program, his or her relatives, or a guardian. Exempts
meetings of the program's review panel if sensitive or personal information will be
reviewed in connection with a grievance.
SB 404 (Dudley, R-Cape Coral) - Clarifies that the term
"telecommunications services" for gross receipt tax purposes does not refer to
the providing of access to the Internet or electronic mail.
SB 414 (Scott, R-Fort Lauderdale) - Prohibits any
municipal, gross receipts, or sales tax on any Internet access, electronic mail,
electronic bulletin board, or computer exchange service.
SJR 110 (Rossin, D-West Palm Beach) -- Proposes amendments
to the Florida Constitution prohibiting a candidate for the Legislature from soliciting or
accepting campaign contributions more than one year before the general election. Increases
length of legislators' terms in office and sets term limit of 12 years for representatives
One of the most important bills legislators will consider during
the upcoming session is the "Shield Law." The proposed legislation would
"shield" journalists from subpoenas and would protect them from being forced to
testify regarding their news-gathering activities.
Because many of the courts in Florida seem to have abandoned the
fundamental principles that safeguard freedom of the press, many members of the state's
media now believe a shield law is the only way to guarantee a free and independent press.
House Bill 71, introduced by Reps. Luis Rojas, R-Hialeah, and
Alex Diaz de la Portilla, R-Weschester, would give reporters the absolute right to keep
their sources confidential in civil cases. The same bill was introduced in the Senate by
Don Sullivan, R-Seminole.
In addition to the absolute privilege in civil actions, reporters
would have a qualified privilege that would protect them from revealing confidential
sources in criminal cases. Reporters who witness crimes still would have to testify, but
not just to help officials plug a leak.
These privileges for journalists and their sources protect the
public's right to know. Reporters depend on people to help ferret out information about
public corruption, government waste and incompetence. Without protection, these sources
will be reluctant to come forward and valuable information may be lost.
Tragically, the First Amendment has taken a back seat in Florida
courts. Recent Florida Supreme Court holdings have limited the constitutional protections
and lower court rulings have all but eviscerated the privilege. Judges are now jailing
reporters for doing their jobs.
In 1993, Tim Roche, then with The Stuart News, spent 18
days in jail for refusing to disclose a confidential source. His case prompted legislators
to pass a shield law four years ago, but Gov. Lawton Chiles vetoed it.
In October 1996, David Kidwell, a Miami Herald reporter,
was jailed for refusing to answer questions about his jailhouse interview with child
murder suspect John Zile. Kidwell was sentenced to 70 days in jail. He served two weeks
before he was released after a federal court hearing. His case is on appeal.
In addition to facing the real possibility of jail, Florida
reporters have been the targets of hundreds of subpoenas in recent years. A survey
conducted by the Brechner Center for Freedom of Information found a dramatic increase in
the number of subpoenas after the 1990 Florida Supreme Court decision in Miami Herald
In Morejon, the Court upheld a lower court ruling that the
reporter's privilege did not insulate a journalist from testifying if the reporter was an
"eyewitness to a relevant event." The problem is, of course, that reporters are
always witnesses to relevant events. It's their job.
The legislative initiative, supported by the Florida Society of
Newspaper Editors and the Florida Press Association, is the result of an uneasy alliance
between the media and the Legislature.
Many journalists have been reluctant to ask the Legislature and
governor to grant protection that they believe already exists under the First Amendment.
Some quote the adage, "What the Legislature giveth, the Legislature can taketh
Nevertheless, the relationship between a reporter and source is
so important to the free flow of information that 29 states and the District of Columbia
have similar statutes.
Journalists cannot and should not become extensions of the
prosecutor's office, the police or any other agency.
Unfortunately, journalists can no longer depend on judges to
protect them from the role of "unpaid investigator." Maybe this legislation
Sandra F. Chance is assistant director of the Brechner Center
and an assistant professor of journalism at the University of Florida.
Port St. Lucie restricts
access to city offices, records
PORT ST. LUCIE - The City Council voted to limit access to city
administrators' offices and to public records.
The third floor of the Police Administration Building, where most
city administrative offices are located, will be closed to public access. The city planned
to install a security door with a cardkey system and bulletproof glass around the front
desk. Anyone wanting to see an official would have to state his or her business and be
The council also approved putting a sign in the city clerk's
office telling the public that the number of records requests made close to 5 p.m. would
The moves were in response to what City Manager Don Cooper called
"bizarre behavior" by vocal opponents of city government, including threats and
excessive public records requests. City Attorney Roger Orr said one person put in seven
public records requests for the same document, then filed requests for copies of the
requests. Orr said the person, whom he didn't name, ignored the documents when the clerk
produced them. (1/10/97)
TALLAHASSEE - A discrimination complaint does not become a public
record until it is determined whether reasonable cause exists to believe it is valid,
Attorney General Bob Butterworth said.
Butterworth, in an advisory legal opinion, also suggested that
the Metropolitan Dade County Equal Opportunity Board revamp its procedures to get reports
on the complaints to the parties involved immediately after a reasonable-cause
determination is made.
The Equal Opportunity Board is a unit of local government that
deals with discrimination complaints.
The board's director investigates discrimination complaints and
determines whether reasonable cause exists. The director then prepares a report on the
complaint, which becomes final 10 to 20 days after it is written, after which it is served
to both the complainant and the respondent.
A person seeking records from the board said the complaints
should become public records when the board receives them. But Butterworth said the
exemption for discrimination complaints, contained in section 119.07(3)(p) of Florida
Statutes, meant that the complaint becomes a public record as soon as the director's
report is written. He suggested the board deliver the copies to the parties immediately,
rather than waiting. (Decisions on File, Fla. Atty. Gen. Op. 96-93, Nov. 14, 1996)
TARPON SPRINGS - A letter that the city tried to keep secret was
released after a local newspaper complained. The letter indicated that the city was
considering selling its interest in a local hospital.
The Suncoast News threatened to go to court to gain access
to the letter after City Attorney John Hubbard told the city manager not to release it.
Hubbard said the letter was exempt from the state Public Records Law because it dealt with
a matter discussed during a closed City Commission session. He later agreed that the
letter should be released after discussions with the newspaper's attorney. State law
defines letters related to the official business of a public agency as public records.
The letter writer, whose identity could not be verified by the
city or the newspaper, was opposed to the possible sale of the city's interest in Helen
Ellis Memorial Hospital for $30 million. The letter said the sale was discussed during a
City Commission executive session.
A confidential source told The Suncoast News that the
letter was substantially correct. Voters in a 1995 referendum rejected the idea of the
city selling its interest. (12/7/96)
MIAMI - Mazda Motor Co. agreed to pay $875,500 in fines to
Florida and 23 other states to settle charges that it misled consumers about leases.
Florida's share is $42,500.
Florida and the other states complained that Mazda ads for
"zero down" and "penny down" auto leases did not clearly disclose that
a person would have to pay $900 in up-front fees to drive away from the dealership. State
Attorney General Bob Butterworth said Mazda "buried" the fee information in its
acts during nude dance not protected
WEST PALM BEACH - The 4th District Court of Appeal reinstated
criminal charges against two exotic dancers and overturned a circuit court decision that
said their erotic performance was protected by the First Amendment.
The women were charged with engaging in lewd acts after an
undercover police officer said they performed sex acts on each other during a private
performance at a Broward County club.
A circuit judge dismissed charges against the women, saying the
erotic performance was protected by the First Amendment, that the law under which they
were charged was vague and overbroad, and that their privacy had been violated.
Section 796.07(2)(e) of Florida Statutes says it is unlawful
"to offer to commit, or to commit, or to engage in, prostitution, lewdness, or
assignation." The statute defines lewdness as "any indecent or obscene
The Court of Appeal said that while the U.S. Supreme Court had
ruled that nude dancing was protected expression, acts committed during a dance could
still be punished.
The judges also upheld the statute's language and rejected the
privacy argument, saying the women had no reasonable expectation of privacy. (State v.
Conforti and Urbano, Case Nos. 95-0299 and 95-1299, Jan. 8, 1997)
This year marks the 20th anniversary of freedom-of-information
activities at the University of Florida's College of Journalism and Communications. These
activities began as the Florida FOI Clearing House at the request of the Florida Society
of Newspaper Editors. The Clearing House thrived under the direction of Professor Jo Anne
Smith and through the fund-raising effectiveness of the college's dean from 1976-1994,
Dean Lowenstein appealed to newspaper publishers and editors,
broadcasters and attorneys throughout Florida for donations to fund the queries and the
original newsletter, the forerunner of The Brechner Report. From those modest
beginnings to today's Brechner Center for Freedom of Information, issues of access to
public information have played an important role in the educational mission of the College
of Journalism and Communications.
How could it be otherwise? The First Amendment is the foundation
for education in journalism and communications. The two precious freedoms of speech and
the press, which the First Amendment guarantees, would be incomplete without the public's
ability to gain access to information they need to make sense of their worlds.
Walter Lippmann wrote long ago that reliable information was
essential for people to govern themselves. He knew it was difficult to get such
information. He knew, too, that without reliable information, "violent prejudice,
apathy, preference for the curious trivial as against the dull important, and the hunger
for sideshows and three-legged calves" would win over democracy.
For journalists to do their jobs of providing reliable
information, they must have access to persons and places where such information
circulates, especially those persons and places whose functions directly affect our
abilities to govern ourselves. Not every public official readily assumes that his/her
meetings, letters, memos - or even arrest record - should be open to journalists. And
journalists sometimes have to become pushy and feisty, even obnoxious, about their rights
to public information. What better way to teach future journalists and other
communications professionals the nuances of this role than to have in their midst a center
whose job is to remind us all, as Florida Attorney General Bob Butterworth said in this
space in January, "The right to know is the cornerstone of our democracy. ..."
That's what this college has been doing in a very forceful and
visible way for 20 years. First under the name "Florida Freedom of Information
Clearing House" and, since 1986, under the name of one of its earliest and strongest
supporters, the Joseph L. Brechner Center for Freedom of Information is a living example
to current students of the central importance of access to getting the story right.
The query service, The Brechner Report and other Center
publications also show students in a very visible way that this college takes seriously
its mission to provide service to the professional communities of journalists and lawyers
who are the principal customers of these services.
Finally, particularly because it is housed in a major research
university, the Brechner Center sponsors research designed to produce new knowledge and
understanding about freedom of information issues. Doing such research is a necessary
element in the growth of freedom of information.
Thus, the Center embodies the teaching, research and service
functions that are the foundation of all major land-grant universities in the United
In the midst of the constant struggle to keep public information
available to the public, we are proud to take time out this year to salute the Brechner
Center's 20 years of contributions to the goal of continued access to public information.
Terry Hynes is the dean of the College of Journalism and
Communications at the University of Florida.
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