The Brechner Report
Volume 21, Number 4
April 1997

A monthly report by:

• 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

Table of Contents

ACCESS RECORDS
Judge releases youth's juvenile court records
Papers can see taped interrogations
Agencies try to make it easier to check up on doctors
Harbor pilot's records are public, AGO says
Fort Pierce pays newspaper $15,000 to settle dispute
Judge tells Port Richey to release petition or say why not
DCA says official's financial records open
Suit claims code book costs too much
Sex offender information can be released, AGO says

PRIOR RESTRAINT
Paper wins reversal of judge's order not to use info
Patient-records order rescinded by judge

ACCESS MEETINGS
Secret settlement not a violation
Miramar fails to settle suit by official
Meetings law violation 'inadvertent'

COURTS
Judge refuses to close murder trial to protect witnesses
Traffic citation a record under forgery law

FIRST AMENDMENT
Bankruptcy judge says newspaper can reject doctor's ads

LIBEL
DCA upholds suit dismissal

REPORTER'S PRIVILEGE
Polk judge quashes subpoena
Judge turns down Kidwell deal

STUDENT PRESS
University removes paper's editor, advisor over photos

THE BACK PAGE
Brechner Center activities will mark 20th Anniversary

Judge releases youth's juvenile court records

ST. PETERSBURG - A judge ordered the release of most of the juvenile court records of Tyron Lewis, an African-American youth who was shot to death by a white police officer during a traffic stop in October 1996, sparking rioting in south St. Petersburg.

Judge Dee Anna Farnell, 6th Judicial Circuit Juvenile Division, said that state law has generally required that juvenile court records be private, but they may be inspected by anyone demonstrating to the court a "proper interest" in seeing them.

Judge Farnell noted that the Legislature passed laws in 1994 and 1996 that established a public right to learn about juveniles accused of serious offenses. However, she said, Florida Statutes have not made it completely clear what circumstances end privacy protection for juvenile court records.

In this case, the judge said, Lewis' death meant that his privacy interests no longer needed protection, but the privacy rights of his family still had to be considered. Judge Farnell said that after weighing the privacy rights of Lewis' family against the right of the public to know the facts concerning Lewis, she determined that "the greater good" to the community would be served by releasing the records.

She said she hoped that making Lewis' juvenile court records public would allow the community to "begin to heal" and would help improve the juvenile justice system.

The judge, whose order was in response to a motion from the St. Petersburg Times to unseal the records, also challenged the Legislature to study further the issue of confidentiality for juvenile records. (Decisions on File, In the Interest of Tyron M. Lewis, Juvenile Court No. 00641394, Feb. 10, 1997)

Papers can see taped interrogations

TAVARES - A judge agreed to allow two newspapers to see portions of videotaped statements made by teenagers charged with killing a Eustis couple to help their daughter run away from home.

Judge Mark Hill, 5th Judicial Circuit, said The Orlando Sentinel and the Ocala Star-Banner could see edited versions of tapes of police interrogations of the four suspects. Hill said the papers also could see portions of a taped interrogation of the victims' daughter, who was cleared of involvement in the slayings.

Defense attorneys argued that release of the tapes could hurt their clients' chances of a fair trial.

Hill set a hearing on what parts of the tapes to release. (1/31/97-2/9/97)

Paper wins reversal of judge's order not to use info

TAMPA - A judge rescinded an order prohibiting The Tampa Tribune from publishing information it obtained about a child abuse suspect's juvenile delinquency file.

Judge Perry A. Little, 13th Judicial Circuit, said he determined his earlier order telling the Tribune not to publish the information was "unenforceable" after reading case law and consulting with the state Attorney General's Office.

The newspaper obtained the juvenile delinquency file of Eric Shumpert after another judge gave the paper permission to see the file.

Shumpert, 20, and his girlfriend, Tammy Kidder, 21, are charged with willful torture and aggravated child abuse of their 2-year-old son. The boy recently had been returned to the couple by the state Department of Children and Families.

After the Tribune printed a story about the contents of Shumpert's juvenile file despite Little's original order, Shumpert's attorney asked Little to find the newspaper in contempt of court.

The attorney dropped the motion after Little lifted his first order. (2/1/97-2/8/97)

Patient-records order rescinded by judge

ORLANDO - A judge reversed himself within days after ordering three Orlando television stations not to broadcast patient information from a Kissimmee psychiatric hospital.

Charter Hospital Orlando South sued WFTV, WESH and WCPX and Jose Proenza-Sanfiel, a nurse who said he found the information on a used computer he bought. He gave the information to the television stations and offered to sell it back to the hospital.

Judge John H. Adams Sr., 9th Judicial Circuit, ordered the stations and Proenza-Sanfiel not to release any of the patient information. After the stations protested, citing First Amendment concerns, Adams reversed his order regarding the stations. The order remains in effect for Proenza-Sanfiel. (1/29/7-2/16/97)

Secret settlement not a violation

TAVARES - An assistant state attorney said the Lake County School Board did not violate the state Open Meetings Law when it agreed to settle a lawsuit in a closed meeting.

However, Ric Ridgway, 5th Judicial Circuit, said the board may have committed a "technical violation" when it did not finalize the settlement in a public meeting.

The board voted to pay $37,500 to settle the suit, which was brought by a mother whose daughter said she was raped in a storage closet at Tavares Middle School by another student.

The mother claimed her daughter and the other students were not adequately supervised.

Cecelia Bonifay, the school board's attorney, denied that the board did anything wrong. (1/31/97)

Miramar fails to settle suit by official

MIRAMAR - The City Commission could not agree on settling a lawsuit filed by one of its members, who claimed the city violated the Open Meetings Law.

Commissioners deadlocked 2-2 on whether to pay Commissioner Dan Lewis $5,000 in legal expenses to settle the suit he filed in April 1996. Lewis did not vote.

Lewis' suit claims that the city manager and the Development Review Committee violated the Open Meetings Law. His lawsuit grew out of a City Commission decision to give final site-plan approval on new residential and commercial developments to the committee, which consists of eight city staff members. The City Commission had approved final site plans in the past.

City officials have maintained that meetings of the committee already are open and no laws are being violated. (4/18/96-1/26/97)

Meetings law violation 'inadvertent'

FORT LAUDERDALE - A deputy attorney for Broward County said officials "inadvertently" violated the state Open Meetings Law by rescheduling a meeting without proper notice.

Officials with the county's aviation department and an Americans with Disabilities Act compliance office were scheduled to meet on a Thursday. They moved the meeting to Wednesday without advertising the change.

Two advocates for the disabled who had planned to attend the meeting complained to the County Attorney's Office. Deputy County Attorney Larry Lymas-Johnson told the officials that they would have to void any action taken at the meeting and hold the meeting again.

The officials discussed a contract with a company that is studying ways to make Fort Lauderdale-Hollywood International Airport more accessible. (2/1/97)

Agencies try to make it easier to check up on doctors

TALLAHASSEE - Two state agencies are trying to make it easier to find out if a doctor or hospital has a history of malpractice insurance claims or serious complaints.

The state Insurance Department created a World Wide Web site listing closed-case claim forms filed against doctors since the early 1980s.

The list will include claims payments for awards in malpractice suits and out-of-court settlements.

The address for the site is http://199.44.3.250/index.htm

The Agency for Health Care Administration is publishing a book that will list the names of physicians who have paid more than three claims in the past five years and physicians who have been disciplined by their state governing boards, health maintenance organizations or hospitals in the past five years. The book will be available at AHCA offices and libraries, and the agency also hopes to put the information on the Web.

Spokeswomen for both of the agencies said the information has been available in public records but often was hard to find. (1/3/97)

Harbor pilot's records are public, AGO says

TALLAHASSEE - Financial information submitted by harbor pilots in support of a rate increase for their work is not exempt from the Public Records Law, Attorney General Bob Butterworth said.

In an advisory opinion, Butterworth said that a section of Florida Statutes that requires the Department of Business Regulation to keep financial information supplied by harbor pilots confidential applied only to information submitted in license and license-renewal applications.

The Pilotage Rate Review Board had received an application for a rate increase from harbor pilots in Jacksonville.

The pilots had requested that financial information submitted with the application be kept confidential.

Butterworth said that keeping the information confidential would be unfair to interested parties who wanted to respond to or participate in a hearing about the rate change request. (Decisions on File, Fla. Atty. Gen. Op. 96-96, Dec. 13, 1996)

Fort Pierce pays newspaper $15,000 to settle dispute

FORT PIERCE - The city and a local newspaper settled a public records dispute spanning one year. The city agreed to pay $15,000 to cover part of the paper's legal expenses but did not admit any wrongdoing.

The dispute began in January 1996 when a reporter for The Stuart News/Port St. Lucie News found a document at Fort Pierce City Hall discussing the Main Street redevelopment agency's plan to buy a theater. City Manager Dennis Beach tried to stop the newspaper from printing the story, saying the sale was being negotiated.

After the newspaper ran the story anyway, Beach wrote a memo to the city staff saying that Amy Rippel, the reporter who found the document, could not view public documents without a written application, an appointment and Beach's approval. The city also began charging the News 10 cents more a copy for public records than it charged other newspapers. (2/14/97)

Judge tells Port Richey to release petition or say why not

PORT RICHEY - Judge Wayne Cobb, 6th Judicial Circuit, gave the city 20 days to release a petition it received or explain in court why the petition, which opposes the merger of Port Richey with New Port Richey, is not a public record.

John King, a vocal critic of city government, filed a complaint in Circuit Court after a city public works employee who organized the petition drive gave copies of the petition to the media but refused to give one to King.

City officials had claimed that the petition contained the names of 477 registered Port Richey voters who were opposed to the proposed merger. However, the St. Petersburg Times checked a cross-section of the names and found that only 60 percent could be verified as belonging to city voters.

Vice Mayor Patricia Guttman mentioned the petition at a meeting with the county's legislative delegation, saying it was proof that Port Richey voters opposed the merger. However, she, City Manager Vince Lupo, and City Attorney Paul Marino all said they had not kept a copy.

The city employee who organized the petition drive, Herbert Schmitt, at first refused to let the media see the petition, saying it was not a public record. He later released a copy to the media but not to King, who suggested that the city was trying to keep the petition secret because it did not confirm Guttman's statement to the legislative delegation.

Florida's Public Records Law defines a public record as any material made or received "pursuant to law or ordinance or in connection with the transaction of official business by any agency." (1/30/97-2/8/97)

DCA says official's financial records open

MIAMI - The personal financial records of the Dade County Housing Finance Authority chairman, submitted to a state agency as part of the authority's application to open a bank, are not exempt from disclosure, the 3rd District Court of Appeal ruled.

Milton J. Wallace, chairman of the authority, sought to keep his financial records confidential.

Leo Guzman, a Miami investment banker, sued for release of the records after he was removed from a list of underwriters that Dade County planned to use for a $450 million bond issue. However, Guzman said he was motivated by an interest in protecting taxpayer money. Wallace and other members of the housing authority submitted personal financial information to the state Department of Banking and Finance, which is reviewing the authority's application to set up a state-chartered savings bank.

The authority's purpose is to provide affordable housing loans to qualified residents.

The Court of Appeal said that nothing in state law or in the federal Freedom of Information Act made the records exempt from disclosure. (9/17/96-2/7/97)

Suit claims code book costs too much

MIAMI - A Dade County man has filed a class-action suit against the county over the $100 charge for a copy of the South Florida Building Code.

Bill Stroop says the price charged by the Building Code Compliance Office is more than the actual cost of duplicating the material. But Charlie Danger, Dade County's chief of code compliance, said the price was a bargain when one factored in the research and the time and effort it took to put the book together. The code book is 3.5 inches thick. (1/17/97)

Sex offender information can be released, AGO says

TALLAHASSEE - A law enforcement agency may release records pertaining to sexual offenders even if no one has requested the information, the Florida Attorney General's Office said.

Responding to a question from James T. Moore, commissioner of the Florida Department of Law Enforcement, Attorney General Bob Butterworth said in an advisory opinion that Florida Statutes did not prohibit the release of information about sexual offenders.

State law was revised in 1996 to require the FDLE and other law enforcement agencies to notify a community and the public of the presence of a sexual predator, defined as a sexual offender who had repeat convictions, used violence or targeted children.

However, the statute said that the FDLE and other agencies were not authorized to notify the community and public about the presence of other sexual offenders.

Butterworth said that the legislative record and the Public Records Law indicated that the Legislature did not intend to prohibit the release of information about sexual offenders, with or without a request, as long as the information was not exempt from disclosure under other statutes.

A bill pending before the Legislature would remove the language from the statute that appeared to prohibit the release of sexual offender information. (Brechner Report, March 1997) (Decisions on File, Fla. Atty. Gen. Op. 97-09, Feb. 10, 1997)

Judge refuses to close murder trial to protect witnesses

DAYTONA BEACH - A judge refused to close part of a murder trial to the press and public after the defense attorney said some witnesses were reluctant to testify in open court.

Judge S. James Foxman, 7th Judicial Circuit, told Assistant Public Defender Larry Powers there were less restrictive means to protect the defendant's right to a fair trial than closing the courtroom or gagging the press. Judge Foxman told Powers to subpoena the three men, who could then be charged with contempt of court for failing to appear.

Powers' client, Jofre W. Miller, 17, is accused of armed robbery and murder in the death of state probation officer Floyd Merritt Jr. Police said Merritt picked up Miller in a gay nightclub in Daytona Beach. Merritt was later found stabbed to death in Ormond Beach.

The three reluctant witnesses are either homosexual or work in nightclubs that cater to homosexuals, Powers said. He said he feared the men would leave the area rather than testify openly and possibly face public ridicule.

He said at least one of the witnesses could corroborate Miller's story that Merritt went with him to Ormond Beach willingly. (2/4/97)

Traffic citation a record under forgery law

DAYTONA BEACH - A statute that makes it a crime to forge a public record applies to traffic citations, the 5th District Court of Appeal ruled.

The court said Circuit Judge Thomas D. Sawaya, 5th Judicial Circuit, was correct when he refused to dismiss charges of forging a traffic citation.

Mary Washington signed a fictitious name to two traffic citations after being stopped for a traffic violation.

She said that section 831.01 of Florida Statutes, which makes it a crime to forge a public record, did not apply to traffic citations.

The Court of Appeal said that in a case involving a motor vehicle certificate of title, the 3rd District Court of Appeal held that the title was a public record. The court said a traffic citation fits the same principle. (Mary Washington v. State of Florida, Case No. 96-1542, Jan. 3, 1997)

Bankruptcy judge says newspaper can reject doctor's ads

TAMPA - A federal bankruptcy judge ruled that the St. Petersburg Times does not have to accept advertising from an orthopedist who is suing the paper for defamation.

Dr. Alfred O. Bonati of Pasco County sued the newspaper in U.S. Bankruptcy Court, saying the Times was retaliating against him for his defamation suit.

He said the paper also was violating federal bankruptcy law by trying to force him to pay advertising debts he incurred before he filed for bankruptcy.

Chief Bankruptcy Judge Alexander L. Paskay, Middle District of Florida, said federal case law made it clear that the government could not force the Times to publish anything it did not want to.

Bonati filed a $300 million defamation suit against the Times in 1992 after the paper ran a story about his medical practice. The suit is still pending.

Bonati filed for bankruptcy protection later after an ex-patient was awarded $3.5 million in a suit against him. However, a U.S. magistrate threw out $2 million of the award. (2/5/97)

DCA upholds suit dismissal

WEST PALM BEACH - Corrections officers at a jail are public officials for the purpose of determining the burden of proof needed in a libel suit, the 4th District Court of Appeal said.

Seven corrections officers sued the Fort Lauderdale Sun-Sentinel, WSVN-TV, two newspaper reporters, a television reporter, four sheriff's officers and a lawyer. The lawsuits, which were consolidated on appeal, arose out of stories about an investigation into the beating of inmates by corrections officers in Broward County. A sheriff's committee recommended firing 10 officers suspected of participating in two inmate beatings in 1993, but no one was ever fired because it could not be determined who actually participated in the beatings.

A trial judge granted summary judgment to the defendants and dismissed the suit.

The appeal court said the trial judge was correct in ruling that corrections officers perform a function similar to that of police officers, who the courts have determined are public officials.

The court also rejected the officers' other claims. (2/12/97-2/25/97)

Polk judge quashes subpoena

BARTOW - A judge agreed to quash a subpoena for a newspaper reporter, but left open the possibility that she could be subpoenaed later.

Jennifer Ellis, a reporter for The News Chief in Winter Haven, wrote a series of stories after a Lake Wales physician was charged with battery and exposing a sex organ. The stories quoted police records and alleged victims, some of whom spoke to Ellis only on condition of anonymity.

The physician, Nicolas Alfonso, subpoenaed Ellis to testify in a deposition about where she got her information. Judge Ronald A. Herring, 10th Judicial Circuit, said that because the information sought was confidential, the reporter's qualified privilege applied. Judge Herring said that Alfonso had not satisfied the three-part test formulated in Tribune Co. v. Green in 1983 to overcome the privilege.

However, Herring said that Alfonso could subpoena Ellis in the future if he could meet the conditions of the Green test.

The 2nd District Court of Appeal in the Green case said that a party subpoenaing a reporter to testify had to show that the information sought was relevant to the case, that it could not be obtained from another source, and that there was a compelling need for the information. (Decisions on File, State v. Alfonso, Case No. CF96-04924, Jan. 31, 1997)

Judge turns down Kidwell deal

MIAMI - A judge in Palm Beach County declined an offer by reporter David Kidwell's attorney to sentence Kidwell to time served on a contempt charge in return for dropping an appeal.

Judge Roger B. Colton, 15th Judicial Circuit, said it would be premature to consider the offer because Florida's 4th District Court of Appeal had not ruled on Kidwell's appeal.

Kidwell, a reporter for The Miami Herald, was sentenced to 70 days in jail in October 1996 after he refused to testify about a jailhouse interview he had in 1994 with John Zile. (Brechner Report, December 1996)

Zile was convicted of first-degree murder earlier this year in the death of his 7-year-old stepdaughter. (Brechner Report, February 1997)

A federal judge released Kidwell after 15 days, pending the appeal. (2/8/97)

University removes paper's editor, advisor over photos

JACKSONVILLE - Administrators at Jacksonville University removed the editor and faculty adviser of the student newspaper from their posts after the paper ran photos of scantily clad participants in a homecoming show.

Angie Koury, the editor of The Navigator and a senior at JU, also was placed on disciplinary probation. She was allowed to keep the scholarship she received for being editor. The adviser, Marc Charisse, will remain as an assistant professor of communications.

The photos were of male students at the annual Big Man on Campus pageant, a spoof of the women's traditional homecoming queen pageant.

The photos showed one male student exposing his buttocks and wearing only a sweatsock over his genitals and another student wearing only two female inflatable dolls. The university said the two students were also disciplined.

In a letter to students and faculty, Jesse Robertson, JU's vice president for academic affairs, and Daniel Kelly, the dean of students, called both the male students' behavior and the decision to publish the photos "offensive, irresponsible and disrespectful of others." Kelly said he was in favor of doing away with the pageant, which was already under review by the student homecoming committee because of past problems with student drinking.

Koury said she felt the school made her a scapegoat when the university got complaints about the pageant after the photos ran. (2/25/97)

Brechner Center activities will mark 20th anniversary

The Brechner Center will celebrate a birthday this year. The center staff plans to recognize the center's 20th anniversary with conference activities in Oklahoma City, Naples, Chicago, and Gainesville. We also will publish a new edition of our citizen's guide to Florida government information and substantially enhance our appearance on the web.

The center opened in 1977 under the direction of Professor Jo Anne Smith as the Florida Clearinghouse for Freedom of Information. The center was renamed in 1987 after donor Joseph Brechner, an Orlando broadcast executive, provided funding for an eminent scholar chair. I became the eminent scholar and center director and Sandra Chance was hired as assistant director in 1993.

During 1997, the center has already co-sponsored the 23rd annual Florida Bar Media-Law Conference. Professor Chance planned and moderated a session reviewing the history and examining the practical implications of our Public Records and Open Meetings laws. In April, the center will sponsor an examination of the problem of increased fees for access to computerized government records. I am planning the program for the annual convention of the National Freedom of Information Coalition, the umbrella organization of state freedom of information organizations, in Oklahoma City.

In Naples, I will discuss the state of Florida access laws at the annual convention of the Florida Press Association. Then, in Chicago, I will be a panelist at a luncheon at the annual convention of the Association for Education in Journalism and Mass Communications, our professional journalism educators organization. The program will feature university-sponsored freedom of information centers and honor the Brechner Center's anniversary.

For the center's celebration in Gainesville, we have already received commitments from two of the foremost experts on state access to government information: Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, and Paul McMasters, First Amendment ombudsman of the Freedom Forum. Jane and Paul will join us for a day-long examination on Oct. 17 of the strengths and weaknesses of Florida's access laws, and a discussion of how they can be improved. The day will conclude with the presentation of our Joseph L. Brechner Freedom of Information Award and a ceremony acknowledging the accomplishments of the center. Everyone interested in these issues is encouraged to set aside the date.

During 1997 we plan to republish Florida Government in the Sunshine: A Citizen's Guide. We distributed 20,000 of the last edition to citizen groups, public officials and students.

We are taking several steps to enhance our Web site at http://www.jou.ufl/brechner/brochure.htm. We already have a sample request letter for records on the site. We also are putting the monthly editions of this newsletter on the site. We currently are updating The State Media Law Sourcebook, a manual listing media law resources available in all 50 states. Shortly after you read this column, you also will be able to find lists of the prosecutions of public officials under the Open Meetings and Public Records laws and of the times when officials had to pay attorney's fees for refusing to open meetings or disclose records. Other Brechner Center-sponsored research will be posted on the Web during the year.

We invite you to visit our Web site and to make suggestions for how we might serve you better. More information about the 20th anniversary birthday party will be provided in upcoming issues of The Brechner Report.

Bill F. Chamberlin is the director of the Brechner Center for Freedom of Information and is the Joseph L. Brechner Eminent Scholar in the College of Journalism and Communications at the University of Florida.

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