Volume 21, Number 5
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
DCA vacates conviction
over lack of testimony
Judge rejects injunction request
Board forced to repeat hiring process
Cocoa official in third trial on 8 charges
DCA says contract
void because board violated law
AGO says coalition subject to law
City attorney says board
Incorrect notice won't lead
Prosecutor clears Palmetto
Inmate denied Coca-Cola records
Judge says council's records
City adopts rules for vending
Judge dismisses $25
million libel lawsuit
THE BACK PAGE
and judge stop a prior restraint
LAKELAND - The 2nd District Court of Appeal vacated a man's
assault conviction because the trial judge ruled that a newspaper reporter did not have to
testify about an interview with the alleged victim.
The three-judge appeal court panel said the reporter, Diane
Mason, was not entitled to claim a qualified reporter's privilege not to testify because
the interview did not involve a confidential source.
Merlan Davis was convicted of aggravated assault with a motor
vehicle after he allegedly rammed his ex-girlfriend's car after chasing her. Mason, then
with the St. Petersburg Times, interviewed the victim about the incident.
Davis, who the appeal court said relied for his defense on his
ex-girlfriend's admission that she hit her brakes before his car rear-ended hers, wanted
to question Mason about the interview. The trial judge agreed with the Times that a
qualified privilege existed in cases such as Davis' and that Mason did not have to
The appeal court, however, said that the Florida Supreme Court
had ruled in Miami Herald v. Morejon in 1990 and CBS v. Jackson in 1991 that
the privilege did not protect a reporter from testifying about "eyewitness
observations of a relevant event" if no confidential source would be implicated. The
court said that the interview with the victim fell under the "relevant event"
JACKSONVILLE - A judge denied a trucking company's request for an
injunction to bar Jacksonville-area media from destroying any photos or videotapes of the
aftermath of a truck-train accident.
Coastal Transport said it wanted two television stations and The
Florida Times-Union to preserve images from the accident in case it was sued and
needed the photos and tapes as evidence.
Judge Michael R. Weatherby, 4th Judicial Circuit, said that
without a pending lawsuit, he had little if any authority to grant an injunction to
protect possible evidence.
Police said a truck driver for Coastal Transport was attempting a
U-turn when his truck became stuck on railroad tracks in Duval County in February. The
truck was hit by an Amtrak train, which derailed, injuring 15 people and causing a
reported $1.1 million in damages to the tracks and train. (Decisions on File,
Coastal Transport v. WAWS Fox 30 et al., Case No. 97-961-CA, March 7, 1997)
STUART - Martin County commissioners agreed to pay The Palm
Beach Post $15,900 in attorney's fees and admitted violating the Open Meetings Law by
settling lawsuits in closed-door meetings. A week after the county voted to settle the Post's
lawsuit, the county attorney resigned.
The Post sued in February after learning that the Martin
County Commission had agreed to settle a number of lawsuits in executive sessions without
taking a public vote on the settlements. The Post's attorney said the Open Meetings
Law allowed the commissioners to discuss legal strategy in private, but final decisions on
settlements had to be made in public.
After the County Commission agreed to pay the Post's
attorney's fees, several commissioners questioned the legal advice they had received from
County Attorney Robert D. Guthrie Jr. Guthrie's resignation letter a week later did not
mention the meetings law case, but a commissioner said she urged Guthrie to resign in part
because of the advice he gave about closing the settlement meetings.
The settlements approved in private totalled more than $4.1
million. At the same meeting at which it approved the settlement with the Post, the
County Commission also publicly approved the earlier settlements for the first time.
WEST PALM BEACH - A citizen's board charged with hiring a new
chief for the local Department of Children and Families office had to repeat part of the
process after learning it had violated the state Open Meetings Law.
The board failed to advertise meetings in which it interviewed
and ranked candidates for the job. Board members said the agency's personnel office in
Tallahassee told them the public did not have to be notified about the meetings.
After learning of its mistake and getting advice from the
agency's attorney, the board played tapes of the job interviews at one public meeting and
re-evaluated the candidates at another. It chose the same person it had originally.
COCOA - After two mistrials, a jury acquitted a former Cocoa vice
mayor of violating the Open Meetings Law.
Ray DeBord was charged with eight counts of violating the law in
January 1995 and was removed from office. His first trial ended in a mistrial when the
jury could not reach a verdict. (Brechner Report, October 1995) His second trial
was stopped because of allegations of jury misconduct. (Brechner Report, December
In the latest trial, the jury deliberated for eight hours before
finding DeBord not guilty of all charges.
The key evidence was a set of taped phone conversations. During
the phone conversations, Mayor Mike Hill asked DeBord for advice on a number of issues
before the council. DeBord's attorney said Hill led DeBord into saying things that could
be construed as illegal.
The Florida Open Meetings Law requires that public business be
conducted in public settings and generally forbids elected officials from discussing
issues in private or arranging votes before a public meeting.(3/20/97-3/21/97)
MIAMI - The 3rd District Court of Appeal ruled that a Miami-Dade
Community College committee's recommendation to award a contract was void because the
panel violated the Open Meetings Law.
The court said that a committee appointed by the college
purchasing director to review and rank proposals for providing flight-training services at
Kendall-Tamiami Airport was subject to the Open Meetings Law. Because the committee failed
to give the public notice of its meetings, it violated the meetings law and its
recommendations and the subsequent decision to award a contract to Husta International
Aviation Inc. were void.
The court said the committee could meet again, this time in
accordance with the Open Meetings Law, and make the same decision.
The committee ranked Husta's proposal first among those received.
Silver Express Co., which had been providing the services, was ranked third. Silver
Express lost an administrative challenge to the decision on other grounds before seeking
an injunction in circuit court.
While the administrative challenge was under way, the college
awarded Husta a temporary contract to provide the flight-training services to students.
The court said that the temporary contract could stand because voiding it would disrupt
students' training process, which would not be in the public interest.(Silver Express v.
District Board of Trustees of Miami-Dade Comm. College, Case No. 96-889, March 19, 1997)
TALLAHASSEE - A non-profit corporation formed by a public agency
to assist in the agency's redevelopment plans is subject to the Open Meetings Law, the
state Attorney General's Office said.
In an advisory opinion, the Attorney General's Office responded
to a question from an attorney for the Delray Beach Community Redevelopment Agency.
According to the opinion, the CRA sponsored the formation of a redevelopment coalition to
aid the agency in a redevelopment plan. Under the coalition's articles of incorporation,
all members of the CRA are automatically members of the coalition, and two CRA members
have been elected to the coalition's governing board.
The opinion noted that the Attorney General's Office has in a
number of cases found that nonprofit corporations created to assist public agencies are
subject to the Open Meetings Law. In the Delray Beach situation, the opinion said, the
public agency created the coalition, shared board members with it and had its offices at
the same address. In light of those facts and the decisions of state courts indicating
that the Open Meetings Law should be liberally interpreted, the opinion said that the
coalition was subject to the meetings law. (Decisions on File, Fla. Atty. Gen. Op.
97-17, March 14, 1997)
KISSIMMEE - The city Community Redevelopment Agency's board did
not break the Open Meetings Law when its members helped interview candidates for a
manager's job without giving notice of the meetings, the city attorney said.
City Attorney Don Smallwood said that because the CRA board will
not decide who is hired for the job, board members' informal attendance at the interviews
did not constitute an Open Meetings Law violation. Community Development Director Richard
Greenwood will have the final say on who is hired. (3/13/97-3/19/97)
ANNA MARIA - The State Attorney's Office for Manatee County said
it would not file charges against members of the Anna Maria Fire Control District
Commission after a resident complained that a meeting was held without proper notice.
The commission met in January and voted to ask the local
legislative delegation to change the district enabling act so that it could collect
Notice of the meeting was published incorrectly in one newspaper
but correctly in another. The correct date also was posted outside the fire station. The
commission chairman said a district secretary accidentally gave one paper the wrong date.
Assistant State Attorney James Rawe, 12th Judicial Circuit, said
the state would not be able to prove that the notice was unreasonable in this case.
PALMETTO - An assistant state attorney concluded after an
investigation that the Palmetto mayor and police chief did not demonstrate criminal intent
when they delayed releasing public records to a police records clerk.
Clerk Sheri Rader filed a complaint with the Manatee County
Sheriff's Office alleging Public Records Law violations. She said she repeatedly requested
documents about an on-going investigation of her and a former police captain. After she
filed her complaint, the city released all of the documents she sought except for two it
said did not exist, Assistant State Attorney Don Hartery Jr. said.
The state would not be able to prove that officials acted with
criminal intent when they delayed responding to "a multitude of requests for a large
quantity of sensitive documents," Hartery said. (2/4/97-3/4/97)
TALLAHASSEE - The Florida Supreme Court rejected a death-row
inmate's claim that he should have access to records held by the Coca-Cola Co.
George James Trepal was sentenced to death for killing a woman in
1988 by lacing bottles of Coca-Cola with poison.
Trepal said he should have access to all files held by the
Coca-Cola Co. that were related to the case because Coca-Cola acted in a law-enforcement
role when it tested bottles of soda and turned the results over to police. Coca-Cola
contended that it had given all relevant files to law-enforcement agents and was not
subject to the Public Records Law because the company was not acting on behalf of a public
The justices said a lower court acted properly when it used a
"totality of factors" test to determine that Coca-Cola was not acting
sufficiently on behalf of a public agency to subject it to the Public Records Law. The
test, set forth by the Supreme Court in 1992 in News and Sun-Sentinel v. Schwab,
includes the level of public funding the company received. (Brechner Report, March
1992) (Trepal v. State, Case No. 87,222, Fla. Sup. Ct., March 27, 1997)
MIAMI - A judge ruled that minutes of the meetings of the Florida
Entertainment Industry Council were public records after hearing only a few minutes of
Al Crespo, a long-time critic of the council, sued in order to
get a look at minutes of the council's meetings. He said he believed that the council had
mishandled funds earmarked for a film industry guide and wanted to see the minutes to
prove it. The council maintained that it was a private organization and was not subject to
the Public Records or Open Meetings laws.
The council was created by and is partially funded by the state.
Judge Alan Postman, 11th Judicial Circuit, heard brief opening
statements from Crespo, who was representing himself, and the council's attorney before
ordering the council to turn over the minutes. Postman did not explain his ruling.
After the hearing, the council's attorney said that as far as he
knew, the council did not keep minutes of its meetings. (3/11/97)
COCONUT CREEK - The city has approved an agreement setting rules
for the size and color of newspaper vending machines.
The agreement replaces a city ordinance that a newspaper attorney
said would have effectively banned news racks in the city. The new agreement was worked
out between the city attorney and newspaper representatives.
All news racks on public rights-of-way and public property for
paid and free publications must be removed under the agreement. The racks will be replaced
with modular units that hold more than one publication. All the units must be beige, can
carry no advertising except the name of the publications, must have coin-return mechanisms
for paid publications, and must be kept in good working order. (3/20/97)
FORT LAUDERDALE - A libel suit filed against the Fort Lauderdale Sun-Sentinel
was dismissed after the plaintiffs failed to pursue the case.
Judge Robert Lance Andrews, 17th Judicial Circuit, tossed out the
suit because plaintiff Metabolic Disease Foundation had missed a hearing and had failed to
move forward with the case. Metabolic's attorney withdrew from the case.
Metabolic was seeking $25 million from the newspaper because of
articles in 1996 that Metabolic said inaccurately implied it was a diet clinic and was
fraudulently billing insurance companies.
Metabolic co-founder David Chapnick said the operation is a
diabetes research program. (2/21/97)
A recent prior-restraint battle in Tampa shows courage by a
newspaper, which was willing to challenge a judge's order, and by the judge, who was
willing to admit his mistake.
The prior restraint arose in connection with a child-abuse case
that commanded statewide attention. The victim, a 2-year-old boy, was bruised and burned.
Clumps of hair were missing from his skull. The boy's mother and father have been charged
with willful torture and aggravated child abuse. The prior restraint occurred when a judge
tried to block news media coverage of the father's criminal past.
The boy's injuries had occurred just days after his court-ordered
return from foster care to his parents' custody. Upon learning of the injuries, Judge
Gregory Holder, who had returned the boy to his parents, held a hearing on Jan. 30. During
the hearing, Judge Holder displayed a one-inch-thick file containing the father's juvenile
criminal history, which the judge said he had not known about when he ordered the child
returned to his parents. The judge then recused himself from the case, saying he could no
longer be fair and impartial.
After the hearing, Barbara Boyer, a reporter for The Tampa
Tribune, asked to see the file Judge Holder had displayed. She reviewed it for 45
minutes, taking notes, while a court clerk looked on. A clerk also gave Boyer a copy of a
two-page summary from the file. Copies of other documents from the file, Boyer was told,
would be available for her later in the day.
In the meantime, Judge Perry Little, assigned to take over the
case from Judge Holder, learned of Boyer's review of the file. When Boyer returned to pick
up copies, Judge Little told her the file's release had been a mistake. The father's
juvenile record, Judge Little reasoned, was confidential under Florida law. So he ordered
the Tribune not to publish the contents without first seeking access via a written
motion and hearing.
Tribune lawyers filed an emergency appeal the same day.
The prior restraint, however, remained in place that night. Nevertheless, the Tribune
decided to publish a story about the father's criminal past. Among other things, Boyer had
learned of the father's six previous convictions on charges including battery and grand
theft. Despite his record, child-protection officials had recommended that Judge Holder
return the boy to his father's care. The Tribune published this information on
Friday, Jan. 31. On the same day, the father's attorney asked to have the newspaper held
Over the weekend, Judge Little reviewed case law on prior
restraints and conferred with the Florida Attorney General's Office. On Monday, Feb. 3,
Judge Little admitted that his earlier order was , in his words,
"unenforceable." He rescinded the prior restraint. The contempt motion was
withdrawn. (Brechner Report, April 1997)
This episode shows a judge courageous enough to admit a mistake.
Judge Little realized his initial instincts were wrong, and he publicly acknowledged that.
A lesser judge would have let his ego get in the way.
These events also show courageous journalism. The Tribune
published timely information about a subject of great public interest, despite the risk of
being held in contempt. "Prohibiting the publishing of a news story," in the
words of one court, "is the essence of censorship." That's something no
newspaper should condone, and something the Tribune courageously opposed.
The fact that the Tribune had to wage this battle,
however, is itself troubling. This was the second case in three months in which the Tribune
faced an attempted prior restraint. A Fort Myers television station and The Ledger
newspaper in Lakeland also recently have opposed motions seeking prior restraints.
Fortunately, in those case, restraints were never entered. Still, that prior restraints
were sought shows that even basic constitutional principles need constant protection.
James B. Lake is an associate and media lawyer
with Holland & Knight LLP in Tampa. His firm represents The Tampa Tribune.
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