The Brechner Report
Volume 21, Number 7
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Mary Gallant, Production Coordinator
- 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
AGO says museum is public agency
Grand jury indicts 2 city
Commission agrees to public vote
DCA: Hospital subject to access
Chiles suspends 4 from board
Commission ejects 2 members of
Meeting dispute leads to 3 suits
NEWS & NOTES
searching for FOI hall-of famers
Judge denies gag order to
Records open if youth tried as
3 Fernandina Beach
officials face charges
clerk to stop sending out juvenile reports
Clerks office removes
notable for what didnt happen
Did not pass
Shield Law fell
victim to the legislative process
museum is public agency
ST. PETERSBURG -- Florida International Museum Inc.s
documents and board meetings are subject to Floridas open government laws, according
to Attorney General Bob Butterworth.
In an advisory opinion, Butterworth noted that the museum was
created by an independent group of citizens as a nonprofit corporation. Recently, however,
the city of St. Petersburg agreed to buy the museum building for $3.9 million and lease it
back to the corporation.
Butterworth used a totality of factors test developed by the
Florida Supreme Court in News and Sun-Sentinel v. Schwab in 1992 to determine
whether a private corporation is acting on behalf of a public agency and is subject to the
Open Meetings and Public Records laws. (Brechner Report, March 1992) He said the
museum now falls under the definition of "agency" in the Public Records Law
because the city monitors and audits its activities, reviews its budget and owns its
building, among other reasons.
The museums board of trustees is subject to the Open
Meetings Law for many of the same reasons, Butterworth said, and because of the
"substantial interaction" between the city and the board. (Decisions on File,
Fla. Atty. Gen. Op. 97-27, May 16, 1997) (5/10/97-5/17/97)
jury indicts 2 city council members
RIVIERA BEACH -- Two members of the Riviera Beach City Council
were indicted on charges of violating the Open Meetings Law.
A grand jury returned the indictments on misdemeanor charges
after hearing two days of testimony. The indictments said that Marge Confrey and Marilyn
Moffitt met privately one or more times between Feb. 1 and March 19. It is against the law
for two or more elected officials to meet privately to discuss public business.
The indictments did not say what the meeting or meetings were
about, but witnesses told newspapers and investigators that Confrey and Moffitt were
seeking support to fire City Manager Gerald Adams and Police Chief Jerry Poreba. Adams,
who some residents said was unresponsive to their complaints, lost his job when the
council voted not to renew his contract. Press reports said Poreba learned of the plot
between the two council members and three police lieutenants to get rid of him and went
public with it. Porebas supporters started a petition drive to remove Confrey and
Moffitt from office, and Poreba kept his job. (4/17/97-5/15/97)
agrees to public vote
BEVERLY BEACH -- After a reporter objected to a
private meeting held in a corner of the meeting room, town commissioners voted publicly
for a commission chairman. Commission members moved to a corner table in the meeting room
shortly after newly elected members were sworn in, according to the News Tribune. A
reporter for the weekly paper in Bunnell objected to the closed meeting, and commissioners
agreed they might have erred. In a public vote, James Fallon was re-elected commission
chairman unanimously. (5/10/97)
Hospital subject to access laws
DAYTONA BEACH -- A not-for-profit company that operates a
hospital for a public taxing district is subject to the Open Meetings and Public Records
laws, the 5th District Court of Appeal ruled.
A three-judge appeal court panel unanimously reversed a circuit
court ruling that said the open-government laws did not apply to Memorial Hospital-West
Volusia Inc. The appeal judges said the operating company clearly was acting on behalf of
a public agency as defined in laws and court rulings.
The Daytona Beach News-Journal sued for access to hospital
records and meetings after the West Volusia Hospital Authority, the tax district that
built and ran West Volusia Memorial Hospital, leased the hospital to the company. After
the private company took over hospital operation, it cut off access to records and
The appeal court said private companies that provide materials
and certain services, such as cleaning, to public agencies are not subject to the Open
Meetings and Public Records laws. However, the situation is different when the company
relieves a public agency of a public obligation, such as operating a jail, providing fire
protection or operating a hospital, the judges said. The situation also is different in a
case such as the Volusia hospital when the private company uses facilities and equipment
acquired by public funds and previously used by the public body, the court added.
Chiles suspends 4
ESTERO -- Gov. Lawton Chiles suspended four members of the Estero
Fire Commission from office after the state attorneys office charged them with
violating the states Open Meetings Law.
The state attorneys office accused the members of failing
to allow members of the public into the meeting room in time to take seats before an April
meeting began. The board took one vote and adjourned before many of the spectators could
enter the room, witnesses said. A judge issued an injunction requiring the board to obey
the Open Meetings Law after the Fort Myers News-Press sued over the April meeting.
(Brechner Report, June 1997)
Chiles called the alleged violation of the Open Meetings Law
"remarkable." The board members have pleaded not guilty to the misdemeanor
charges. A fifth board member who did not attend the meeting was not charged or suspended.
Meanwhile, a group of Estero residents has filed suit against the
fire board, claiming that members violated the Open Meetings Law when they dismissed the
towns 11 firefighters in January and contracted with Wackenhut Services to replace
The suit alleges that board members failed to properly notify the
public about the meeting and secretly deliberated and negotiated before the Jan. 14
gathering, resulting in a "rubber stamp upon a predetermined outcome." The suit
asks that all actions taken at the meeting, including the dismissal of the firefighters
and the hiring of Wackenhut, be voided. (5/10/97-5/30/97)
ejects 2 members of public
PORT CHARLOTTE -- Two members of the public were removed from a
Charlotte County Commission meeting after they demanded to see copies of papers being
passed out to commissioners.
Commission Chairman Matt DeBoer declared Nancy St. Lawrence out
of order when she stood up during a commission discussion and said she wanted to see the
documents. When St. Lawrence continued her actions after a brief recess, DeBoer had
sheriffs deputies remove her from the room.
After St. Lawrence was removed, Richard Lewis made the same
request and also was removed.
DeBoer said after the meeting that the document in question was
an index for an ordinance being discussed. (4/16/97)
dispute leads to 3 suits
BRADENTON -- A dispute over whether a committee that ranked the
bidders for a port project violated the Open Meetings Law has resulted in three lawsuits.
The dispute began after the Manatee County Port Authority awarded
a contract to NDC Construction Co. for a $3.5 million cruise and warehouse facility at the
port. Manatee County Clerk R.B. Shore refused to pay any bills submitted by the company
because he contended that the committee, composed of a county commissioner and two port
employees, did not properly notify the public about its meetings. NDC and the Port
Authority say the committee was not subject to the Open Meetings Law because it was
performing a staff function, not a public board function.
NDC has sued Shore for payment of a $15,000 bill it submitted for
preliminary work. Shore and an environmental group, ManaSota-88, have sued the County
Commission, which also acts as the Port Authority, to settle the open meetings question.
denies gag order to dealership
TAMPA -- A federal judge denied a car dealerships request
for a gag order to keep lawyers and witnesses in a sexual harassment suit from talking to
The dealership, Brandon Ford, asked U.S. District Judge Susan C.
Bucklew to order Kristen Matthews, a former plaintiff in the suit against the company, and
others not to talk publicly about the case. The dealerships attorneys said that
press reports based on interviews with Matthews were jeopardizing the companys right
to a fair trial.
However, after reviewing newspaper articles and television
stories about the lawsuit, including interviews with Matthews, Judge Bucklew said the
dealership had not demonstrated a need for a gag order. She said it was unlikely that the
amount of publicity generated by the suit would make it difficult to find a jury pool for
the civil trial. (2/28/97-3/12/97)
open if youth tried as adult
TALLAHASSEE -- The court records of a juvenile tried
as an adult are public even if the defendant receives juvenile sanctions, Attorney General
Bob Butterworth said. In an advisory opinion, Butterworth wrote to Polk County Court Clerk
E.D. "Bud" Dixon that once a juvenile has been transferred to adult court for
trial, his or her records become public in the same way that an adults records are
public. Butterworth said it would make little sense to have a public trial and allow
public access to a juveniles records during prosecution, then close the records if
the defendant received a juvenile punishment. (Decisions on File, Fla. Atty. Gen.
Op. 97-28, May 21, 1997)
Fernandina Beach officials face charges
FERNANDINA BEACH -- Three members of the citys staff
pleaded not guilty after being charged with violating the Public Records Law.
City Manager Zachary Zoul, Community Development Director Mary
McKinney and Code Enforcement Officer Brenda Rothwell were facing a June trial date on
charges of failing to disclose public records and destroying public records.
The charges stem from a request by a reporter for the weekly News-Leader
paper to see records about the citys removal and replacement of a "Jerrys
Chicken" sign. The State Attorneys Office claims that Zoul and McKinney
illegally denied the reporter access to the records, and that the three city staff members
destroyed some documents. (4/29/97-5/14/97)
tells clerk to stop sending out juvenile reports
VERO BEACH -- A judge ordered the Indian River County court
clerks office to stop sending confidential juvenile arrest information to the county
Chief Circuit Judge Paul Kanarek, 19th Judicial Circuit, said the
school district was only entitled to the same information from the court clerk that was
available to the public. That meant, he said, that information about arrests for
non-violent misdemeanors was not available because it was generally considered
confidential. However, Judge Kanarek said his order did not include information about
juvenile arrests for violent misdemeanors, more than three misdemeanors, or crimes that
would be considered felonies if committed by an adult. That information is available to
the public, he said.
Kanarek said he issued his order after learning that the court
clerks office routinely sent all juvenile arrest reports to the county school
superintendents office. A school attendance officer said the non-violent misdemeanor
reports stopped at her desk unless they involved drug charges, in which case principals
were notified that the student might need counseling. (3/6/97)
office removes victim names
CLEARWATER -- The Pinellas County Clerk of Courts office,
fearing that it had been violating state law, began removing all names of rape and
child-abuse victims from public documents.
Clerk of Court Karleen DeBlaker said her office recently
discovered that Florida Statutes make it illegal for court clerks to release the names.
She has ordered her staff to block the names before releasing otherwise public records. In
some cases, the "sanitizing" process has led to delays of several days in
releasing files to attorneys, reporters and members of the public.
The Tampa Tribune reported that Hillsborough County also
removes the names of victims, based on its interpretation of state law. However, Pasco
County does not remove the names.
Florida Statutes Section 92.56 exempts from the Public Records
Law any court records that reveal the photograph, name or address of a sexual assault or
child abuse victim if certain factors are demonstrated to the trial court. Section
119.07(3)(f) also exempts identifying information about victims of certain crimes
contained in police and court records. (4/25/97)
Center searching for FOI hall-of famers
GAINESVILLE -- The Brechner Center for Freedom of Information is
establishing a Florida Freedom of Information Hall of Fame to honor individuals who helped
develop and defend Floridas government-in-the-sunshine laws, including the Public
Records Law, the Open Meetings Law, and the Sunshine Constitutional Amendment.
"Our goal is to recognize and thank the people who have made
Florida one of the countrys leading government-in-the-sunshine states," said
Sandra F. Chance, assistant director of the Brechner Center.
The first inductees into the Hall of Fame will be recognized and
honored at the Centers 20th Anniversary "Florida Sunshine Summit," Oct. 17
at the University of Florida College of Journalism and Communications in Gainesville.
"If you know someone who belongs in the Florida Hall of
Fame, please let us know," Chance said. Letters outlining a nominees
contributions should be sent to Chance at the Brechner Center and must be received by Aug.
"I cant believe they would yank this off the air.
Theres no vulgarity. No nudity. No abuse. No pornography. This is just women dancing
in their underwear. Whats the big deal?"
--Paul Berman, producer of The Search for the
Worlds Sexiest Dancer, after Continental Cable of Broward pulled the show off its
public access channel for being "indecent."
1997 session notable for
what didnt happen
TALLAHASSEE -- The Florida Legislatures regular session for
1997 yielded fewer than 15 bills affecting public records, open meetings, and other media
and First Amendment issues. In fact, the session may be more noteworthy for what it did
not do than for what it did.
Two controversial measures, a journalists shield law and
the creation of a Florida Information Council, did not make it to a floor vote. In both
the House and Senate, the shield law was bottled up in committees. (See related story,
page 6.) The Florida Information Council bill, opposed by media and public advocacy groups
because it would have changed the fee structure for public records, died in a Senate
Bills that passed create a few new exemptions, including one for
personal information on drivers license records to conform with federal law.
Legislators also made it easier to get information about doctors practicing in Florida by
requiring physicians to submit biographical information to the state Department of Health
and requiring the department to make the practitioner profiles available to the public.
Two of the exemptions passed have raised constitutional
questions. The First Amendment Foundation in Tallahassee said two exemptions were passed
as parts of bills dealing with other issues. The Florida Constitution (Art. I, Section 24)
was amended in 1992 to require that all exemptions to the Public Records and Open Meetings
laws be created through single-subject bills. The two exemptions in question deal with
information furnished to the Insurance Department that may reveal trade secrets and the
extension of state Ethics Commission exemptions to any county Commission on Ethics and
Under new House rules, each bill now has a two-year lifespan in
that chamber. That means, in effect, that bills that passed in the House but were not
considered in the Senate were placed on the House Consent Calendar for reapproval next
year. Also, bills stuck in House committees are still alive until they are withdrawn or
defeated. In the Senate, a bill that does not pass still must be re-introduced and go
through the committee process again if it is to be considered the following year.
Bills listed below as "passed" were approved by both
houses and either signed by Gov. Lawton Chiles or allowed to become law without his
signature. Some bills that did not pass may have been approved in the House but not in the
Senate or remain alive in a House committee.
For more information about any particular bill, including the
full text and voting record, visit the Legislatures Web site at http://www.leg.state.fl.us/.
CS/HB 95 -- Provides an exemption from the Public Records Law
for personal identifying information in Department of Highway Safety and Motor Vehicles
records upon the request of the subject of the records, to conform with federal law.
Provides a number of exceptions. Became law without governors signature.
HB 99 -- 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 non-disclosure. Became law without governors signature.
CS/HB 181 -- Exempts from the Public Records Law any
information about a crime victim or witness, his or her family and relocation sites
connected to victim and witness protection programs and held by government agencies or
businesses. Became law without governors signature.
CS/HB 269 -- Establishes the Florida Surplus Lines Service
Office for surplus lines insurance. Exempts from the Public Records Law any information
furnished to the Insurance Department that would reveal a trade secret. Became law without
CS/CS/HB 313 -- Specifies how a county or municipal
government may obtain or hold a telecommunications certificate. Provides that certain
telecommunications services provided for hire by governments will no longer be exempt from
taxation. Became law without governors signature.
CS/HB 461-- Amends Florida Statute limitations on the
amount of campaign contributions. Makes numerous changes to other campaign laws. Signed
into law by governor.
CS/HB 493 -- Provides exemptions for certain records and
meetings of the Florida Violent Crime Council and defines the council as a "criminal
justice agency" for purposes of public records and open meetings provisions. Became
law without governors signature.
CS/HB 605 -- Expands the current exemptions for
investigations of complaints about licensed health care and social services professionals
to include interns and provisional professionals. Became law without governors
SB 98 -- 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. Limits the signs to 8 feet square. Became law without
CS/CS/SB 404 -- 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. Prohibits any municipal, gross
receipts, or sales tax on any Internet access service, electronic mail service, electronic
bulletin board service, or computer exchange service. Became law without governors
SB 884 -- Exempts information obtained for purpose of
creating a medical practitioner profile until the profile has been released to the public.
(See CS/SB 948 below.) Became law without governors signature.
SB 904 -- Creates exemptions to the records and meetings
laws for information about an insurers risk-based capital reports to the Department
of Insurance. Exempts any county Commission on Ethics and Public Trust from the records
and meetings laws until a preliminary investigation is completed. Became law without
CS/SB 948 -- Requires physicians to furnish certain
biographical data to the state Health Department. Requires department to verify the
information and make the practitioner profiles available to the public. Signed into law by
SB 958 -- Requires public to be notified about the
presence of a "sexual predator" in a community, including that persons
name and address. Allows state and local law enforcement agencies to release information
about sexual offenders without being asked. Signed into law by governor.
SB 1634 -- Exempts personal and medical information about
someone who complains to a statewide or district managed care ombudsman committee and
portions of committee meetings where personal information is being discussed. Became law
without governors signature.
DID NOT PASS
HB 39 -- Would have required 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). Tabled in House.
CS/HB 49-- Would delete 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. Passed House, died in Senate committee.
CS/HB 71 -- Would have created a limited journalists
privilege not to disclose the identity of a confidential source or information the
journalist has agreed to keep confidential. Would have created a limited privilege not to
testify about non-confidential information. House version in committee and carried over to
1998. Similar SB 304 died in committee.
HB 243 -- Would have made it a felony for a political
candidate to lie about a material fact about an opposing candidate. Withdrawn.
CS/HB 327 -- Would authorize local governments to prohibit
graffiti and to pass anti-graffiti ordinances that provide for higher penalties than those
provided by state statutes. In House committee, carried over. Identical SB 936 died
on Senate calendar.
CS/HB 901 -- Would require that information about state,
county and municipal employees use of assistance programs be kept confidential.
Passed in House, died in Senate committee. Similar SB 1832 died on Senate calendar.
CS/HB 1105 -- Would create exemption from Public Records
Law for videotaped statements of minors who were victims of certain crimes. Passed in
House, died in Senate committee. Similar SB 1396 died in Senate.
HB 1139 -- Would create exemption from Public Records Law
for veterinarian records about rabies vaccinations. Passed in House, died in Senate
committee. Similar SB 1580 died on the Senate calendar.
CS/HB 1167 -- Would provide exemptions from the Public
Records Law for personal information about the health care and education personnel
employed by the Department of Corrections and their families. Passed in House, died in
Senate Committee. Similar SB 1322 died in Senate.
HB 1197 -- Would have made active disciplinary
investigations of state Department of Business and Professional Regulations and Department
of Health confidential. Carried over in House committee. Similar SB 2078 died in
HB 1433 -- Would have provided for release of Department
of Children and Family Services records concerning deaths of children, disabled adults and
elderly persons because of abuse, with some exceptions. Carried over in House committee.
Similar SB 888 died on Senate calendar.
CS/HB 1437 -- Would have exempted from the Public Records
Law personal information obtained by the Agency for Health Care Administration. Would have
exempted meetings of provider and subscriber assistance panels at which personal
information or trade secrets would be discussed. Passed in House, died in Senate
committee. Similar SB 364 died in Senate.
HB 1537 -- Would have prohibited gambling interests from
contributing to political campaigns or committees. Carried over in House committee.
Similar SB 1316 withdrawn.
CS/HB 1613 -- Would have exempted from the Public Records
Law some information furnished to agencies for housing assistance programs. Passed in
House, died in Senate committee. Similar SB 240 died in the Senate.
HB 1685 -- Would have defined public hospital
"strategic plans" for purpose of determining when meetings to discuss such plans
can be closed to the public. Withdrawn. Similar SB 952 withdrawn.
HB 1939 -- Would have exempted from Public Records Law
bank account and debit, charge and credit card numbers possessed by a state agency. House
version passed, died in Senate committee. Similar SB 1010 died in Senate committee.
SB 220 -- Would have created the Florida Information
Council to establish ways to format, enhance and provide information to the public. Died
in Senate committee.
SB 354 -- Would exempt from the Public Records Law
personal information and photographs of people who the state has licensed to be family
foster parents and their spouses, children and other adult household members. Passed in
Senate, sent to House. Similar HB 1849 carried over in House committee.
SB 1768 -- Would have allowed county staff members or
consultants to attend private sessions to discuss settling litigation. Died in Senate
SB 1858 -- Would have allowed the settlement of some
lawsuits against counties or cities without a public hearing. Died in Senate committee.
SB 2160 -- Would have allowed some advisory committees to
public bodies to meet in private. Withdrawn.
Law fell victim to the legislative process
By David Bralow
As journalists and media attorneys, we are, of course, First
Amendment absolutists. There can be no compromise, we assert, when our constitutional
rights are at stake. What then were we doing this spring in Tallahassee proposing a
journalists privilege, a shield law, on behalf of the Florida Society of Newspaper
Editors? Isnt the very essence of the legislative process one of unpalatable
It is! And the experience of trying to win passage of a
reporters shield law in 1997 demonstrates the danger of compromise.
The need for a shield law is clear. Although Florida courts have
been friendly to the idea of a reporters privilege in the past, recent courts have
not protected reporters. The Florida Supreme Court held that reporters have no privilege
when they are eyewitnesses. Last year, the Fourth District Court of Appeal held that
reporters must testify about non-confidential information. Subpoenas were beginning to
flow like floodwaters through the newsrooms of Florida.
So on the first day of the 1997 session, we were in Tallahassee
with a shield law. Sen. Donald Sullivan and Rep. Luis Rojas were willing and energetic
sponsors. The proposed legislation created an absolute privilege for confidential sources.
That meant that a reporter would never face jail for refusing to disclose a source. The
law created a qualified privilege for all other information. Reporters would have to
testify only if the party with the subpoena proved that the testimony was relevant,
absolutely necessary, and could not be provided by alternative sources.
However, both the governors office and representatives of
the state attorneys organization opposed the creation of an absolute privilege for
confidential information. They said the qualified privilege was sufficient for all
purposes. Despite the fact that about 10 states have absolute privileges FOR CONFIDENTIAL
SOURCES, we agreed to make the confidential-source privilege qualified to ensure quick
passage of the bill.
We believed it was a compromise worth making to get the bill into
law. In fact, the bill passed out of the House Civil Justice Committee unanimously.
Unfortunately, it never reached the House floor. Certain members did not want to pass any
bill that Rep. Rojas sponsored because of his unsuccessful attempt to become House
Because the bill had stalled in the House, passage was essential
in the Senate. But Sen. Fred Dudley refused to put the bill on the agenda of the Senate
Judiciary Committee until the last meeting of the session.
Sen. Dudley also wanted a significant compromise. He insisted
that the bill be amended to create a journalist registration system. To our mind, such a
system seemed akin to state-sanctioned journalism and was antithetical to the First
Amendment. To Sen. Dudley, the system was a prerequisite for the bill to get on his
agenda. HE ALSO WANTED TO LIMIT THE QUALIFIED PRIVILEGE TO CRIMINAL CASES, NOT CIVIL
We swallowed hard and decided to remain silent when our bill was
amended to create a registration system. We had assurances that we could amend the bill on
the Senate floor to delete the offending system or kill the bill if we failed.
As time passed, however, we realized that our silence was wrong.
The deal Dudley wanted to extract required us to ignore First Amendment principles for the
expedience of legislative action. We debated whether to speak against the amendment and
kill the bill.
We were saved from making that decision. Sen. Dudley -- even
after his demand was met -- did not allow the bill to be discussed in his committee. It
died that day from inaction. We breathed a sigh of relief. We could remain First Amendment
absolutists -- at least until next year.
DAVID BRALOW IS A PARTNER AT THE HOLLAND & KNIGHT LAW FIRM
IN TAMPA AND PRACTICES MEDIA LAW. DURING THE 1997 LEGISLATIVE SESSION, HE WAS A LOBBYIST
ON THE SHIELD LAW BILL FOR THE FLORIDA SOCIETY OF NEWSPAPER EDITORS.
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