The Brechner Report
Volume 21, Number 9
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
board won't face charges
Members of 2 boards
can meet, Butterworth says
AGO says hospital
foundation must operate in open
Lantana pays $1,426 to
settle citizen's suit
Grand jury indicts no one
in Martin County
News-Press wins dismissal of suit
Ex-city official pleads
guilty in Dade
DCA says Disney
can deny access to security records
Tobacco company releases papers
Personnel files must stay open
seeker can't dictate electronic format
Parent gets book taken off
Principal reverses ban on
THE BACK PAGE
Students serve and learn
at Brechner Center
Economic board won't face charges
HOLLYWOOD An assistant state attorney said no charges
would be brought against members of the Hollywood Economic Growth Corp. board for meeting
City Commission opponents filed complaints after the board met
behind closed doors in February to recommend a hotel developer for city-owned land on the
beach. The corporation is a private, nonprofit group that is city-funded, and the city
manager and a city commissioner serve on its board. It makes recommendations to the City
Assistant State Attorney John Countryman said the board did not
appear to act as a surrogate for the City Commission and its recommendations were not
binding on the commission, two factors that he said argued against the group being subject
to the Open Meetings Law. (7/17/97)
of 2 boards can meet, Butterworth says
TALLAHASSEE Meetings between one member of a community
college board and one member of a public school board are not subject to the Open Meetings
Law as long as the matter being discussed can only be decided by one of the boards,
Attorney General Bob Butterworth said.
In an advisory opinion to an attorney for Florida Keys Community
College, Butterworth wrote that one member of the college board and one member of the
public school districts board could meet privately. A member of the colleges
board wanted to discuss with a school board member problems the school board was having
acquiring land for a building. The building would be used by both the college and school
district and is being funded by each.
Butterworth said the meeting would be legal if neither person was
delegated any decision-making power by his or her board. Butterworth also said his opinion
was contingent on the fact that only one of the two bodies the school board
would make decisions about the matters being discussed. Although the college is providing
some of the construction money, all decisions about the site and construction of the
building are in the school boards hands. (Decisions on File, Atty. Gen. Op. 97-52,
Aug. 5, 1997)
says hospital foundation must operate in open
TALLAHASSEE Attorney General Bob Butterworth, citing a
recent Court of Appeal decision, said that meetings and records of the foundation
operating a Tarpon Springs public hospital are subject to the Open Meetings and Public
Tarpon Springs created a health authority to provide financing to
Helen Ellis Memorial Hospital in 1982. The city leases the hospital to the authority,
which sub-leases it to a foundation that operates it. The city attorney asked Butterworth
if the foundation was subject to the Open Meetings and Public Records laws.
In an advisory opinion, Butterworth said the foundation appeared
to be serving much the same function as the not-for-profit company at issue in News-Journal
Corp. v. Memorial Hospital-West Volusia, Inc. The 5th District Court of Appeal ruled
in May that because the company in Volusia County was providing a service formerly
provided by a public agency, it was acting on behalf of a governmental agency and was
subject to the Open Meetings and Public Records laws. (Brechner Report, July 1997)
(Decisions on File, Fla. Atty. Gen. Op. 97-49, Aug. 1, 1997)
pays $1,426 to settle citizen's suit
LANTANA The Town Council voted to pay a local resident
$1,426 in legal fees to settle a lawsuit that accused the council of violating the Open
Meetings Law. The town did not admit wrongdoing.
Cindy Jezewski sued after the town released a statement
indicating the council had decided not to seek prosecution of former Mayor Robert A.
McDonald, who resigned and repaid the city $50,000 that he had deposited into his
business bank account. Whether to prosecute McDonald or not had not been discussed
in a public meeting.
Town Manager Ron Ferris said the statement was poorly worded and
that the council members had not formally decided what to do about McDonald. Ferris said
the statement was based on his conversations with individual board members that indicated
"a general feeling" that McDonald should not be prosecuted.
Ferris said a formal decision on whether to press charges against
McDonald would be reached after an investigation is completed. (6/21/97-6/26/97)
jury indicts no one in Martin County
STUART A grand jury investigating charges that Martin
County administrators violated the states Open Meetings Law did not return any
indictments, and its report was sealed.
However, copies of the report were delivered to the nine people
named in it, including all five county commissioners and an assistant county
The County Commission agreed in March to pay The Palm Beach
Post $15,900 in legal fees to settle a lawsuit alleging violations of the Open
Meetings Law. The newspaper claimed the commission had approved lawsuit settlements
totaling $4.1 million in private sessions without making the settlements public as
required by law. (Brechner Report, May 1997) The grand jury was looking into
whether to charge commissioners with breaking the Open Meetings Law in that case.
The grand jury also was investigating allegations that
commissioners met in secret illegally before voting to fire County Administrator Peter
Cheney. Cheney signed a statement the day before he died of cancer saying that he thought
two of the commissioners had discussed his firing in private.
The grand jury report was expected to be kept sealed for 15 days,
but any of the nine people named in it could appeal to keep it sealed longer, State
Attorney Bruce Colton said. (3/3/97-7/25/97)
wins dismissal of suit
FORT MYERS A judge dismissed a libel suit against the Fort
Myers News-Press after finding that the disputed statements were substantially
accurate and were protected by the fair reporting privilege.
Dr. David Fancher claimed that articles published in 1996 about
his suspension from the staff veterinarian position at the Lee County Humane Society
defamed him. He argued that the use of the term "suspended with pay" in
newspaper stories was false because he had in fact been placed on administrative leave
with pay. Judge R. Wallace Pack, 20th Judicial Circuit, wrote that the two terms were so
close in meaning as to be nearly the same.
Judge Pack also noted that Fancher argued in his lawsuit, which
also named the Humane Society and individual employees as defendants, that the
organization was acting as an arm of government in its animal control functions.
Therefore, the judge said, statements made by Humane Society officials and employees about
Fancher were subject to the fair reporting privilege, which protects the press from
liability for accurate reports about information gathered from government proceedings,
even if the information proves to be false. (Decisions on File, Fancher v. Lee County
Humane Society, Case No. 96-8498-CA-RWP, July 14, 1997)
official pleads guilty in Dade
OPA-LOCKA Former City Manager Earnie Neal pleaded guilty
to violating the states Public Records Law. The Miami Herald reported that he
was the first local official in Dade County to be found guilty of a records violation.
Neal said he ignored 35 records requests from his predecessor as
city manager, Dennis Whitt, because the requests were frivolous and amounted to
harassment. Whitt, who was suing the city for wrongful termination, wanted Neals
cellular telephone records and copies of any ethics complaints against Neal.
The city will pay a $500 fine, $108 in court costs and a $500
donation to the United Way for Neals violation. Neal resigned in May after state
investigators said he withheld the records and sexually harassed employees. A complaint to
the state Ethics Commission about the harassment allegation is pending. (6/20/97)
says Disney can deny access to security records
DAYTONA BEACH The 5th District Court of Appeal ruled that
Walt Disney Worlds security force is not a public law enforcement agency and is not
subject to the Public Records Law.
The ruling affirming a circuit judges decision was filed
without comment, although one judge wrote a special concurring opinion.
Bob and Kathy Sipkema, who are suing Disney in a wrongful-death
action, sought access to Disney security records to support their claim that the security
force caused their sons death by negligently chasing a truck in which he was a
passenger. Robb Sipkema died when the truck crashed after leaving Disney property.
Judge Belvin Perry, 9th Judicial Circuit, denied the Sipkemas
access to the records because he said the security force was more like a "night
watchman" service for a private company than a public law enforcement agency.
Disney employs about 800 security personnel at its theme parks
near Orlando. In 1967, the Florida Legislature created the Reedy Creek Improvement
District, which encompasses all of Disneys property. The district gives Disney
municipal-like powers to control its own property without interference from local
WEST PALM BEACH The 4th District Court of Appeal ordered a
tobacco company to release eight internal documents to the state as Florida moved forward
in its suit against cigarette makers.
The appeal courts decision could lead to hundreds of other
documents being released to the state and eventually the public, Attorney General Bob
The state is suing tobacco companies to recover the money Florida
has spent through its Medicaid program on treatment of smoking-related illnesses. The
state originally was seeking $16 billion to cover both past and future expenses, but a
judge limited the amount that could be awarded to $2.7 billion.
The documents the state sought from the Liggett Group were
internal memoranda about how to protect the industry from charges of misconduct and how to
shape public opinion about smoking. Tobacco companies have fought for months to keep many
internal documents from attorneys for the state. Once the documents become part of the
case file, they are subject to Floridas sunshine-in-litigation law, which bars the
sealing of court documents that reveal hazards to human health. (6/27/97-8/7/97)
must stay open
STUART Martin County Attorney Gary Oldehoff said he could
not restrict access to county employees personnel files after two employees
complained that people were seeking their files to harass them.
Building and Zoning Director Mike Sinkey and County Commission
secretary Beth Bobango both testified against commissioners during a grand jury
investigation of possible Open Meetings Law violations. The grand jury returned no
indictments. (Related story, page 1)
Sinkey said he and Bobango were concerned about the
"integrity and accuracy" of their files after commission supporters requested
the files during the grand jurys meetings. Sinkey also said the requests were
designed to intimidate him and Bobango.
Oldehoff said he could do nothing to seal the files because
county personnel files are considered open under the Public Records Law. (7/10/97-7/12/97)
Records seeker can't dictate electronic format
TALLAHASSEE A school district is not required to reproduce
electronic records in a format that the district normally does not use, Attorney General
Bob Butterworth said.
In an advisory opinion, Butterworth wrote that the Palm Beach
County School District does not have to spend its own money to convert information stored
electronically into a format requested by a newspaper.
The newspaper was seeking food-service records that the district
stored in a format commonly used by IBM mainframe computers. The district estimated it
would cost $4,400 to convert the records into the American Standard Code for Information
Interchange (ASCII) format, but it would cost only $100 to provide the records in the
format the district normally used. The newspaper maintained that the district was required
to provide the records in the format the paper requested and to pay for converting the
records into that format.
Butterworth said the Public Records Law only requires that a
records custodian maintain records in a commonly used format. The law only requires a
public agency to provide electronic records in a certain format if the agency usually uses
that format, Butterworth said. The agency is not required to pay the cost of converting
information into a format it usually does not use, he added. (Decisions on File, Fla.
Atty. Gen. Op. 97-39, June 30, 1997)
gets book taken off reading list
PORT ST. LUCIE A parents complaint about an
award-winning book led a St. Lucie County middle school principal to pull it from the
sixth-grade supplemental reading list.
Anna Cerbasi called The Giver a "horrible,
disturbing" book. It describes a society in which people feel no emotions and are not
allowed to choose their roles in the community. The only person who remembers emotions is
the Giver, who chooses a 12-year-old boy for special training. The boy learns about
emotions, pain and pleasure and eventually rebels and leaves the society.
Cerbasi said she was especially upset by scenes in the book in
which an infant is killed by its father for being the smaller of twins and an elderly
women is killed for no longer being useful.
Principal John Townsend of Northport Middle School said the book
would be pulled from the supplemental reading list and reviewed by a school district
committee for future use. He said it was inappropriate for sixth-graders but would be no
problem for older students. (6/20/97-6/24/97)
reverses ban on Steinbeck novel
PANAMA CITY A high school principal reversed his ban on
assigning John Steinbecks Of Mice and Men after teachers, parents, the
American Civil Liberties Union and others accused him of censorship.
Mosley High School Principal Bill Husfelt restricted use of the
book in December after a parent complained about a racially offensive word. The book is
about California ranch workers in the 1930s.
Husfelt said he sent a memo to all English teachers at Mosley
instructing them to use the book as they saw fit. (7/17/97)
serve and learn at Brechner Center
By Anthony L. Fargo
On the first day of a Constitutional Law class at the University
of Florida, the professor began by telling her students about the people behind the U.S.
Supreme Court's decisions in Plessy v. Ferguson and Brown v. Board of Education:
a man who wanted to sit in the same railroad car as whites and a girl who wanted to go to
school seven blocks from her home instead of miles away. The purpose of the introduction,
the professor said, was to remind students that the law had a human face. It is a lesson
that is reinforced each day for the graduate students who work in the Brechner Center for
Freedom of Information.
As the Brechner Center recognizes its 20th anniversary, it is a
fitting time to consider the contributions that the center has made to students
educations and the contributions those students have made to the center.
Students have always been a part of the center, beginning with
its days as the Florida Freedom of Information Clearing House. Through the generous
contributions of Joseph L. Brechner and his family, the Brechner Center has been able to
employ up to two graduate students each semester. One graduate student edits The
Brechner Report and another aids the centers public service mission and provides
direct assistance to the center's director, Dr. Bill F. Chamberlin.
As one of only a handful of freedom-of-information centers
nationwide that are based on university campuses, the Brechner Center has a threefold
mission that parallels the university's: teaching, public service and research. Students
play an integral role in each part of the mission, and are in turn enriched by each.
Because of the presence of Dr. Chamberlin, the Joseph L. Brechner
Eminent Scholar in Mass Communication, Sandra Chance, the centers assistant
director, and the other faculty members specializing in media law in the College of
Journalism and Communications at UF, the media law sequence in the college's doctoral
program is consistently recognized as one of the best in the nation.
The Brechner Center fulfills its public service function in a
number of ways, and students are involved in all of them. The center produces a number of
publications, including the monthly Brechner Report, a citizens guide to the
states Sunshine laws and the State Media Law Sourcebook, which a graduate
student recently updated and placed on the World Wide Web through a grant from the
National Freedom of Information Center. The Brechner Report is
mostly student-written and edited, and students provided research
and editing assistance for the citizens guide. The center also answers nearly 500
queries a year from media professionals and other citizens. Although no one at the center
can give legal advice, both Professor Chance and graduate students can and do help people
understand the intricacies of the Open Meetings and Public Records laws in Florida.
Students also do research in the center. For example, Michael
Hoefges recently completed an update of our list of
fines and punishments for violators of the Open Meetings and
Public Records law. The results of Michaels work will appear in the October issue of
The Brechner Report.
Perhaps the best education for graduate students in the Brechner
Center, however, is a lesson in humanity. Our work with queries and with the stories that
come to our attention through The Brechner Report teach us more than the dry
recitation of facts in a textbook could. They give the laws of access to information a
human face. They remind us that the problems faced by reporters and other citizens have
faces and names attached to them. It is a valuable lesson, and one that I hope all of us
who work at the Brechner Center as students will pass on to our own students when we leave
Anthony L. Fargo is a doctoral student in mass communications
at the University of Florida and a Brechner Fellow. He is the editor of The Brechner
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