The Brechner Report
Volume 21, Number 10
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Jackie Thomas, Production Coordinator
- Sarah Rabin, 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
Jury convicts fire board member
forces Lake Mary to start over
ABC won't get new trial,
federal judge says
Judge orders losing
plaintiff to pay fees
Abortion information law on hold
prevents possible debate over testimony
Subpoena quashed for
reporter in Estero case
private hearing after paper complains
office refuses to change photo ID policy
DCA: Pastor's bank
records can be examined
Judge orders FAU to
pay attorney's fees in suit
company settle lawsuit over records
NEWS & NOTES
Sun-Sentinel wins Brechner Award
court costs continue to add up for access violations
agree to remove billboard ads
THE BACK PAGE
poised to continue fight for access
convicts fire board member
ESTERO A Lee County Court jury convicted a member of the
Estero Fire Commission of violating the states Open Meetings Law, and Gov. Lawton
Chiles removed him from office.
Vernon Conly, 27, was one of four fire board members that the
State Attorneys Office charged with violating the law. Prosecutors said the
commissioners rushed through an April meeting before many members of the public had a
chance to enter the meeting room. (Brechner Report, June 1997)
Chiles suspended the four board members pending their trials on
misdemeanor criminal charges of violating the Open Meetings Law. The other three board
members trial was postponed when prosecutors asked to consolidate all the cases into
one trial. Only Conlys attorney said he was ready to proceed to trial.
Conlys sentencing was scheduled for Sept. 22, but his
attorney has appealed his clients conviction to Circuit Court. If the conviction is
overturned, Conly said he would ask Chiles to return him to the fire board for the
remainder of his term.
Conly could be sentenced to 10 days in jail, which the
prosecution recommended, and fined $250. If he is sent to jail, Conly would become the
first public official in Florida sentenced to jail for violating the Open Meetings Law,
according to research conducted by the Brechner Center for Freedom of Information.
(Related story, this page) (7/18/97-8/13/97)
violation forces Lake Mary to start over
LAKE MARY A committee that ranked the eight companies
bidding for a consulting job with the city may have violated the Open Meetings Law, a
critic of the group said. The City Commission responded by deciding to rank the companies
itself and interview the top three consultants before making a choice.
The citys Land Planning Agency chose the committee that
originally ranked the consulting companies, who are bidding to evaluate Lake Marys
comprehensive plan. Doug Forner, a member of the citys planning board, said agency
staff members conducted a secret telephone poll to determine which planning board member
to appoint to the board. Forner had volunteered, but the agency staff picked another board
Forner said the secret phone poll might have violated the Open
Meetings Law, which generally requires that all decisions of public bodies be made in
public. City Manager John Litton suggested that to avoid the appearance of a violation,
the agency should pick a new board and repeat the evaluation process. But commissioners
decided to serve as the screening committee instead. (7/25/97-8/2/97)
won't get new trial, federal judge says
MIAMI A federal judge in Miami denied ABCs motions
for a new trial in the libel case brought by Fort Lauderdale banker Alan B. Levan.
Levan and BFC Financial Corp. sued after a segment on the 20/20
show in 1991 indicated that Levan sold investors bonds that ABC characterized as
"junk." A jury awarded Levan and BFC $10 million. (Brechner Report,
ABC said it would appeal the jury decision after U.S. District
Judge C. Clyde Atkins, who presided at the trial, denied the networks motions for a
new trial. (7/18/97)
orders losing plaintiff to pay fees
FORT LAUDERDALE A federal judge ordered a former program
director at WIOD-AM radio to pay $5,000 to the Sun-Sentinel Co., one of the parties he
unsuccessfully sued for libel.
The program director, Gary Bruce, sued the Sun-Sentinel
and its TV and radio columnist, Tom Jicha, saying stories the newspaper ran about his
departure from WIOD cost him a job in Los Angeles and tarnished his reputation. A federal
judge dismissed the suit in October 1996, saying Bruce failed to prove that any allegedly
false statements made about him were published with actual malice knowledge of
falsehood or a careless and reckless disregard for whether they were false or not. (Brechner
Report, February 1997)
The Sun-Sentinels attorney said he offered Bruce and
his attorney the option of writing a letter of apology to Jicha for comments made about
Jicha during the litigation. He said Bruce and the attorney did not respond to the offer,
so he sought legal costs instead. (7/24/97)
information law on hold
WEST PALM BEACH A judge agreed to stop enforcement of a
new state law that requires physicians to give women seeking abortions a state-produced
brochure about pregnancy and abortion alternatives.
Judge Kathleen J. Kroll, 15th Judicial Circuit, enjoined
enforcement of the law the day after it took effect. State Rep. Barry Silver, D-Boca
Raton, sued to stop enforcement of the law, saying it unconstitutionally inhibited a
womans right to an abortion. He was representing clients from throughout the state.
Judge Kroll said the law was vague, misleading and potentially
dangerous because it could be read to pertain to medically necessary abortions. The judge
also expressed doubts about the accuracy of the state Department of Healths
The state Health Department has agreed not to enforce the law
statewide until an appeal of Judge Krolls ruling is decided. (7/17/97-8/27/97)
plea prevents possible debate over testimony
SANFORD A man whose conviction was overturned because the
trial judge allowed a newspaper article to be entered into evidence at his trial has
pleaded no contest rather than face a second trial.
Terry Dollar, a former radio disc jockey, entered the plea to a
charge of solicitation to procure a person younger than 16 for prostitution. He was
sentenced to two years of probation.
Dollar was convicted in 1995 of two felony counts after police
said he asked a prostitute to find him an 11-year-old girl for sex. However, the 5th
District Court of Appeal ordered a new trial, saying the trial judge should not have
allowed a newspaper article to be entered into evidence while quashing a subpoena for the Florida
Today reporter who wrote the story. Without the reporters testimony, the DCA
said, the article about Dollars arrest, which contained comments from him, amounted
to hearsay. (Brechner Report, February 1997) (7/29/97)
quashed for reporter in Estero case
FORT MYERS A judge quashed a subpoena for a Naples
Daily News reporter in the open-meetings trial of Estero Fire Commission member Vernon
Lee County Judge Edward J. Volz ruled that Janel Shoun should not
have to testify because the information sought by the defense was available elsewhere.
Conlys attorney argued that Shoun was a material witness who attended the meeting in
Conly was convicted of violating the states Open Meetings
Law. Three other members of the fire board face charges in connection with the same
meeting. (Related story, page 1) (7/25/97)
Judge cancels private
hearing after paper complains
DAYTONA BEACH A judge canceled a private conference with
attorneys in a murder case after a newspaper asked to attend.
Judge R. Michael Hutcheson, 7th Judicial Circuit, said he could
not hold a private conference with prosecutors and defense attorneys because The
Orlando Sentinel and other media had not been given proper notice of the closed
hearing or a chance to protest the closure. Judge Hutcheson also said the defense
attorneys who requested the private meeting to discuss whether sensitive evidence should
be excluded from the trial did not give him enough details to determine whether the media
should be excluded from the conference.
The judge gave defense attorneys the option of filing a new
motion for a closed conference, with proper notice to the media, or holding the hearing in
public. Defense attorneys chose the latter course and lost a bid to keep from prosecutors
the handwritten notes of a psychologist and a psychiatrist who examined defendant Michael
Garner. The 5th District Court of Appeal upheld Judge Hutchesons decision on
admissibility of the notes with no comment.
Garner was charged with first-degree murder in the shooting death
of his pregnant ex-wife and manslaughter in the death of her 9-month-old fetus. He
admitted shooting his ex-wife during an argument but claimed the shooting was accidental.
Regional DER office refuses
to change photo ID policy
PENSACOLA Despite a protest from a group of 26
environmentalists, the administrator for the Pensacola office of the Florida Department of
Environmental Regulation refused to change a policy requiring anyone asking to review
records to present a photo identification.
The group complained that the policy violated the states
Public Records Law and was designed to discourage members of the public from viewing
records. DEP officials countered that the policy, adopted in June, was legal and necessary
The Pensacola office is the only one of the six regional DEP
offices in Florida with the policy. Other offices require people seeking records to sign
in but do not require an ID.
A 1991 Attorney Generals Opinion stated that a person
seeking records could not be required to disclose his or her name, address or telephone
number to a records custodian as a condition for seeing records. A 1992 opinion stated
that an agency also could not seek any background information on the record seeker.
Pastor's bank records can be examined
ST. PETERSBURG The 2nd District Court of Appeal cleared
the way for state investigators to examine the bank records of the Rev. Henry Lyons, the
leader of the National Baptist Convention USA.
Lyons, of St. Petersburg, is under investigation by the State
Attorneys Office, the U.S. Attorneys Office and the Baptist organization. All
are questioning Lyons financial dealings, including how he spent money from a church
building fund and his dealings with Bernice Edwards, a convicted embezzler with whom he
owns a $700,000 waterfront home.
A circuit judge ruled that the bank should release Lyons
records to investigators, but Lyons appealed, citing privacy concerns. A three-judge
appeal court panel said it could find no reason to overturn the circuit courts
orders FAU to pay attorney's fees in suit
WEST PALM BEACH A judge ordered Florida Atlantic
University to pay $8,595.90 in attorneys fees and court costs to a former dean who
successfully sued the university for access to public records.
Sandra K. Norton won the suit against FAU last year. She said
university officials refused to allow her to see correspondence between the university and
a philanthropist and his family over how FAU was to spend a $10 million gift. (Brechner
Report, November 1996) (Decisions on File, Norton v. Catanese, Case No. CL-96-6873-AF,
July 30, 1997)
County, company settle lawsuit over records
PORT CHARLOTTE DeSoto County and a company that sued it,
claiming the county violated the Public Records Law, have settled out of court.
Comp-Lete Food Inc., which operates a composting plant near
Nocatee in DeSoto County, sued after it filed three requests for all county records
pertaining to the plant. Comp-Lete said the county only responded to the second request,
and then incompletely. After a judge told the county it must comply with the Public
Records Law, the company said it still would take the suit to trial to show that the
county had violated the law.
However, the company later decided to drop the suit, saying it
had proved its point. Both sides agreed not to pursue further litigation or court costs.
Nocatee residents repeatedly have complained to the DeSoto County
Commission that the odor from Comp-Letes plant is unbearable. The county is
considering hiring an odor expert to find the source of the smell, which Comp-Lete insists
is not coming from its plant. (6/11/97-8/13/97)
wins Brechner Award
GAINESVILLE The Fort Lauderdale Sun-Sentinel won
this years Joseph L. Brechner Center for Freedom of Information Award for its series
"Quick Cash with Few Questions." The series focused on Fort Lauderdale pawnshops
that operate as fronts for criminals to convert stolen goods into quick cash.
The articles shed light on Floridas new pawnbroking act and
the little known provision that exempted pawn slips from Floridas public records
law. The public records exemption made it impossible for them to discover the
pawners name and more difficult for crime victims to recover their goods.
After the Sun-Sentinel series, new legislation was
introduced and passed that allows crime victims access to the pawn slips.
The Honolulu Star-Bulletin and the Daytona Beach
News-Journal received special commendations for their series on freedom-of-information
The $3,000 cash award recognizes excellence in reporting about
freedom-of-information and First Amendment issues. The award will be presented at the
Florida Sunshine Summit on Oct. 17 on the University of Florida campus.
Fee and court
costs continue to add up for access violations
Since 1981, media and non-media litigants have obtained at least
$815,035 in attorneys fees and court costs in public records and open meetings
cases, according to data compiled by the Brechner Center for Freedom of Information.
In a related study, Brechner Center data indicate that 96 public
officials and employees have either pleaded no contest or guilty or were convicted of
criminal or civil charges under the Public Records and Open Meetings laws in 23 cases
since 1978. At least 11 officials were either removed or suspended from office. None were
jailed, but some were ordered to pay fines or perform community service. In some cases,
charges were dropped in exchange for commitments to study the open-government laws.
The Brechner Center last studied fees and court costs in 1994 (Brechner
Report, April 1994) and prosecutions of public officials and employees in 1992 (Brechner
Report, February 1992). Since 1994, fees and court costs in records and meetings cases
have been at least $153,093.90. Since 1992, 15 public officials have pleaded no contest or
guilty or have been found guilty of violations.
To date, the single largest amount of legal fees and court costs
obtained in a public records or meetings case is $100,000. In 1991, the St. Petersburg
City Council and the Chicago White Sox agreed to pay that amount to the St. Petersburg
Times after the newspaper was denied access to a draft lease between the city and the
professional baseball team. The case stemmed from the 1988 negotiations for the team to
move to St. Petersburg from Chicago.
The following chronology lists cases in which fees or court costs
have been awarded or government actions have been nullified because of Public Records or
Open Meetings law violations. Next, there is a list of cases in which public officials or
employees have been convicted by juries, found guilty by judges or pleaded guilty to
violating the open-government laws. This listing is based on a survey of past issues of The
Brechner Report and its predecessor, The Freedom of Information Clearing House
Newsletter. For a more complete and up-to-date list of fees and costs paid and
prosecutions, see the Brechner Center Web site at
NOTE: An update on the number of public officials and employees
prosecuted for violations of the records and meetings laws will appear in a later addition
of the Brechner report.
JULY 1997 -- Judge John J. Hoy, 15th Judicial Circuit,
ordered Florida Atlantic University President Anthony J. Catanese to pay attorneys
fees and costs of $8,595.90 to a former dean who won a public-records lawsuit against the
JUNE 1997 -- The Lantana Town Council voted to pay a local
resident $1,426 in legal fees to settle a lawsuit in which the town was accused of
violating the Open Meetings Law. The town did not admit wrongdoing. The resident sued
after the town released a statement indicating the council had decided in secret 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.
JUNE 1997 -- Judge Robert Boylston, 12th Judicial Circuit,
ruled that Ken Peterson, a private citizen, was entitled to recover attorneys fees
from the city of Anna Maria in a public records suit against the city. Peterson had to
wait 26 days for records, which Boylston said was unreasonable and constituted an unlawful
refusal to produce public records.
MAY 1997 -- The 3rd District Court of Appeal ruled that a
Miami-Dade Community College committees 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
but failed to give public notice of its meetings.
MAY 1997 -- Martin County commissioners admitted violating
the Open Meetings Law by settling lawsuits in closed-door meetings and agreed to pay The
Palm Beach Post $15,900 in attorneys fees. The Post had sued in February
after learning that the commission had agreed to settle a number of lawsuits in executive
session without taking a public vote on the settlements. The settlements were approved in
a public vote at the same meeting in which the commission voted to settle the Post
APRIL 1997 -- The city of Fort Pierce agreed to pay
$15,000 in legal expenses incurred in a public records dispute by The Stuart News/Port
St. Lucie News, although the city did not admit any wrongdoing. The dispute
stemmed from a memo written by City Manager Dennis Beach saying that a reporter for the
newspaper could not view public documents without a written application, an appointment
and Beachs approval. Also, the city was charging the newspaper 10 cents more per
copy for public records than other newspapers.
NOVEMBER 1996 -- The Duval County School Board agreed to
pay The Florida Times-Union $25,000 for attorneys fees in a court action
filed by the paper seeking the release of transcripts of closed school board meetings.
SEPTEMBER 1996 -- The 5th District Court of Appeal held
that the town of Eatonville must pay attorneys fees and court costs after violating
the Public Records Law. Michael Barfield sued the town after being denied access to public
records related to the opening of a topless club in the town. He sought $65,000 in
attorneys fees from the town.
SEPTEMBER 1996 -- The Palm Beach County School Board
agreed to pay $39,000 in attorneys fees and court costs to resolve a public records
action filed by the Fort Lauderdale Sun-Sentinel and The Palm Beach Post.
The board had refused to release a survey that was commissioned by the board and conducted
by a private research company.
AUGUST 1996 -- Judge R. Wallace Pack, 20th Judicial
Circuit, ordered State Attorney Joseph P. DAllessandro to pay $2,054 for
attorneys fees and court costs incurred by the Fort Myers News-Press after
the paper obtained a court ruling releasing portions of a surveillance audio-tape
recording of a Fort Myers city council member.
JUNE 1996 -- To resolve a public records action filed by
the St. Petersburg Times, Tampa General Hospital stipulated in court documents that
it illegally withheld public records about the search for a new president of the public
hospital. The hospital agreed to pay $12,100 to the newspaper for attorneys fees and
FEBRUARY 1996 -- The 5th District Court of Appeal held
that Dunnellon Mayor Larry Winkler violated the Open Meetings Law by not naming two
attorneys who attended a private city council meeting. The city was ordered to pay nearly
$17,000 for the attorneys fees of Dunnellon police Sgt. Luis Aran, a non-media party
who had requested the records.
SEPTEMBER 1995 -- The 4th District Court of Appeal upheld
a lower courts order that ruled invalid a contract awarded by the Port Everglades
Port Authority. The port authoritys selection and negotiation committee had asked
bidders on a port authority project to leave the meeting room voluntarily while their
competitors presented proposals.
JULY 1995 -- The 4th District Court of Appeal upheld a
lower courts judgment that declared invalid a land-swap contract between Broward
County and Nathan and Maria Conner because the contract had not been acted upon by an
official county body at a public meeting.
MAY 1995 -- A 1st Judicial Circuit judge ordered the
Florida Department of Law Enforcement and the Okaloosa County Sheriffs Department to
pay more than $6,200 to the Northwest Florida Daily News for attorneys fees
and court costs incurred to obtain access to a convicted serial killers confession.
MARCH 1995: The Ocala Star-Banner was awarded
$5,473 for attorneys fees and court costs after gaining access to police records
dealing with a 1989 criminal complaint filed against a private citizen who later became a
NOVEMBER 1994: After a court order commanding the City of
St. Petersburg to permit St. Petersburg Junior College to inspect and copy certain
documents, a 6th Judicial Circuit court awarded the college attorneys fees incurred
in the court action.
OCTOBER 1994: The 2nd District Court of Appeal awarded
attorneys fees to a law firm that had sued to gain access to water authority
records. The trial court had refused to award Smith & Williams attorneys
fees for its litigation against the West Coast Regional Water Supply Authority. Smith
& Williams sued the water authority to gain access to records of payments to
private attorneys handling water authority litigation.
companies agree to remove billboard ads
WEST PALM BEACH As part of their settlement with the State
of Florida, five tobacco companies agreed to remove advertisements for tobacco products
from all billboards in the state, with special attention to billboards within 1,000 feet
of schools or playgrounds.
The state sued the major tobacco companies to recoup the money
the state said it spent in social-service programs to aid people suffering from
tobacco-related illnesses. The tobacco companies agreed to pay the state more than $11
billion and made other concessions, including the advertising ban.
In addition to billboards, the tobacco companies agreed to stop
using "transit advertisements," such as signs on vehicles and ads in or near bus
stops, taxi stands, waiting areas, train stations, or airports. If billboards are near
schools or playgrounds, the tobacco companies agreed to make every effort to remove their
ads or allow the state to put up anti-smoking ads in their place for the remainder of the
billboard contracts. (Decisions on File, State of Florida v. American Tobacco Co. et al.,
Case No. 95-1466 AH, 15th Judicial Circuit, Aug. 25, 1997)
Brechner Center poised to
continue fight for access
By Bill Chamberlin
Jo Anne Smith and Ralph Lowenstein opened the Florida Freedom of
Information Clearing House in 1977. I arrived in 1987 after Joseph L. Brechner donated
funding for an eminent scholar chair and office space in the College of Journalism and
Since 1987, we have expanded The Brechner Report to a
monthly publication and often print six pages rather than four. We now receive in the
Brechner Center more than 500 inquiries about open meetings, open records, and other media
law topics. Prof. Sandra Chance, the centers assistant director, answers most of
those questions. Prof. Chance and I frequently speak about access to government to media
lawyers, journalists, citizen activists, and journalism educators.
This fall, we are publishing 10,000 copies of the revised Florida
Government in the Sunshine: A Citizens Guide. The Media Law Sourcebook
was first published in 1992, and an updated version is now available at our Web site. The
Web site, http://www.jou.ufl.edu/brechner/brochure.htm, also contains recent editions of The
Brechner Report and the most comprehensive available list of Florida officials
punished for violating access laws or required to pay attorneys fees for access
violations. The Web site also contains a letter that can be used when asking for public
records and links to the best sites across the nation for material about access to
This year the Brechner Center, working closely with Joel
Campbell of Utah, now vice president of the National Freedom of Information Coalition,
helped develop a home page for people seeking information about freedom of information in
any state. The information is on the Web site of the NFOIC, which provided money for the
project through a grant from the John S. and James L. Knight Foundation.
The center annually helps sponsor the Media Law Conference and a
workshop designed to help journalists report about the courts. The center also has
sponsored programming at meetings of the National Freedom of Information Coalition, the
umbrella group of state FOI organizations. I am a member of the NFOIC executive board and
Prof. Chance is a member of the board of directors of the Florida First Amendment
Foundation and is the state sunshine chair for the Society of Professional Journalists.
This October, of course, we are sponsoring the Florida Sunshine
Summit, a one-day exploration of access issues, in honor of the Brechner Centers
20th anniversary. At the Florida Sunshine Summit, we will inaugurate the Florida Freedom
of Information Hall of Fame. In addition, the center annually sponsors the Joseph L.
Brechner Freedom of Information Award, which provides $3,000 to the journalists in the
country providing the best writing and reporting about access to government information.
But perhaps the contributions of the center that will have the
longest-lasting impact are the research publications being produced by Prof. Chance, me,
and the students attracted to the Ph.D. program in media law in the college. For 10 years
I have been writing the access chapter in one of the most widely used mass media law
textbooks for undergraduate communications students. This month, at a national scholarly
conference, I will present a paper that will challenge the traditional approach of
thinking about access to government information. I was among the first published authors,
working with a few of our graduate students, to provide guidelines for state laws
protecting access to government information stored on computers. While we were working on
that project, I encouraged the Florida Society of Newspaper Editors to take a hard look at
the problem of access to computerized records. Our discussions led to a committee that
developed guidelines that were considered by both the state legislative and executive
branches as they adopted rules and laws affecting access to government information stored
Prof. Chance has published articles on cameras in the courtroom
and the use of gag orders in courts. She and I have worked with two of our graduate
students to produce the most comprehensive examination of the enforcement of open meetings
laws available. The center also sponsored a study of subpoenas in the state of Florida
involving Prof. Laurence Alexander of UFs Journalism Department, a graduate student,
and me. That project helped galvanize support for a shield law in this state.
Student research has led to a book about access to courts and at
least a half-dozen articles on subjects such as the conflict between privacy interests and
access, the secrecy of many searches for university presidents, and access to discovery
records in criminal proceedings. Students have presented more than two dozen academic
conference papers on access issues and many others on the First Amendment and other media
The centers research efforts are helping everyone -- not
just journalists and lawyers and not just people in the state of Florida -- to understand
the issues and the importance of protecting access to government information.
Sandi and I are grateful for the opportunity to work in the
center for part of its 20-year history. We are looking forward to the contributions we can
make in the future.
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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