The Brechner Report
Volume 22, Number 3
March 1998

A monthly report

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Sarah Rabin, Production Assistant
• Stacey Silver, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Board member frustrated with Sunshine Law resigns
Miami council defeats ordinance for open meetings
No charges filed against superintendent, attorney
Chiles, Butterworth ordered to talk about settlement

LIBEL
Multimillion dollar libel suit dismissed
Car dealer sues nationally syndicated cartoonist for libel

FIRST AMENDMENT
Judge rules New Testament history course unconstitutional
School settles with student over pamphlets
Artist says community college censored art exhibit

LEGISLATIVE NEWS
Bills for exemptions on agenda for legislative session

ACCESS RECORDS
AGO: Volunteer fire departments open to public records law
Architectural and building plans public records

NEWS & NOTES
Brechner FOI Award Deadline is March 15, 1998

THE BACK PAGE
Proposed access restrictions bode difficult session

ACCESS MEETINGS

Board member frustrated with Sunshine Law resigns

ST. PETERSBURG – A member of the Economic Development Council resigned his position because he disagreed with tenants of Florida’s Open Records Law.

Stan Olsen, a Citrus County Developer, resigned from the board due to frustration that members of the EDC cannot meet privately with prospective business owners. He also did not want to fill out a financial disclosure form because he said he thinks the information is misused once it is disclosed.

Olsen was a member on the council since its inception in August 1997. The group is composed of business representatives from around the county.

Olsen is not the only member frustrated with the law. The other members of the EDC are considering asking the Citrus County Commission to turn the group into a separate corporation contracted by the county, therefore limiting public access to the group. (1/9/98 – 1/13/98)

Miami council defeats ordinance for open meetings

MIAMI – Members of a Miami city council voted against an ordinance that would have made public the conversations between the mayor and one city commissioner.

According to Florida’s Open Meetings Law, conversations between a mayor and two or more members of a commission are open to the public.

However, mayors who do not have votes on commissions, such as is the case with the Metro city commission, are not subject to Florida’s Open Meetings Law, according to Attorney General Opinions 90-26 and 85-36. This is only true when mayors are not acting as liaisons, not if they have been granted authority to act on behalf of the council.

The commissioner who proposed the ordinance, Miguel Diaz de la Portilla, said the ordinance was necessary to bring public scrutiny to the mayor’s actions because he influences the commission. A representative for Mayor Alex Penelas said he opposed the ordinance because the mayor’s conversations with commissioners are inconsequential and not lawfully required.

The commission defeated the ordinance by a vote of 7-5. (1/15/98)

No charges filed against superintendent, attorney

WEST PALM BEACH – The state attorney’s office will not file charges of violating Florida’s Open Meetings Law against the superintendent and school district attorney.

Supporters of a former principal, Art Johnson, filed complaints against Superintendent Joan Kowal and attorney Glen Torcivia, alleging they violated the law by polling Palm Beach County School Board members to find out how they would vote on Johnson’s termination.

Johnson has sued Kowal and Torcivia on the same grounds. He is also contending that Kowal and Torcivia violated his rights to due process by not giving him a chance to refute accusations that he poorly managed Spanish River High School (Brechner Report, December 1997).

Moira Lasch, chief assistant state attorney, said her office did not have enough evidence to file charges, and it would not prosecute on rumor, speculation and suspicion. (1/23/98)

Chiles, Butterworth ordered to talk about settlement

PALM BEACH – Gov. Lawton Chiles and Attorney General Bob Butterworth were required to testify about negotiations that led to the August 1997 $11.3 billion settlement with the tobacco industry. Attorneys that worked for the state during the settlement allege the negotiations should have been open to the public.

Chiles and Butterworth had been scheduled to testify in February about the negotiations as part of a contract interference lawsuit filed by attorney Bob Montgomery, who disputes the terms of the tobacco settlement. Montgomery is fighting the part of the settlement that allows an arbitration team to determine how much the attorneys in the case should receive for payment instead of the 25 percent of the settlement agreed to in the attorneys’ original contract with the state. An arbitration team’s determination of what constitutes reasonable fees for working on the case has the potential to greatly decrease the amount the attorneys would have received if the state is held to the initial contract.

Judge James Carlisle, 15th Judicial Circuit, rejected pleas that the governor and attorney general should be shielded from testifying about the settlement negotiations. (1/29/98)

LIBEL

Multimillion dollar libel suit dismissed

ST. PETERSBURG – Judge W. Lowell Bray Jr., 6th Judicial Circuit, dismissed a $100 million libel suit against the St. Petersburg Times because attorneys for the doctor who filed the suit allowed more than a year to pass without pursuing the case.

Attorneys for Dr. Alfred O. Bonati failed to file a single record or motion with the court since September 1996, so the case was dropped. Under rules for civil litigation, such inactivity is grounds for dismissal. Bonati had alleged that as the result of a St. Petersburg Times article in 1992, he lost patients and income and has been held up to ridicule and contempt.

Jonathan Lubell, one of Bonati’s attorneys, argued in a court hearing previous to the dismissal that the case was inactive because the newspaper was not cooperating with Lubell’s efforts to question an editor who no longer works for the paper. (12/20/98)

Car dealer sues nationally syndicated cartoonist for libel

SARASOTA – A car dealer and his son sued the creator of the nationally syndicated comic strip, "Marvin," claiming the cartoon libeled them.

Mercedes-Benz dealer Jerry Glauser and his son Chad filed a $1 million lawsuit against Cartoonist Tom Armstrong, claiming six comic strips that ran in July and August of last year were libelous. The cartoon centers around a baby named Marvin and his parents.

Before the comics in question ran, Armstrong bought a car from the Glausers’ dealership. Armstrong later sent a letter complaint to the Glausers about the service he received at the dealership. In the letter, Armstrong said it had been difficult to do business with the Glausers, but the experience might furnish comedic material for his cartoon.

About two months after buying the car, Armstrong portrayed the main character, Marvin, talking to another baby named Chad who wants to run his father’s car dealership when he grows up. In one strip, the Chad character said, "I like to fib," and in another strip, he said he fabricated a charge during a sale. (12/26/97)

 FIRST AMENDMENT

Judge rules New Testament history course unconstitutional

FORT MYERS – A federal judge blocked one of two Bible history classes being taught in Lee County public schools.

U.S. District Judge Elizabeth Kovachevich, of the Middle District of Florida, ruled that the New Testament history class, which includes instruction on the Resurrection and miracles, could not be taught as secular history. Kovachevich held that the Old Testament class may remain because, when presented objectively, it can proceed in accordance with the First Amendment.

The Lee County School Board approved the Bible curricula in October 1997 (Brechner Report, December 1997). The board has not yet decided if it will appeal Judge Kovachevich’s decision. The Old Testament classes have continued as planned. (1/21/98)

School settles with student over pamphlets

NICEVILLE – Niceville High School settled a lawsuit filed by a student who was suspended for five days for distributing religious pamphlets to students on school grounds.

The high school agreed to pay senior Nicholas Wright $12,500 for attorney’s fees and costs after he sought federal court protection for his First Amendment rights. The school also changed its literature distribution policy. (1/13/98)

Artist says community college censored art exhibit

BRADENTON – Manatee Community College canceled an art exhibit showcasing works by censored artists and addressing censorship issues. The artist claims the show was censored.

Barbara Jo Revelle, the chairwoman of the University of Florida art department, said her exhibit was canceled because officials at the community college did not want to show a photo of a man with an erection who was wearing only a bear mask and a black, velvet, Elvis T-shirt. The photo was part of a 15-panel exhibition on the constitutional definition of obscenity set out in Miller v. California. The three-part definition in Miller v. California stated that the work as a whole must appeal only to prurient interests, must depict sexual content in a patently offensive way and be lacking in serious artistic, scientific and educational value to be obscene.

Revelle refused a request from John James, chairman of the humanities department at the community college, to show the exhibit without the photo.

James said the cancellation was a business decision. He said the gallery lacked space for all the panels in Revelle’s exhibit. Revelle’s requirement that all the panels be included was a breach of contract, James said, so he canceled the show altogether. (2/1/98)

LEGISLATIVE NEWS

Bills for exemptions on agenda for legislative session

TALLAHASSEE - Legislators will consider several exemptions to Florida’s Public Record and Open Meetings laws during this year’s session. Below is a list of bills that affect these laws. Chief sponsors are in parenthesis next to the corresponding bill numbers.

HB 1105 (Albright, R-Ocala), SB 348 (Cowin, R-Leesburg) – Would exempt a videotaped statement from a minor that reveals personal identifying information from public records disclosure when the minor is the victim of specified crimes involving sexual battery, lewd acts or other sexual misconduct.

HB 1139 (Sindler, D-Apopka) – Would exempt information contained in rabies vaccinations certificates from public records requirements. This information includes the license number of the administering veterinarian, the name, address, and phone number of the veterinarian and pet owner and the species, age, sex, color, breed, weight and name of the animal vaccinated.

HB 1167 (Harrington, R-Punta Gorda) – Would exempt personal information relating to Department of Corrections clinicians and educational personnel, their spouses and their children. From public records requirements

HB 1197 (Sublette, R-Orlando) – Would provide confidentiality for disciplinary proceedings for boards within the Department of Business and Professional Regulation and the Department of Health. Information pertaining to active investigations could be disclosed when the case ceases to be active. Information regarding cases that are dismissed remains confidential.

HB 1437 (Saunders, R-Naples), SB 166 (Brown-Waite, R-Brooksville) – Would keep confidential information that identifies a patient involved in a grievance proceeding before a managed care provider. Also exempts identifying information and the grievance hearing from Sunshine Law requirements.

HB 1613 (Dawson-White, D-Fort Lauderdale) – Would limit access to medical history records, bank account numbers, credit card numbers, telephone numbers, and information related to health or property insurance furnished by an individual to any agency pursuant to federal, state, or local housing assistance programs.

HB 1849 (Lacasa, R-Miami, Murman, R-Tampa) and SB 108 (Hargrett, D-Tampa) – Would exempt from public records law personnel information contained in foster parent licensing files concerning licensed parents, their spouses, children and other adult household members.

HB 1939 (Posey, R-Rockledge) – Would provide an exemption from public records law bank account numbers and debit, charge or credit card numbers used by state or local government agencies.

HB 1945 (Melvin, R-Fort Walton Beach) – Would make confidential the identities of donors, applicants and clients of the Florida Endowment Foundation for Florida’s Graduates on the condition that HB 1901 passes. HB 1901 forms the foundation. The foundation would fund a program called Jobs for Florida’s Graduates, which is a school-to-work program that would help find full-time jobs for high school graduates.

HB 1957 (Arnall, R-Jacksonville Beach) – Would exempt from public records law information concerning the identification and treatment of drug abuse among applicants for and recipients of public assistance under the WAGES program, a financial assistance program for low-income women with dependent children.

HB 3121 (Mackey, D-Lake City) – Would limit an offender’s access to Department of Corrections’ records to instances where the offender makes a written request and demonstrates an exceptional need for information contained in the department's records and the information is otherwise unavailable

Also prohibits disclosure of personal information already exempt from disclosure by public records law by an inmate or offender about another with intent to gain a benefit or harm or defraud another. Would provide penalties such as forfeiture of gain time to offenders who misuse personal information to which they have access through correctional work or program participation.

HB 3209 (Wise, R-Jacksonville) – Would provide a public records exemption for licensed social workers’ disciplinary proceedings. Also provides public meetings exemption for probable cause hearings regarding investigations concerning licensed social workers.

HB 3311 (Saunders, R-Naples), SB 316 (Brown-Waite, R-Brooksville)– Adverse incident reports provided to the Agency for Health Care Administration by healthcare facilities would become exempt from public records requirements.

HB 3317 (Cosgrove, D-Miami) – Would exempt from public records and open meetings requirements information regarding disciplinary proceedings involving art therapists, registered art therapist interns and provisional art therapists.

SB 112 (Latvala, R-Palm Harbor) – Would make confidential communications and records regarding state employee participation in state assistance programs for substance abuse or behavioral, emotional or medical disorders.

SB 198 (Klein, D-Delray Beach) – Would exempt from public record law information identifying the executioner who administers lethal injections in death sentences.

SB 506 (Rossin, D-West Palm Beach) – Would revise requirements for releasing Department of Children and Family Services investigation records that pertain to abuse, neglect, abandonment or exploitation of a child, disabled adult or elderly person. Would delete requirements of a court order to obtain access to information in cases involving the death of a child, disabled adult or elderly person as a result of abuse, neglect, abandonment or exploitation. Would prohibit releasing information identifying the person who reported the abuse, neglect, abandonment or exploitation.

SB 748 (Williams, D-Live Oak) – Would provide that a private corporation that leases a public hospital or other public health care facility is not acting on behalf of such an institution for purposes or the public records and open meetings laws. This would not apply if the public institution was the incorporator of the private corporation and the majority of members on the governing board of the private corporation are also members of the governing board of the public facility.

SB 814 (Dyer, D-Orlando) – Would exempt from public records law information, such as trade secrets or investigation records, provided by a stationary sources, such as buildings, structures or equipment, subject to the Accidental Release Prevention Program under the federal Clean Air Act.

ACCESS RECORDS

AGO: Volunteer fire departments open to public records law

LAKE PLACID – Volunteer fire departments can be subject to Florida’s Public Records Law, according to an Attorney General Opinion.

The opinion determined whether the private entity was acting on behalf of a public agency. The Lake Placid department is an "agency" for purposes of the records law because it is on public property, it pays no rents for the building or land, the department receives money from the town’s budget and the fire chief is an officer of the town, according to the opinion.

The opinion was the result of inquiries from Clint Smith, a member of the Lake Placid Town Council. Smith said that he was acting as a private citizen when he requested records from the volunteer department and never received them. Smith said he wanted the records for his own use, not for official council business. He filed complaints against three members of the fire department. Smith said he felt vindicated by the opinion. (12/11/98)

Architectural and building plans public records

TALLAHASSEE – Sealed architectural plans and building plans labeled as trade secrets are both subject to public inspection, according to two separate opinions from Florida Attorney General Bob Butterworth.

Although architectural plans are required by law to be stamped with a metal seal, the sealing is for purposes of establishing the professional status and identity of the person producing the plans. The legal requirement to seal architectural plans is not intended to create a property interest similar to copyrighting. However, public records custodians should advise people inspecting records that photocopying copyrighted records may violate federal law, according to AGO 97-84.

Building plans labeled "trade secret" by the person submitting them are also subject to disclosure because there are no statutes specifically exempting them from the requirements of Florida’s Public Records Law according to AGO 97-87.

Neither, said the attorney general, are building plans and specifications exempt from the public records law when they are computer-generated. The attorney general found no evidence that the legislature intended that building plans were subject to disclosure when they existed in a paper format but were exempt from disclosure when stored in a computer. (12/18/97 – 12/31/97)

NEWS & NOTES

Brechner FOI Award Deadline is March 15, 1998

Did you write a story about freedom of information, access to government information or the First Amendment in 1997? If so, submit your article or series of articles to this year’s Brechner Center for Freedom of Information award competition.

The winner will receive a check for $3,000 and will be named the Brechner Freedom of Information Visiting Professional and Guest Lecturer.

The 1997 award went to The Sun Sentinel for a series on pawn shops that operated as fronts for criminals. A little-known provision exempted pawn slips from Florida’s Public Records Law, making it difficult for victims to find the pawner’s name or to recover goods. After the series, new legislation was passed that allows crime victims access to pawn slips.

A panel of judges from around the country, including a media lawyer, a journalist and a communications professor, will select this year’s winner.

The deadline for the 13th annual Joseph L. Brechner Freedom of Information Award is March 15, 1998. Send five original tear sheets, with a cover letter explaining the development and impact of the stories.

Send entries to Sandra F. Chance, Assistant Director, Brechner Center for Freedom of Information, 3208 Weimer Hall, College of Journalism and Communications, University of Florida, Gainesville, FL 32611.

THE BACK PAGE

Proposed access restrictions bode difficult session

By Barbara A. Petersen

At the end of each legislative session, when I’m finally able to catch my breath after many long hours worrying and watching over the Legislature’s attempts to create scores of new exemptions to our constitutional right of access to public records and meetings, I think to myself, "It can’t get any worse than this." And each year I’m wrong – dead wrong; it can, and does, get worse. Unfortunately, the 1998 Legislative Session is proving me wrong once again.

The 1998 session is proving problematic for a number of reasons. First, under rules adopted by the House of Representatives last year, House bills do not automatically die at the end of the session like they have in the past. Rather, any bill that passed the House last year but was not considered by the Senate was placed directly on the House Consent Calendar. This means that a large number of troublesome bills from 1997 are poised for immediate passage in the House and the Senate. However, our biggest problem continues to be the extremely large number of proposed exemptions filed each year – three weeks prior to the start of the 1998 session, nearly 60 bills that would create new exemptions had been filed. While not all of the bills filed are particularly bad – and there are a couple that would actually open access to records now closed – the bills that are bad are really bad.

For example, there is an alarming number of bills closing access to medical and hospital records. The Senate Health Care Committee has filed two bills, SB260 and SB 364, that would create exemptions for any identifying information about a natural person" contained in health, medical, patient or insurance records. Presumably, this would include information identifying not only the patients who are the subjects of the records, but also any information identifying doctors or other health care personnel. The need to protect a person’s medical records is clearly understood by most people, and, in fact, there are many exemptions currently scattered throughout the states. But why should this protection be extended to doctors and other health care professionals? According to the constitutionally required statement of public necessity in SB 364, doctors and other health care professionals need "[p]rotections from aimless, casual or sensationalized disclosure" of their identities in order to "promote … [their] willingness to consult on difficult cases." SB 260 does not include a statement of public necessity as required by Article I, section 24, of the Florida Constitution.

There are also a few bills that seem to have been filed in direct response to a couple of lawsuits brought by The News-Journal against two hospitals in Volusia County. Sen. Charles Williams (D-Live Oak) has filed two bills, SB 748 and SB 1044, that would stipulate that a private corporation leasing a public hospital or other public health care facility is "not acting on behalf" of a governmental entity for purpose of the Sunshine Law and Public Records Law. At issue in Memorial Hospital-West Volusia v. News Journal Corporation is whether Memorial Hospital, a private non-profit corporation created to lease what had been a public hospital, is subject to the public access requirements in Florida’s Sunshine Law. (The Fifth District Court of Appeal held in favor of The News-Journal, and Memorial Hospital has appealed to the Florida Supreme Court.) Although SB 748 and SB 1044 would have exactly the same effect, the two bills are drafted very differently. SB 748 contains a statement of public necessity required of all legislation that would create an exemption to either the Sunshine Law or the Public Records Law. SB 1044 does not. The rationale for the difference in drafting is not readily apparent, except that perhaps the sponsor and his supporters are hoping that SB 1044 will not get the intense scrutiny that proposed exemptions traditionally receive. HB 3585, sponsored by Rep. Durrell Peaden (R-Crestview), is identical to SB 1044.

At issue in Halifax Hospital Medical Center v. News Journal is whether hospitals’ governing boards can meet in closed session to discuss "strategic plans." The Florida Public Records Law allows hospital boards to close meetings to discuss strategic plans, but the law does not define the term. The News-Journal had challenged a meetings closure of the Halifax Hospital board, claiming in its lawsuit that the exemption was unconstitutionally overbroad. Both the trial court and the Fifth District Court of Appeal agreed with The News-Journal, and Halifax Hospital has appealed to the Florida Supreme Court.

Rep. Michael Fasano (R-New Port Richey) has filed legislation, HB 3605, that would amend FS sect. 365.3035, allowing a public hospital to close board meetings when discussing "written strategic plans." HB 3605 would amend the definition of "strategic plan" to include, in part, any plan to initiate or acquire a new health service; expand on an existing health service, acquire or expand existing facilities; change all or part of the use of an existing or newly acquired facility; and acquire, merge or consolidate with another health care facility or health care provider. As far as I can tell, the list includes just about everything a public hospital board might consider, and the question remains whether HB 3605 addresses the constitutional infirmity in current law.

All the news is not dour, however. There are two very good bills that would actually allow public access to records that have traditionally been closed. Rep. Bill Sublette (R-Orlando) has sponsored legislation, HB 1197, that would open investigations by the Department of Business and Professional Regulation and the Agency for Health Care Administration into complaints against licensed professionals once the investigation is complete or no longer active. Currently, such records are opened only if there is a finding of probable cause. According to statistics released by the DBPR, probable cause is found in fewer than 25 percent of the investigations conducted by the two agencies. Incredibly, this legislation, supported by both agencies, will most likely fail due to the extreme disinterest of our legislators – or the incredible influence of the licensed professionals lobbyists.

Other legislation that would open access to records currently exempt from public disclosure has been filed by Sen. Tom Rossin (D-West Palm Beach), SB 506, and Rep. Mary Brennan (D-Pinellas Park), HB 1433. This legislation would allow access to records of investigations by the Department of Children and Family Services of the deaths of children and the elderly while in custodial care. Under current law, such records can be released only under court order. The bills have the strong support of the department, and HB 1433 is on the House Consent Calendar. SB has passed its first of two committees of reference in the Senate, and I don’t anticipate any trouble getting the bill passed this year. But then again, you never know what the Legislature is going to do.

There isn’t room to discuss all of the bills on our tracking list, so if you’d like more information about a particular bill, or would like a complete list of the bills, call the First Amendment Foundation at (800) 224-4555, or check out our new web site at http://www.FloridaFAF.org.

Petersen is the executive director of the First Amendment Foundation in Tallahassee.

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