Volume 22, Number 5
A monthly report:
Brechner Center for Freedom of Information
- 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
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
guilty of 14 FCC charges
Bible history curriculum
newspapers bathroom camera
to newspaper not enough
U.S. Supreme Court
rules in favor of tax refund
Judge refuses gag order
in molestation case
withdraws TV stations subpoena for tourists tape
generals memos about litigation not public
delayed for appeal
Fort Myers mayor denies
negotiations not a violation
allows access to medical records
charged with open records violation
THE BACK PAGE
money opposing public access
AGO: Hospital meetings
TALLAHASSEE Florida Attorney General Bob Butterworth has
determined that the board of directors of a nonprofit company that operates a publicly
owned hospital is subject to Floridas Open Meetings Law and is required to hold
Butterworths opinion in AGO 98-21 was in response to an inquiry
resulting from the 5th District Court of Appeals ruling in News-Journal
Corporation v. Memorial Hospital-West Volusia. In that ruling, the court also held
that a nonprofit foundation operating a municipal hospital is subject to Floridas
Open Records and Open Meetings laws. (Brechner Report, July 1997) The Supreme Court
of Florida is currently reviewing the courts determination in that case.
Three bills before the Legislature, SB 748. SB 1044 and HB 3585, would
provide exemptions from the Open Meetings and Open Records laws for private corporations
leasing public hospitals.
In the same opinion, Butterworth also determined that an exemption to
Floridas Open Meetings Law that allows attorney-client communication to remain
secret does not apply when litigation has not been filed. The exemption to the law allows
attorney-client privilege only for pending litigation, but not in instances when both
parties involved believe litigation, which has not yet been filed, is inevitable.
man guilty of 14 FCC charges
TAMPA A man faces prison and fines after a jury found him guilty
of 14 criminal counts of operating an unlicensed radio station.
Arthur Kobres, 54, was found guilty for broadcasting "Lutz
Community Radio," which aired anti-government programming on an FM radio signal. Each
of Kobress 14 counts represents a day Federal Communications Commission agents
detected transmissions from his home. Each charge carries a possible two-year prison
Kobres had argued that he didnt think he needed a license from the
FCC based on his interpretation of the U.S. Constitution and an FCC manual he obtained in
the 1960s. (2/26/98)
Bible history curriculum
FORT MYERS The Lee County School Board settled its suit with the ACLU over a
bible history class by dropping the controversial class and paying $95,000 in legal fees.
Instead, the school district will offer a class called Introduction to the Bible, which
teaches the Bible as a book that has existed in history, but not a book that contains
accounts of historical facts.
The suit arose after the school board approved two classes for high school curricula,
one class on the New Testament and one class on the Old Testament, both teaching the Bible
as historic facts. U.S. District Judge Elizabeth Kovachevich, of the Middle District of
Florida, had ruled the New Testament class unconstitutional because there was no way to
teach it as secular history while remaining objective. (Brechner Report, March 1998).
The new class, as were the other two classes, is an elective for high school students.
newspapers bathroom camera
FRANKLIN COUNTY A state attorney launched an investigation into allegations that
the Apalachicola Times videotaped employees in the papers unisex bathroom.
The bathroom camera was part of a video-surveillance network installed to deter theft.
Three to four cameras were positioned throughout the newspapers offices and
transmitted images to a monitor in the general managers office. The bathroom camera
was camouflaged and positioned directly over the toilet.
Police seized the camera and 29 videotapes. After sheriffs deputies seized the
equipment and announced the ongoing investigation to employees, five women walked off
their jobs. (3/14/98)
to newspaper not enough
FORT MYERS A circuit judge held that notice letters served on a
newspaper, rather than to specific editors, publishers or reporters, do not satisfy
Floridas presuit notice requirement.
Judge R. Wallace Pack, 20th Judicial Circuit, dismissed
several defendants in Wilson v. Gannett Co. Inc., et al. on the grounds that the
plaintiff sent notice only to the News-Press Publishing Co., Inc., but not to the
newspapers parent company, the chairman and board of directors of the parent
company, the former publisher of the paper, two reporters and three editors.
The plaintiff, David Wilson, filed a defamation suit against the News-Press
because of an article the paper wrote concerning his retirement. (3/25/98)
Supreme Court rules in favor of tax refund
Washington, D.C. The U.S. Supreme Court ruled that Newsweek
magazine is entitled to a refund of the sales tax it paid for the magazine prior to
Florida declaring the tax unconstitutional.
Florida exempted newspapers, but not magazines, from its sales tax as of
Jan. 1, 1988. In 1990, the Florida Supreme Court held the exemption unconstitutional and
magazines were also exempted.
Newsweek filed suit for a refund of the taxes it paid between
1988 and 1990. Florida law allows taxpayers to seek refunds for taxes paid under
unconstitutional statutes. The trial and appellate courts denied Newsweeks
request for a refund on the grounds that the magazine had the opportunity to file a
prepayment tax challenge.
The U.S. Supreme Court held that Newsweek reasonably relied on
the availability of a postpayment refund when it paid its taxes. Therefore, it should be
granted its refund. (Decisions on file: Newsweek, Inc. v. Florida Department of
Revenue, U.S. Supreme Court, No. 97-663, Feb. 23, 1998)
refuses gag order in molestation case
STUART A circuit judge refused to place a gag order on
participants in a $1 million sexual molestation lawsuit against Palm City Community
Judge Larry Schack, 19th Judicial Circuit, said there wasnt enough
evidence that the plaintiffs attorney was attempting to taint a jury pool by
speaking with reporters about the case. However, Schack warned attorneys against talking
to reporters, and he said he intends to refer further comments to the Florida Bar.
The plaintiff in the case is a 14-year-old boy who said he was molested
by a church volunteer, a convicted sex offender. (3/18/98).
State withdraws TV stations subpoena for tourists tape
MIAMI The states attorney withdrew a subpoena served on
WPLG-TV that attempted to force the television station to release a videotape that showed
an altercation between two Fort Lauderdale police officers and a man they were arresting.
The 4th District Court of Appeal affirmed a lower courts ruling
requiring the station to hand over the tape, which the television station received from
Polish tourists who witnessed the altercation. (Brechner Report, April 1998) The
court also issued a stay withholding the surrender of the tape until the television
station could argue against the appeals courts ruling before the Florida Supreme
The state wanted to use the tape to contact the tourists to question
them about the incident, but it dropped the subpoena after finding the sources without it.
Attorney generals memos about litigation not public
TALLAHASSEE The Florida Supreme Court held that memos in Attorney
General Bob Butterworths files concerning a convict on death row are not subject to
Floridas Open Records Law because the memos are work product.
Florida grants an exemption for records prepared by an agencys
attorney during civil or criminal litigation that reflect the attorneys mental
impressions, litigation strategies or legal theories.
Terrell M. Johnson requested access to any memos concerning his death
sentence and conviction contained in Butterworths files. When the request was
denied, Johnson sued Butterworth, alleging that the work product exemption discriminated
against death penalty defendants because the files are typically disclosed at the end of
all litigation or when the death sentence has been carried out.
The Court held that if the documents are work product, they never will
be disclosed, therefore making no distinction between death-sentenced inmates and all
other inmates. (3/19/98)
sanctions delayed for appeal
GAINESVILLE Judge Martha Lott, Eighth Judicial Circuit, approved
a motion to delay any sanctions against Sondra London, former fiancee of convicted killer
Danny Rolling, until after Londons appeal.
London is appealing an order to turn over to the state money she
received in connection with the sale of Rolling stories and merchandise. London had been
required to produce the money and accounting within five days of the trial courts
order. When she didnt, prosecutors had asked the court to impose sanctions.
Judge Lott is allowing the matter of sanctions to be held until the 1st
District Court of Appeal hears Londons case. (3/21/98)
mayor denies hitting reporter
FORT MYERS The Mayor of Fort Myers denies that he hit a News-Press
reporter during an argument about a story about manatees. Mayor Bruce Grady was charged
with one count of battery.
The altercation between Grady and reporter Roger Williams occurred just
before a public meeting Feb. 9. Williams was asking the mayor if the city had researched
the impact on the manatee population of proposed high-speed ferries. The discussion
escalated when the mayor invited the reporter to "step outside." Williams said
that it was then that the mayor shouted profanities at him and hit him open-handed on the
neck. Gradys attorney said that physical contact between the two parties occurred,
but he would not characterize it as hitting.
Grady entered a written plea of not guilty. (3/28/98 4/7/98)
managers negotiations not a violation
PUNTA GORDA Judge William McIver, 20th Judicial Circuit, ruled
that a city managers negotiations with a developer did not violate Floridas
Public Meetings Law.
The Sun Coast Media Group sued the city of Punta Gorda, alleging that
the city managers negotiations with a developer violated the law because a
government agency cannot delegate decision-making authority to a committee or person
without making the decision-making process open to the public.
Judge McIver ruled that based on the records of public meetings, the
city managers meetings with the developer did not violate the law. The Sun Coast
Media Group is appealing McIvers decision. (3/3/98 4/6/98)
access to medical records
DADE CITY A circuit judge allowed prosecutors access to a
defendants medical records to find evidence corroborating witness testimony.
Judge Maynard Swanson, 6th Judicial Circuit, allowed prosecutors to
subpoena Kelly Stephenson Frances medical records from the day of a car accident in
which France was charged with driving drunk and leaving the scene of the accident. France
suffered a broken leg in the accident, and a passenger in the car was paralyzed.
Prosecutors were looking for results of a hospital-administered blood
test and any observations of Frances behavior by doctors or nurses. Frances
attorney, Assistant Public Defender Michael Tewell, argued that releasing the records
violated Frances right to privacy. (3/11/98)
director charged with open records violation
PENSACOLA An administrator for the Department of Environmental
Protection has been charged with violating Floridas Open Records Law.
Bobby Cooley, regional director for the DEP in Pensacola, is accused of
violating the law by requiring records requesters to surrender drivers licenses or
other forms of identification while viewing public records.
State Attorney Curtis Goldens office filed the civil complaint
against Cooley because according to Florida law and attorney general opinions, a records
custodian may not require identification as a condition of access to public records.
money opposing public access
By Robert Rivas
The Brechner Report occasionally publishes an update of its ongoing project to
keep track of how much money state government agencies spend in attorneys fees
awarded by courts to people who were forced to bring a lawsuit to obtain access to public
records or meetings. At last count, when the update was published in October 1997, the
total came to $815,035. While that may seem like a lot of money, it is only a fraction of
the amount wasted by government agencies to oppose the public.
A lawsuit I filed in 1996 provides a case in point. The October 1997 Brechner Report
included this entry in its ever-growing tally:
July 1997 -- Judge John Hoy, 15th Judicial Circuit, ordered Florida Atlantic University
to pay attorney's fees and costs of $8,595.90 to a former dean who won a public-records
lawsuit against university President Anthony J. Cantonese.
I brought the lawsuit on behalf of Dean Sandra K. Norton because FAU gave an overbroad
interpretation to an exemption from the Public Records Law. The exemption applied on the
records of the FAU Foundation, a separate entity from FAU, but FAU tried to claim that all
letters to and from President Cantanese are exempt from public disclosure if they happen
to make reference to fund-raising.
The suit was filed on August 8, 1996. Public records actions usually move more swiftly,
and this one certainly did. A final hearing was held on August 20, 1996. FAU was
represented by its in-house attorneys.
Judge Hoy entered an order on August 30, 1996 requiring President Cantanese to give up
the public documents Dr. Norton sought. Cantanese immediately gave them up, deciding not
At this point, the case was over in three weeks.
Still there remained the little matter of determining how much FAU had to pay my client
to reimburse her for the attorneys fees she had spent. I demanded $12,073.
Admittedly, this amount was high because it included some amounts that FAU would insist
were not recoverable. I expected to negotiate for something less.
Instead, FAU hired outside counsel, the West Palm Beach firm of Boose Casey Ciklin
Lubitz Martens McBane & OConnell, to mount an aggressive opposition to the award
of attorneys fees and costs. The litigation dragged on for 11 months. At various
times, five attorneys and four paralegals fought the battle.
Their final bill: $29,018.
This is the measure of a government agencys respect for the taxpayers
money: FAU spent 11 months in litigation over a fee claim when the underlying lawsuit took
only three weeks. Talk about the tail wagging the dog. FAU spent $29,018 to oppose paying
a claim of $12,073, knowing all along that it would have to pay some amount of the claim,
and in the end, having to pay $8,585.90 of the claim. SO FAU spent $37,603.90 through
mid-1997 to fight paying $12,073 in mid-1996.
And thats not counting the value of time spent by the FAU staff attorneys to
oppose the public records lawsuit before Boose Casey Ciklin entered the case only to
oppose the claim for fees.
The next time you see the Brechner Reports update on attorneys fee awards,
you can only wonder how much the taxpayers are really spending to oppose open government.
Robert Rivas is a media lawyer in Boca Raton. In 1993, Rivas initiated an effort to
update the Brechner Centers tally of attorneys fee awards that began in 1991.
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