The Brechner Report
Volume 22, Number 7
July 1998

A monthly report:

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Allyson Beutke, Production Assistant
• Jennifer Page, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Hospital board open to public

PRIVACY
No charges for paper with hidden camera

FIRST AMENDMENT
Miami student suspended, reinstated
USF police may have unlawfully seized student's tape
Billboards tout freedom of expression

REPORTER'S PRIVILEGE
Former officials threatens reporter with stalking charge
Reporter ordered to give up interview source

COURTS
Judge rejects paper's objection to jury's outing
IRS granted access to cable information
U.S. Supreme Court refuses to hear broadcast case
Appeals court affirms libel suit dismissal

ACCESS RECORDS
Member of Chiles' staff accuses newspaper of spying
Mortham staff violated records law

LEGISLATIVE NEWS
End of legislative session brings new exemptions
BILLS PASSED
DID NOT PASS:

THE BACK PAGE
New shield law an asset to free flow of information

ACCESS MEETINGS

Hospital board open to public

TARPON SPRINGS – Tarpon Springs Hospital Foundation must open its records and meetings to the public, according to a circuit judge’s order.

Judge Crockett Farnell, 6th Judicial Circuit, said the foundation acts as a public agency because it uses hospital facilities acquired with public money, and it provides services that were formerly provided by the city of Tarpon Springs. Therefore the hospital must allow the public to inspect its business records and attend board meetings, Farnell wrote.

Previous to the ruling, the foundation said it needed to meet in secrecy to stay competitive with other hospitals. (6/2/98)

PRIVACY

No charges for paper with hidden camera

FRANKLIN COUNTY – The Franklin County State Attorney’s Office will not file charges against the manager of the Apalachicola Times for a video camera in the employees’ bathroom because there is no specific statute dealing with the use of hidden cameras in bathrooms.

Sheriff’s deputies seized the camera and videotapes from the newspaper’s bathroom in March, (Brechner Report, May 1998) prompting five female employees to walk off their jobs. The five employees have retained an attorney and plan to file a civil rights lawsuit.

According to management at the Apalachicola Times, the video cameras were part of a larger surveillance system installed at the newspaper as an anti-theft measure. (5/16/98)

FIRST AMENDMENT

Miami student suspended, reinstated

MIAMI – Miami-Dade County school officials suspended, then reinstated, a high school student after he posted criticism about his high school on a web site he created.

Administrators said they suspended Hialeah-Miami Lakes High School senior Kyle Stevens for 10 days because a section of the web site discussed shooting a bazooka at the school and hitting a teacher’s car.

After reviewing the incident with the school district’s superintendent, the school’s principal rescinded Stevens’ suspension. (5/8/98)

USF police may have unlawfully seized student's tape

TAMPA – A federal appellate court ruled that the University of South Florida Police may have unlawfully seized an allegedly obscene video.

Amy Andre, a former USF student, filed the suit against police officers after the officers stopped a late-night, outdoor projection of a sexually graphic videotape during a party. Judges on the Court of Appeals in Atlanta for the 11th Circuit held that the lawsuit against the officers may progress because the officers seized the videotape without a warrant. The remainder of the case will be heard in Tampa, in U.S. District Court for the Middle District of Florida.

Debra King, attorney for USF, said she plans to argue that obscenity laws are not applicable in this case because the video was shown in a public place with minors present. Andre projected the video against a dormitory wall, violating university rules against showing graphic materials in outdoor places, King said. (5/5/98)

Billboards tout freedom of expression

MIAMI – A Miami political group installed billboards around the county advertising the freedom of speech.

The Florida chapter of People for the American Way’s ArtSave Miami project sponsored 50 billboards throughout Miami-Dade County, and it has plans for 50 more. The billboards have quotations from Abraham Lincoln, Martin Luther King, Jr. and others, and they are printed in English and in Spanish.

The project was created in response to incidents in the area that threatened free speech, such as a violent demonstration against a Cuban pianist and the ousting of a member of Miami-Dade’s Film Commission for questioning the banning of Cuban musicians from a Miami music convention. (5/9/98)

REPORTER'S PRIVILEGE

Former officials threatens reporter with stalking charge

TAMPA – A former public housing director has threatened to sue the Tampa Tribune the next time a reporter calls her for comment.

An attorney representing Audley Evans has threatened to file stalking charges against Tampa Tribune reporter Darlene McCormick for repeated calls to Evans’ home. Evans was executive director of the Tampa Housing Authority from 1988 to 1996. Arnold Levine, Evans’ attorney, contends that calling Evans at her home after 9:30 p.m., especially after Evans told McCormick not to call, is a form of stalking.

McCormick was working on a story about a federal audit of the Tampa Housing Authority while it was under Evans’ leadership. The audit raised questions about bidding, apartment maintenance and financial deals. McCormick’s editor, Preston Trigg, said she was trying to do her job to get Evans’ side of the story, and she was not stalking her. (5/13/98)

Reporter ordered to give up interview source

DADE CITY – A circuit judge ordered a former St. Petersburg Times reporter to turn over his notes from a jail house interview with a woman convicted of murder.

In June, Circuit Judge Lynn Tepper, 6th Judicial Circuit, ordered Ian James to give his notes to defense attorneys for Earl Linebaugh, who is also charged with murder. James had interviewed Melissa Harris, convicted in the deaths of two Crystal Springs women, about that case and Linebaugh’s part in it. Harris contends Linebaugh shot the women, while Linebaugh contends that Harris did.

Tepper has also ordered James to submit to a deposition about his knowledge of the case. (6/6/98)

COURTS

Judge rejects paper's objection to jury's outing

TALLAHASSEE – A circuit judge rejected objections from a newspaper that a jury’s visit to a murder scene should have been open to the public.

Judge N. Sanders Sauls, 2nd Judicial Circuit, said the jury’s visit to the crime scene was a last-minute decision agreed upon by both the prosecution and defense. The jury was taken to the murder scene, a restaurant, while the trial was in a short afternoon recess. Sauls said the jury view was not a closed proceeding.

The Tallahassee Democrat objected to the jury’s visit to a crime scene because Judge Sauls never discussed the trip in open court. Michael Glazer, attorney for the paper, likened the move to closing off access to trial proceedings. According to the Tallahassee Democrat, when a reporter tried to gain access to the jury view, the door was barred. (5/15/98)

IRS granted access to cable information

PENSACOLA – The U.S. District Court for the Northern District of Florida has ordered Cox Cable Communications to release to the Internal Revenue Service information that is protected by the Cable Subscriber Privacy Act.

The Act prohibits cable companies from disclosing personal information about cable subscribers because that information can reveal details about bank transactions, shopping habits, political contributions and viewing habits. There is a provision in the Act that allows such information to be released to government agencies only if the agencies obtain court orders and show that the information being sought is evidence that the cable customer is suspected in engaging in criminal activity.

The IRS was attempting to obtain Kent and Jo Delia Hovind’s billing and payment history to use to determine the couple’s income by adding up all of their expenditures. The Hovinds were suspected of tax evasion. (4/27/98)

U.S. Supreme Court refuses to hear broadcast case

WASHINGTON, D.C. -- The U.S. Supreme Court refused to hear a challenge to Alachua County School Board’s contract with Channel One, a company that once broadcast educational programming in schools.

Parents and teachers had sued the school board because they objected to the board’s decision to carry Channel One programming, and they wanted monetary damages from the school board for subjecting students to it.

Channel One’s in-school broadcasts carried current events information intermingled with paid advertising. Channel One offered free television equipment to schools that would broadcast its programming. The Alachua County School Board voted in 1996 not to renew its contract with Channel One. The company is now defunct.

The trial court held in favor of the school board, and an appeal court affirmed that ruling last year. (6/9/98)

Appeals court affirms libel suit dismissal

FORT MYERS – The 2nd District Court of Appeal dismissed a libel lawsuit against the Fort Myers News-Press.

The court affirmed the trial court’s ruling, which dismissed the suit on the grounds that the disputed statements were substantially accurate.

Dr. David Fancher brought suit against the newspaper after it published an account of Fancher’s employment status with the Lee County Humane Society. (Brechner Report, September 1997) The newspaper said Fancher was "suspended with pay" while Fancher contended he was "placed on administrative leave with pay." (Decisions on File, Fancher v. Lee County Humane Society, Case No. 97-04697, May 20, 1998)

ACCESS RECORDS

Member of Chiles' staff accuses newspaper of spying

TALLAHASSEE – Gov. Lawton Chiles’ communication director accused the Tampa Tribune of using a public records request to spy on other news organizations.

April Herrle, director of communications for the governor’s office, said the newspaper’s request for copies of all freedom of information requests the governor received as of March 1, 1998 was an attempt to find out what stories other news organizations were working on. Instead of responding to the request, Herrle sent it by fax to other news organizations in the area.

Tampa Tribune bureau chief John Wark said the newspaper was requesting the information as a way to measure public reaction to a series on state officials’ involvement in questionable fund-raising activity. The information request was a way to follow-up the series, not to spy on other news organizations, Wark said.

According to Florida’s Public Records Law, requests for information are open to the public. (6/13/98)

Mortham staff violated records law

TALLAHASSEE – State Attorney Sandra Mortham’s staff violated Florida’s Open Records Law, according to a state attorney’s report.

State Attorney Willie Meggs reported that Mortham’s staff violated the law when they refused to provide the Tampa Tribune with a tape recording of a 1997 Florida History Associates meeting. Mortham’s staff instead gave the newspaper written transcripts of the meeting, later saying that the tapes were lost in the mail and all other copies had been thrown away.

Meggs’ report, while also finding that Mortham’s staff misspent taxpayer money, cleared Mortham and her staff of criminal wrongdoing. (5/30/98)

LEGISLATIVE NEWS 

End of legislative session brings new exemptions

The following is a list of bills from the Florida Legislature's 1998 session.

BILLS PASSED:

SB 112 (Latvala, R-Palm Harbor):

Makes confidential communications and records regarding state employee participation in state assistance programs for substance abuse or behavioral, emotional or medical disorders.

SB 150 (Sullivan, R-Seminole):

Creates a shield law, which grants journalists a qualified privilege not to disclose information, including the names of confidential sources.

This privilege is only applicable to professional journalists who receive information during the course of their duties. Professional journalists are defined as journalists who regularly gather and publish or broadcast news for full or part-time "gain or livelihood." Book authors are not covered by the shield law

Journalists would be required to testify only if the following three conditions are met: the information is relevant to unresolved issues raised during a proceeding, the information cannot be obtained from an alternate source, and there is a compelling interest for requiring a journalist to disclose the information. The shield law does not apply to physical evidence, eyewitness observations of crimes, or visual or audio recordings of crimes.

SB 348 (Cowin, R-Leesburg):

Exempts from the Public Records Law videotaped statements from a minor that reveals personal identifying information when the minor is the victim of specified crimes involving sexual battery, lewd acts or other sexual misconduct.

SB 814 (Dyer, D-Orlando):

Exempts from the Public Records Law information such as trade secrets or investigation records regarding stationary sources, such as buildings, installations, transportation containers, structures or equipment subject to the Accidental Release Prevention Program under the federal Clean Air Act.

SB 920 (Gutman, R-Miami):

Automobile accident reports and statements made about auto accidents are not confidential or privileged and may be used as evidence in civil, criminal or administrative proceedings.

SB 1230 (Brown-Waite,R-Brooksville ):

Exempts from the Public Records Law identifying information provided by applicants to Florida Kids Health Program, including medical or financial information.

SB 1408 (Clary, R-Destin):

Exempts from the requirements of the Public Records Law any information revealing the identity of an individual or employer in Worker’s Compensation records unless the individual or employer authorizes disclosure in writing.

HB 1139 (Sindler, D-Apopka):

Exempts from the Public Records Law information contained in rabies vaccinations certificates, which 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 1433 (House Governmental Operations Committee):

Revises requirements for releasing Department of Children and Family Services investigation records regarding abuse, neglect, abandonment or exploitation of a child, or disabled or elderly adult.

Deletes the requirement of a court order to obtain access to information in cases involving the death of a child, or disabled or elderly adult a result of abuse, neglect, abandonment or exploitation.

Prohibits the release of information identifying the person who reports the abuse, neglect, abandonment or exploitation.

HB 1437 (Saunders, R-Naples):

Keeps 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 the Open Meetings Law.

HB 1613 (Dawson-White, D-Fort Lauderdale):

Limits 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 1639 (Hill, D-Jacksonville):

Exempts from the Public Records Law the disclosure of addresses, telephone numbers and social security numbers of participants in the Address Confidentiality Program for Victims of Domestic Violence.

HB 1849 (Lacasa, R-Miami, Murman, R-Tampa):

Exempts from the Public Records Law personal information contained in foster parent licensing files concerning licensed parents, their spouses, children and other adult household members. This exempted information includes the home, business, work, childcare, and school addresses, as well as phone numbers, social security numbers, birthdates or photos of the individuals or floor plans of their homes.

HB 1887 (Ball, R-Titusville):

Requires that the Florida Automobile Joint Underwriting Association is subject to Florida’s Open Records and Open Meetings laws. However, it exempts from the requirements of the open records law underwriting files, some claims files, internal audit records, attorney-client communications, employee medical information, information regarding employee participation in substance abuse programs, and some information regarding negotiations. It also exempts from the meetings law meetings during which confidential records are being discussed, but it requires that transcripts of those meetings be kept.

HB 1903 (Crow, R-Dunedin):

Exempts from the Public Records Law investigation information regarding the Florida Land Sales Division until the investigation ceases to be active or until 10 days after a notice to show cause has been filed.

HB 3311 (Saunders, R-Naples):

Adverse incident reports provided to the Agency for Health Care Administration by healthcare facilities are exempt from the Public Records Law.

HB 3053 (Stafford, D-Ft. Lauderdale):

Exempts from the Public Records Law information identifying the executioner who administers lethal injections in death sentences.

HB 3585 (Peaden, R-Crestview):

Provides 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 of the Public Records and Open Meetings laws. However, this exemption to the Public Records and Open meetings laws will 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.

DID NOT PASS:

SB 260, SB 364 (Senate Health Care Committee):

Would have provided an exemption to the Public Records Law for identifying information in health, medical, patient and insurance records belonging to "natural persons."

SB 468 (Klein, D-Delray Beach), HB 3677 (Hafner, D-St. Petersburg):

Would have created the Community Hospital Protection Act, which would have required public access to records of proposed transfers and all records relating to the transfer of a nonprofit hospital to a profit-making company.

SB 850 (Turner, D-North Miami), HB 3317 (Cosgrove, D-Miami):

Would have exempted from Public Records and Open Meetings requirements information regarding disciplinary proceedings involving art therapists and registered art therapist interns.

SB 1170 (Myers, R-Stuart), HB 3605 (Fasano, R-New Port Richey):

Would have provided an exemption from the Open Meetings law for meetings at which hospitals’ governing boards modify or approve strategic plans. Would have defined strategic plans as any written plans to acquire, expand, merge, consolidate or market the hospitals’ services or facilities.

SB 1180 (Forman, D-Hollywood):

Would have exempted from the Public Records Law information in Statewide Public Guardianship Office records regarding individuals’ medical, financial or mental health.

SB 1186 (Kirkpatrick, D-Gainesville):

Would have exempted from the Public Records Law and Open Meetings Law any written or recorded information regarding the promotion, re-employment or tenure of a faculty member in the State University System.

SB 1604 (Harris, R-Sarasota):

Would have created the Clerks of Circuit Court Public Records Access Act, which would have required required clerks of circuit court to make public records information available on Internet by January 1, 2001.

HB 1167 (Harrington, R-Punta Gorda):

Would have exempted from the Public Records Law personal information relating to Department of Corrections clinicians and educational personnel, their spouses and their children. The personal information exempted would have included home addresses, phone numbers, social security numbers and photos of the personnel, their spouses and their children, spouses’ locations of employment and the children’s schools or day care facilities.

HB 1197 (Sublette, R-Orlando):

Would have provided confidentiality for disciplinary proceedings for boards within the Department of Business and Professional Regulation as well as in the Department of Health. Information pertaining to active investigations could have been disclosed when the case ceased to be active. Information regarding cases that were dismissed would have remained confidential.

HB 1939 (Posey, R-Rockledge):

Would have provided an exemption from the public records law for bank account numbers and debit card, charge card or credit card numbers used by state or local government agencies.

HB 1945 (Melvin, R-Fort Walton Beach):

Would have made confidential the identities of donors, applicants and clients of the Florida Endowment Foundation for Florida’s Graduates. The foundation funds a program called Jobs for Florida’s Graduates, which is a school-to-work program that will help place high school graduates into full-time jobs.

HB 1957 (Arnall, R-Jacksonville Beach):

Would have exempted from the 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 have limited an offender’s access to Department of Corrections’ records to only situations in which the offender made a written request demonstrating an exceptional need for information contained in the department’s records and when the information was otherwise unavailable.

Also would have prohibited disclosure of personal information already exempt from disclosure by the Public Records Law by an inmate or offender about another with intent to gain a benefit or to harm or defraud another.

HB 3209 (Wise, R-Jacksonville):

Would have provided an exemption from the Public Records Law for licensed social workers’ disciplinary proceedings. Also would have provided an exemption from the Open Meetings Law for probable cause hearings regarding investigations concerning licensed social workers.

THE BACK PAGE

New shield law an asset to free flow of information
By Laurence B. Alexander

Thank goodness for friends in high places.

In this instance, the friends were elected officials in the state of Florida.

During their latest round of lawmaking, state legislators approved a bill to give journalists a qualified privilege, protecting them from testifying about their confidences and shielding their documents and other materials from subpoena. Governor Lawton Chiles agreed with the notion and signed the bill into law.

And in one glorious instant, Florida became the 30th state to enact a shield law. Like most shields, Florida’s came after a series of tough losses in the courtroom over the journalist’s privilege and a serious behind-the-scenes lobbying effort. While the state Supreme Court recognized a privilege as early as 1976, recent court attempts to define the parameters of the privilege began to chip away at its core.

The new shield law, section 90.5015 of Florida Statutes, specifically provides working journalists with a privilege to refuse to testify or disclose information they may obtain while news gathering. This includes information about a confidential source, but it excludes journalists’ eyewitness observations or recordings of crimes. A party that seeks to overcome the privilege must prove that the sought-after information is relevant to unresolved issues raised in the proceeding; the information cannot be obtained from alternative sources; and there is a compelling interest requiring disclosure of the information.

Historically, the jailing of a journalist who has refused to testify in official proceedings has preceded laws granting journalists this kind of privilege. The reason for this is anybody’s guess. Maybe the complexity of the press privilege issue is so great that it takes someone to do jail time before policy makers sit up and take notice. On this point, the Florida shield law is no exception. Two reporters recently spent time behind bars because of their refusal to discuss their confidential sources or information. In 1993, Tim Roche, a St. Petersburg Times reporter, spent 18 days in jail after refusing to reveal the source of a sealed court order while he worked for his previous employer, The Stuart News. Efforts to pass a shield law failed when Chiles vetoed the bill in 1993. Then, in 1996, Miami Herald reporter David Kidwell was jailed for 15 days for his refusal to testify about a jailhouse interview he conducted with John Zile, a suspect in the murder of his 7-year-old daughter. We owe a debt of gratitude to these reporters and others who risked incarceration for refusing to respond to a subpoena.

Will journalists fare better with the shield? It’s difficult to say for sure. A lot will depend on how the judiciary applies the law. At the very least, we can say that the act gives journalists something legislatively that they could not achieve judicially.

And this legislative solution could not have been realized without the help of some friends. I hope those well-placed friends who passed the shield don’t expect any favors in return for assisting the journalists’ news gathering role. If they are as politically astute as we think they are, then surely they will not. Instead, they will accept this act for what it is: a helping hand for the free flow of information from the source to the public.

Laurence B. Alexander is an associate professor of journalism at the University of Florida

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