The Brechner Report
Volume 23, Number 5
May 1999

A monthly report:

Irina Dmitrieva, 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

Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611

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ACCESS MEETINGS
County Attorney: art council subject to Sunshine Laws
 Court dismisses claims of Open Meetings Law violations
 University advisory board to hold its meetings in public
 Judge finds Open Meetings Law violation in Yardarm suit


 ACCESS RECORDS
Judge awards fees in public records suit
Newspaper, hospital question Sunshine Law exemption 
Foreperson's name remains public record
 Naples police did not violate law
 Public records request triggers reciprocal discovery 

FIRST AMENDMENT
 Court upholds ban against graveyard statutes
 Weather Channel not liable for death

    REPORTER"S PRIVILEGE
Supreme Court remands reporter's privilege case to lower court

ADVERTISING
 Transit agency bans messages from public service groups

LIBEL
Justices dismiss defamation suit

THE BACK PAGE
 
Gift makes possible large-scale Citizen Access Project

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County Attorney: art council subject to Sunshine Laws

KEY WEST –In a letter to the Monroe Council for the Arts, County Attorney James Hendrick wrote that the council is subject to, and has been violating, the state Government-in-the-Sunshine Laws for the past two years. Hendrick stressed that even though the council is a nonprofit organization, it uses county funds for many of its projects.

Hendrick issued opinion at the request of Bill Andersen, who was elected a new council chairman. Two council members resigned claiming Andersen violated the Open Meetings Law by meeting privately with some board members prior to elections. The council held a public meeting and a new election for the chairman to cure the violations. Anderson won the election. (3/25 – 4/7/99)

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 Transit agency bans messages from public service groups

CLEARWATER – The Pinellas County transit agency voted to restrict bus ads to those proposing "a commercial transaction."  The decision means that messages from public service groups, such as the Salvation Army and the United Way, no longer will be allowed.

This decision is a reaction to the recent controversy between the Church of Scientology and its critics who placed anti-Scientology ads on 10 city buses. (Brechner Report, March 1999) Scientology attorneys requested the ads be removed because they allegedly violated a 1945 state law against exposing religious groups to hatred and contempt. (2/28/99)

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 Court upholds ban against graveyard statutes

WEST PALM BEACH – A federal district judge ruled that a ban against vertical grave markers at a Boca Raton cemetery did not violate the free exercise of religion because the markers are  "decorations" and not symbols of faith central to any religious belief.

In 1996, ACLU filed a federal suit under the state’s Religious Freedom Restoration Act on behalf of seven local families, both Christian and Jews. The Act prohibits government from "substantially" restricting the right to exercise religious freedoms. (3/23 – 4/2/99)

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Judge awards fees in public records suit

TALLAHASSEE – Judge Terry Lewis, 2nd Judicial Circuit, ruled that a private citizen, Barbara Herskovitz, was entitled to recover $8,083 in attorney’s fees and court costs from Leon County in a public records suit against the county.  Herskovitz claimed that the county failed to be precise in identifying some 9,000 documents claimed as exempt from the Public Records Law and that the delay in producing documents was unreasonable.

In June, Judge Lewis ruled that, given the nature and volume of the materials requested, their location and the need for close supervision of the records’ review, the county’s delay in releasing the documents was not unreasonable. However, he said the county should provide Herskovitz with files containing all her medical records and legal bills or statements for legal services. (Decisions on File, Herskovitz v. Leon County, Case No. 98-22, December 29, 1998) (6/9 - 12/29/98)

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Newspaper, hospital question Sunshine Law exemption 

DELAND – The Daytona Beach News-Journal has filed an emergency motion asking a circuit court to force the Memorial Hospital-West Volusia to comply with a recent Supreme Court ruling and to release its minutes and records from 1994. The motion was filed after the hospital requested the circuit court to issue a declaratory judgment on the constitutionality of a 1998 Public Records Law exemption. The exemption provides for confidentiality of records and meetings of private corporations that lease public hospitals.

In January, the Florida Supreme Court ruled that the private corporation created to run Memorial Hospital is subject to the Open Meetings and Public Records Laws because it acts on behalf of the taxing district’s Hospital Authority. The Court did not rule on the constitutionality of the 1998 exemption, but refused to apply it retroactively to the Memorial Hospital. (Brechner Report, March 1999)

Memorial Hospital’s attorney claims that it cannot comply with the Public Records Law until the court decides the constitutionality of the 1998 exemption. The News-Journal contends that the hospital failed to comply with its obligations to release public documents despite the clear mandate of the Supreme Court. (4/2 – 21/99)

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 Foreperson's name remains public record

TALLAHASSEE – In an advisory legal opinion, Attorney General Robert Butterworth ruled that the Clerk of Court cannot protect the secrecy of a grand jury foreperson by redacting his or her name from a publicly available indictment.   Butterworth stressed that, in Florida, all public records are open for public inspection and copying unless the legislature exempts them from disclosure. The state legislature did not create specific exemption for the name of a foreperson as it appears on the indictment after it has been made public.

According to Florida Rules of Criminal Procedure, an indictment must be signed by a foreperson of a grand jury returning it. The indictment becomes public record after a year elapses or after the defendant is placed in custody. (Opinion on File, No. 99-09, February 25, 1999)

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 Justices dismiss defamation suit

WASHINGTON, D.C. – The Supreme Court denied a petition for certiorari in a Florida defamation case, in which the lower court applied a California statute of limitations to bar the case from proceeding.  Gul Jaisinghani, a citizen of India residing both in California and Florida, sued the Kansas City Star over an allegedly defamatory story about his fund-raising activities. Jaisinghani raised $27 million for the charitable group, Veterans of Foreign Wars. The article claimed that Jaisinghani’s company kept most of the contributions for its own expenses and profits.

In June, the U.S. District Court of Appeals for the 11th Circuit upheld a lower court ruling that a defamation complaint filed in a Florida district court was subject to California’s one-year statute of limitations, rather than Florida’s two-year statute of limitations. Given the nature of Jaisinghani’s business and personal contacts with California, the district court ruled that he was a California citizen who was temporarily residing in Florida. (Decisions on File, Jaisinghani v. Capital Cities/ABC Inc., Case No. 98-1019, February 22, 1999).

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 Court dismisses claims of Open Meetings Law violations

MIRAMAR – A circuit judge dismissed the claims of the Open Meetings Law violations by the city commissioners in a suit over removal of excess fill - dirt, sand and rocks from construction blasting.

The city blocked trucking companies from moving extra fill from developments in Miramar. The company, Ryan Eastern, sued the city claiming commissioners met privately to discuss the problem concerning extra fill. The suit also says the city violated the company’s constitutional right to due process.

However, Judge Jeffrey Streitfeld, 17th Judicial Circuit, ruled that the Open Meetings Law allegations against the city commission were not specific enough to meet the legal standard. Judge Streitfeld said, they did not include the time and place of alleged secret meetings. (3/18/99)

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 Naples police did not violate law

NAPLES – The State Attorney’s Office found that the Naples Police Department did not violate the Public Records Law by failing to retrieve an internal affairs file requested by a former police officer in a sexual discrimination suit. Susan Walsh, a former Naples police officer, filed a complaint with the State Attorney’s Office alleging that the Naples Police Department failed to provide her with all the records from the Lt. Terry Mason internal affairs file. In particular, she claimed the police deliberately withheld the 1987 file regarding removal of marijuana plants from Mason’s residence.

Naples police argued that the file was missing because, prior to 1989, there was no standardized way of labeling the files. Lt. Robert Bock found the 3-page report on the 1987 incident in the bottom of a drawer in the process of cataloging the older files. State Attorney found no evidence of an intentional Public Records Law violations on part of the Naples police. According to the State Attorney’s investigation, the failure to produce the file in a timely fashion was "an oversight and not an intentional act." (Case Report on File, State Attorney’s Office, 20th Judicial Circuit, Case No. 99-306, March 4, 1999).

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 Public records request triggers reciprocal discovery 

TALLAHASSEE – Florida’s Supreme Court ruled that in criminal cases involving multiple defendants, a defendant cannot avoid reciprocal discovery by filing a Public Records Law request if another defendant agreed to reciprocal discovery.  The case involved two defendants in a first-degree murder trial, Tracy Adams and John Henderson. Adams elected to participate in the discovery process, while Henderson’s counsel opted to file an open records request in the sheriff’s office for all information about the crime and subsequent arrests.

Senior Justice Gerald Kogan stressed that Henderson filed a public records request amidst his pending criminal prosecution by a Florida state attorney. Kogan said the court could not ignore the fact that the documents Henderson requested became public only because his co-defendant agreed to reciprocal discovery. "Were we to allow a codefendant to escape a reciprocal discovery obligation, one perpetrator would be unfairly disadvantaged simply because he or she participated in pre-trial discovery first," said the court.

The court amended the Florida Rules of Criminal Procedure to provide that, when a defendant files a public records request for the law enforcement records relating to his or her pending prosecution, such filing would trigger a reciprocal discovery obligation for the defendant. (Decision on File, John Wesley Henderson v. State of Florida, Case No. 92-885, February 18, 1999)

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Supreme Court remands reporter's privilege case to lower court

TALLAHASSEE –  Florida's Supreme Court refused to clarify its opinion in a case upholding a reporter’s privilege not to testify in a criminal proceeding., and instead remanded the case to a lower court.  David Kidwell, a Miami Herald reporter, was sentenced to 70 days in jail for refusing to testify about his interview with a murder suspect. However, a federal district court released Kidwell pending his appeal. (Brechner Report, December 1996)

In October 1998, the Supreme Court ruled that to compel a reporter’s testimony, government has to show that: a reporter possesses relevant information; the information is not available from alternative sources; and there is a compelling need for the information. The court stressed that the suspect interviewed by Kidwell gave similar information in his confession to police. (Brechner Report, December 1998)

Kidwell’s attorney said the reporter might be ordered to serve the rest of his sentence if the appellate court does not find in his favor. (Decision on File, Kidwell v. State, Case No. 90-839, March 4, 1999)

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 University advisory board to hold its meetings in public

PENSACOLA – A University of West Florida advisory board agreed to abide by the state Open Meetings Law and to hold its meetings in public. Pensacola area leaders created the 21-member board which includes business executives, lawyers and judges, to foster community involvement in campus issues. The committee came under fire in January for holding its first meeting behind closed doors.

State law provides that advisory boards making recommendations to a public agency are subject to the Open Meetings Law even if they possess no authority to bind that agency in any way. However, the lawyer advising the committee issued an opinion earlier this year claiming the Open Meetings Law does not apply to the advisory board because it was not appointed by public officials and will act independently of the university. (2/11 - 25/99) 

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 Weather Channel not liable for death

WEST PALM BEACH – A federal judge ruled that the Weather Channel was not liable for the death of a man who, relying on a weather forecast, went fishing and drowned during an unexpected storm. The family of Charles Cobb brought a wrongful death suit against the Weather Channel claiming the station did not broadcast information about the storm approaching Florida Keys in a timely fashion. Plaintiffs requested $10 million in damages.

However, Judge James Paine, U.S. District Court for the Southern District of Florida, held that mass media broadcasters and publishers "owe no duty to the general public." According to the station’s attorneys, the judge recognized the possible free speech restrictions on the media if such a lawsuit succeeded. (Decision on File, Brandt v. The Weather Channel, Case No. 98-10060-Civ-Paine, March 18, 1999)

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 Judge finds Open Meetings Law violation in Yardarm suit

POMPANO BEACH – A circuit judge ruled that Pompano Beach city commissioners violated the Open Meetings Law in 1985 by holding secret meetings and clandestine phone conversations concerning a controversial hotel project. This finding was a part of a larger civil rights suit brought by the Yardarm Inc. against the city for killing its project to construct an 18-story hotel on the Hillsboro Inlet.

The legal battle began in the early 1970s, when brothers Jim and Tom Stephanis, owners of the Yardarm Inc., tore down their successful waterfront restaurant and obtained permits to build a hotel on their land. However, the Hillsboro Shores Improvement Association, city officials and the neighboring condominium residents opposed the project because the hotel would have blocked the view of the inlet and the lighthouse. After Yardarm Inc. declared bankruptcy in 1986, the city bought the land and used it as a city park.

Judge Herbert Moriarty, 17th Judicial Circuit, held that the city deprived brothers Stephanis of their civil rights without due process of law by preventing the construction of a hotel. Moriarty said the highest city officials including the city attorney and the city manager exchanged a variety of interoffice communications in a plot to kill the Yardarm project. (2/25 – 4/1/99) 

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 Gift makes possible large-scale Citizen Access Project
by Terry Hynes

A major gift from long-time Orlando broadcasting executive Marion Brechner will enable the University of Florida to evaluate citizen access to information about state and local government in every state in the nation. In announcing the $600,000 gift, expected to be matched with an additional $420,000 from Florida’s matching gifts program, UF President John Lombardi said the new Marion Brechner Citizen Access Project will provide "comparative information that will encourage more open government in all 50 states."

It will take four years to compile information about laws regarding public access and freedom of information in all 50 states. Thereafter, information on every state will be updated each year. The project will be supervised by the Brechner Center for Freedom of Information in UF’s College of Journalism and Communications. No organization in the United States has ever undertaken such a massive, long-term project of this magnitude to help legislators, lawyers, journalists, and other citizens understand the open meetings and open records laws in every state.

As a result of the project, information comparing states on a variety of access issues will be disseminated to communication media and legislators in every state, with the data also posted on a permanent web site. This is the kind of comparative information that the press and interested individuals throughout the United States have been asking for. Until now, information has been gathered about individual state access laws but no comprehensive overview of all the laws together has been undertaken on a consistent basis. The Marion Brechner Citizen Access Project will assure complete, comparative data about every state, and the data will be constantly updated as the law changes. That has not been available before.

Eminent scholar and director of the Brechner Center Prof. Bill Chamberlin will supervise the project. "For the first time, legislators will be able to examine the best and worst laws of the 50 states in several different categories, including access to electronic records, fees, enforcement provisions and privacy protections," Chamberlin said.

In making her donation, Mrs. Brechner said, "I am convinced about the need for this project and the Brechner Center’s ability to accomplish it. My late husband, Joseph L. Brechner, fought all his adult life for freedom of information for all citizens. This gift will continue his work."  With this gift, the Brechner family’s total contribution to the College of Journalism and Communications reaches more than $3 million, most of it for freedom of information activities. Joseph L. Brechner, who died in 1990, endowed the Brechner Center initially with a gift of $1 million. He was the founder and an owner of WFTV-Channel 9 in Orlando. Mrs. Brechner is president of Brechner Management Company, which owns television and radio stations in Maryland, Kansas and Ohio.

UF’s College of Journalism and Communications has a long history of involvement in freedom of information issues. The Brechner Center is recognized nationally for its leadership in advocating and providing information about access to government meetings and records. The Center is the successor to the Florida Freedom of Information Clearinghouse, established in 1977 by then dean of the college Ralph Lowenstein, with the support of Paul Hogan, then head of the Florida Society of Newspaper Editors.

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