The Brechner Report
Volume 23, Number 7
A monthly report:
Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Jennifer Page, Production Assistant
Bill F. Chamberlin, Ph.D., Eminent Scholar
Sandra F. Chance, J.D., Director
Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
foundation exempt from law
member suspended for law violations
release employees records
withdraws request for investigation
City pays Zorc $575,000
to settle multiple lawsuits
Reporter will not serve more jail time for refusal to testify
lifts four-day ban on magazine
to decide if graduation messages violate First Amendment
pass new exemptions to state access laws
passes nine new exemptions to access laws
lifts four-day ban on magazine
MIAMI -- The Miami-Dade County officials lifted a four-day ban on sales of a June issue of
Cigar Aficionado magazine at Miami International Airport after the county's Mayor Alex
Penelas said it was a censorship of free expression.
The assistant director of
Miami-Dade's Aviation Department, Mayra Bustamante, ordered the of ban the magazine at 18
airport's newsstands after deciding that the issue was in "bad taste." The issue
featured a Cuba travel guide and urged the United States to lift economic embargo against
the communist-led island. Bustamante said the magazine distorted the Cuban life and was
flattering to the Cuban government. The ACLU protested the airport's ban and threatened to
sue the county. Penelas lifted the ban, saying the ban went "against some of the very
principles which make this nation the free society it is." (5/3/99)
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Hospital foundation exempt from
TARPON SPRINGS -- A circuit judge ruled that a governing foundation of Helen
Ellis Memorial Hospital is exempt from the Public Records Law, and denied the St.
Petersburg Times' request to view the foundation's minutes.
The Tarpon Springs Hospital
Foundation that runs Helen Ellis Memorial Hospital filed a suit against the St. Petersburg
Times in 1997 to prevent the Times and other publications from looking at its records.
1998, the Florida Legislature enacted an exemption to the state access laws for non-profit
foundations that manage public hospitals. Judge L. Ralph Smith Jr., 2nd Judicial Circuit,
held that this exemption applies to Helen Ellis Memorial Hospital. He also ruled that the
foundation may properly deny the public records requests, such as that of the Times.
Times said it would fight any attempt by the hospital to recover court costs in connection
with the suit.
In January, the Florida Supreme Court held that private corporations
running public hospitals in Volusia County are subject to the state access laws. The Court
did not rule on the constitutionality of the 1998 exemption. (Brechner Report, March 1999)
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will not serve more jail time for refusal to testify
WEST PALM BEACH -- A circuit judge ruled that Miami Herald reporter, David
Kidwell, who refused to testify in the 1996 murder trial of John Zile, will not serve more
jail time for contempt of court, but has to pay $111 in court costs.
Judge Roger Colton,
15th Judicial Circuit, reduced Kidwell's original 70-days sentence to the 15 days the
reporter already served in the Palm Beach County Jail. The judge also waived the $500 fine
imposed on Kidwell.
Kidwell refused to testify about his jailhouse interview with Zile,
found guilty of murdering his stepdaughter. A federal judge released Kidwell from jail,
saying Florida law on the matter was vague.
On appeal, the state Supreme Court remanded
the case to the lower court saying that, to force a reporter's testimony, the state must
show that the sought information is relevant, is unobtainable from other sources, and
there is a compelling need for it. (Brechner Report, May 1999)
Kidwell's attorney argued
that the reporter's testimony is no longer needed since Zile has already been convicted.
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County may release
TALLAHASSEE -- Florida Attorney General Robert Butterworth ruled that a clerk of court may
release the social security numbers of county employees to comply with an audit request by
the county workers' compensation carrier.
The Public Records Law provides that the social security numbers of all current and
former agency employees contained in agency employment records are exempt from public
disclosure. However, the opinion states, an insurance carrier does not act as a member of
the public when requesting the social security numbers to complete the audit.
Butterworth wrote that counties must provide all information requested by an insurance
carrier to secure the workers' compensation coverage. (4/28/99)
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Court reinstates defamation suit
WEST PALM BEACH -- A state appeals court reinstated a defamation suit against Paxson
Communications Corp. and two radio hosts accused of describing a person as a drug-using
homosexual during a radio show.
Morgan Linden Anson sued the company, which owns WFTL- AM radio station, and two radio
hosts, Steven Kane and Nick Lawrence, for making allegedly false statements about him
during a June, 1997, broadcast.
Judge Leonard Stafford, 17th Judicial Circuit, threw out the suit, saying Anson was not
sufficiently identified on the show, and any comments were just opinions. The appeals
court disagreed, saying that labeling statements as opinion does not shield the radio
hosts from claims of defamation. (5/6/99)
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withdraws request for investigation
NEW PORT RICHEY -- The County Commission voted to withdraw its request for the Florida
Attorney General's opinion on whether the county attorney, Karla Owens, violated the Open
Meetings Law by privately polling commissioners.
The controversy arose after Owens told Commissioner Steve Simon that the County
Commission would not support his proposal to ban short-term house rentals. According to
the St. Petersburg Times, Owens privately polled commissioners and communicated her
findings to Simon prior to the discussion of the issue at a public meeting.
Owens, who recently resigned from the position she held for 13 years, contended that
she knew about commissioners' views because the issue has been controversial for several
years and commissioners have previously voted on it.
The Attorney General's Office asked the County Commission to withdraw its request for
investigation because of many factual discrepancies in the accounts given by Simon and
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decide if graduation messages violate First Amendment
DUVAL COUNTY -- A federal appeals court ruled that the Duval County's school board policy
allowing student-initiated graduation messages, which could include prayer, violates the
First Amendment's establishment clause.
In 1993, the county's school board adopted the policy that the graduating class could
elect to have two minutes of uncensored speech to open or close their graduation ceremony.
A student volunteer would deliver the message, be it secular or religious, without a prior
review by the school.
Several students and two parents, Stella Finck and Roberta Nord, sued the school board
claiming the policy violated the federally-mandated separation of state and church. A
federal district judge denied the group's request to prohibit the policy.
Judges from the 11th Circuit Court of Appeals overruled the district court's decision,
saying that the policy conveys governmental endorsement of religion and coerces unwilling
students to participate in religious exercise. (5/11/99)
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School board member
suspended for law violations
PENSACOLA Gov. Jeb Bush suspended indefinitely Escambia County School Board member,
Vanette Webb, after she spent seven days in jail for violating the Public Records Law. If
Webb does not resign, she could face a trial before the state Senate.
In May, Judge Pat Kinsey, First Judicial Circuit, sentenced Webb to 11 months and 15
days in jail and ordered her to pay a $1,000 fine for knowingly withholding public records
from a parent who has been critical of Webb. However, the judge suspended all but 30 days
of the sentence. (Brechner Report, June 1999)
Judge William White, who took over the case, released Webb on a $2,000 bond pending her
appeal, after she spent seven days in the Escambia County Jail.
Judge Kinsey disqualified herself from the case saying Webb testified untruthfully
under oath. Kinsey said that when a judge concludes that a party has lied on the stand,
"that judge may be disqualified from hearing subsequent actions involving the
According to the Brechner Centers prosecution database, Webb may be the first
state public official who served a jail time for violating the Public Records Law. Webb
also may be the second school board member suspended for violating the state access laws.
In 1992, then-Governor Lawton Chiles suspended a Hernando County School Board member,
Diane Rowden, for Open Meetings Law violations. (5/25/99)
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City pays Zorc
$575,000 to settle multiple lawsuits
VERO BEACH -- The city of Vero Beach signed a $575,000 settlement agreement with Frank
Zorc to end all legal disputes between the parties going back "to the beginning of
Zorc sued Vero Beach City Council, claiming the council violated the state access laws.
In December, an appellate court agreed with Zorc and ruled that the city officials
violated the Open Meetings Law during a series of closed-door meetings in 1995. (Brechner
Report, March 1999)
Zorc also sued the city claiming it violated his civil rights in retaliation for his
suits. The city, in turn, sued Zorc, trying to evict him after he refused to pay rent and
taxes on property he leases at the Vero Beach Municipal Airport.
The settlement ends all legal battles between the city and Zorc, including the appeal
pending in the Open Meetings lawsuit.
Zorc's attorney will receive nearly $290,000 from the settlement. The city will
withhold another $36,722 until Zorc pays his real estate taxes. (5/4/99)
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new exemptions to state access laws
The following list is a compilation of bills from the Florida Legislatures 1999
session. More information about the session cab be accessed at <http://
http://www.leg.state.fl.us> , which is the Florida Legislatures Online Sunshine
site. The recent status of Gov. Jeb Bushs action on the bills can be found at
<"http://www.state.fl.us/eog/legis99/99legisa.html" , which is
Governors Office web site.
Bills that passed:
HB 11 (Trovillion, R- Winter Park): Makes it a first-degree
misdemeanor to falsely identify oneself when arrested or lawfully detained by a law
enforcement officer. The offense is published as a third degree felony if a false name
given to law enforcement is a real name of another person. Provides that a person, whose
name or other identification was illegally used, may obtain court orders to correct any
public record because it contains false identification information.
HB 49 (Trovillion, R - Winter Park): Makes it a third degree felony to
fraudulently use or possess with intent to use any personal identification information
without consent. Makes it a first-degree misdemeanor to use or attempt to use personal
identification information to harass, or inflict substantial emotional distress on, an
individual. Defines personal identification information broadly to include name, address,
social security number and other identification numbers, fingerprints, voice print and
unique electronic identifying codes.
HB 219 (Crow, R - Dunedin): Provides that any confidential information
received by the Statewide Public Guardianship Office must remain confidential. Also
creates an exemption from the Public Records Law for all records held by the agency which
relate to "the medical, financial, or mental health of vulnerable citizens,"
such as elderly persons, disabled adults, persons with developmental disabilities or with
HB 223 (Constantine, R - Altamonte Springs): Provides that a
governmental entity intending to file a suit against another governmental entity has a
duty to negotiate prior to litigation. Also provides that a defending governmental entity
is not required to hold a noticed public meeting to discuss the proposed litigation, if
three-fourths of its governing body find that an immediate danger to the health, safety,
or welfare of the public requires immediate action. After the initiation of the conflict
resolution, government entities must give a public notice of a conflict assessment
meeting. If, during this meeting, the dispute is not resolved, a joint public meeting must
HB 357 (Fasano, R - New Port Richey): Makes confidential the strategic
plans of any hospital subject to the Public Records Law, if competitors are likely
"to frustrate, circumvent, or exploit" the purpose of the plans before their
implementation. Creates an Open Meetings Law exemption for the hospital governing board
when discussing an exempt strategic plan, requiring that the closed meeting be recorded by
a certified court reporter. Transcripts of the closed meeting become public record three
years after the date of the meeting, or after strategic plan is disclosed or implemented,
whichever is earlier. Provides that if a governing board closes a meeting before
implementation of the plan, the board must hold a public meeting to inform the public, in
general terms, of the business activity to be implemented.
HB 391 (Futch, R - Indialantic): Allows the Florida Department of Law
Enforcement to provide nonexempt criminal history records to qualified entities for the
purpose of conducting background checks on employees and volunteers. Provides that a
subject to the check has the right to obtain a copy of a screening report and to challenge
its accuracy and completeness. Also allows the department to develop a criminal justice
information network, a data-sharing network for the state criminal justice agencies.
Provides that each office of the public defender shall have online access to the state
criminal records nonexempt from the Public Records Law.
HB 1015 (Feeney, R - Oviedo): Requires the State Technology Council to
create a Task Force on Privacy and Technology. By February 1, 2000, the task force will
make recommendations to the Legislature and the Governor regarding: privacy and the use of
advanced technology; technology fraud including credit card and identity theft; and the
sale of public records to private entities. The task force will also study how to balance
the traditional openness of public records in the state with the need to protect the
privacy and identity of individuals. Also repeals the statutory provision allowing the
Department of Highway Safety to sell photographs and other drivers license and state
identification card information on file.
HB 1081 (Goodletter, R - Naples): Exempts from the Public Records Law
home addresses, telephone numbers, social security numbers, and photographs of employees
of any licensed health care facility providing direct patient care or security services.
Also makes confidential the same information regarding employees spouse or child,
including their places of employment and locations of schools and day care centers. Also
creates a similar exemption for any employee of a licensed health care facility who has a
"reasonable belief that release of the information may be used to threaten,
intimidate, harass, inflict violence upon, or defraud" him or her, and the employee
submits a written request for confidentiality.
HB 1927 (Eggelletion, D Lauderdale Lakes): Provides that area
agencies on aging under Department of Elderly Affairs are subject to the Public Records
Law and also subject to the Public Meetings Law, when considering any contracts requiring
the expenditure of funds. Requires the Agency for Health Administration to publish and
make publicly available health maintenance organization report cards.
HB 2121 (Argenziano, R Crystal River): Exempts from the Public
Records Law the records of quality-of-care monitoring visits to nursing homes conducted by
the Agency for Health Care Administration. However, public would still have access to the
reports of conditions, which threaten the health or safety of a nursing home resident.
SB 80 (Grant, R - Tampa): Provides that companies helping businesses
and governmental agencies solve the Year 2000 computer date problem must keep confidential
any scientific, technical, or commercial information they acquire in the process of work.
Prohibits, and imposes sanctions on, the release of such information without the express
written permission from the business or governmental agency.
SB 180 (Comprehensive Planning, Local and Military Affairs Committee):
Exempts from the Public Records Law all proprietary business information, including names,
billing addresses and trade secrets of wireless service providers, submitted by a wireless
communications service provider to the Florida Wireless 911 advisory board or Department
of Management Services.
SB 674 (Brown-Waite, R- Brooksville): Exempts from the Public Records
Law medical and other personal information about patients of a licensed home medical
equipment provider, which is received by the Agency for Health Care Administration through
reports or inspection.
SB 928 (Cowin, R - Leesburg): Exempts from the Public Records Law any
information identifying a deceased childs surviving siblings, family members or
others living in the home of the deceased, in records and reports created by the State
Child Abuse Death Review Committee. Exempts from the Open Meetings Law the portions of the
Committees meetings which relate solely to child fatalities and discuss specific
persons and events. Provides that confidential information obtained by the Committee
retains its confidential status. Also provides that all information and records acquired
by the state and local committees are confidential and not subject to subpoena, discovery,
or introduction into evidence in any civil or criminal proceedings.
SB 1596 (Bronson, R - Indian Harbour Beach): Exempts from the Public
Records Law court documents identifying a pregnant minor who seeks to terminate her
pregnancy and petitions for a waiver of the parental notification requirements.
SB 2350 (Carlton, R- Osprey): Makes confidential business records
provided by a business owner to a governmental condemning authority as part of an offer of
business damages pursuant to an eminent domain proceeding. A business owner, who requests
confidentiality of such records, must demonstrate that their disclosure would likely cause
substantial harm to his or her competitive position.
Bills that did not pass:
HB 43 (Harrington, R- Punta Gorda): Would have exempted from the
Public Records Law all personal identifying information in state motor vehicle records.
HB 51 (Heyman, D- North Miami Beach): Would have required a person
wishing to inspect or copy a public record to supply his or her name and address, date of
birth, and proof of identity.
HB 159 (Bitner, R- Port Charlotte): Would have allowed ex parte
communications between legislators and Public Service Commission members.
HB 193 (Lawson, D- Tallahassee): Would have allowed disclosure of an
address, phone number, or social security number of a public employee to the
employees certified bargaining agent upon written request.
HB 205 (Murman, R- Tampa): Would have required the clerk of the court
to merge a persons juvenile and adult criminal history records if the person commits
a felony before age 24. Would have provided that juvenile records showing offenses and
their dispositions are public record.
HB 517 (Sember, R- Vero Beach): Would have repealed a Public Records
Law exemption for records of private companies that lease public hospitals or other public
health facilities. Would have also repealed the Open Meetings Law exemption for meetings
of the corporations governing board.
HB 685 (Henriquez, D- Tampa): Would have exempted from state access
laws records and meetings of a domestic violence fatality prevention task force.
HB 839 (House Tourism Committee): Would have made confidential
information held by the Office of Film Commissioner regarding the identity, trade secrets,
and plans of entertainment companies seeking to locate or expand any of their business
activities in the state, or applying for a sales and use tax exemption, when such
confidentiality is requested.
HB 879 (Boyd, D- Monticello): Would have required insurance carriers
to limit disclosure of health information if an individual stated in writing that
disclosure of such information could jeopardize his or her safety.
HB 1433 (Casey, R- Gainesville): Would have made confidential records
held by the Department of Health or emergency medical services (EMS) licensees regarding
allegations of impairment by emergency medical technicians or paramedics; identifying
information about students in emergency medical technician or paramedic programs; EMS
licensees against which complaints have been filed; and patients transported or treated by
HB 1575 (Murman, R- Tampa): Would have exempted from the Open Meetings
Law those meetings held by state Departments of Children and Family Services, Labor and
Employment Security, Health, Revenue, and the WAGES program, which regard information
identifying individuals who applied for or are receiving temporary assistance. Would have
also created a Public Records Law exemption for such information.
HB 1843 (House Committee on Health Care Licensing and Regulation):
Would have created a Public Records Law exemption for adverse incident reports filed with
the Department of Health by a medical or osteopathic physician. Adverse incidents include
incidents resulting in death, brain or spinal damage, surgery on a wrong patient, and
performance of an unnecessary surgery.
HB 2049 (Bush, D- Miami): Would have created a Public Records Law
exemption for information revealing the identities of complainants and alleged violators
of fair housing practices contained in records held by the Commission on Human Rights.
HB 2153 (Barreiro, R- Miami): Would have provided that contracts for
the purchase and sale of real property for educational purposes by school boards must be
considered and approved in a public meeting. Would have allowed the board, the
superintendent, and appropriate staff to meet, under certain conditions, in closed-door
sessions to discuss pending negotiations concerning the acquisition of real property. The
records of such executive sessions would have been confidential.
SB 2 (Senate Judiciary Committee): Would have made confidential all
papers and records pertaining to a petition to terminate parental rights pending adoption.
SB 166 (Brown-Waite, R- Brooksville):Would have made it a crime for any person
to initiate, or attempt to initiate, contact with a person directly involved in the
tactical operations of a law enforcement agency, including kidnapping and taking of
hostages. Would have also prohibited live audio and video broadcasting of tactical
operations in progress.
SB 846 (McKay, R- Brandenton):Would have provided that all communications
in a court-ordered mediation proceeding, other than an executed settlement agreement, are
exempt from the Public Records Law.
SB 922 (Kirkpatrick, R- Gainesville):Would have created exemption from the
Public Records Law for donors to direct-support organizations for Florida Affordable
SB 1172 (Rossin, D- West Palm Beach):Would have exempted from the Public Records
Law information provided to state attorneys and sheriffs by persons who take minor
children fleeing from domestic violence.
SB 1198 (Mitchell, D- Jasper):Would have required lobbyists who request a state
legislator to sponsor or oppose a bill to disclose to the Office of Legislative Services
whether the bill would directly benefit a registered lobbyist or political committee that
has contributed more than $100 to the legislators campaign. This information would
have been public record.
SB 1302 (Geller, D- Hallandale):Would have made confidential documents provided
voluntarily by an insurer to the Department of Insurance or the Department of Legal
Affairs, if such documents were prepared by the insurer at the request of counsel as part
of the insurers program to enhance compliance with the Florida Statutes
SB 1342 (Mitchell, D- Jasper):Would have made confidential all records and
evidence of domestic violence experienced by an employee who has applied for unemployment
compensation, except when the employee believes that the disclosure is necessary to
protect his or her safety.
SB 1718 (Silver, D- North Miami):Would have exempted from the Public Records Law
home addresses and telephone numbers of municipal employees who are human resources
practitioners making decisions that affect employment actions.
SB 1764 (Kirkpatrick, R- Gainesville):Expressed legislative intent to establish
Public Records Law exemption for certain international trade and economic development data
that are "in the nature of trade secrets."
SB 1838 (Childers, R- Pensacola):Would have allowed any pubic official,
employee, or agent of a governmental entity to participate in a closed-door meeting
between that entity and its attorney to discuss pending "or imminent"
litigation, to which the entity is "or may be" a party.
SB 1980 (Dyer, D- Orlando):Would have exempted from the Public Records Law
information that identifies a benefactor, a designated beneficiary, or any details about
their individual accounts in the Florida College Savings Program.
SB 2178 (Silver, D- North Miami):Would have made confidential certain
information obtained by the Department of the Lottery in connection with the establishment
and operation of video lottery games. Also would have exempted from the Public Records Law
the street address and the phone number of a winner of a video lottery game.
SB 2194 (Thomas, D- Tallahassee):Would have created a Public Records Law
exemption for documents submitted by insurers, health maintenance organizations and others
in response to a competitive procurement by the State Group Insurance Division for
employee-benefit-related plans. Also would have exempted from the Open Meetings Law
portions of meetings at which responses to the competitive procurement process were
SB 2544 (Bronson, R- Indian Harbour Beach):Would have exempted from the Public
Records Law the personal financial records, trade secrets, or proprietary information of
an applicant for financial assistance from Florida Commercial Space Financing Corp.
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THE BACK PAGE:
nine new exemptions to access laws
by Barbara Petersen
During the 1999 legislative session, the First Amendment Foundation tracked approximately
70 open government bills legislation that would make some change to either the Public
Records Law or the Sunshine Law, usually in the form of a new exemption. Midway through
session, things were looking pretty bleak. A few "bad" bills had passed the
House, and others were moving through various Senate committees at an alarming rate.
However, the vast majority of bills being tracked died at some point during the
legislative process, and only nine new exemptions (compared to 16 last year) were passed.
Most of the bills that did pass were amended to address constitutional issues raised by
the Foundation, and nearly all were sufficiently narrowed. As of this writing (early
June), only three of the bills have become law, including one, SB 2350, we had asked
Governor Bush to veto based on constitutional issues raised by the breadth of the
Senate Bill 2350 creates a public records exemption for all
business records provided by the owner of a business to a governmental condemning
authority as part of an offer of business damages pursuant to an eminent domain
proceeding. The stated purpose of the exemption is to protect sensitive business records,
but the bill exempts both sensitive and non-sensitive business records and thus, we
believe, violates the narrowness standard for exemptions found in Article I, section 24,
of the Florida Constitution. The Governor approved the legislation on May 26 (Ch. No.
99-224), and it takes effect on July 1, 1999.
The other two exemptions approved by the Governor to date are SB 180, creating an
exemption for all proprietary business information, including the name and billing
addresses of service subscribers submitted by a wireless communications service provider
to the Department of Management Services, and SB 928, exempting certain identifying
information in records or reports created by the State Child Abuse Death Review Committee
which relate solely to child fatalities. Both of these bills become effective on July 1,
Other new exemptions created during the 1999 Legislative Session include: certain,
specified records held by the Statewide Guardianship Office (CS/HB 219); records and
meetings of public hospital boards relating to written strategic plans (HB 357); medical
records of patients of a home medical equipment provider obtained by the Agency for Health
Care Administration (SB 674); home addresses and telephone numbers of public health care
facilities providing direct patient care or security services (HB 1081); identifying
information of minors seeking a waiver of the notice requirements under the Parental
Notice of Abortion Act (SB 1596); and records of quality-of-care monitoring visits to
nursing homes conducted by the Agency for Health Care Administration (HB 2121). This bill
suffers from the same constitutional problems as does SB 2350, and we have asked the
Governor for a veto.
One other bill that passed, HB 1015, could have a significant impact on next year's
session. Under the legislation, the State Technology Council, part of the Department of
Management Services, is required to create the Task Force on Privacy and Technology for
the purpose of studying and making recommendations to the Legislature and Governor
regarding privacy, public records, and the use of advanced technologies; technology fraud,
including the illegal use of a citizen's identity and credit; balancing the openness of
public records with the need to protect privacy and the identity of individuals; and the
sale of public records to private individuals and companies. We anticipate a fair number
of proposed exemptions to be filed as a result of this study.
Barbara A. Petersen is the executive director of the First
Amendment Foundation in Tallahassee.
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