The Brechner Report
Volume 23, Number 8
August 1999
A monthly report:
Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, 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
Table
of Contents
ACCESS
MEETINGS
Water
managers settle with Indian tribe, cancel buyout plan
Butterworth: exemptions
to be construed narrowly
Party a violation, says state
auditor
Health agency to revise grievance
policy
Court: city of Bradenton violated
law
School board cleared of violation
claims
Access Records
Court
asked if e-mail address book is a public record
Judge
awards attorneys fees in Public Records Law suit
Court rules CORE is
subject to Public Records Law
Mayor faces charges of law
violations
Opinion addresses public
records copying fees
Hospital records to remain
closed to public
Judge denies
papers request for records
REPORTER'S
PRIVILEGE
Judge
quashes TV reporters subpoena
THE BACK
PAGE
Law
enforcement offices not always complying with law
Court
asked if e-mail address book is a public record
PENSACOLA The Escambia County School Board and chairman Hal Mason asked a
circuit court for a declaratory judgment on whether Mason should turn over his e-mail
address book to Pensacola parent Susan Watson.
In April, Watson asked Mason to release his business-related e-mail and address book,
but Mason denied the request, saying the book contained some private addresses. Watson
filed a counterclaim in a circuit court alleging that the school board and its chairman
violated the Public Records Law by withholding the records she requested.
Watsons records requests previously were refused by a former school board member
Vanette Webb, who was convicted of the Pubic Records Law violations and spent seven days
in jail. (Brechner Report, June 1999) Governor Jeb Bush suspended Webb on May 21
and replaced her with Janice E. Gilley, a top legislative aide to Florida House Majority
Leader Jerry Maygarden. (6/8/99)
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Judge
awards attorneys fees in Public Records Law suit
TARPON SPRINGS A circuit judge awarded the St. Petersburg Times
attorneys fees in a suit against the governing foundation of Helen Ellis Memorial
Hospital, even though he previously had decided that the foundation was exempt from the
state access laws.
The case stemmed from the papers public records request to the hospital and a
request to attend meetings. The foundation responded by filing a declaratory action
against the Times, claiming it did not know its rights and obligations under the
state access laws.
The Times argued that the foundations doubts were not legitimate and
filing a declaratory action instead of granting or denying a public records request was
frivolous.
Judge L. Ralph Smith, Jr., 2nd Judicial Circuit, found "a compete absence of
justifiable issues of law or fact" in the foundations declaratory action. He
previously had held that the foundation is exempt from the state access laws as a
non-profit corporation running a public hospital. (Brechner Report, July
1999)(7/2/99)
Table of Contents
Water
managers settle with Indian tribe, cancel buyout plan
WEST PALM BEACH South Florida water managers settled the suit with the
Miccosukee Indian Tribe over a controversial plan to buy and flood private land on the
fringes of the Everglades in an effort to restore natural water flow to the park. The suit
alleged that the water management district violated the state Open Meetings Law by
secretly negotiating the plan. (Brechner Report, April, 1999)
The settlement, unanimously approved by the water board, nullifies the buyout plan and
provides for a new investigation of the issue. It preserves the boards option to
again vote for a full buyout or any other option it thinks would best solve the
Everglades restoration problem.
The Miccosukees favor an alternative plan proposed by the Army Corps of Engineers,
providing for a drainage ditch and protective levee around the area properties instead of
dismantling them. (6/25/99)
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Judge quashes TV
reporters subpoena
LEE COUNTY Judge William J. Nelson, 20th Judicial Circuit, ruled that WBBH-TV
reporter Brad Clore did not have to testify in a trial involving a traffic accident. Clore
videotaped the accident in his capacity as a videographer for a local NBC affiliate. The
State wanted Clore to establish the authenticity of a video recording and its contents.
(Decision on File, State of Florida v. Garnto, Case No. 98-002747-CF, 6/7/99)
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Butterworth:
exemptions to be construed narrowly
TALLAHASSEE Florida Attorney General Robert Butterworth issued three advisory
opinions relating to the state Open Meetings Law.
He held that the exemption for closed-door meetings between a public board and its
attorney should be construed narrowly. He said this exemption applies only in cases of
pending litigation to which a municipality is a party and where discussion is limited to
settlement negotiations or strategy sessions related to litigation expenditures.
Butterworth stressed that the governmental body should not take a final action or discuss
matters outside the two narrowly prescribed areas during such meetings.
Butterworth also ruled that county commissions are authorized to hold their regular
meetings at a place other than within the county seat, provided they give a due public
notice. He held that individual commissioners may establish remote offices to provide
district constituents with better access to their elected representatives.
In another opinion, Butterworth ruled that a committee formed by a city manager to
represent the city in labor negotiations may hold closed meetings with the city commission
to discuss collective bargaining.
He said the exemption would not apply in the absence of actual or impending collective
bargaining negotiations. (5/12 6/17/99)
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Party a violation, says state
auditor
WINTER HAVEN The state auditor general, Charles Lester, stated in his recent
report that Polk Community College trustees violated the Open Meetings Law by inviting
four candidates for the position of college president to an informal party.
The report said trustees scheduled the party at the home of their attorney, Don Wilson,
so they could assess how four finalists interacted in social situations. Information
gathered there was used in the screening process.
Lester said that the presence of three media members at the party was not enough for
compliance with the state Open Meetings Law. He recommended that any similar events be
open to the public. (6/7/99)
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Health agency to revise
grievance policy
NAPLES The Collier County State Attorneys Office dropped civil charges of
Open Meetings Law violations against three officials at the state Department of Health,
after the health agency agreed to revise its written grievance policy.
The charges stemmed from the complaint of William McMullan, who claimed that the
grievance committee at a county health department banned his wife from hearing testimony
of the man she accused of sexual discrimination. (Brechner Report, June 1999)
Under the settlement terms, the state health agency admits no wrongdoing. However, the
agency pledges to make its grievance proceedings subject to all provisions of the Open
Meetings Law. In addition, there will be no sequestering of witnesses. The settlement also
requires the agency to post a 24-hour advance notice of a grievance meeting in the
building where the affected personnel office is located. (5/14/99)
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Court: city of Bradenton
violated law
BRADENTON A three-judge panel from the 2nd District Court of Appeal ruled that
the city of Bradenton violated the Open Meetings Law by choosing contractors for a
construction project without first meeting in public.
A local business woman, Dorothy Leach-Wells, sued the city in 1997, claiming that an
ad-hoc committee violated the state access laws by establishing a short list of three
contractors being considered for construction of a new City Center without proper public
notice . The city responded by discussing the selection process at a subsequent meeting.
The appeals court agreed with a circuit court decision to dismiss the suit because the
city corrected the violation. (6/19/99)
Table of Contents
School board cleared of
violation claims
COLLIER COUNTY The State Attorneys Office ruled that Collier County School
Board members did not commit a criminal violation of the Open Meetings Law by taking a
vote for a superintendent during a special session on April 19.
Mark Albanese, co-chairman of the Collier County Education Organization, filed a
criminal complaint with the county sheriffs office alleging that the boards
meeting did not meet the state emergency meeting criteria.
Assistant State Attorney Amira Dajani said the school district could call a special
session with a two-day public notice. The school board advertised its meeting two days in
advance in the legal section of the Daily News. (5/18/99)
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Court rules
CORE is subject to Public Records Law
ST. LUCIE COUNTY A circuit court judge ruled that CORE, a private provider of
misdemeanor probation services, is subject to the Public Records Law.
A private citizen, Paul Curry, said the agency denied him access to its records on a
Oct. 22, 1998, visit. (Brechner Report, June 1999) Judge Rupert Jasen Smith, 19th
Judicial Circuit, ordered CORE to allow Curry to inspect records in its Fort Pierce office
and required the agency to reimburse him $30 for his expenses. (Decision on File, Curry
v. CORE, Case No. 99-533-CA17, 5/21/99)
In a separate action, a jury convicted Curry of stalking his former neighbor,
Jacqueline DiCarlo, by performing public document searches in effort to discredit her.
(6/5/99)
Table of Contents
Mayor faces charges of law
violations
ANNA MARIA The State Attorneys Office charged Anna Maria Mayor Chuck
Shumard with two civil counts of violating the Public Records Law.
A city commissioner, Douglas Wolfe, accused Shumard of breaking the law when he locked
the applications for the city clerk position in his desk drawer.
The Islander Bystander sued Shumard after the paper had to wait nine days for
the requested records and was charged $20 in staff time for their preparation. However,
contrary to an implication in a story in the June issue of the Brechner Report, the
reasons for Shumards absence from his office when records were requested has not
been definitely established.
Judge Durand Adams, 12th Judicial Circuit, found Shumard guilty of the records
violation and ordered him to release the documents.
A local resident, James Conoly, also requested copies of the applications and was told
they were unavailable for inspection the same day. The records were made available to him
the next day. (5/29/99)
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Opinion addresses
public records copying fees
TALLAHASSEE Florida Attorney General Robert Butterworth ruled in an advisory
opinion that the Division of Elections may charge only the actual cost of duplication for
copies of voter registration records, unless a request involves extensive clerical or
supervisory assistance or extensive use of information technology.
Butterworth also decided that an employees contractual right to have a union
representative accompany him or her to an investigatory interview does not include the
right to have a union representative present during discussion of confidential information
taken from a child abuse investigation.
In another opinion, Butterworth ruled that presuit notices received by the Department
of Health should be disclosed upon a public records request. Presuit notice is a notice of
intent to initiate litigation for medical malpractice. (6/30 7/9/99)
Table of Contents
Hospital records to
remain closed to public
DELAND The records of Memorial Hospital-West Volusia will remain closed to the
public while its governing corporation appeals a circuit court order comply with the
Florida Supreme Court ruling and open its records to the public.
In January, the state Supreme Court ruled that the private corporation running Memorial
Hospital is subject to the state access laws. (Brechner Report, March 1999) The
Court did not rule on the constitutionality of the 1998 exemption, which makes records and
meetings of privately leased public hospitals confidential. Memorial officials asked a
circuit court to establish whether the exemption applies to the hospital. (Brechner
Report, May 1999)
In May, Judge Joe Will, 17th Judicial Circuit, held that the exemption did not apply
retroactively to the corporation. However, he allowed the hospital to keep its records
confidential during the appeals process. (6/3/99)
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Judge denies
papers request for records
BARTOW A circuit judge denied a writ of mandamus filed by the Lakeland Ledger
that sought records from three law enforcement agencies about the 1981 murder of
Frostproof police officer David McCall by bank robbers.
The Polk County Sheriffs Office, the Frostproof Police Department and the state
Department of Law Enforcement said the requested information was not a matter of public
record because it related to an ongoing criminal investigation.
The Ledger asked the court for the written order requiring the agencies to
perform their duties and release the documents. Judge Charles Curry, 10th Judicial
Circuit, denied the request but said the paper could refile a suit under the Public
Records Law. (4/26/99)
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THE
BACK PAGE: Law enforcement offices not always complying with law
by Michele Bush
Access to public records may be one of the most valuable tools in protecting citizens
from government abuse of power. However, Floridas Public Records Law is not a
guarantee to access to government information.
I conducted an audit of Floridas law enforcement agencies, and it showed that the
offices were not consistently complying with Floridas Public Records Law. The
results of my study showed that approximately 34 percent of the law enforcement agencies
did not provide access to records that were legally open to the public.
The study evaluated the responses of more than 100 police departments and
sheriffs offices in 28 counties across the state. University of Florida students
participated in the study by requesting from each agency crime statistics, which were
tabulations of crimes in the offices jurisdictions.
The most common reason records custodians gave for refusing to grant access to the
statistics was that they were not authorized to grant access to the record. According to
Floridas Public Records Law, everyone who has custody of a public record is required
to grant access to the record. Records custodians also claimed that the crime statistics
did not fall under the statutory definition of public records. Not one of the records
custodians approached in this study cited a statutory basis for denying access to the
crime statistics.
When participants requested the crime statistics, they also requested a photocopy of
the tabulations. The responses to the requests for copies were used to evaluate the fees
agencies charged for photocopies. According to Floridas Public Records Law, records
custodians may not charge more than 15 cents per uncertified, one-sided photocopied page.
Custodians may charge extra fees if the request requires extensive use of information
technology resources. Records custodians fees for copies of the crime statistics
ranged from no charge to $200. The custodians who charged the most excessive fees
attributed the charges to the use of computers to access the crime statistics. However,
the crime statistics were records that should have been easily accessible by computer
because the document already existed in every law enforcement agency across the state.
Custodians should have been able to search and retrieve the records more efficiently with
the aid of a computer than they would have been able to retrieve the records stored on
paper.
Denying access to public records 34 percent of the time is a dismal response rate from
custodians the rate should have been 100 percent compliance. This study did not
evaluate why records custodians made the decisions to grant or deny access to records. It
may have been misunderstanding, ignorance or disregard of the law. One of the most
troubling aspects of the results of this study is that law enforcement agencies, which are
responsible for upholding the law, are denying access to the public information they hold.
The results of my study are not unique to Florida. Brown University conducted a similar
study in Rhode Island, and newspapers in Indiana, New Jersey and Virginia have banded
together to audit the access laws in their states. All of those studies showed that law
enforcement agencies are usually the worst offenders when it comes to violating public
records laws.
Although all of the reasons for the denials are unknown, the best solution is
education. Citizens can take a part in educating records custodians by exercising their
rights to government information and continuing to request access to public records. There
must be a standard, mandatory training records custodians receive regarding the public
records law. Records custodians must become more familiar with the law, or find avenues
for advice about how to comply with records requests in accordance with the law.
It is incumbent on both the government and citizens to ensure that laws granting access
to public records are properly carried out. Citizens rights to government
information cannot be compromised.
Michele Bush is a doctoral student at the University of Florida and former editor of
The Brechner Report.
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