The Brechner Report
Volume 19, Number 8
August 1995

A monthly report of Florida mass media law published by The Brechner Center for Freedom of Information in the College of Journalism and Communications at the University of Florida. It is published 12 times a year under the auspices of the University of Florida Foundation and is a joint effort of The Brechner Center for Freedom of Information, the University of Florida College of Journalism & Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment. The Brechner Report would like to thank Denise L. Humphrey and Barbara Peterson for their contributions.

• Mary A. Giery Smith, Editor
• Kelly Barber, Production Coordinator
• Michelle Quillen, Production Asst.
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS RECORDS
State's Medicaid HMO Reports Ruled Public Records
City Ordered To Reveal Settlement Offers
Judge Provides Records, Denies Gag Order

ACCESS MEETINGS
AGO Releases Two Opinions On Records
Commissioners Agree To Pay Fines
State Fair Officials Question Authority Of Sunshine Manual
Airport Tenant Files Sunshine Suit
Supreme Court Affirms Lawyer Solicitation Ban

ADVERTISING
Supreme Court Affirms Lawyer Solicitation Ban

FIRST AMENDMENT
Supreme Court Rules Lack Of Funding Violated Students' Free Speech Rights
Loud Protest Did Not Obstruct Investigation

NEWS NOTES
FOI Seminars On Calendar For Fall

PRIVACY
O.J. Mugshot Brings Threat Of Lawsuit

THE BACK PAGE
Natural Resource Record Custodians Need More Access Education

State's Medicaid HMO Reports Ruled Public Records

TALLAHASSEE -- Reports chronicling troubles in taxpayer-supported health plans are public records under Florida law, according to a recent ruling by 2nd Judicial Circuit Court Judge F.E. Steinmeyer III.

The judge called the case a close one because of conflicts between laws governing disclosure of medical records. One section appears to allow health maintenance organizations (HMOs) an exemption and another section does not, creating a conflict in the statutory provisions, he said. He said he was also concerned about legislative and court mandates to narrowly construe Public Records Law exemptions.

At the end of March, the state Agency for Health Care Administration released a summary of the results of its two-month investigation as well as specific reports on each provider. PCA Health Plans of Florida, one of the 29 Medicaid HMOs state regulators investigated earlier this year, had moved to have the detailed reports sealed. (Brechner Report, May 1995)(6/22/95)

City Ordered To Reveal Settlement Offers

NEW SMYRNA BEACH -- Seventh Judicial Circuit Court Judge Patrick Kennedy ordered New Smyrna Beach city commissioners to make public the initial settlement proposals offered to developers of The Inlet at New Smyrna condominiums. The developers are suing the city for the commission's rejection of alterations to a proposed building in the development.

Last July, the commissioners rejected developers' plans to increase the height of a tower unit from 20 to 29 stories. The developers filed five suits, including one for more than $20 million in damages.

In March, city officials and the developers agreed to discuss settlements in closed meetings, citing the section of the Open Meetings Law that allows cities to meet privately to discuss litigation.

A homeowners' association and The News-Journal (Daytona Beach) separately sought access to the settlement proposals. Both argued that the law cited had been passed to enable city officials to meet privately to plan litigation strategies, not to allow secret negotiations between opposing sides in litigation.

The city has complied with the order and released the initial proposals. However, City Attorney George Beazley said the newly released proposals and counter proposals are not current and had never been presented to the commission.(6/15/95-6/24/95)

Judge Provides Records, Denies Gag Order

FORT WALTON BEACH -- Judge G. Robert Barron, 1st Judicial Circuit Court, recently denied a motion for a gag order forbidding witnesses from discussing their testimony and ordered the release of police records revealing information about a murder suspect's position as an occasional police undercover agent.

The judge granted a defense motion ordering the Crestview Police Department to release records of the dates and times Freddie Wayne McLaughlin served as an undercover drug buyer.

Judge Barron also ordered the release of many additional identification records sought by the defense, including photographic, line-up, video and voice identifications. He withheld ruling on a motion regarding graphic and potentially inflammatory photographs until they are offered as evidence.

McLaughlin and Joseph Wiley have been indicted for the drive-by shooting death of 18-month-old Demetrius Ewing. The intended target, Jeffrey Brown, was wounded in the attack.(6/27/95)

AGO Releases Two Opinions On Records

TALLAHASSEE -- A recent Attorney General's Opinion stated that driver history records that have become part of court or law enforcement records are part of the public record. As such, custodians of the records must allow inspection and duplication at fees set by law. (Decisions on File, Fla. Atty. Gen. Op. 95-38 (June 1, 1995))

In response to a question from Daniel McIntyre, attorney for St. Lucie County, Attorney General Robert Butterworth wrote that copyrighted materials housed in a county law library are also public records under Florida law.

Such material is subject to the same duplication fees as any other public records held by the county and used in carrying out official functions. The fact that the material is copyrighted does not exempt it from the state's statutes governing fees for copying public records. (Decisions on File, Fla. Atty. Gen. Op. 95-37 (June 1, 1995))

Commissioners Agree To Pay Fines

MIAMI -- Two Dade County commissioners have agreed to pay fines stemming from civil charges of Open Meetings Law violations.

Bruce Kaplan will pay $500 and Maurice Ferre will pay $250 to settle charges that they met secretly in December to discuss the selection of a new county manager.

Ferre offered an apology for meeting with Kaplan. Kaplan denied that his meeting with Ferre and commission Chair Arthur Teele constituted a violation. However, he acknowledged a lack of judgment and agreed to pay the fine so that he could put the matter behind him.

The secret meeting took place the day before a vote in which the commission elected county Public Works Director Armando Vidal to the new position by a 7-5 margin. (6/28/95)

State Fair Officials Question Authority Of Sunshine Manual

TAMPA -- A 75-page audit of the state fairgrounds, which exposed numerous problems, including discrepancies in fair revenues, and alleged that a number of Open Meetings and Public Records Law violations had occurred at the fairgrounds, led Florida State Fair Authority officials to question the authority of the Government-in-the-Sunshine Manual.

In preparing the fairground report, auditors cited the manual as a reference for their allegations of possible Sunshine violations. The Sunshine Manual, prepared by the Florida Attorney General's Office, compiles and explains the state's Public Records and Open Meetings laws, and is offered to state agencies as a reference for compliance.

The Florida State Fair Authority's response to the audit, drafted by Fair president Steve Eckerson and Fair attorney Kirk Gibbons, called the Manual "useful and informative" but stated that they were "unaware" that it had "been adopted as Florida law." The response also requested state auditors to indicate in their final report that no Sunshine violations had occurred. The final report will be released shortly. (6/27/95)

Airport Tenant Files Sunshine Suit

VERO BEACH -- A Vero Beach business owner has filed suit in the 19th Judicial Circuit seeking to overturn a decision made by the City Council at what he alleges was an illegal secret meeting.

According to an article in the Press Journal, Frank Zorc, owner of the Vero Airport Trade Center and a tenant at the Vero Beach airport, and other citizens were refused admission to a council meeting on May 9, during which the council discussed legal strategy relating to a consent decree between Piper Aircraft Corp. and the Environmental Protection Agency. The consent decree concerns the clean-up of a 1978 underground leak of a suspected carcinogen from a tank on airport grounds.

Zorc's suit alleges that the discussion at the meeting went beyond the consent decree and that council members mentioned him by name 13 times. He asserts that when he leased the property in 1985 the city knew about the spill, which occurred about 100 feet from his property, but neglected to tell him that his property was affected. He said that banks are hesitant to lend money to potential investors in his center because of the leak. He wants the court to force the council to include test wells for his property as part of the decree.

The consent decree has already been approved by the Bankruptcy Court judge handling Piper's bankruptcy proceedings. It is subject to review by the U.S. District Court. (5/31/95-6/4/95)

Supreme Court Affirms Lawyer Solicitation Ban

WASHINGTON, D.C.-- In a recent ruling, the U.S. Supreme Court affirmed the constitutionality of the Florida Bar's controversial ban on attorneys' solicitation of accident victims within 30 days of an accident or disaster. Justice Sandra Day O'Connor, writing the opinion of the Court, said the 30-day blackout period does not infringe on attorneys' First Amendment rights.

The ban prohibits only targeted mailings by attorneys or attorney referral services to accident or disaster victims, or relatives of victims, within 30 days of the event. The prohibition does not affect attorneys' ability to send untargeted mailings, mailings to discrete groups within society or to advertise in any other medium, such as television, print or billboards.

Justice O'Connor wrote that the Bar instituted the ban not because of recipients' outrage at receiving the mailings but because of the cumulative negative impact on the legal profession as a whole which that outrage engenders.

She wrote that ample alternatives to targeted mailing exist for victims if they want to receive information about potential legal representation. Justices Scalia, Thomas, Breyer and Chief Justice Rehnquist helped form the majority. Justices Stevens, Souter, and Ginsburg joined Justice Kennedy's strong dissent, which stated that the decision unsettled important First Amendment precedents. (6/22/95)(Decisions on File, Florida Bar v. Went For It, Inc., 9 Fla. L. W. Fed. S 223 (1995))

Supreme Court Rules Lack Of Funding Violated Students' Free Speech Rights

WASHINGTON, D.C.--The U.S. Supreme Court recently ruled that the University of Virginia violated the free speech rights of a Christian student group by denying the group funding that would have subsidized the publishing costs for a religiously oriented magazine.

The ruling stated that by withholding funds the university had discriminated against the viewpoint, rather than the content, of the magazine. The court declared this "impermissible" when directed against speech that would otherwise by allowed within a forum. The Court described the Student Activities Fund, which provides funding to student organizations that meet certain criteria, as a "metaphysical" public forum.

Justice Kennedy, writing for the Court, rejected the university's contention that no viewpoint discrimination occurred because the guidelines silenced "an entire class of viewpoints." He called the argument "simply wrong" and stated that silencing multiple voices skewed public debate "in multiple ways." (6/29/95)(Decisions on File, Rosenberger v. University of Virginia, 63 U.S.L.W. 4702 (1995))

Loud Protest Did Not Obstruct Investigation

CLEARWATER -- The 2nd District Court of Appeal recently reversed a lower court ruling that held a teen's loud, early morning protest crossed the threshold from protected speech to conduct that obstructed police officers' ability to carry out an investigation. The appellate court ruling called the case an example of a police officer viewing as an obstruction an incident that another citizen would call "an appropriate protest."

The incident occurred when several officers investigating a burglary wakened the residents of a Pinellas County home before dawn. The suspect, who had been identified to the police, was known to spend time at the residence. A teenaged occupant of the house came outside protesting loudly and refusing to answer officers' questions but not making threats. Police arrested him for disorderly conduct because he refused to stop yelling.

The court held that the teen's decision "to exercise his First Amendment rights with such enthusiasm" early in morning may have been "youthful indiscretion" but was neither disorderly conduct nor an obstruction of the officer's ability to perform a legal duty.

The ruling stated that words exchanged with police are "rarely, if ever" obstructions if an officer is not legally detaining the speaker, delivering legal documents or if the officer has not asked the speaker for assistance in an emergency. (Decisions on File, D.G. v. State, Case No. 94-04063 (June 21, 1995))

FOI Seminars On Calendar For Fall

TALLAHASSEE -- The First Amendment Foundation will sponsor a series of one-day freedom of information seminars. They will last from 10 a.m. to 3 p.m. and will include sessions on access to governmental meetings and records and other media law issues. The seminars are open to the public.

The registration fee is $20 and includes a copy of the Government-in-the-Sunshine Manual. Lunch will be available for $5. The dates and locations of the seminars are Sept. 9, Tallahassee; Sept. 26, Sarasota; Sept. 28, Ft. Lauderdale; Sept 30, Stuart; Oct. 2, Orlando; Oct. 7, Ft.Walton Beach; and Oct. 14, Jacksonville. Barbara Peterson, director of the Foundation, can be contacted for specific information at 904-224-4555. (7/12/95)

O.J. Mugshot Brings Threat Of Lawsuit

TAMPA--A radio station's billboards and T-shirts featuring police mugshots of two Tampa disc jockeys along side the famous mugshot of O.J. Simpson attracted some unwanted attention from Simpson's attorneys. The advertisements for Tampa's WFLZ-FM brought the threat of a lawsuit for misappropriation of the former football star's likeness and name and an invasion of his privacy.

Station manager Dave Reinhart agreed to remove the billboards and stop selling the T-shirts after receiving a letter from Simpson's attorneys. Reinhart stated that he thought the mug shot, which appeared on the covers of national magazines following Simpson's arrest last year, was in the public domain. (6/21/95)

Natural Resource Record Custodians Need More Access Education

by Dave Maehr

Biologists working for the State of Florida are part of an information-rich environment involving a variety of plants, animals and ecosystems, many of which, such as Florida panthers, manatees or the Everglades, are controversial. The controversies exist within and between agencies, and among government organizations and the private sector, and often involve the interpretation of data. Custodians of these data are in a powerful position to control the dissemination of information about natural resources. Frequently, the data are held close to the vest and considered the property of the custodian. Data are infrequently exchanged among government agencies and excuses are often made to withhold information from the public. While this protectionism may seem justifiable, sometimes it is clearly prohibited under the federal Freedom of Information Act and Florida's Public Records Law.

Generally, natural resources issues neither affect state or national security, nor directly impact public health or welfare. Nonetheless, they generate deep, emotional and sincere public interest when it comes to endangered species and controversial ecosystems. Fortunately for the custodians who unknowingly violate the public's right of access to government records, much of the public is also unaware of its right to obtain what is often described as privileged information. If this was not the case, agencies would have long ago reformed the way they handle public interest in their activities.

During my nearly 14 years as a field biologist for the state, I was a part of this phenomenon of legal ignorance. My undergraduate and graduate school programs did not include discussions of access to government records. In hindsight, this seems remarkable since many graduates of natural resource programs, particularly at the land-grant institutions I attended, become government employees. It is likely that many positions filled by these graduates will involve handling public records and participating in open meetings.

I suspect that part of the problem rests within academia; few faculty members have worked in agencies where record requests may be routine. Professors of wildlife ecology and related fields are simply not well-tuned to some of the realities of government, leaving their students ill-prepared to handle certain situations.

On the other hand, all Florida natural resource agencies employ full-time legal counsels who, presumably, understand data ownership and access issues. One can only wonder why the implications of open government laws are not routinely communicated to field staff and administrators. State and federal laws make clear that the kinds of data maintained by natural resource agencies are usually not exempt from disclosure.

Solutions to this problem include increasing the awareness of field workers to open government issues, eliminating barriers to access and enhancing opportunities for public use of government records.

Enhanced data availability would probably benefit government agencies, and the natural resources they protect, by decreasing the amount of time spent denying requests and by encouraging independent interpretations of data to supplement governmental interpretations. The creation of departments designed to handle requests for information would enable busy field and office staff to pursue the routine operations that drive agency agendas. Carefully crafted university curricula, particularly at the graduate level, could ensure that matriculating students leave campus with an appreciation for information ownership, open government and how these benefit both the public and the protected resources.

As information becomes more important globally, and the public and its tools become more sophisticated, natural resource agencies will find it increasingly difficult to plead ignorance. Denials of access to information will likely be challenged, eroding the trust in and credibility of the agencies.

***David S. Maehr is a doctoral student in the Department of Wildlife Ecology and Conservation at the University of Florida. He spent 14 years as a field biologist with the Florida Game and Fresh Water Fish Commission.

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