The Brechner Report
Volume 19, Number 9
September 1995
A monthly report of Florida mass media law published by The Brechner Center for Freedom
of Information in 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 Mary A. Giery Smith for her contributions.
- Susan D. Ross, Editor
- Kelly Barber, Production Coordinator
- Michelle Quillen, Production Asst.
- Sandra F. Chance, J.D., Asst. Director
- Bill F. Chamberlin, Ph.D., 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
Water District Not Subject To
F.S. 120
ACCESS RECORDS
State
Attorney Seeks To Remove Victims', Witnesses' Names From Police Reports
Doctor's Criminal Trial
Records To Stay Open
Court Denies FOIA Access To
IRS Records
Law Enforcers
Define Initial Status Of 911 Transcripts
Hillsborough Increases
Its Court Records' Fee
UF Publishes Policies On E-Mail
University
Of Florida To Ask Legislature To Exempt Some Health-Services Records
ADVERTISING
Sarasota
Paper Will Not Advertise Prostitutes' Clients
COPYRIGHT
Deerfield
Beach Firm To Pay $1.1 Million Copyright Judgment
FIRST AMENDMENT
First DCA
Rules Ban On Political Ads Unconstitutional
Fired
Broward County Deputies Lose First Amendment Bid For Job Re-Instatement
LIBEL
Judge Gags WJNO Radio Talk Show
Host
Suit Filed Over
Allegations Of Misconduct
THE BACK PAGE
Court Files Hold Wealth Of
Otherwise Exempt Records
CHARLOTTE HARBOR -- Judge Thomas Gallen, 12th Judicial Circuit Court, recently rejected
an opinion by the Attorney General and held that the Englewood Water District does not
fall under the jurisdiction of Florida Statute 120, which allows citizens to initiate
hearings in state administrative agencies. Under the ruling, citizens must challenge water
district rulings in court, not through administrative hearings.
Judge Gallen said it was "beyond the court's logical reasoning" to place the
water district in the same category as a large state administrative agency covered by F.S.
120. The decision could affect more than 50 special districts statewide. (7/4/95)
TAMPA -- Hillsborough State Attorney Harry Lee Coe III wants to remove from police
reports the names, addresses and telephone numbers of anyone other than the suspect.
Although Coe's office had not set a date by which police reports would eliminate
information on all other individuals, including victims, witnesses and complainants, new
police forms were being printed to accommodate the change.
According to Coe's office, the change is intended to help protect victims and witnesses
from publicity. Prosecutor Douglas Covington said the office was concerned that under the
old policy all the information in police reports immediately became public record when
filed with the county clerk. Covington said Coe's proposal "will prevent"
immediate disclosure of victim information to the defendant or friends of the defendant.
Instead, prosecutors in Hillsborough would release such information only upon request.
Attorneys and media experts across the state have said that consequences of the
proposal could include clogging the judicial system with paperwork and suits, impeding
disclosure of information to the public, violating the Public Records Law and gutting the
ability of the media to report effectively on the criminal justice system.
David Evans, attorney for the Orlando Sentinel, said the proposal would prevent media
from telling the victim's story and assure that "nobody knows the victim but the
perpetrator." Lawrence McConnell, managing editor of The Tampa Tribune, said the
policy invited "mischief" and could lead to frivolous charges. (7/22/95)
ORLANDO -- The court records of a criminal trial in which an Orlando pediatric
orthopedist was acquitted of charges of molesting, and taking lewd pictures of, juvenile
male patients cannot be sealed despite the discomfort caused for the physician and his
family, 9th Judicial Circuit Court Judge Alice Blackwell White ruled recently.
Judge White said that so much information is publicly available about the trial of Dr.
William Zink that closing the court and prosecution files would have little effect on
publicity. (7/20/95)
MIAMI -- A federal district court judge has ruled that the Internal Revenue Service
properly rejected a Freedom of Information Act request made to the incorrect office. The
IRS regional office in Atlanta told Russell Sands to seek records not from the regional
office but from the IRS office in Ft. Lauderdale, the district in which he lives.
Judge Edward Davis said Sands had not properly routed his request because he had not
asked for the records from the person who controlled them. Judge Davis said that, under
the FOIA, it is not the responsibility of an agency to forward a request to the
appropriate office. (July 19, 1995)
TALLAHASSEE -- In response to a question from the Leon County Commission, Attorney
General Robert Butterworth issued an opinion that the county's Division of Emergency
Management may delete a portion of a 911 transcript that the sheriff's department rules to
be part of an active criminal investigation.
The opinion clarifies a related opinion issued in 1993. The earlier opinion stated that
those calls recorded by an emergency management agency were considered public records
except for identifying information specifically exempt under Florida law.
The recent question arose in response to requests by media outlets for transcripts of
911 calls in Leon County. Some 911 calls in Leon County are received simultaneously by
both the sheriff's office and the emergency management agency, which records them.
Statutory and administrative oversight of the single recording was at issue in the most
recent opinion.
That opinion says that "at least initially" the law enforcement agency may
determine whether information in a 911 call is part of an active criminal investigation,
and therefore exempt from disclosure under the Public Records Law. (Fla. Atty. Gen. Op.
95-48, August 8, 1995)
TAMPA -- In light of a recent ruling by the Florida Supreme Court (Brechner Report,
July, 1995), the cost of copies of Hillsborough County court records has increased from 15
cents per page to $1 per page.
In Times v. Ake, the court ruled that clerks of court are under the control of the
Supreme Court rather than the legislature when acting in their official judicial
capacities. As such, the clerks are not subject to the state's Public Records Law
mandating a 15 cent per page cap on copy charges.
Court clerks in Citrus, DeSoto, Hardee, Hernando, Highlands, Polk, and Pinellas had
been charging $1 per page prior to the ruling. (6/29/95)
GAINESVILLE -- In a recently distributed booklet, the University of Florida informs
faculty and administrative staff that e-mail and all electronic communications are subject
to the dictates of the state's Public Records Law.
The university's policy makes it clear that any e-mail message or other electronic
communications related to official business, "which perpetuates, communicates or
formalizes knowledge," is a public record that may be deleted only according to the
university's record retention schedule -- generally after three years or until their
purpose is served.
Copies of electronic records must be made available for public inspection. When records
contain statutorily exempt information, university employees must delete exempt
information and release the redacted version.
The policy states that all public records requests should be handled by the department
chair or by the administrative supervisor, and questions about whether specific material
is exempt should be referred to the university's Office of News & Public Affairs.
Copies of e-mail and other electronic records will be provided at 15 cents per page. (6/95)
GAINESVILLE -- Stating that the Public Records Law is hurting their ability to compete,
University of Florida officials are seeking to reduce access to some records concerning
university health service organizations during a special legislative session on Sept. 11.
A bill which would have provided exemptions for certain records and parts of meetings of
those organizations passed unanimously in the House but was defeated in the Senate in the
last legislative session. Discussion and records of managed-care arrangements, marketing
plans, reimbursement rates and peer-review procedures would be exempt from disclosure
under the proposed bill.
State University System Chancellor Charles Reed said university health-services support
organizations find it "virtually impossible" to function under open record
regulations that do not affect their private counterparts and competitors.
UF Vice President for Health Affairs David Challoner said that, in his opinion, the
organizations ought to be permitted to function as private, not-for-profit hospitals. (8/9/95)
SARASOTA -- The Sarasota Herald-Tribune has frustrated city officials' wishes by
refusing to run a series of advertisements that contain the names, ages and addresses of
"johns" arrested for solicitation. The city's mayor, commission and police
chief, who made the request, view the paper's decision as frustrating the city's attempt
to use public ridicule as a means of discouraging prostitution-related activities along a
stretch of North Trail road notorious for prostitution.
Labeling the decision "a judgment call," Lynn Matthews, publisher of the
Herald-Tribune, said the paper does not accept negative ads about companies or
individuals. He added that the paper covers arrests in its news pages. (7/19/95-7/21/95)
MIAMI -- U.S. District Judge Kenneth L. Ryskamp, Southern District of Florida, recently
held Starware Publishing Corp. and its president, D. Andrew Kasanicky, liable in a $1.1
million lawsuit for the unauthorized use and distribution of photographs and trademarks
belonging to Playboy Enterprises.
The software company had downloaded the images from a computer bulletin board, placed
them on a CD-ROM and sold the collection under the title "Private Pictures I."
Starware's attorneys had argued that their clients did not know the photos of
celebrities, including Kim Basinger, Margeaux Hemingway and Jessica Hahn, were
copyrighted. The judge called the argument "incredible."
Judge Ryskamp said he ordinarily would have fined $10,000 for each of the 53
violations, but he said he doubled the figure because the company had, by its actions,
encouraged uploading of the material on to other bulletin boards and, therefore, the
continued recycling of copyrighted material.
In addition to the fine for each violation, the judge awarded Playboy an additional
$50,000 -- the amount Starware profited from sales of the CD-ROM -- for trademark
infringement under the Lanham Act. (7/20/95- 7/21/95)
TALLAHASSEE -- The 1st District Court of Appeal recently ruled that a court order that
forced political ads off the air during the last weeks of last year's elections was an
unconstitutional prior restraint.
In late October, the Republican Party of Florida produced two television advertisements
that attacked by name several Democratic candidates for state cabinet positions and urged
voters to vote Republican. In court, Republicans described the ads, which did not mention
specific Republican candidates, as voter mobilization ads.
Last November, the state Democratic Party requested and received an injunction from the
2nd Judicial Circuit Court prohibiting the Republicans from airing the ads.
The appeals court declined to rule on the Democrats' assertion that the ads, which cost
$300,000, were illegal campaign contributions because individual Republican candidates had
already accepted the maximum amount of contributions allowable under state law.
Instead, the court said that the injunction was extreme and inappropriate because
statutory remedies that were available to address the problem had not been exhausted.
(8/3/95) (Decisions on File, Republican Party of Florida v. Florida Elections Commission,
No. 94-4083, Aug. 1, 1995)
MIAMI -- A lawsuit brought by four high-ranking deputies claiming that they were fired
from the Broward County Sheriff's Office because they supported the former sheriff during
the 1992 election campaign has been thrown out of federal court. The four former deputies
claimed that their dismissals amounted to infringements of their First Amendment rights to
engage in political speech.
In ruling for a summary judgment, U. S. District Court Judge Wilkie Ferguson Jr.,
Southern District of Florida, stated that the four had failed to prove the firings
constituted violations of their rights to free speech. The judge said the four never
proved that they had engaged in political speech or participated in the election campaign.
He also said that local law enforcement requires "high levels of trust and
confidence" between the sheriff and the deputies. (7/11/95)
STUART -- Judge Robert Hawley of the 19th Judicial Circuit Court recently banned WJNO
talk show host Jack Cole and Cole's attorney from discussing a $3 million slander suit
that has been brought against Cole, according to news accounts. The judge said the two
may, however, refer "without comment" to information otherwise available in
public records.
The libel suit was filed against Cole two years ago by former Palm Beach County Court
Administrator Susan Ferrante. The suit alleges that, during a broadcast, Cole implied that
Ferrante and her husband had been involved in illegal business practices 14 years earlier.
(6/9/95-7/22/95)
ORLANDO -- Robyn LaBreck, outgoing general manager of the Orlando/Orange County
Convention and Visitors Bureau, has filed a libel suit against Roland Payer, owner of All
Ticket Promotions, alleging that Payer libeled her in letters he sent to bureau members,
the Florida Attorney General's Office and media outlets.
According to news reports, the letters allege that LaBreck "distort[ed]
facts" and influenced testimony in connection with depositions given in a $5 million
breach of contract lawsuit filed by Payer against the visitors bureau. (7/15/95)
by Jeff Newell
Reporters attempting to obtain records from state agencies to document sensitive -- and
newsworthy -- stories collide almost daily with exemptions to Florida's Public Records
Law. Among the obstacles is Florida Statute 415, which grants legal confidentiality to
those named in state adult abuse reports.
Until the Legislature revisits these laws, a trip to the courthouse can fill in some
important gaps. Records that state agencies will not release without a court order can be
tucked away in court files, the result of earlier court action, just waiting for you to
find them.
A recent records search that began with a nursing home indictment illustrates how much
is out there to be found by running a courthouse computer index search at the start of
every inquiry. It's a simple matter of not overlooking the obvious.
In November, a grand jury had indicted a nursing home's owners for the medical neglect
of four patients, all of whom had since died. Some of the patients' family members urged
us to check the background of the nursing home's medical director.
The courthouse computer showed no malpractice lawsuits against the doctor. But it did
turn up a civil judgment against him, duly referenced by a civil court case number and by
an official records book and page number. What tumbled out of the civil case file when it
arrived from archives the next day was stunning.
The file showed that the doctor had sued his malpractice insurer for refusing to pay
his legal bills in a dispute with the Department of Health and Rehabilitative Services
eight years earlier. That dispute arose when HRS found indications of abuse resulting from
medical neglect of a patient at another nursing home, according to records on file. The
file indicated earlier concern about patient abuse by medical neglect by the medical
director of the recently-indicted nursing home.
The doctor's lawsuit put documents ordinarily exempt from the Public Records Law into a
civil court file, effectively making them a public record. These were documents that HRS,
the state Department of Administrative Hearings and the 1st District Court of Appeals
could not release on their own authority due to confidentiality laws. All of the agencies
cited F.S. 415 in denying our records request.
The court file included an HRS lawyer's deposition and a memo outlining the case in
graphic detail. (The HRS lawyer declined to comment about his deposition, or any aspect of
his involvement in the eight-year-old abuse case, citing the confidentiality law.) Records
also showed that the day HRS began its investigation of that case, the medically-neglected
patient (named in the file) was taken from the nursing home and hospitalized.
The first story, which we published on Feb. 1, disclosed the existence of the old abuse
case, although its eventual outcome was not available from the records discovered at that
point. As a result, the doctor, a medical director for two nursing homes, lost one of
those positions shortly after the story was published. His contract, meanwhile, was not
renewed at the other facility, where the owners recently had been indicted.
Publishing the first story led us to an elusive case number for the doctor's final
appeal to the 1st DCA. It turned up -- anonymously -- on voice mail from a source who
wanted us to know that HRS had prevailed in its action against the doctor. While the file
itself was legally sealed, a helpful appeals court clerk noted that the case had generated
a published opinion.
Checking that citation at the county law library yielded conclusive proof that the
appeals court had found no reversible error in the HRS investigation that placed the
doctor on the state's abuse registry. With the clincher in hand, a second story was
published to detail the outcome.
The nursing home case illustrates how just one hit in a records search can unearth a
secret that confidentiality laws had hidden from the public for eight years.
Just imagine what else is out there. Happy hunting.
***Jeff Newell is the court reporter for the Northwest Florida Daily News in
Fort Walton Beach. You can reach him via e-mail at JRN@FCIFWBFL.mhs.compuserve.com
or phone him at (904) 864-0444.
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