The Brechner Report
Volume 20, Number 1
A monthly report by:
Brechner Center for Freedom of Information
- R. Michael Hoefges, J.D., Editor
- Kelly Barber, Production Coordinator
- Anna C. Alonso, Production Asst.
- Sandra F. Chance, J.D., Asst. Director
- Bill F. Chamberlin, Ph.D., Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
declines to investigate closed commission meetings
County purchase not criminal violation of Sunshine Law
Hospital Board meetings must be
Meetings not covered by
Lawyers gain access to UF gag
USF releases ex-professor's
Judge orders review of Largo
Police complaint closed
obtains "confidential" settlement agreement
Communications Commission pulls Miami station license
Judge denies gag but limits
district court strikes academic credential statute
Federal court voids city
New editor assumes helm
of Brechner Report
THE BACK PAGE
public university records needs improvement
BRADENTON -- Chief Assistant State Attorney Henry Lee recently announced he would not
pursue a criminal investigation of alleged Sunshine Law violations by Manatee County
commissioners, in part, because the commissioners relied upon the advice of their counsel.
The Sarasota Herald-Tribune asked for the investigation after commissioners
refused public access to discussions and a vote on the use of the experimental Venezuelan
fuel Orimulsion at a Florida Power & Light plant located in the county. On Aug. 8, the
commission voted in secret to accept a set of environmental safeguards that FPL would use
if the state ultimately approves the use of Orimulsion at the plant. Lee stated that he
could not prove a knowing violation of the law by the commissioners because they closed
the proceedings and vote on the advice of counsel.
The Sunshine Law requires that a county commission conduct official business in public,
but permits secret meetings to discuss pending litigation in which the county is a party.
Lee stated that an upcoming state hearing on the use of Orimulsion at the FPL plant
constitutes pending litigation even though the county was not suing anybody or being sued
on the matter. (11/9/95)
County purchase not criminal violation of Sunshine Law
BRONSON -- Despite "legitimate Sunshine Law concerns," State Attorney Rod
Smith concluded an investigation of a Levy County Commission expenditure of $10,000
without filing charges.
Smith investigated complaints that county staff had polled three commissioners
individually to obtain permission to purchase a $10,000 used drag-line. Staff believed the
purchase was urgent to allow the county to benefit from a "very advantageous"
price, according to Smith's report. The staff purchased the drag-line, and the full
commission discussed the purchase at its next, regularly scheduled meeting.
The Sunshine Law requires governmental bodies to take actions, such as purchases, in
open meetings. The county's bid procedure requires the full commission to vote on
purchases of $5,000 or more.
Smith said that polling of commissioners, even in urgent situations, violates the law.
However, his report on the incident concluded that the violation was "technical"
and unintentional, and, therefore, "criminal charges would be excessive and
inappropriate." Smith encouraged the county to develop a policy to allow emergency
purchases with required public notice.
TALLAHASSEE -- Meetings of the board of directors of a private company that leases and
manages a county hospital system are subject to government in the sunshine laws, a recent
Attorney General's opinion stated.
Big Sun Healthcare Systems Inc. is a not-for-profit corporation that manages the Marion
County Hospital District facilities. Meetings of its board of directors and the board's
subcommittees must be held in the sunshine, the opinion said. (Nov. 1995)
TALLAHASSEE -- A written opinion from the Attorney General's office stated that a
privacy exemption to the state Public Records Law that protects clinic patients' records
from public disclosure does not exempt meetings that discuss those records.
In response to a request from the Florida Department of Health and Rehabilitative
Services, the opinion said that extension of the patient records exemption to HRS district
case review committee meetings would violate the Public Records Law. (Nov. 1995)
TALLAHASSEE -- Lawyers for The Miami Herald and The Gainesville Sun
gained access to a federal district court order that seals subpoenas, the names of
subpoena recipients and other information that discloses the subject of a government
investigation into alleged Medicare fraud at the University of Florida's medical center.
The medical center is charged with billing Medicare for treatment by faculty physicians
when doctors-in-training actually provided the bulk of medical care. The salaries of the
less-experienced doctors allegedly were covered by other Medicare payments.
The newspapers' attorneys gained access to the secret gag order when their request to
U.S. District Judge Maurice Paul, who had sealed the court record, was unopposed by either
the university or the U.S. attorney.
The newspapers' attorneys are seeking to determine whether the university has refused
to release any documents that the gag order permits to be made public. (11/8/95)
TAMPA -- The University of South Florida recently released copies of electronic mail
sent to an ex-professor who now leads the militant Islamic Jihad for Palestine.
Although the e-mail did not reveal a connection with the Jihad or terrorist activities,
its availability was uncertain because the USF draft policy on e-mail states that saving
e-mail is at the discretion of each employee.
Tamadan Abdullah left USF in June to return to the Middle East and was elected Jihad
leader in November. In response to media requests under the Public Records Law, USF
produced Abdullah's e-mail dating back to May, which was stored on tape after being purged
from the host computer. Abdullah could have deleted his e-mail before it was stored on
tape because the university does not automatically save e-mail.
The Public Records Law applies to electronic records such as e-mail exchanged on state
Barbara Peterson, executive director of the First Amendment Foundation, said the USF
e-mail policy raises problems because it allows employees to delete public records.
(11/08/95 - 11/10/95)
ST. PETERSBURG -- Sixth Circuit Court Judge Fred Bryson appointed a retired judge as a
special master to determine whether the records of disability pensions paid to Largo
police and firefighters must be made public.
Largo argued the files were exempt medical information and opposed the access suit
filed by the St. Petersburg Times. The Times said that only those forms
filled out by health-care workers are exempt from disclosure. Judge Bryson dismissed the
city's claim that not even the judge himself could review the confidential files. He said
he would rule on the access question upon receipt of a report from the special master, who
will review the disputed files. (11/25/95)
OCALA -- The Ocala Star-Banner obtained a copy of a confidential settlement
agreement between a state-subsidized child care agency operating in Marion County and a
group of former employees who alleged that they had been fired for unlawful reasons.
Four former employees of Childhood Development Services Inc. claimed that former
director Dr. Peggy Rosanne Moreno fired them because they testified against her at a 1993
grievance hearing. The four sued the agency under the Florida "whistle-blower"
law, and CDS settled the suit for $250,000. The settlement agreement contained a
confidentiality clause barring CDS and the former employees from discussing the
Despite the confidentiality clause, CDS provided a copy of the agreement to the Star-Banner
through a request under the Public Records Law, which requires public access to settlement
agreements entered into by state agencies. (11/07/95)
WASHINGTON -- Finding the Trinity Broadcasting Network had willfully and repeatedly
violated the Commission's minority preference policies, the FCC recently stripped the
world's largest religious television service of its Miami-area television station license.
The FCC found that TBN president Paul Crouch had set up a "sham" minority
corporation to take advantage of the FCC's policy that permits minority-controlled
companies to exceed the FCC ownership limit of 12 full-power television stations. Among
other holdings, TBN owns 15 full-power television stations and a radio network.
TBN's attorney contends that the network's ownership practices represent an honest
interpretation of ambiguous FCC rules. If the findings of "repeated abuse of the
Commission's process" are upheld, they can be used to challenge other TBN license
renewals or station purchases. Crouch can continue to operate the powerful UHF Channel 45
throughout the appeals process, which may take three or more years. (11/16/95)
Judge denies gag but limits
NAPLES -- A 20th Judicial Court judge refused to gag trial participants in a highly
publicized felony DUI case. However, the judge limited news media to one shared still
camera in the courtroom during the trial.
The rulings came in a case against Steven Miller, who has a DUI record of 22 arrests
and 14 convictions dating back to 1966. Miller asked the court to order the parties,
attorneys and witnesses not to discuss the case with news media. He also asked the court
to ban cameras from the courtroom during trial. Miller claimed he could not receive a fair
trial because of already extensive media coverage.
The Naples Daily News intervened and convinced Judge Elmer Friday not to issue a
gag order in the case or ban cameras in the courtroom. The Daily News successfully
argued that a gag order and camera ban would inhibit reporting about the trial. Judge
Friday also opened juror interviews to the public. (11/10/95 - 11/15/95)
FT. LAUDERDALE -- The U.S. District Court for the Southern District of Florida ruled
unconstitutional a state criminal statute prohibiting people from claiming they hold an
academic degree or title unless it came from an accredited institution.
The ruling came in a case filed in federal court by Samuel Bartow Strang III, the
director of the Center for Gerontology and a professional consultant in elderly care. In
violation of the statute, Strang truthfully held himself out to the public as having a
Ph.D. in neurobiology from Pacific Western University, which he admitted was not an
accredited institution under the statute. In his suit, Strang asked the court to rule the
statute unconstitutional and order Broward County State Attorney Michael Satz not to
Judge James Lawrence King wrote that Strang's claim of having a Ph.D. was potentially
misleading to the public, but would not be misleading if he also disclosed that his degree
was from an institution that was not accredited. The judge ruled that the statute violated
the First Amendment since it prevented Strang from claiming that he held a Ph.D. even with
The judge issued an injunction prohibiting the state attorney from prosecuting Strang
under the statute. (Decisions on File, 22 Med. L. Rptr. 2333 (1995))
FERNANDINA BEACH -- The U.S. District Court for the Middle District of Florida recently
ruled unconstitutional a Fernandina Beach ordinance that prohibited city commissioners
from criticizing legislation or resolutions passed by a majority of the commission.
The ruling came in a case filed by Commissioner A.J. Smith challenging the ordinance on
First Amendment freedom of speech grounds. The ordinance also required commissioners to
take a loyalty oath and to get permission from the entire city commission before attending
any of its committee meetings. Smith was the only commissioner to vote against the
ordinance when the commission passed it.
Judge John H. Moore II agreed with Smith and struck down the ordinance, calling it a
blatant violation of the First Amendment. The judge feared that the majority would use the
ordinance to limit the expression of opposing viewpoints.
After the district court's ruling, the commission voted to repeal the ordinance.
R. Michael Hoefges, Esq., a doctoral student in media law and policy at the University
of Florida College of Journalism and Communications, will begin serving as editor of The
Brechner Report beginning with this issue.
Hoefges received his B.S. in advertising from the UF College of Journalism and
Communications and his J.D. from the UF College of Law. He practiced law in Jacksonville
for eight years, specializing in defense litigation, and was a partner with the law firm
of Gobelman & Love.
Hoefges plans to focus his doctoral research in the area of public information access
and individual privacy issues in the context of direct marketing and advertising.
Hoefges succeeds Susan D. Ross.
public university records needs improvement
by Ray Washington
A series of articles by The Gainesville Sun this year resulted in a new state law
limiting the authority of the state's public universities to withhold records from the
For a year now I have been making public records requests of the University of Florida
as part of the responsibilities involved in covering higher education for The
Gainesville Sun. These requests have run the gamut from the calendars of the president
of the university to copies of faculty grievances to documents revealing who is being
considered for honorary degrees. Some requests have produced all or some of the documents
sought. Some have produced nothing. Some requests are still floating out their in a sort
of never-never land in which the requests are neither specifically denied not granted.
As anyone knows who routinely requests public records from state agencies, state
employees in their creative responses to fairly straightforward public records requests
frequently make a lie of the stereotype of the dull paper-shuffling bureaucrat. Some
denials are delivered with considerable dramatic flair; some are masterpieces of
obfuscation; some are astounding in their complexity.
Nowhere is this flowering of agency creativity more pronounced, I believe, that in the
groves of academe. Part of this is due, no doubt, to the residual brilliance of some of
the minds gathered there. But mostly it is due, I think, to a traditional notion of
academic freedom and the corollary that large doses of secrecy are necessary to protect
that freedom. Whether and how often secrecy really is necessary to the preservation of
academic freedom is beyond the scope of this brief essay, but, justified or not, the
notion often informs the university's responses to public records requests, and makes the
university an extremely interesting and challenging place in which to seek out public
This is so even at the University of Florida, whose president is publicly committed to
open records and says that his experience at a private university has led him to believe
that "even with its difficulties and expense, the open records environment is
ultimately better for the university."
The documents mentioned at the beginning of this essay all ultimately were provided to
the Sun, though not without considerable delay and wrangling. For instance, the Sun's
request for the president's calendars was first met with the usual "everybody's
busy" response, a first line of defense seemingly designed to wash out public records
dilettantes. That obligatory hurdle scaled, the Sun was informed that the
president's calendars were personal and therefore not available under the public records
law. The Sun asked the university's lawyers to put that in writing. The Sun
was then informed the calendars actually were exempt because they had not been
"circulated." Finally, after intervention by The New York Times lawyers,
the calendars were produced, presumably reflecting all information that had ever been
entered on them.
That was a turnaround of less than two weeks, but even with the intervention of legal
counsel delays can last months. That happened when the Sun began investigating
allegations that doctors in the university's Department of Ophthalmology were committing
Medicare and Medicaid fraud. The door was slammed on the Sun's continuing public
records requests when the university's general counsel responded that the U.S. Attorney
had requested and been granted a gag order encompassing all documents related to a grand
jury criminal investigation of the department. To learn the scope of documents covered by
the order, the Sun requested from the university a copy of the order itself, only
to be informed by the general counsel that the gag order itself was sealed. After months
of frustration, the Sun finally asked its attorneys to appear before the judge who
issued the order to find out if the order in fact gagged itself. The judge summarily
released it. (See related story, page 1)
Six months after its original request, the Sun finally got to see the order,
which turned out to limit disclosure of very little of the information the Sun
wanted. It also contained no language suggesting that the order itself was sealed. But it
did contain one interesting piece of information: the order had been granted in the first
place on a motion not just by the U.S. Attorney...but also by the University of Florida.
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