The Brechner Report
Volume 20, Number 1
January 1996

A monthly report by:

• 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

Table of Contents

ACCESS MEETINGS
State declines to investigate closed commission meetings
Levy County purchase not criminal violation of Sunshine Law
Hospital Board meetings must be open
Meetings not covered by records privacy

ACCESS RECORDS
Lawyers gain access to UF gag order
USF releases ex-professor's e-mail
Judge orders review of Largo records
Police complaint closed
Star-Banner obtains "confidential" settlement agreement

BROADCASTING
Federal Communications Commission pulls Miami station license

COURTS
Judge denies gag but limits cameras

FIRST AMENDMENT
Federal district court strikes academic credential statute
Federal court voids city loyalty provisions

NEWS NOTES
New editor assumes helm of Brechner Report

THE BACK PAGE
Access to public university records needs improvement

State declines to investigate closed commission meetings

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)

Levy 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.

Hospital Board meetings must be open

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)

Meetings not covered by records privacy

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)

Lawyers gain access to UF gag order

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)

USF releases ex-professor's e-mail

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 university computers.

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)

Judge orders review of Largo records

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)

Star-Banner obtains "confidential" settlement agreement

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 settlement.

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)

Federal Communications Commission pulls Miami station license

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 cameras

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)

Federal district court strikes academic credential statute

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 prosecute him.

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 disclosure.

The judge issued an injunction prohibiting the state attorney from prosecuting Strang under the statute. (Decisions on File, 22 Med. L. Rptr. 2333 (1995))

Federal court voids city loyalty provisions

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. (11/22/95)

New editor assumes helm of Brechner Report

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.

Access to 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 public.

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 information.

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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