The Brechner Report
Volume 20, Number 2
A monthly report by:
Brechner Center for Freedom of Information
- R. Michael Hoefges, J.D., Editor
- Kelly Barber, Production Coordinator
- Anna C. Alonso, Production Assistant
- 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
upholds Sunshine fine against city
Grand jury report critical of
County releases meeting records
County attorney says closed
House panel kills open records
reviews will not be released to public
Chamber claims its records not
Court strikes CPA advertising
gag order request in murder prosecution
Judge rejects request to
seal court records
Student suspended for
Judge dismisses group libel case
Media Law Conference coming up in March
Enquirer privacy suit may
THE BACK PAGE
confidentiality laws mean well but are misguided
DAYTONA BEACH -- The Fifth District Court of Appeal recently held that Dunnellon Mayor
Larry Winkler violated the Sunshine Law by not naming two attorneys who attended a private
city council meeting. As a result, the city must pay nearly $17,000 in attorney fees.
The private meeting was convened to discuss settlement of a federal Equal Employment
Opportunity Commission complaint filed by Dunnellon police Sgt. Luis Aran against the city
The Sunshine Law permits city officials to meet privately with attorneys to discuss
settlement of a pending legal action against the city, but requires that each person who
attends the session be identified to the public by name.
After the secret meeting, Aran filed a state Sunshine Law action against the city for
not naming the two attorneys who attended the secret meeting. The trial judge agreed with
Aran and ruled against the city, ordering the city to pay Aran's attorney fees incurred in
The appellate court agreed with the trial court. The statute requiring Dunellon to have
named the attorney is "neither onerous nor difficult to satisfy," the appellate
court wrote. (11/25/95-12/7/95)
ST. AUGUSTINE -- A recent grand jury report states that the evidence presented to it
"strongly suggests" that members of the St. Augustine/St. Johns County Airport
Authority Board conducted public business in private. However, the grand jury did not
recommend charging any of the members with a violation of the Sunshine Law.
In 1993, the airport authority's board voted against building a general aviation
terminal. The day after the vote, the board voted again and reversed its position.
According to the grand jury report, a former authority member may have facilitated
private communications between some board members in the interim between the two votes,
which the former authority board member denied.
Also in its report, the grand jury recommended that the state attorney's office monitor
the airport authority for Sunshine Law violations and, further, that authority board
members receive continuing Sunshine Law training upon assuming office. (10/6/95-12/9/95)
County releases meeting records
BRADENTON -- By unanimous vote, the Manatee County Commission released the transcripts
of six secret meetings held in 1994 and 1995 regarding the burning of an experimental
Venezuelan fuel, Orimulsion, at a Florida Power and Light plant located in Manatee County.
The action followed a request by attorneys representing the Sarasota Herald-Tribune
for a criminal investigation into closed meetings. The Florida Sunshine Law requires that
a county commission conduct business in public, but permits limited secret meetings to
discuss pending litigation in which the county is a party.
Chief Assistant State Attorney Henry Lee declined to pursue a criminal investigation,
stating that an upcoming state hearing on the use of Orimulsion constituted pending
litigation. Lee also stated that he could not prove a knowing violation of the Sunshine
Law since the commission closed the Orimulsion meetings on the advice of the county
commission's legal counsel.
The voluntarily-released transcripts revealed that the commissioners approved a set of
environmental safeguards to be implemented by consent by FPL if the state ultimately
approved the use of Orimulsion at the Manatee plant. (The Brechner Report, Jan.
PORT CHARLOTTE -- The Charlotte County attorney's office said that a non-profit
economic development agency may meet privately to conduct business without violating the
Sunshine Law. The agency received county funding in 1995.
The Economic Development Council asked John Hackworth of the Charlotte Sun Herald
to leave a budget meeting, adjourning the meeting when Hackworth refused to leave. The Sun
Herald next asked the EDC for its position on whether the EDC is a public agency. The
EDC then requested a legal opinion from the county.
In 1995, the EDC received a $125,000 grant from the Board of County Commissioners to
promote economic development in Charlotte County. The county also paid the EDC $30,000 in
1995 for an economic development study. (12/10/95-12/14/95)
TALLAHASSEE -- A House subcommittee unanimously rejected legislation that would have
permitted the public to find out about pending complaints against licensed professionals,
such as a physicians, architects, contractors and cosmetologists, before there has been an
official finding of probable cause.
Under current Florida law, complaints are sealed until 10 days after probable cause has
been determined by a regulatory agency, a process that can take a year or more. If there
is not a probable cause finding on the complaint, the existence and nature of the
complaint is sealed.
The House Professional Regulation subcommittee voted 12-0 against the proposed
legislation, even though the bill had been drafted its own staff.
The subcommittee's staff drafted the legislation after concluding that sequestering
complaints against state regulated professionals until a probable cause finding fails to
provide the public with sufficient and timely information about state-regulated
professionals in Florida. (12/8/95-12/9/95)
NEW YORK -- The body that oversees Florida's licensed attorneys voted to keep
confidential the names of attorneys who offer comments and testimony about other attorneys
during certification peer review procedures.
Florida lawyers may apply for certification as specialists in specific fields of law,
such as civil and criminal trial. As part of the certification process, peer reviews of
certification applicants are obtained.
Former provisions did not permit consideration of a negative peer evaluation unless the
evaluating attorney providing the information was named on the record.
Under new rules passed by the Board of Governors of The Florida Bar, the identities of
attorneys providing peer reviews will be kept secret. The procedures provide for an
independent review by the Bar of negative comments that are challenged by the applicant.
One board member objected to the new rules, questioning the fairness of not permitting
applicants to know who made negative comments about them. (1/1/96)
KEY WEST -- The Florida Public Records Law does not require the Greater Key West
Chamber of Commerce to release financial records, including its budget, according to an
opinion written by the chamber's attorney.
The opinion was prompted by requests made by Key West city commissioners and the editor
of a local newspaper for chamber financial records. Some commissioners had questioned the
chamber's $10 per month lease agreement with the city for office space. (11/26/95)
MIAMI -- A U.S. District judge ruled unconstitutional a Florida statute prohibiting
firms that are not certified public accounting firms from advertising that they employ
certified public accountants. The statute violates free speech rights of other types of
firms that want to advertise that they employ CPAs, the judge held.
The ruling came in a lawsuit filed in Oct. 1994 on behalf of American Express Tax and
Business Services, which employs CPAs and provides business planning services, but is not
a CPA firm. (12/15/95)
BRADENTON -- Twelfth Judicial Circuit Court Judge Robert Boylston refused to gag
attorneys, witnesses or law enforcement officials from providing information concerning a
first degree murder case to the news media.
Heather Ciambrone, 27, is charged in the death of her 7-year-old adopted son. Her
attorney, a public defender, asked for the gag order to protect Ciambrone's right to a
fair and impartial trial.
Judge Boylston ruled that Ciambrone's fair trial rights could be protected by less
restrictive means than a gag order, such as by questioning potential jurors about exposure
to news media coverage of the highly publicized case.
Ciambrone's attorney also asked the judge to block HRS officials from releasing to the
public an investigative summary of its investigation into the death. The judge refused the
request, finding that most of the facts contained in the report had already been released
to the public.
The Sarasota Herald Tribune and The Bradenton Herald opposed Ciambrone's
gag requests. (11/28/95)
FORT MYERS -- A circuit court judge recently refused to temporarily prohibit public
access to court records in two civil land fraud actions against Fort Myers attorney Morton
In a hearing on the matter, Goldberg's attorney argued that documents in the cases
should be kept from the public until after attorneys could review them. Tenth Judicial
Circuit Court Judge William Norris Jr., specially assigned to the Twentieth Circuit for
the case, disagreed, ruling that Goldberg had not established sufficient grounds to
prohibit public access to the records even temporarily.
Judge Norris also ruled that Goldberg did not have to answer deposition questions in
the civil cases until after his criminal sentencing on mail fraud charges connected with
two land purchases and a money laundering charge. Goldberg reached a plea agreement with
prosecutors on the criminal charges and was scheduled to be sentenced in February.
DELTONA -- Administrators suspended a student for nine days after he wore Confederate
logos to school. School officials feared the rebel symbols would be offensive to other
Pine Ridge High School student Wayne Denno had been warned not to have a Confederate
flag in school. He and other students then wore Confederate symbols on shirts and hats. An
assistant principal ordered the students to take off the hats and reverse the shirts.
Although they complied, Denno objected and was suspended. (12/15/95-1/4/96)
ORLANDO -- Ninth Judicial Circuit Court Judge George Sprinkel dismissed a group libel
suit against three Orlando television stations because the group allegedly defamed was too
large in number.
In the suit, 637 Central Florida net fishermen claimed that they were defamed by a
political advertisement opposing commercial net fishing. The ad was broadcast by
WFTV-Channel 9, WESH-Channel 2 and WCPX-Channel 6.
The fishermen claimed that the political advertisements falsely depicted commercial net
fishing practices. None of fishermen were identified individually, though.
Under Florida law, when a group is defamed, an individual member of the group may
maintain a defamation action only if the group is small, usually 25 or less in number, and
the identity of the individual can be inferred from the defamatory material.
Judge Sprinkel agreed with the television stations that the group of more than 600
fishermen was "too large and diffuse" for any one of them individually to have
been defamed by the ad. (Brechner Report, Nov. 1995) (Decisions on File,
Adams v. WFTV, No. CI 95-5258 (Dec. 14, 1995)).
Cable News Network commentators Greta C. Van Susteren and Roger Cossack, who gained
national fame during the O. J. Simpson trial, are among the scheduled speakers at the 22nd
Annual Media Law Conference set for March 2 in Orlando.
The main conference session will feature a panel discussion of televised trials,
including the Simpson case. Workshop topics will include juror access, on-line publisher
liability, the Internet and access to records and meetings.
The conference, sponsored in part by The Florida Bar and the Brechner Center for
Freedom of Information, will feature a walk-in legal clinic for participants to ask a
panel of media law experts questions about libel, access to records and meetings and other
Registrations for the conference must be postmarked no later than February 14.
Registration information may be obtained by calling Toyca Williams at The Florida Bar at
WASHINGTON -- The U.S. Supreme Court let stand the decision of a California appellate
court allowing an invasion-of-privacy lawsuit to proceed against The National Enquirer.
In 1992, the Florida-based tabloid newspaper reported that actor Eddie Murphy fathered
an illegitimate son with Tamara Hood and was supporting them financially. Hood sued the
tabloid in California for invasion of privacy.
Under California privacy law, the Enquirer may be liable for publication of
private and offensive facts about an individual if the facts are determined not to have
been newsworthy when published.
The state trial judge threw out the lawsuit, ruling that the Enquirer had a
First Amendment right to publish factual information. A California appellate court
reversed the trial judge, ruling that a jury should determine whether the story was
The California Supreme Court would not hear the case, which lead to the tabloid's
appeal to the U.S. Supreme Court. (12/5/95)
by R. Michael Hoefges
This article is based in part on a paper presented by the author in Washington, D.C.
at the 1995 Annual Convention of the Association for Education in Journalism and Mass
The U.S. Supreme Court has recognized the special role of a free press as a check on
the operations of the government and a conduit of information to the public. This role is
especially significant when it comes to the criminal justice system and the Court has
acknowledged the keen public interest in vigorous press coverage of how the system deals
with crimes. Newly effective statutes in Florida seeking to cloak the identities of
alleged sexual assault victims do little to promote vigorous press coverage of the
criminal justice system in this state.
In 1995, the Florida legislature passed the Crime Victim Protection Act, which gave
birth to a trio of new statutes that limit press coverage of alleged sexual assaults.
One new section makes it a crime for public employees to release information that
identifies an alleged sexual assault victim to anyone outside the official investigation.
Another new section provides contempt sanctions under many circumstances for those who
publish or broadcast the identity of an alleged sex crime victim unless the victim has
filed a written consent with the court permitting publication or broadcast of his or her
identity. Yet another new section provides a civil cause of action for alleged sex crime
victims who are identified to the public prior to open court proceedings and who can
demonstrate that the identification was "intentional and was done with reckless
disregard for the highly offensive nature of the publication."
In passing these provisions, the legislature relied upon what it called "empirical
data" that indicated that 66% of sexual assault victims would be more likely to
report an incident with laws in place that would ban or restrict access to, and
publication of, their identities. The legislature recognized that "fear of public
identification and invasion of privacy are fundamental concerns for victims of sexual
crimes." What the legislature did not address is whether the fear of identification
by the media is reasonable.
Other empirical data, not cited by the legislature, indicate that sexual assault
victims have little chance of being identified by the media and that fears of
identification may be somewhat unfounded in most cases. A recent nationwide survey of
larger U.S. newspapers indicated that close to 99% of them will not print the names of
rape victims even though the overwhelming majority of states do not have statutory
prohibitions against it. An earlier study yielded similar results, and both indicated that
editors are sensitive to the privacy concerns of all crime victims.
In enacting the Crime Victim Protection Act, the Florida legislature did not cite
objective evidence of ongoing systemic abuse of the editorial process when it comes to
news accounts of sex crimes. The fact that these statutes are now on the books implies to
the public that they are in fact necessary to prevent most sex crime victims from being
identified in the media. This may be a faulty assumption based on a few isolated instances
such as the highly publicized William Kennedy Smith rape case. Ironically, in that case,
the criminal action filed against a Florida newspaper for identifying the alleged victim
remained in litigation over two years after Smith was acquitted of the charges.
Certainly, the privacy interests of the victims of all crimes, including those that
involve sexual assaults, merit substantial consideration in the editorial process. The
purpose here is not to advocate the publication of all truthful information about every
crime. However, legislative parenting over how the editorial process deals with
information about the criminal justice system feeds the public perception that the
editorial process has failed on a systemic level, a perception that may not be justified.
R. Michael Hoefges is a doctoral student in media law at the University of Florida
College of Journalism and Communications and the editor of The Brechner Report. He spent
eight years in private law practice in Jacksonville.
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