The Brechner Report
Volume 20, Number 4
April 1996
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.
- R. Michael Hoefges, J.D., Editor
- Eric Fritz, Production Coordinator
- Anna C. Alonso, Production Assistant
- Bill F. Chamberlin, Ph.D., Director
- Sandra F. Chance, J.D., Asst. Director
Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
![lines_blue_078[1].gif (1878 bytes)](lines_blue_0781.gif)
ACCESS MEETINGS
DCA rules
desegregation talks subject to Sunshine Law
ACCESS RECORDS
Judge
sticks with ruling and orders Walsh files released
Reporter refused public records
Contractor held subject to
records law
News-Press
petition successful in obtaining release of HRS files
AGO addresses release
of investigation files
COURTS
Judge releases media guidelines
FIRST AMENDMENT
Cross-burning law allowed to
stand
St. Johns anti-nudity
ordinance upheld
Micanopy approves nudity
restrictions
LIBEL
Judge dismisses libel suit
against Herald
NEWS NOTES
Brechner Award given to E &
P
Handbook available from Florida
Bar
PRIVACY
Settlement order prohibits
publication
Jail interview taped
without reporter's consent
THE BACK PAGE
Online access
may threaten "record newspaper" statute
TALLAHASSEE - The 1st District Court of Appeal affirmed a circuit trial judge's order
compelling the Duval County School Board to give The Florida Times-Union
transcripts of closed desegregation meetings held last year.
In January and February, the board met secretly with its attorneys at least four times
and discussed and voted on desegregation proposals. Board staff and consultants also
attended. The school board denied Times-Union requests for access to the meetings
and transcripts.
The Times-Union filed a Sunshine Law action against the school board and the
superintendent. (Brechner Report, April 1995)
Fourth Judicial Circuit Judge Virginia Q. Beverly ruled that the school board had
violated the Sunshine Law and ordered the release of the transcripts and the documents
created at the meeting.
Judge Beverly found that although a Sunshine Law exemption permits limited closed
meetings, that exemption did not apply to meetings that included staff and consultants. (Brechner
Report, Dec. 1995)
The appellate court agreed with the trial court, stating that the pending litigation
exemption is specific on who may attend closed meetings and that staff and consultants are
not included. (Decisions on File, Duval County School Board v. Florida Publishing
Co., Case No. 95-1965 (Feb. 20, 1996))
The school board is under a federal order to desegregate county schools as a result of
a 1990 lawsuit filed by the National Association for the Advancement of Colored People.
FORT LAUDERDALE - Seventeenth Judicial Circuit Court Judge Leroy Moe upheld a previous
ruling and ordered the Hollywood Police Department to release investigation files on the
1981 abduction and murder of 6-year-old Adam Walsh.
The order came in an action filed by The Ft. Lauderdale Sun-Sentinel, The
Miami Herald, The Mobil (Ala.) Press Register and The Palm Beach Post.
Judge Moe ruled in October that police had until February 16 to investigate new leads
before releasing the records. (Brechner Report, Dec. 1995)
At another hearing held recently, the judge rejected motions made by the Broward County
State Attorney's Office and the parents of Adam Walsh seeking to keep the documents
closed.
The Public Records Law exempts records of an active criminal investigation, meaning one
progressing in good faith or in which an arrest or prosecution is reasonably anticipated
in the foreseeable future. Police have yet to identity the killer in the Walsh case.
(2/12/96-2/29/96)
FORT PIERCE - The state attorney's office concluded that two St. Lucie County School
Board employees violated the Public Records Law by denying access to desegregation
documents to a reporter for the Stuart News/Port St. Lucie News.
News writer Mary Ellen Flannery claimed that school board employees Chevon
Bacchus and April Podnar refused to give her copies of desegregation reports that had been
released to other reporters. Flannery received the documents the day after her initial
request.
In a letter, Assistant State Attorney Steve Levin stated that Flannery's requests
should have been complied with "immediately" since the records were available at
the time of Flannery's request. (2/17/96)
DAYTONA BEACH - The 5th District Court of Appeal ruled that a private contractor hired
by Orange County had to comply with the Public Records Law since the county had
contractually delegated official responsibilities to the contractor.
Orange County hired CRSS/Kelsey/Hardin to work on its civic center. By contract, CKH
had to comply with an equal opportunity and minority business participation ordinance when
subcontracting and also maintain payroll and bidding records to prove compliance with the
ordinance.
L. E. Harold made a public records request to CKH for payroll and bidding records,
which CKH refused, claiming that it was not acting on behalf the county. Harold sued, but
the trial court dismissed the action.
The appellate court reversed, holding since the county required CHK to maintain the
records to verify compliance with the ordinance, the records were subject to disclosure
under the Public Records Law.
The appellate court denied Harold's request for attorney's fees, however, finding that
CKH's refusal to produce the records was "reasonable." The Public Records Law
was not clear on the issue, the court wrote. (Decisions on File, Harold v. Orange
County, Case No. 95-669 (Feb. 2, 1996)).
FORT MYERS - Twentieth Judicial Circuit Court Judge R. Wallace Pack granted a petition
filed by The Fort Myers News-Press seeking Health and Rehabilitative Services
records regarding the death of a resident at a facility for disabled adults.
Jeanne Howlett died suspiciously at the Gulf Care Center in December. HRS investigated
and then refused a News-Press request for the investigation file.
HRS relied on the Public Records Law and Florida Statute section 415.107, which seals
agency reports of the abuse and neglect of disabled adults unless the requesting party
demonstrates to a court "good cause" for release of the records.
Judge Pack wrote in his order that "the public interest will be best served by
full public disclosure of the circumstances of the investigation of the death and any
other investigation concerning the disabled adult."
HRS also claimed that the records were exempt under the Public Records Law as records
of an ongoing criminal investigation.
However, Judge Pack ruled that the exemption for records of an active criminal
investigation only applied to law enforcement records, not to the investigation files of
HRS. (Decisions on File, In Re: Investigative Records of Abuse or Negligence of
Jeanne Howlett, Case No. 96-0192-CA-RWP (Feb. 20, 1996))
TALLAHASSEE - In a recent written opinion, Attorney General Bob Butterworth clarified
issues of public access to records of concluded criminal investigations of public
employees, including police officers, who are also the subject of confidential ethics
commission investigations.
Butterworth wrote that police records of a criminal investigation of a public employee
are subject to public disclosure as soon as the criminal investigation has concluded, even
if the same employee and matter are the subject of a confidential investigation by a state
ethics or standards commission.
While Florida statutes provide that records of ethics commission investigations are
confidential, that section does not apply to "identical information in the possession
of other agencies of the government," Butterworth stated in the opinion. (Decisions
on File, Fla. Atty. Gen. Op. No. 96-05 (Jan. 12, 1996))
Judge releases media guidelines
TAMPA - Thirteenth Judicial Circuit Chief Judge F. Dennis Alvarez entered an
administrative order providing a set of guidelines for conduct of news media in state
courthouses in Hillsborough County.
The guidelines include a directive that the news media may not "obstruct or impede
in any way the progress of persons on their way into or out from any courtroom or judicial
chambers." In addition, the news media may not "obstruct the ingress or egress
of courthouse facilities."
"Interviews shall not be photographed or video-recorded in the corridors or
hallways of any courthouse facility from 8:30 a.m. to 5:30 p.m," the order states.
As grounds for the order, Judge Alvarez wrote that news media with cameras in
courthouse facilities have the "potential of disrupting other court proceedings and
functions and creating safety hazards." The guidelines balance the "media's
news-gathering right with the dignity of the judicial process and safety concerns of the
public," the judge wrote. (Decisions on File, Administrative Order No.
S-29-96-09 (Feb. 23, 1996))
WASHINGTON - The U.S. Supreme Court recently let stand a decision by the Florida
Supreme Court which held that the state's cross-burning statute does not violate the First
Amendment.
T.B.D., a Jacksonville minor, was charged in 1993 with violating Florida Statute
section 876.18, which makes it a crime to place a burning cross on the property of another
without written permission. The trial court threw out the charge and ruled that the
statute violated the First Amendment free speech rights of T.B.D.
On appeal, the 1st District Court of Appeal agreed and wrote that the statute
"infringes significantly upon rights protected by the First Amendment." The
Florida Supreme Court reversed, holding the statute constitutional and describing the
statute as a "legitimate legislative attempt to protect Floridians of every stripe
from a particularly reprehensible form of tyranny." (Brechner Report, Sept.
1994, July 1995)
The U.S. Supreme Court refused to review the decision. (Decisions on File,
T.B.D. v. Florida, Case No. 84,013 (Feb. 26, 1996)
ATLANTA - The 11th U.S. Circuit Court of Appeals upheld a federal district court's
ruling that a St. Johns County anti-nudity ordinance did not violate the First Amendment.
The criminal ordinance, enacted by the county in 1992, prohibits nudity in public
places, including business establishments such as restaurants and bars. Violations are
punishable with jail time and a fine.
Cafe 207 Inc., which operated a restaurant featuring nude dancing in St. Johns county,
challenged the ordinance in federal district court and argued that nude dancing is
non-obscene and constitutionally protected expression.
The district court disagreed with Cafe 207 and upheld the ordinance, writing that the
ordinance "serves a substantial and important governmental interest in protecting
order and morality." (10/5/95)
MICANOPY - The Micanopy Town Commission unanimously enacted anti-nudity ordinances that
outlaw nudity in public areas and in establishments serving alcohol. Also, private models
and escorts must be licensed under the provisions. (Decisions on File, Micanopy
Ordinances Nos. 95-4 and 95-5, Jan. 9, 1996)
MIAMI - Eleventh Judicial Circuit Court Judge Murray Goldman dismissed a libel action
filed against The Miami Herald.
Marvin Dunn, the founder and former executive director of the Academy of Community
Education, an alternative school, filed suit after the Herald reported that the
school's board of directors were seeking Dunn's resignation. The Herald also
printed an editorial stating that Dunn ultimately lost his job for using public funds for
personal purposes.
In dismissing the action, Judge Goldman relied in part on the testimony of five board
members that the information in the article was generally accurate. (2/6/96)
GAINESVILLE - Editor & Publisher won this year's Joseph L. Brechner Center
Freedom of Information Award for its series of articles on First Amendment and press
censorship issues on college campuses.
The nine-part series by Allan Wolper covered controversies concerning student
publications, censorship, political correctness, protests and litigation.
The judges for the competition included Dr. Warren Larude, professor at the University
of Nevada, Reno; Bill Loving, media lawyer and assistant professor at the University of
Oklahoma; and Howard Swindle, assistant managing editor for The Dallas Morning News.
The award was established by the late Joseph L. Brechner, an Orlando broadcaster to
recognize excellence in reporting on freedom of information issues.
Wolper received the award, along with a $3,000 cash prize, at a ceremony in Gainesville
on March 24.
The Florida Bar Reporter's Handbook - 1996 Edition is now available.
The 262-page handbook includes articles on the Public Records Law, the Sunshine Law,
computerized records, access to courts and the judiciary, defamation and invasion of
privacy, along with references to pertinent caselaw and statutes.
Although the focus is on Florida law, the handbook includes a discussion on the federal
Sunshine Law.
The 1996 Reporter's Handbook may be ordered from the Public Information and Bar
Services Department of The Florida Bar, 650 Apalachee Parkway, Tallahassee, FL 32399-2300,
for a cost of $30 per copy, plus Florida sales tax.
GAINESVILLE - As part of a lawsuit settlement, 8th Judicial Circuit Judge Nath Doughtie
entered a consent judgment enjoining Florida-based Globe Communications from using the
name of a police official in "any non-news context" without her "express
written consent" and prohibiting reissuance of a publication that featured her name.
Gainesville Police Capt. Sadie Darnell filed the suit and alleged that Globe published
and distributed a 1993 book called "Protect Yourself From Crime" that falsely
listed her as a "technical adviser" and "consultant" and falsely
quoted her as endorsing the book. Darnell had gained national recognition as a police
spokesperson following the 1990 student murders in Gainesville.
Darnell sued under a Florida Statute which prohibits the unauthorized use of a person's
name or likeness for "any commercial or advertising purpose." In the suit,
Darnell sought monetary damages, including punitive damages, and an injunction.
Darnell also received a cash settlement amount and planned to donate the proceeds to
charity. (1/27/96) (Decisions on File, Darnell v. Globe Communications, Case No.
95-2277-CA (Jan. 25, 1996))
BROOKSVILLE - A private company operating the Hernando County Jail video-taped a
reporter's interview with a murder suspect without the reporter's consent.
Jimmy Dale Smith, accused of killing two Hernando High School teachers, confessed
during the interview and prosecutors may use the tape as evidence.
Justin Blum, a St. Petersburg Times reporter, interviewed Smith in the jail's
booking room. Although Blum saw the video camera in the room, he did not have any
indication that it was recording. Assistant State Attorney Donald Scaglione said that the
taping was not illegal. (2/15/96-2/16/96)
by Shannon Martin
Florida Statute section 50.011 (1995) describes the characteristics of newspapers
qualified to publish official or legal advertisements. "Record newspapers" in
Florida must be published at least once a week, contain at least 25 percent of their text
in English, qualify as second-class postal matter, be for sale by subscription, be
available to the public generally, and contain information of a public character or of
interest to the general public. However, the statutory definition of "record
newspaper" may soon need scrutiny as more newspapers in Florida join the news media
industry's move toward paperless distribution for subscribers and readers.
In Florida, at least eight newspapers that qualify as statutory "record
newspapers" now have online access and database delivery services. The Tampa
Tribune, The St. Petersburg Times, The Palm Beach Post, The Miami
Herald, The Gainesville Sun, The Florida Times-Union, The Bradenton
Herald, and Florida Today all host home pages accessible through the Interment.
Several Florida newspapers host subscriber services through commercial online services.
Online, electronic delivery or database distribution of "record newspapers"
to subscribers, however, clearly does not now meet some of the requirements of a
"record newspaper." For now, however, the number of electronic subscribers to
"record newspapers" is relatively small. But as many newspapers look for new
ways to reach subscribers, and new ways to cut back on the expense of newsprint
distribution, online subscribing can be expected to increase. More than 100 newspapers
across the country now offer online and database services. In October, the Newspaper
Association of America announced that it was participating as a World Wide Web site for
test audits by the Audit Bureau of Circulations.
Florida's current "record newspapers" may be at some point vulnerable to
disqualification as record newspapers for the purpose of publishing legal notices if the
characteristics described in section 50.011 are not expanded to allow for electronic
distribution. While Florida is not alone in this predicament, the state is well ahead of
many in pursuing troublesome language about many kinds of computerized "records"
laws. The kinds of concerns that should be addressed by new statutory language include not
only references to availability of online news services, but assumptions about
distribution and circulation parameters as well.
Since the primary purpose of publishing "public notices" is to give the
widest publicity practicable, statutory law generally considers a newspaper to be of
general circulation when it is primarily devoted to news of general interest to the
public. Newspapers, however, need not have large numbers of readers, but rather a
diversity of readership within the context of a particular community to fulfill this goal.
The electronic distribution of newspapers certainly has drawbacks, but its very
characteristics of speed and accessibility could be the key qualities cited for including
this format, rather than excluding it. If the weight of legal concern rests most heavily
with including a wide range of distribution systems already existing through postal, motor
and carrier delivery, as well as coin box, then electronic delivery could ultimately be
folded into the rubric of the statutory "record newspaper" designation.
Martin teaches journalism and media law at Rutgers University and is the author of
the book "Bits, Bytes and Big Brother: Federal Information Control in the
Technological Age."
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