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

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Table of Contents

DCA rules desegregation talks subject to Sunshine Law

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

Judge releases media guidelines

Cross-burning law allowed to stand
St. Johns anti-nudity ordinance upheld
Micanopy approves nudity restrictions

Judge dismisses libel suit against Herald

Brechner Award given to E & P
Handbook available from Florida Bar

Settlement order prohibits publication
Jail interview taped without reporter's consent

Online access may threaten "record newspaper" statute

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DCA rules desegregation talks subject to Sunshine Law

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.

Judge sticks with ruling and orders Walsh files released

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)

Reporter refused public records

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)

Contractor held subject to records law

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)).

News-Press petition successful in obtaining release of HRS files

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))

AGO addresses release of investigation files

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))

Cross-burning law allowed to stand

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)

St. John's anti-nudity ordinance upheld

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 approves nudity restrictions

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)

Judge dismisses libel suit against Herald

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)

Brechner Award given to E & P

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.

Handbook available from Florida Bar

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.

Settlement order prohibits publication

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))

Jail interview taped without reporter's consent

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)

Online access may threaten "record newspaper" statute

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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