The Brechner Report
Volume 20, Number 5
May 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
- Michelle Bernstein, 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
Fired
official denied injunction in open meetings action
Sports authority may have
met illegally
Highlands official will not
be charged
ACCESS RECORDS
DOC officials
accused of destroying public records
Judge opens sealed murder files
Hospital admits possible
records violation
Judge denies access to
booking photo of cop
Polk official cleared
public records dispute
BROADCASTING
FCC shuts down Tampa radio
station
COURTS
Reporter ejected from hearing
FIRST AMENDMENT
City ban on street
performers struck down
LIBEL
Federal court dismisses libel
action
Third fishermen group
libel suit dismissed
NEWS NOTES
Elections records are now online
Track current bills at
online state site
REPORTER'S PRIVILEGE
Court rejects reporter's
appeal on subpoena
THE BACK PAGE
Sunshine needed
for desegregation policy decisions
VENICE- Twelfth Judicial Circuit Judge James Parker refused to grant a temporary
injunction reinstating former Venice Housing Authority Executive Director Emory Shaw
pending resolution of an Open Meetings Law action that he filed. Shaw alleged that the
board that fired him violated the Open Meetings Law.
The Authority's board fired Shaw at a February meeting that Shaw claimed was not
adequately noticed to the public. One notice of the meeting was posted inside the
Authority's office and the media were not notified.
The judge ruled that Shaw had presented insufficient evidence for a temporary
injunction returning him to his position of executive director until his case can be
decided in court. Despite the setback, Shaw planned to continue with his
lawsuit.(3/5/96-3/23/96)
TAMPA-Hillsborough County State Attorney Harry Lee Coe III asked Gov. Lawton Chiles to
appoint a special prosecutor to look into allegations that members of the Tampa Sports
Authority violated the Open Meetings Law.
The governor was expected to grant the request for a special prosecutor to look into
allegations that a closed meeting was held to discuss the building of a new stadium for
the Tampa Bay Bucaneers.
In requesting the special prosecutor, Coe cited a potential conflict of interest since
one of his assistants, Assistant State Attorney Robert Shimberg, is the nephew of
authority member Hank Shimberg.
Authority members Hank Shimberg, Jim Norman and Ronnie Mason attended a closed meeting
in March at which the stadium issue was discussed. Authority attorney Don Gifford advised
them that the meeting did not have to be open. (3/13/96)
SEBRING- The State Attorney's Office investigated allegations that a county
administrator violated the Open Meetings Law by holding closed interviews, but declined to
file charges.
Highlands County commission candidate Preston Colby claimed that county administrator
Carl Cool held interviews for the positions of county engineer and personnel director
without public notice.
In a report on the incident, state attorney investigator Robert Stamper wrote that the
failure to notify the public about the interviews did not violate the Open Meetings Law.
Stamper wrote that the interviews were conducted to obtain information from the
candidates on the "technical aspects of their occupations."
The ultimate hiring authority rested with the full county commission, Stamper wrote,
not with Cool alone. (2/28/96)
DOC officials
accused of destroying public records
TALLAHASSEE- The chief inspector general issued a report accusing two Department of
Corrections officials of destroying public records and then covering up their actions.
Although no criminal charges were filed against the officials, both were subsequently
demoted.
Inspector General Harold Lewis wrote in his report that Assistant Secretary Ron
Kronenberger and General Services Chief Jim Morris ordered Mike Johnson, a DOC employee,
to remove and destroy records pertaining to the award of an inmate telephone services
contract worth up to $10 million. Johnson complied with the request, but saved copies of
the documents for his own files.
According to the report, Kronenberger and Morris awarded the telephone service contract
to the company that finished second in an evaluation of all bidders, bypassing the first
place finisher, MCI.
MCI challenged the bid award and in a hearing on the matter, a judge agreed that the
award was improper. The destruction of the documents came to light during the hearing on
MCI's bid challenge.
The DOC planned to rebid the telephone services contract. (2/22/96-3/15/96)
DADE CITY- In an action filed by the St. Petersburg Times, 6th Judicial Circuit
Judge Maynard Swanson ordered the Pasco County Clerk of Court to open the court files of
two teenagers charged with killing a 71-year-old Seven Springs woman.
Johnathan Grimshaw and Nathan Ramirez were charged with first-degree murder in the 1995
killing of Mildred Boroski. Grimshaw was 18 and Ramirez was 17 at the time of the killing.
Both teens were charged as adults although Ramirez was a juvenile.
Clerk of Court Jed Pittman had sealed the murder file of Ramirez, citing Florida
statutes that prohibit the release of juvenile records. Pittman had also refused to
release any document or information in the Grimshaw file pertaining to Ramirez.
Judge Swanson ruled that since Ramirez was never charged as a juvenile, the law
protecting juvenile records did not apply to the documents and information regarding
Ramirez.(3/7/96-3/23/96)
TAMPA- Tampa General Hospital trustees recently admitted that their search for a new
president of the public hospital may have violated the Public Records Law. As a result,
the will start the costly search process again.
In the first search, the trustees hired Ed French, a Texas-based consultant, to screen
applicants. French and his committee conducted a closed search, claiming that releasing
the resumes to the public might deter applicants.
The St.Petersburg Times sued for the release of copies of the applicants'
resumes and obtained an emergency restraining order signed by 13th Judicial Circuit Judge
Manuel Menendez Jr. To prevent destruction of the search records.
After the suit was filed, the hospital released 29 of the nearly 275 resumes that had
been received, claiming that those were all that remained.(2/29/96-3/13/96)
SARASOTA- Twelfth Judicial Circuit Court Judge Becky Titus ruled that the Charlotte
County Sheriff's Office was not required to release a booking photograph of a Charlotte
County sheriff's deputy who was arrested in a bar fight incident.
The ruling came in a lawsuit filed by the Sarasota Herald-Tribune seeking the
release of the photograph. The paper did not plan to appeal the ruling.
Judge Titus relied on a Public Records Law exemption for law enforcement agency
information that identifies an officer employed by the agency.
The Herald-Tribune argued that the exemption should not apply to the booking
photograph of a law enforcement officer charged with a crime.(2/29/96-3/1/96))
LAKELAND- Polk County Judge Michael Raiden dismissed Public Records Law charges against
Emily Burgner, a Polk County benefits and payroll supervisor.
A former county employee complained that he was not given county records that he had
requested. A state investigator looking into the incident then found the records and
Burgner was charged.
The judge ruled that the records in dispute had not been in Burgner's "custody or
control" and that the initial records request was insufficient.(Brechner Report,
Feb. 1996)(3/15/96)
TAMPA- Federal agents seized the broadcasting equipment of a radio station broadcasting
as Lutz Community Radio.
The Federal Communications Commission claimed that the station was operating without a
license at 96.7 FM. The FCC traced the station to the home of Arthur Lonnie Kobres after
another local radio station complained about the broadcasts.
Kobres' broadcasts included talk shows downloaded from satellite transmissions and
warnings about an elitist conspiracy that he claimed planned to take over the
world.(3/9/96-3/10/96)
OCALA- Fifth Judicial Circuit Judge Thomas Sawaya ejected a St. Petersburg Times
reporter from a divorce proceeding that involved Hernando County Commissioner John
Richardson.
Times reporter Lisa Buie entered the hearing at the Marion County Courthouse
after the judge's receptionist pointed out the location to her. Unknown to Buie, the judge
had closed the hearing to the public.
The proceedings had begun when Buie entered and she was permitted to observe testimony
for almost an hour before the judge asked who she was.
When Buie identified herself as a reporter, the judge asked her to leave. After the
hearing ended, the judge ordered Buie not to report on what she had heard during the
hearing.
The Times planned to seek an order opening the proceedings.
A grand jury called for Richardson to resign last year amid allegations that he
violated federal coastal construction laws.(3/12/96)
ST. AUGUSTINE- Seventh Judicial Circuit Court Judge Richard O. Watson ruled that a St.
Augustine ordinance that banned street performances for tips in the city's historic
district violated the free speech clause of the First Amendment.
"Even begging has been afforded First Amendment protection," Watson wrote in
his ruling in a case in which Roger Jolley had been arrested for violating the ban.
The city passed the ordinance last year after merchants complained that the street
performers were blocking the street and bothering tourists.(3/20/96)
NEWARK, N.J.-U.S. District Judge Garrett E. Brown dismissed an action filed by the
Florida Prepaid College Program against the College Savings Bank for defamation, product
disparagement and trade libel.
The judge ruled that Florida Prepaid, an agency of the state of Florida, could not
maintain an action for defamation or the related causes of action of product disparagement
and trade libel.
The judge relied on court opinions that have held that commentary about the government
is "absolutely privileged" under the First Amendment.
College Savings is a private bank that offers a college savings program that competes
with a similar program offered by Florida Prepaid. College Savings originally sued Florida
Prepaid for unfair competition.
Florida Prepaid filed a counterclaim for defamation and libel after bank president
Peter Roberts was quoted in the Miami Daily Business Review accusing Florida
Prepaid of using false and misleading information in promotion
materials.(3/13/96-3/23/96)(Decisions on File, College Savings Bank v. Florida
Prepaid College Program, Civ. No. 95-4516 (March 22, 1996))
MIAMI- Eleventh Judicial Circuit Judge Sam Silver dismissed a group libel action filed
by 1,553 commercial net fishermen against Post-Newsweek Stations of Florida. The suit
arose from the broadcast of a political advertisement that was critical of commercial net
fishing.
In his ruling, the judge relied on court opinions that have held that individual group
members could not sue for defamatory statements pertaining to a group of more than 25
members.
The advertisement did not identify any of the fishermen individually.
The ruling followed dismissals of similar cases in Orlando and Jacksonville.(Brechner
Report, Nov. 1995, Feb. 1996, March 1996)(Decisions on File, Bass v.
Post-Newsweek Stations of Florida, Case No. 95-16623 CA (20)(Feb. 7, 1996)).
TALLAHASSEE- The Florida Division of Elections now has a home page on the Internet for
electronic access to information. Users can access campaign financial reports on political
candidates, parties and committees that have been filed electronically this year. The
information is free to those with Internet access.
The division was the first state elections division to make records available on the
Internet. The address is [http://election.dos.state.fl.us]. (3/3/96).
TALLAHASSEE- Internet users can access the latest information on the current
legislative session at the Florida Legislature's home page, OnLine Sunshine.
The site contains information about pending legislation, calendars, statutes and
lobbyists and can be reached at [http://www.scri.fsu.edu/fla-leg/].
Another site, the Florida Government Information Locator Service, provides information
about government agencies, courts and public access issues. The site can be accessed at
[http://www.dos.state.fl.us/fgils/].(3/3/96)
WEST PALM BEACH- The 4th District Court of Appeal left standing a trial court's refusal
to quash a subpoena that prosecutors served on a journalist.
The journalist, Jeffrey Harrell, had interviewed the defendant in a murder prosecution
for an article on the case.
The court concluded that Florida's "qualified journalist privilege only protects a
journalist's confidential news sources" and that the subpoena in dispute did not
require the journalist to identify a confidential source.
Harrell wrote a news article about the murder and included attributed quotes from the
defendant, George Blancett, charged with second degree murder. The article was published
in XS Magazine in January 1995.
Prosecutors then subpoenaed Harrell to give a statement and the trial judge refused to
quash the subpoena. (Decisions on File, Gold Coast Publications v. Florida, Case
No. 95-2249 (Mar. 13, 1996))
Sunshine needed for desegregation policy decisions
by George D. Gabel, Jr.
During its lengthy desegregation struggle, the Duval County School Board has been sued
by several plaintiffs, most recently the NAACP. To keep the public informed, the media has
covered the progress of desegregation plans, including coverage of school board
desegregation meetings that have sometimes become contentious.
Perhaps uncomfortable with publicity, the school board closed desegregation meetings
and access to desegregation records last year. In denying public access, the board
attempted to avoid public scrutiny of its actions on desegregation policy decisions
despite limitations in the law that arguably preclude this.
While Florida Statute 286.001(8) permits a state agency, such as a school board, to
meet privately with its attorney, the exemption is narrowly defined. The exemption only
permits closed discussions of pending litigation to which the entity presently is a party
and the subject matter of the meeting must be confined to settlement negotiations or
strategy related to litigation expenditures.
Similarly, Florida Statute 119.07(3)(l)1 exempts from public disclosure documents
prepared by an agency's attorney, or at the express direction of an attorney, but only to
the extent that the documents reflect the attorney's or agency's mental impressions,
conclusions, litigation strategy, or legal theories prepared for current or imminent
litigation.
In perhaps misplaced reliance on these exemptions, the school board closed its
desegregation meetings and withheld transcripts even though the substance of the talks may
have exceeded the specific trial strategy of the pending NAACP litigation. At the
meetings, attended by numerous school board staff members, discussion included busing
plans and the proposed location of new schools. In fact, the board developed a
desegregation plan at one of its closed meetings and delivered a copy to the NAACP.
The Florida Times-Union filed a complaint in the 4th Judicial Circuit to force
the school board to open its meeting and release records and transcripts. The trial court
held that the school board had violated Florida's Open Meetings Law and ordered the
release of the transcripts and documents created at the meeting. (Brechner Report,
Dec. 1995) (Florida Publishing Co. v. Duval County School Board, 23 Media L. Rep. 2302
(4th Cir. 1995)). The school board appealed.
The 1st District Court of Appeal affirmed, holding that the Open Meetings Law exemption
for discussions of pending litigation is specific on who may attend closed meetings, and
that staff and consultants do not fit within the exemption. (Brechner Report, April
1996) (Decisions on File, Duval County School Board v. Florida Publishing Co., Case
No. 95-1965 (Feb. 20, 1996)). The appellate court recently denied the school board's
motion for a rehearing on the matter.
Unfortunately, neither the trial court nor the appellate court discussed the issue of
whether the school board could have properly closed its desegregation meetings had staff
and consultants not been present. This left the propriety of the substance of the closed
talks undecided and a potential problem for the future.
The school board admitted that it had a constitutional duty to maintain a desegregated
school system and that, regardless of any lawsuit, it would have addressed the same
desegregation issues it discussed in the NAACP action. Accordingly, the issues discussed
by the board at the closed talks existed independently of the NAACP lawsuit and they
should not be considered to be litigation strategy. Even if discussed only between an
attorney and the superintendent of schools, plans for desegregation policy involve the
fundamental powers of the school board, not settlement proposals, trial strategy or
attorney work product.
Hopefully, courts in future Sunshine Law cases will expand the holding of the 1st
District Court of Appeal. The courts must ensure that a public agency engaged in
formulating broad public policy cannot avoid public scrutiny by closing meetings whenever
an individual party files a suit challenging the policy.
George D. Gabel, Jr., is a name partner with the law firm of Gabel & Hair in
Jacksonville and represents media clients.
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