The
Brechner Report
Volume 20, Number 7
July 1996
A monthly report of mass media law in Florida
- R. Michael Hoefges, J.D., Editor
- Eric Fritz, Production Asst.
- Michelle Bernstein, Production Asst.
- 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 RECORDS
Delays violated records law
AGO
permits limited release of exempt criminal investigation files
Property appraiser's
e-mail would be made public
Court throws
out charges against "rude" records seeker
ACCESS MEETINGS
Desegregation talks ordered open
Board may circulate position
papers
Suit against Brevard schools
dropped
Hospital committee subject to
sunshine
State attorney
investigating allegations
COURTS
Judge allows media at custody
hearings
FIRST AMENDMENT
Judge denies request for boy to tape 'Geraldo'
segment
Parents'
complaints about book lead to daughter's expulsion
Board declines to ban
'Goosebumps' series
Escambia schools pull
'anti-industry' textbook
LEGISLATIVE UPDATE
Legislature
enacts several public records
THE BACK PAGE
Legislators
continue to chip away at access provisions
WEST PALM BEACH - The 4th District Court of Appeal upheld a trial court's finding that
the Town of Manalapan excessively and unreasonably delayed responses to a series of
records requests and failed to comply with the Public Records Law.
The decision came in an action filed against the town by Morton and Beverly Rechler.
They claimed that the town's responses to their public records requests were repeatedly
delayed.
After a two-day, non-jury trial Judge Moses Baker of the 15th Judicial Circuit found
that the town had engaged in a pattern of delay before providing the requested public
records.
Following the appellate ruling, the trial court was expected to consider awarding
attorney fees and court costs. (Decisions on File, Town of Manalapan v. Rechler, 21
Fla. L. W. D1046 (May 1, 1996))
 The
opinion was requested by North Miami Beach Police Chief William B. Berger. (Decisions
on File, Fla. Atty. Gen. Op. 96-34 (May 17, 1996))
TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that
electronic mail messages made or received by a property appraiser's office in the
transaction of official business would be subject to the Public Records Law.
The opinion states that electronic public records are subject to a Florida statute that
prohibits state agencies from destroying public records except as permitted by the
Division of Library and Information Services of the Department of State.
Sarasota County Property Appraiser John Mikos asked for the opinion. Mikos was
considering installing computer software to allow electronic messaging between members of
his staff and other public agencies. (Decisions on File, Fla. Atty. Gen. Op. 96-34
(May 15, 1996))
In February, the Highlands County Board of Commissioners issued a "trespass
warning" to Preston Colby after county employees reported that he was rude and
threatening when asking for records. The warning banned Colby from some public areas of
county offices.
Colby was charged with trespassing after he entered a county board room that the
warning made off-limits. The room was open to the rest of the public.
The judge ruled that the trespass warning violated Colby's right to equal protection
under the Florida and U.S. Constitutions since it prohibited Colby from areas that the
rest of the public could enter. (5/26/96-5/27/96) (Decisions on File, Fla. v.
Colby, Case No.: MM96-317A-XX (May 23, 1996))
ST. PETERSBURG - In an action filed by the St. Petersburg Times, Judge David
Walker of the 6th Judicial Circuit ruled that the Pinellas County School Board violated
the Open Meetings Law by holding a closed desegregation meeting with its attorney in
April.
The judge also ruled that the transcript of the meeting is a public record. He gave the
school board a week to either turn over the transcript or appeal.
Board attorney John Bowen had called the closed meeting. He claimed that it was exempt
under Florida Statute section 286.011(8), which permits closed meetings with attorneys to
discuss "settlement negotiations or strategy sessions related to litigation
expenses." The exemption only applies to pending litigation.
Desegregation of Pinellas County schools is controlled by a court order entered in a
federal lawsuit filed against the school board in 1964.
At the closed meeting, the board discussed changing the court-ordered desegregation
plan. The judge ruled that the desegregation discussions would not fall under the public
records exemption cited by Bowen because the discussions were not intended to lead to a
settlement of the federal lawsuit. (4/12/96-5/25/96)
TALLAHASSEE - According to a recent Attorney General Opinion, it is not a violation of
the Open Meetings Law for a school board member to send a memorandum to other board
members about action that the board member expects to take at an upcoming public meeting.
"It is permissible for a school board member to prepare and circulate an
informational memorandum or position paper to other board members," Attorney General
Bob Butterworth stated in the opinion. Informational memoranda would be subject to
disclosure under the Public Records Law, according to the opinion.
However, Butterworth wrote, the Open Meetings Law prohibited board members from
requesting responses to their informational memoranda or responding to informational
memoranda of other members.
The opinion was requested by Pinellas County School Board Attorney John W. Bowen. (Decisions
on File, Fla. Atty. Gen Op. 96-35 (May 17, 1996))
MELBOURNE - A woman who sued the Brevard County School Board for an alleged Open
Meetings Law violation withdrew the action after a judge dismissed an initial version of
her complaint.
Jan Patchin alleged that board members failed to advise the public that they would meet
under the name "Brevard County School Board Leasing Corp." to discuss a
$60-million financing plan for the construction of new schools in the district.
While the suit was pending, the financing deal was delayed and the interest rates rose.
As a result, the school district will pay $6 million in additional interest. (5/9/96)
TALLAHASSEE - A committee that advises the Hillsborough County Hospital Authority on
employment matters is subject to the Open Meetings Law according to an Attorney General
opinion.
The Employee Advisory Committee is authorized by law to make recommendations to the
HCHA. The committee's records are subject to the Public Records Law, also according to the
opinion. (Decisions on File, Fla. Atty. Gen. Op. 96-32 (May 6, 1996))
DAVIE - The State Attorney's office is investigating allegations that town council
members Kathy Cox and Terry Santini violated the Open Meetings Law.
Cox and Santini were seen talking with a developer's attorneys during a recess of a
council meeting at which the two voted to rezone part of a dairy for residential housing.
Cox denied that they discussed the zoning issue. (4/25/96)
FT. LAUDERDALE - Judge Arthur Birken of the 17th Judicial Circuit denied a woman's
request to ban news media and the public from custody proceedings involving her 9-year-old
daughter.
Kathy Bush is accused of deliberately making her daughter, Jennifer, sick, and has been
charged with aggravated child abuse. State officials are seeking custody of Jennifer and
claim that Bush has Munchausen syndrome by proxy, an unusual psychological condition in
which a parent deliberately makes a child ill to generate attention.
Jennifer has had 40 surgeries and 200 hospital visits. Bush has sought media attention
in the past for her daughter's various medical conditions and treatments.
State and national news media opposed Bush's motion to close the proceedings.
(5/19/06-5/22/96)
TALLAHASSEE - Senate President Jim Scott received the 1996 Pete Weitzel/Friend of the
First Amendment Award from the First Amendment Foundation in June.
Foundation officials credit Scott with paying close attention to open government bills
and making sure that none passed out of the Senate without careful consideration.
The Brechner Center site on the World Wide Web has been updated to include open
government links, information on the Joseph L. Brechner Freedom of Information Award, and
current and past issues of The Brechner Report. The address is: .www.jou.ufl.edu/brechner/brochure.htm
Judge denies request for boy to tape
"Geraldo" segment
DADE CITY - Sixth Judicial Circuit Court Judge Lynn Tepper ruled that a 6-year-old boy
could not appear with his mother on the television talk show "Geraldo."
Mikey Sproul was scheduled to appear on Geraldo with his mother, Paula Sproul. Mikey
has gained notoriety for a series of destructive misdeeds.
The judge was concerned that the television appearance would be interpreted by Mikey as
a reward for his bad behavior.
At age 3, Mikey crashed the family car during a midnight joyride. Since then he has
started fires that destroyed two houses. The Florida Department of Health and
Rehabilitative Services has supervised the boy since the first fire.
Sproul and her son previously taped a segment of the "Maury Povich"
show that was scheduled to air in May. (5/22/96)
FT. LAUDERDALE - Judge John Miller of the 17th Judicial Circuit ruled that a parochial
school did not have to reinstate a fifth-grader expelled after her parents complained
about a textbook.
Alecia and Randall Walker complained that a textbook used in a sex education class was
too explicit. They wanted their daughter, Princess, excused from the class.
St. Bartholomew Catholic School Principal Maria Glass expelled Princess after the
Walkers refused to agree in writing that they would not complain about the book or the
class anymore. The Walker family then filed suit and alleged that their First Amendment
rights had been violated.
The ruling means that the school does not have to reinstate the girl while the suit is
being litigated. (4/19/96-4/23/96)
PANAMA CITY - The Bay County School Board declined to ban the "Goosebumps"
series of children's books at its May meeting. The popular series of books by R. L. Stine
features mild horror and ghost stories written for elementary school children.
Parents Lisa and Kip Clinton filed a formal complaint after a teacher read aloud from
one of the books in their daughter's third-grade class. In their complaint, they alleged
that the books contain "satanic symbolism" and requested that the series be
pulled from school libraries.
Before the board's decision, a district review committee recommended against pulling
the books and Superintendent Stefanie Gall agreed. (5/7/96 - 5/11/96)
PENSACOLA - Escambia County assistant superintendent Doug Garber pulled an
environmental science textbook that was criticized for being anti-industry.
District aquatic sports coordinator Whit Wise had complained that the book
"Environmental Science: Ecology and Human Impact" was biased against
industry. The text had been approved by the district's textbook committee in April.
Superintendent William Maloy planned to seek comments on the book from local industry
representatives. The school board was expected to make a final decision on the book at its
June meeting. (5/14/96 - 5/15/96)
The following bills were passed during this legislative session, and they have
become law:
TALLAHASSEE - The 1996 legislative session ended with the creation of several new
Public Records Law exemptions. Many more than that had been proposed in other bills,
however.
Of the 90 or so open government bills filed this session, most would have created
exemptions to the Public Records Law, according to Barbara Petersen of the First Amendment
Foundation.
New exemptions were created for records of university health services support
organizations, pawnbroker transaction records submitted to law enforcement agencies,
airport security plans, and identifying information in 911 records.
Another new exemption seals off background checks on potential guardians ad litem who
will represent abused and neglected children in court proceedings.
Included among the defeated legislation was a bill that would have exempted from public
disclosure the identities of criminal trial jurors. (See related article, page 6)
Another defeated bill would have imposed fees on businesses using public records. The
exemption would have permitted an "appropriate fee" for the "commercial
use" of public records.
HB 709 - Creates Public Records Law exemption for identities of those who
respond to marketing or advertising research projects of the Florida Commission on
Tourism; protects trade secrets; signed into law by governor.
HB 739 - Creates Public Records Law exemption for personal information obtained
during background investigations of potential guardians ad litem to represent abused and
neglected children; became law without governor's signature; similar SB 78 laid on table.
CS/HB 1035 - Creates Public Records Law exemption for information submitted by
health care providers, insurers, networks or purchasers in connection with antitrust
review; became law without governor's signature; similar HB 889, 1223 and 1359 withdrawn;
similar SB 1726 died on Senate calendar.
CS/HB 1429 - Creates Public Records Law exemption for some information on
applications for refunds made under the qualified defense contractor and target industry
tax refund program; became law without governor's signature; similar SB 2644 died in
Senate Committee.
CS/SB 426 - Creates Public Records Law exemption for identifying information in
possession of the Department of Transportation, a county, or an expressway authority were
related to the use of credit cards, checks, or debit cards for payments of tolls or other
fees; substituted for CS/HB 689; became law without governor's signature.
CS/SB 560 - Creates Public Records Law and Sunshine Law exemptions for
university health services support organizations; became law without governor's signature.
SB 606 - Provides that existing Public Records Law exemption for registration
and circulation information maintained by public libraries does not prohibit a library
from disclosing information from the library registration or circulation records to
officials for purpose of recovering overdue library material; became law without
governor's signature.
SB 616 - Authorizes the Game and Fresh Water Fish Commission to charge for
producing printed material; became law without governor's signature.
SB 668 - Removes "obsolete" Public Records Law exemptions relating to
items such as identifying information in Department of Revenue records, drop-out and
graduation information in student records, information in student and juvenile justice
records, information in Professional Golf Hall of Fame records, and information concerning
HIV test results in patient and inmate clinical records; became law without governor's
signature.
SB 674 - Exempts counties and municipalities from some
Litigation-in-the-Sunshine statutory requirements; permits cities and municipalities to
settle tort claims involving more than $5,000 in public funds at a public hearing without
prior notice if emergency exists and circumstances are placed on the record; exempts
settlements entered into by insurers of local governments from public hearing
requirements; became law without governor's signature; similar CS/HB 1115 died in House
committee.
CS/SB 886 - Clarifies that Public Records Law exemption for "identifying
information" in quality assurance reports prepared by Agency for Health Care
Administration refers to the identities of patients and not to identities of Health
Maintenance Organizations; signed into law by governor.
SB 1190 - Creates Public Records Law exemption for information that identifies
caller and person requesting service in 911 records in the possession of public agency
responding to emergency call; became law without governor's signature; similar HB 2523
died in Senate.
SB 1238 - Creates Public Records Law Exemption for records of any agency or
business organization authorized by the state to promote the general business interests of
Florida; became law without governor's signature.
CS/SB 1252 - Creates Public Records Law exemption for documents used by a
municipal utility company to prepare and submit bids; became law without governor's
signature; similar CS/HB 1252 died on House calendar.
SB 1650 - Creates Public Records Law exemption for information that identifies
donors and prospective donors to the Florida Commission on Tourism who have requested
anonymity; became law without governor's signature.
SB 2550 - Creates Public Records Law exemption for security plans, photographs,
maps, blueprints, drawings and other documents showing airport operating facilities;
became law without governor's signature; similar CS/HB 2421 died on House calendar.
CS/SB 2810 - Creates Public Records Law exemption for pawnbroker transaction
records submitted to law enforcement officials; became law without governor's signature;
similar CS/HB 977 died in House committee. The following bills were not passed during
this legislative session:
CS/HB 47 and SB 202 - Would have created Public Records Law exemption for
information that identifies jurors in criminal trials and prohibited release of the
information.
HB 115 - Would have created the "Woman's-Right-to-Know Act" compelling
physicians to provide women with certain information before performing abortions,
including alternatives to abortion.
HB 171 and SB 42 - Would have created Public Records Law exemption for
patient records and identifying information regarding complaints to managed care ombudsman
committees.
HB 183 and SB 92 - Would have created Public Records Law exemption for
proposals, counterproposals and financial records regarding deepwater ports.
CS/HB 231 - Would have created Sunshine Law exemption for Restorative Justice
Board when discussing resolution of a pending juvenile matter; would have created Public
Records Law exemption for minutes, tapes, notes and other records generated at closed
portions of meetings.
HB 553 - Would have provided legislative intent to create uniform standards of
accountability of public program and service providers; would have stipulated to
applicability of the Public Records and Sunshine Laws to these providers.
HB 629 - Would have created Public Records Law exemption for information
identifying current and former Medicare fraud investigators and their families.
HB 1067 and SB 286 - Would have made certain reports of the risk-based
capital of insurers filed with the Department of Insurance confidential; would have made
certain assets and reinsurance reports confidential.
HB 1111 - Would have made public certain information that religious, literary,
scientific or charitable organizations submit to the state when seeking an ad valorem tax
exemption.
HB 1295 - Would have enacted public records charges for certain documents
produced by circuit court clerks.
CS/HB 1801 and SB 468 - Would have created Public Records Law exemption
for information in rabies vaccination control certificates identifying an animal's owner.
CS/HB 2073 and CS/SB 1180 - Would have created Public Records Law
exemption for information that identifies foster care licensees, their spouses, children
and adult household members.
HB 2427 and SB 110 - Would have created Public Records Law exemption for
identifying information concerning grand jury members and exempted provision from Open
Government Sunset Review Act.
SB 66 - Would have permitted district school boards to pass resolutions allowing
voluntary invocation or benediction at some high school events.
SB 72 - Would have stipulated that desecration of the U.S. flag is a
first-degree misdemeanor.
SB 224 - Would have prohibited solicitation of voters within 100 feet of the
entrance to a polling place or polling room; would have required law enforcement officer
to be assigned to each precinct to inform solicitors of the 100-foot zone and to remove
those who are disruptive or unruly.
SB 766 - Would have created Public Records Law exemption for certain information
contained in motor vehicle records and limited access to motor vehicle titles and driver's
license records; replaced HB 717.
SB 894 - Would have amended the Open Government Sunset Review Act of 1995 by
changing review date of exemption and providing criteria that must be followed before
Public Records Law or Sunshine Law exemptions are created.
SB 946 - Would have made the identities of donors to the direct-support
organization for the Florida Commission on the Status of Women confidential.
SB 1904 - Would have created Public Records Law exemption for cumulative health
information regarding public school students.
CS/SB 2852 - Would have created Public Records Law exemption for information
identifying victims and witnesses being protected by a state attorney or statewide
prosecutor
SB 3044 - Would have provided that information produced and stored by a state
agency could not be made available for commercial use unless a fee was paid to the state.
For additional information on any of the bills listed in The Brechner Report, or
for information on other bills filed during this session, visit the state's On-Line
Sunshine site on the World Wide Web. The address is: . A search engine allows a search of
the 1996 bills by number or keyword.
by Sandra F. Chance
Florida legislators have done it again. During the last legislative session, they added
12 new exemptions to Florida's Sunshine laws, bringing the grand total to 706 at this
point.
It could have been a lot worse. More than 90 bills creating 50 new exemptions were
filed this session. Thanks to an effective coalition of media, media lawyers, lobbyists,
citizens rights' groups, and legislative leaders, the worst of the bills limiting access
to information were killed. That's the good news. The bad news is that legislators failed
to enact any of the provisions access advocates endorsed.
In addition to chipping away at our ability to be informed about our government
officials and operations, legislators now appear to be targeting larger, more disturbing
areas of the law, like limiting the First Amendment guarantee to open, public trials.
For example, legislators seriously considered a bill which would have kept secret the
names and addresses of jurors in Florida criminal trials. Not only did this bill fly in
the face of Florida's open government tradition, it was blatantly unconstitutional.
The First Amendment guarantees access to criminal trials and jurors are at the heart of
our criminal justice system. Jurors have been selected in open court for more than two
hundred years.
An open, public trial assures accountability from the prosecutor, the defense attorney,
the judge, and probably most importantly, the jury. And because jurors represent us, it is
important that we know who they are and whether or not they have a vested interest in the
outcome of the trial.
The legislators advocating juror secrecy argued the proposed exemption was necessary to
reduce jurors' fears about their safety and privacy. But, these legislators failed to
consider two critical points. First, judges already have the power to keep jurors'
identities secret if necessary to protect their safety or privacy. Second, there's no
proof that either jurors' safety or privacy are seriously at risk. Jurors hear more than
150,000 criminal trials in Florida each year. And, supporters of the anonymous jurors
legislation were only able to cite two situations where jurors' identities were an issue
after the trial.
In one case, relatives of an angry victim -unhappy with a not-guilty verdict - sent
letters to jurors after the trial saying they hoped someone close to the jurors would die
"a horrible and lingering death." In the other case, a convicted murderer
requested a juror's home address.
While the anonymous juror bill was ultimately defeated this year, we probably haven't
seen the last of it. This proposed legislation reflects an alarming trend toward secrecy
in government where legislators appear enamored with concealing information and reluctant
to consider more appropriate, less drastic measures. For example, instead of sealing
public records, authorities should use existing laws to prosecute anyone who threatens or
tampers with jurors.
Government records have been open since 1909, when the Florida Public Records Law was
passed. Meetings of public officials have been open to the public since 1967, although the
Legislature did not apply the law to itself until the 1992 Constitutional Amendment.
The Florida Legislature has passed an average of 25 exemptions each year since 1967. As
a result, we have less access to some information about our government now than we had 25
years ago.
Floridians must not accept this decline in our right to be informed about our
government. Exemptions should be scrutinized with the utmost care and concern for
protecting our rights to see public records and attend public meetings. Laws restricting
fundamental First Amendment rights should be laughed out of legislative committees.
Rather than restricting access by passing more and more exemptions, legislators should
be fighting to protect the public's interest and open government.
Sandra F. Chance is the assistant director of the Brechner Center for Freedom of
Information and an assistant professor in the College of Journalism and Communications.
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