The
Brechner Report
Volume 21, Number 1
January 1997
A monthly report:
- R. Michael Hoefges, J.D., Editor
- Mary Gallant, Production Coordinator
- Michelle Bernstein, Prod. Assistant
- Bobbie Stewart, Prod. 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
Judge
invalidates exemption and voids hospital merger
Meetings of
nominating commissions must be open
ACCESS RECORDS
Gainesville
required to release the name of crime victim
Court unseals
candidate's divorce court file
PRIOR RESTRAINT
Judge
denies motion to restrain Ledger from publishing interview
ETHICS
Reporter not prosecuted, but
pays fines
FIRST AMENDMENT
Order
bans juvenile from media interviews for at least one year
FCA float allowed in
homecoming parade
Neo-Nazi group will
display cross in town park
NEWS NOTES
Times-Picayune
series wins 1996 Brechner Award
PRIVACY
Judge says
state may withhold names in tobacco litigation
REPORTER'S PRIVILEGE
Ruling protects reporter from
subpoena
Subpoena
to News-Journal reporter quashed
THE BACK PAGE
A Public Policy of
Open Government for Florida
DELAND - Judge John V. Doyle, 5th Judicial Circuit, ruled invalid a 1995 Public Records
Law exemption that permits public hospital boards to meet secretly to discuss
"written strategic plans."
According to the opinion, the exemption was intended by the legislature to protect only
"critical confidential information," which, if revealed, would harm a public
hospital's ability to compete in the marketplace. Voyle stated that the phrase
"written strategic plans" in the exemption is overly broad and violates the
Florida Constitution.
"In its entirety, a written strategic plan might include any subject of concern to
the management and direction of the hospital," the opinion states.
The ruling came in a lawsuit filed by The (Daytona Beach) News-Journal seeking
transcripts of the closed merger talks between two Volusia County public hospitals and
challenging a merger agreement that was reached. (Brechner Report, November 1996)
The closed discussions resulted in a memorandum of understanding outlining the terms of a
merger agreement that was then ratified by the Halifax and Bert Fish medical centers.
Voyle ruled the merger void and ordered the release of the transcripts of the closed
meetings. He also enjoined the two hospitals from putting the merger agreement into
effect. (10/2/96-11/10/96) (Decisions on File, News-Journal Corp. v. Halifax
Hospital Medical Center, et al., Case No. 96-31937, Nov. 1, 1996)
TALLAHASSEE - Attorney General Bob Butterworth stated in a recent opinion that
nominating commissions for worker's compensation judges cannot close their meetings during
deliberations.
In response to a question from a member of the Statewide Judicial Commission for
Worker's Compensation Judges, Butterworth wrote that the Open Meetings Law applies to all
meetings of the commission, including those in which deliberations are held to determine
who shall be nominated for vacant positions.
The commission chooses three nominees for each vacancy for a judge of compensation
claims, then sends the names to the governor for the final selection.
However, Butterworth stated, the meetings of the judicial nominating commissions for
Supreme Court justices, Court of Appeal judges and trial court judges can be legally
closed during deliberations. The legislature has specifically exempted from the Open
Meetings Law the deliberations of those nominating commissions. There is no similar
exemption for commissions choosing nominees to be judges of compensation claims,
Butterworth noted in the opinion.
Judges of compensation claims are administrative judges and are part of the Florida
Department of Labor and Employment Security. (Decisions on File, Fla. Att. Gen. Op.
96-67, Nov. 5, 1996)
GAINESVILLE - A judge ruled that the name of a crime victim is not exempt from
disclosure under a 1995 amendment to a Public Records Law exemption.
Judge Chester B. Chance, 8th Judicial Circuit, issued the ruling after the City of
Gainesville refused to release the name of an aggravated battery victim to The
Gainesville Sun, citing an amendment the legislature passed in 1995. The Sun
requested a court order releasing the name.
The amendment to Florida Statutes section 119.105(3)(y) creates a public records
exemption for personal information, including the address and telephone number, about the
victims of certain crimes like aggravated battery. Under the exemption the victim must
request that the information be kept private. The legislature said the exemption will
protect victims from "embarrassment, harassment or injury."
Chance noted, however, that the amendment does not provide for withholding a victim's
name.
Without a clear mandate from the legislature, the judge said, the names of crime
victims may not be considered exempt from public disclosure. (10/28/96-10/30/96) (Decisions
on File, Gainesville v. Gainesville Sun Publishing Co., Case No. 96-3425-CA,
Oct. 28, 1996)
LAKELAND -- At the request of The Ledger, Judge Daniel True Andrews, 10th
Judicial Circuit, unsealed the divorce file of a candidate for Polk County Tax Collector.
The candidate, Ray Andrew Kincaid, wanted the file to remain sealed on privacy grounds
and claimed that publicity about the divorce case would harm his children.
In the order, Andrews stated that the public's right of access to court proceedings and
its "particularly compelling" interest in Kincaid's background had not been
overcome by the candidate's privacy argument.
Andrews based his ruling on the Florida Supreme Court's 1988 holding in Barron v.
Florida Freedom Newspapers, Inc., which requires a compelling reason to close court
records. (Brechner Report,, September 1988) (Decisions on File, Kincaid
v. Kincaid, Case. No. F-86-2177, Nov. 5, 1996)
Judge
denies motion to restrain Ledger from publishing interview
BARTOW - Judge J. Tim Strickland, 10th Judicial Circuit, denied a motion to restrain The
(Lakeland) Ledger from publishing an interview with a 17-year-old boy indicted on
two counts of first degree murder.
Strickland ruled that there was no evidence that publication of the interview would
prejudice the boy's right to a fair trial. He stated that the case already had been
publicized and that the trial might be moved if an impartial jury is unable to be seated.
Ledger reporter Eric Pera interviewed Harry Lee Davis Jr. in August at the Polk
County Jail after allegedly signing the jail log as a "friend."
The Public Defender's office, representing Davis, filed a motion asking Strickland to
enjoin The Ledger from publishing any part of Pera's interview with the boy.
(9/13/96-9/14/96) (Decisions on File, Florida v. Davis, Case No.
CF96-04077A, Sept. 13, 1996)
Reporter not prosecuted,
but pays fines
MARGATE - The State Attorney's Office recently decided not to prosecute a reporter who
police say tried to obtain a false driver's license for an article on fraud.
Carole Ann Burger, a reporter for the Credit Union Times, based in West Palm
Beach, was arrested in July after she allegedly tried to get a state driver's license at
the Margate Driver's License Bureau under the name of a deceased woman.
Burger agreed to pay a $200 fine to the Bureau and a $100 fine to the Margate police.
She also agreed to write letters of apology to both of them. (7/5/96-10/27/96)
TALLAHASSEE - The 1st District Court of Appeal upheld part of a circuit judge's order
that bans a juvenile from speaking publicly about his crimes for at least a year. The
order specifically prohibits interviews with the media.
The circuit court order states that after a year, the juvenile still may not speak
publicly about the crimes unless he demonstrates to the court that he is mature enough to
"speak appropriately about the events of his past criminal activity."
If the juvenile receives money for future interviews about the crimes, he must use the
proceeds to compensate the victims, the order also states. The juvenile had been invited
to appear on a national talk show.
The juvenile pleaded guilty to eight burglary counts after he and five other teens were
arrested for allegedly vandalizing several vacant homes in Jacksonville in 1995. The teens
videotaped the destruction and the tape has been broadcast by the media.
The appellate court also stated that a portion of the order requiring "moral and
spiritual training" violates the First Amendment to the extent that it includes
religious training. (Decisions on File, 1996 Fla. App. LEXIS 11916, Nov. 13, 1996)
ORLANDO - The Orange County school system allowed a Fellowship of Christian Athletes
float with a religious theme into a high school homecoming parade after a threat of legal
action.
School officials originally told the FCA sponsor at Dr. Phillips High School that the
float could not be in the parade at the school because it would violate the federal
Constitution and county guidelines on religious displays.
The club's captain contacted the Liberty Counsel, a religious civil liberties legal
defense organization. Liberty Counsel attorneys claimed that banning the float would have
violated the students' free speech rights under the First Amendment.
After the Liberty Counsel threatened to seek a temporary restraining order in federal
court, the float was permitted. (10/24/96)
ORLANDO - The Orange County school system allowed a Fellowship of Christian Athletes
float with a religious theme into a high school homecoming parade after a threat of legal
action.
School officials originally told the FCA sponsor at Dr. Phillips High School that the
float could not be in the parade at the school because it would violate the federal
Constitution and county guidelines on religious displays.
The club's captain contacted the Liberty Counsel, a religious civil liberties legal
defense organization. Liberty Counsel attorneys claimed that banning the float would have
violated the students' free speech rights under the First Amendment.
After the Liberty Counsel threatened to seek a temporary restraining order in federal
court, the float was permitted. (10/24/96)
GAINESVILLE - The Times-Picayune of New Orleans won this year's Joseph L.
Brechner Center for Freedom of Information Award for a series of stories uncovering
Louisiana politicians' abuse of legislative scholarships to Tulane University. Peter
Kovacs, metro editor of >,The Times-Picayune accepted the $3,000 cash award on
behalf of the paper's staff at a reception hosted by the Brechner Center in December.
The Times-Picayune waged a number of successful court battles to gain access to
records showing how politicians were awarding the scholarships. The series uncovered
widespread abuse of the scholarship privilege and resulted in reforms in the scholarship
process, including mandatory public disclosure of the winners.
The Brechner Award recognizes excellence in reporting about freedom of information and
First Amendment issues.
WEST PALM BEACH - Judge Harold J. Cohen, 15th Judicial Circuit, recently ruled that
Florida does not have to give tobacco companies the names of more than 800,000 Medicaid
beneficiaries in the state's tobacco liability lawsuit.
In the suit, Florida is seeking to recover $1.6 billion from tobacco companies for
reimbursement of Medicaid payments allegedly spent to treat smoking-related health
conditions.
In response to a request for information by tobacco companies, the state had provided
records describing the nature and cost of the medical treatment provided for each patient,
but had identified each patient by number and not by name.
Attorneys representing Florida in the case stated that the ruling will protect the
privacy of the Medicaid patients whose medical treatment is the subject of the litigation.
(10/18/96-10/21/96)
FORT MYERS - A circuit judge ruled that a Fort Myers reporter does not have to testify
about an interview with a jury foreman conducted after the sentencing deliberations in a
criminal trial.
Peter Franceschina, News-Press, reported that the foreman stated that the jury
had discussed a tattoo on the defendant's arm after making a decision in the case. The
tattoo had not been introduced into evidence.
The defendant then alleged juror misconduct and subpoenaed Franceschina to testify
about the interview with the foreman.
However, Judge William J. Nelson, 20th Judicial Circuit, stated in his order that the
information in the article was not relevant to the misconduct claim and did not support
it. In addition, Nelson stated, the defendant had not shown that the information was
unavailable from another source.
Nelson based his ruling on a balancing test set forth in the 2nd District Court of
Appeal's 1983 opinion in Tribune Co. v. Green. (Florida Freedom of Information Clearing
House Newsletter, December 1983)
That case, Nelson stated, establishes a qualified reporter's privilege against
compelled testimony about both confidential and non-confidential sources unless the
balancing test is satisfied. Nelson declined to follow a conflicting opinion of another
district court of appeal. (Decisions on File, Florida v. Nelson, Case No.
95-911-CF-A-WJN, Nov. 25, 1996)
DAYTONA BEACH - The Judicial Qualifications Commission Hearing Committee quashed a
subpoena seeking a reporter's testimony in proceedings against a circuit judge facing
misconduct allegations.
John Holland of The (Daytona Beach) News-Journal wrote stories in May and
reported that former Chief Judge Gayle S. Graziano, 7th Judicial Circuit, seemingly
skirted hiring guidelines and hired her business partner and housemate, Ethel Rosa, for a
court position. Holland also reported that Graziano threatened a law clerk with a gun,
tampered with a witness and threatened to jail courthouse workers who were annoying her.
After the articles, a Judicial Qualifications Commission investigation resulted in
similar allegations and eight charges of judicial misconduct against Graziano. The Florida
Supreme Court removed her as chief judge.
Graziano's attorney subpoenaed Holland to testify in the proceedings and requested his
notes, memos, story drafts and phone records. The newspaper objected to the subpoena on
First Amendment grounds, arguing that Holland could not be required to disclose
confidential sources. (10/29/96)
A Public Policy
of Open Government for Florida
by Bob Butterworth
"Government is a trust, and the officers of the government are trustees; and
both the trust and the trustees are created for the benefit of the people." Henry
Clay (1829)
The right to know is the cornerstone of our democracy and Florida's open government
laws safeguard this right in communities across our state. Even as technology transforms
the traditional methods of recording and communicating information, the government's
obligation to assure public access remains as constant as in Henry Clay's time. As
trustees for the public interest, government officials share a responsibility to protect
the rights guaranteed by the public records and meeting mandates established in law and in
the Florida Constitution. Accordingly, public access is a significant priority of the
Attorney General's Office as reflected in several open government programs.
Many Floridians are already familiar with the Government-in-the-Sunshine Manual that is
prepared annually by the Attorney General's Office and published by the First Amendment
Foundation. The manual serves as a reference guide on open government issues and
incorporates key court decisions, Attorney General Legal Opinions and legislation relating
to public access.
Several years ago, a voluntary open government mediation program was established in the
Attorney General's office to encourage voluntary resolution of public access disputes as
an alternative to costly litigation. In 1995, the legislature formally established this
program in the Florida Statutes. It operates, as it has from its beginning, under the
direction of our general counsel, Pat Gleason.
As a result of the legislative action, interest in the mediation program has increased.
From August 1995 through August 1996, more than 100 individuals and entities requested
mediation of a public access dispute. Requests for mediation were received from private
citizens, civic organizations and journalists. Several governmental agencies also
requested mediation after another government agency refused to permit access to its
records or meetings.
In most cases, the custodial agency agreed to consider voluntary mediation. A majority
of cases resulted in the agency providing access to disputed records. Thus, the mediation
program has met its primary goal of offering a less costly alternative to court action
over open government controversies.
Over the same time period, the Attorney General's Office responded to more than 1,550
inquiries about the open government laws. Preliminary reports show that approximately 38
percent of the inquiries were from the general public (including private citizens and
media representatives) and 62 percent came from governmental entities. Thus, government
agencies and the public appear to share a common interest in assuring compliance with the
public records and meetings mandates. Training seminars and other educational efforts
sponsored by the Attorney General's Office have also helped to spread the word about the
open government laws.
The importance of ensuring public access to governmental proceedings and records is a
significant public trust like that described by Henry Clay in his time. All Floridians
benefit from strong laws designed to secure the public's right to know. The open
government laws nurture democratic values and permit our free society to flourish in the
21st century.
Robert A. "Bob" Butterworth has served as Florida's attorney general since
1987. Butterworth's office produces the Florida Government-in-the-Sunshine Manual. The
1997 edition will be available in mid-January. For more information, call 904/222-3518. A
report on the open government mediation program will also be submitted to the legislature
in January 1997. For more information about mediation, interested persons can contact
General Counsel Pat Gleason at 904/488-9853.
Return to the Online Issue Index
Return to the Brechner Center Homepage
|