The Brechner Report
Volume 21, Number 3
March 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Mary Gallant, Production Coordinator
• Bobbie Stewart, Production Assistant
• Kelly Kroll, Production Assistant
• Bill Chamberlin, Ph.D, Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

PRIOR RESTRAINT
Globe returns Ramsey Photos
Judge denies request to kill news story

NEWS NOTES
Brechner Award deadline nears

Globe returns Ramsey photos

BOCA RATON - The Globe supermarket tabloid returned crime-scene photos from the JonBenet Ramsey slaying case to officials in Boulder County, Colo., to settle a lawsuit aimed at stopping further publication of the photos.

The weekly tabloid, which is based in Boca Raton and distributed nationally, ran five photos from the crime scene in January. In the settlement, the newspaper agreed to return the originals of the five photos it published and two it did not. In return, the Boulder County coroner's office agreed to drop the suit and not to challenge the paper's right to republish copies of the photos it had already used.

Boulder authorities have arrested two men in the sale of the photos to The Globe for a reported $5,500. A private investigator who went to the photo lab where coroner's office film was developed and arranged to buy prints of the photos was charged with obstructing government operations. The photo lab employee who gave the photos to the investigator was fired and charged with theft, evidence tampering, obstructing government operations and false reporting to authorities.

JonBenet, 6, who was Little Miss Colorado of 1995, was found slain in her Boulder home on Dec. 26 after her mother found a ransom note. (1/13/97-1/16/97)

Judge denies request to kill TV story

FORT MYERS - Judge R. Thomas Corbin, 20th Judicial Circuit, denied a hospital's request to stop a television station from airing a story.

East Point Hospital Inc. sought an injunction barring WINK-TV from airing any news program with "known false or misleading facts." WINK planned to air a story about allegations against the hospital made by former employees in a lawsuit.

East Point officials had not seen the story but said a promotional announcement indicated it would be false. (Decisions on File, East Point Hospital Inc. v. Fort Myers Broadcasting Co., Case No. CA RTC, Feb. 5, 1997)

Brechner Award deadline nears

GAINESVILLE - Have you written a newspaper or magazine story about freedom of information, access to government information or the First Amendment? If so, submit your article or series of articles to this year's Brechner Center for Freedom of Information Award competition. The winner receives a check for $3,000.

The deadline for the 12th annual Joseph L. Brechner Freedom of Information Award is March 15, 1997. Send five original tear sheets with a cover letter explaining the development and impact of the stories.

A national panel of judges will select this year's winner.

Send entries to Sandra F. Chance, Assistant Director, Brechner Center for Freedom of Information, 3208 Weimer Hall, College of Journalism and Communications, University of Florida, Gainesville, FL 32611.

Rules don't guarantee legislative council meetings will be open

TALLAHASSEE - New Florida House rules do not require that meetings of powerful "policy councils" must be open.

However, the vice chairman of the House rules committee said Republican leaders intend for all meetings to be open to the public.

Rep. John Thrasher, R-Orange Park, said the omission of language keeping policy council meetings open was "probably an oversight." He promised that the problem would be corrected before the rules are readopted on March 4, the first day of the 1997 session.

The House adopted new rules after Republicans took control of the chamber in the November 1996 election. House Speaker Daniel Webster, R-Orlando, has promised that all of the House's proceedings will be open to the public.

The policy councils decide if and when a bill will make it to the House floor. (1/28/97)

Judge rules in Vero Beach's favor in meetings suit

VERO BEACH - A circuit judge ruled that city leaders did not violate the Open Meetings Law when they met in closed sessions to discuss issues related to Piper Aircraft's bankruptcy.

Local real estate agent Frank Zorc sued the city after the council met in executive session in spring 1995. Zorc leased land at the Vero Beach Municipal Airport that was contaminated by a chemical spill.

City officials said they met to discuss legal strategy concerning a consent decree between Piper and the Environmental Protection Agency. The decree concerned the 1978 leak of a suspected carcinogen on airport grounds. The decree was later approved by the Bankruptcy Court judge handling the aircraft manufacturer's bankruptcy proceedings.

Zorc said the council's discussion went beyond the consent decree and that he was mentioned by name 13 times at one meeting. He wanted the court to force the council to include test wells for his property as part of the decree. Zorc said potential investors in his Vero Airport Trade Center project had trouble getting loans because of the leak. (Brechner Report, August 1995)

Judge Robert Makemson, 19th Judicial Circuit, said there was no evidence the city discussed anything other than a settlement with Piper at meetings on March 6 and May 9, 1995. Makemson also said that if any Open Meetings Law violations did occur, a public meeting on June 21 "was a cure" for any violation.

At a meeting after the judge's ruling, City Council members voted unanimously to seek attorney's fees and court costs from Zorc, who said he planned to appeal Makemson's ruling.

A grand jury in 1995 refused to indict City Council members and the State Attorney's Office decided not to take action on Zorc's complaint last year. (Brechner Report, December 1996)(1/14/97-1/22/97)

Hospital board slammed for secrecy

TAMPA - Tampa General Hospital trustees have drawn criticism for meeting secretly to discuss strategic planning, including one occasion in which the board decided not to sell the hospital.

Attorneys for the St. Petersburg Times and The Tampa Tribune have questioned the public hospital board's use of an Open Meetings Law exemption for strategic planning to close half a dozen meetings since September. The newspapers say the board is interpreting the exemption too broadly.

After the media raised questions about whether the board was considering selling the hospital, the trustees met secretly again and decided the hospital was not for sale. An announcement of the decision referred to a vote, although one trustee later said the decision was the result of an informal consensus.

The exemption for strategic-planning meetings was declared unconstitutional by a judge in Volusia County in November 1996. (Brechner Report, January 1997) An appeal is pending. (1/16/97-1/18/97)

1st DCA upholds ruling against city

TALLAHASSEE - The 1st District Court of Appeal upheld a circuit judge's order that Fernandina Beach release tapes and transcripts from a 1995 City Commission executive session.

Tom Northey, a Fernandina Beach resident, sued after a closed-door meeting called to discuss pending litigation arising out of the city manager's firing. Northey said he learned that city commissioners also were going to discuss hiring the manager's replacement.

A circuit judge ruled in Northey's favor and ordered the city to release tapes and transcripts of the closed-door meeting, but the city appealed the decision. (1/8/97)

Ban on tape recorders short-lived

BONIFAY - A taxpayer-funded non-profit organization backed down from a ban on tape recorders at its board meetings after a newspaper complained.

Byron Biddle, executive director of the Tri-County Community Council, told the Holmes County Advertiser in January that a new policy banned recording devices at meetings. The newspaper sought legal guidance and told the council it would not abide by the policy.

Two days after his first letter, Biddle reversed himself and said the newspaper would be allowed to tape the meetings.

The Attorney General's Office has stated that public boards may not prohibit the use of silent recording devices at public meetings. (1/15/97)

Homeowners board rejects meetings law

TAMARAC - The board of a homeowners association for a South Florida community voted not to abide by the state's Open Meetings Law.

Bill Tyson, a board member for First Wellington Inc., the master homeowners association for the community, proposed adopting a statement promising to abide by the law in hopes of attracting more public interest in the board.

But other members said the Open Meetings Law would impede the board's efficiency and make them afraid to talk to each other on the street.

Homeowners associations generally are not covered under the state Open Meetings Law because they are private organizations. (12/25/96)

Shield law, public record exemptions on agenda

TALLAHASSEE - Florida legislators will be debating a number of bills that affect freedom of information and other media-law issues when the 1997 session begins.

Below is a listing of bills filed through Feb. 7 that affect public-record and open-meeting laws and other First Amendment issues (chief sponsors are in parentheses). Bill information was obtained from the Florida Legislature's World Wide Web site. The site has the full text of bills and information about sponsors, committee referrals and bill status. The site is at http://www.leg.state.fl.us/

HB 39 (Stabins, R-Spring Hill) - Requires circuit court clerks to set the fee for photocopying records not recorded in official record books in accordance with the Public Records Law (15 cents per page for a document 14 by 8.5 inches or smaller and the actual cost of duplication for other documents).

HB 49 (Albright, R-Ocala) - Deletes language in Florida Statutes preventing law-enforcement agencies from notifying a community about the presence of a sexual offender. Requires notification of a community in cases where a "sexual predator" has been released from custody.

HB 71 (Rojas, R-Hialeah, and Diaz de la Portilla, R-Weschester) and SB 304 (Sullivan, R-Seminole) - Creates a limited journalist's privilege not to disclose the identity of a confidential source or information the journalist has agreed to keep confidential. (Related story, page 4)

HB 75 (Crow, R-Dunedin) and SB 120 (Crist, R-St. Petersburg) - Requires political advertisements to include information about whether or not they have been approved by the candidates. Requires political phone pollsters and solicitors to identify who they work for and makes it a crime to lie about that information. Requires that a campaign message accessible by computer must include the same information required of political ads.

HB 95 (Heyman, D-North Miami Beach) and SB 394 (Grant, R. Tampa) - Exempts from the Public Records Law personal identifying information in Department of Highway Safety and Motor Vehicles records upon the request of the subject of the records. Provides exceptions.

HB 99 (Miller, D-Tampa) and SB 450 (Grant, R-Tampa) - Creates an exemption from the Public Records Law for certain proposals and counter-proposals exchanged between deepwater ports and non-governmental parties relating to the sale, use or lease of land or port facilities. Sets a time limit for non-disclosure.

HB 181 (Greene, D-West Palm Beach) and SB 174 (Rossin, D-West Palm Beach) - Exempts from the Public Records Law any information held by government agencies or businesses about a crime victim or witness, his or her family and relocation sites connected to victim and witness protection programs.

HB 187 (Effman, D-Miami) - Requires sheriffs to place an advertisement in a newspaper each month identifying sexual predators released from prison in the last 30 days and their most recent local addresses.

HB 243 (Goode, D-Melbourne) - Makes it a felony for a political candidate to lie about a material fact about an opposing candidate.

HB 281 (Carlton, R-Osprey) - Requires sponsors of political telephone polls or solicitations to be identified during each call.

HB 313 (Maygarden, R-Pensacola) and SB 214 (Latvala, R-Palm Harbor) - Prohibits local governments from owning or controlling a telecommunications company or providing telecommunications services except through a corporation that is not exempt from taxes and fees.

HB 327 (Rojas, R-Hialeah) - Authorizes local governments to prohibit graffiti and to pass anti-graffiti ordinances that provide for higher penalties than those provided by state statutes.

HB 403 (Lynn, R-Ormond Beach) - Creates an exemption from public records requirements for information about drug tests that would be required of applicants and participants in certain public assistance programs if HB 401, which requires the testing, is approved.

HB 461 (Thrasher, R-Orange Park) - Amends Florida Statute limitations on the amount of campaign contributions. Makes numerous changes to other campaign laws.

SB 98 (Williams, D-Live Oak) - Allows signs without permits for small businesses at road junctions with the state highway system if a hardship exists because the business cannot be seen from the junction. Sets size limit.

SB 220 (Kirkpatrick, D-Gainesville) - Creates the Florida Information Council to establish ways to format, enhance and provide information to the public. Authorizes the council to work with state agencies, local governments and other public and private agencies to deliver specialized electronic information services for a fee. Authorizes the council to establish public access outlets for government information.

SB 240 (Forman, D-Hollywood) - Exempts from the Public Records Law certain personal, medical and financial information furnished by individuals to agencies in connection with housing assistance programs.

SB 308 (Gutman, R-Miami) - Allows certain law enforcement officers to intercept a wire, oral or electronic communication without a court order under certain emergency situations.

SB 354 (Hargrett, D-Tampa) - Exempts from the Public Records Law personal information and photos of people who the state has licensed to be family foster parents, as well as their spouses, children and other household members.

SB 364 (Brown-Waite, R-Brooksville) - Exempts from the Public Records Law any information that would identify a subscriber to the Statewide Provider and Subscriber Assistance Program, his or her relatives, or a guardian. Exempts meetings of the program's review panel if sensitive or personal information will be reviewed in connection with a grievance.

SB 404 (Dudley, R-Cape Coral) - Clarifies that the term "telecommunications services" for gross receipt tax purposes does not refer to the providing of access to the Internet or electronic mail.

SB 414 (Scott, R-Fort Lauderdale) - Prohibits any municipal, gross receipts, or sales tax on any Internet access, electronic mail, electronic bulletin board, or computer exchange service.

SJR 110 (Rossin, D-West Palm Beach) -- Proposes amendments to the Florida Constitution prohibiting a candidate for the Legislature from soliciting or accepting campaign contributions more than one year before the general election. Increases length of legislators' terms in office and sets term limit of 12 years for representatives and senators.

Court actions make a shield law necessary in Florida

One of the most important bills legislators will consider during the upcoming session is the "Shield Law." The proposed legislation would "shield" journalists from subpoenas and would protect them from being forced to testify regarding their news-gathering activities.

Because many of the courts in Florida seem to have abandoned the fundamental principles that safeguard freedom of the press, many members of the state's media now believe a shield law is the only way to guarantee a free and independent press.

House Bill 71, introduced by Reps. Luis Rojas, R-Hialeah, and Alex Diaz de la Portilla, R-Weschester, would give reporters the absolute right to keep their sources confidential in civil cases. The same bill was introduced in the Senate by Don Sullivan, R-Seminole.

In addition to the absolute privilege in civil actions, reporters would have a qualified privilege that would protect them from revealing confidential sources in criminal cases. Reporters who witness crimes still would have to testify, but not just to help officials plug a leak.

These privileges for journalists and their sources protect the public's right to know. Reporters depend on people to help ferret out information about public corruption, government waste and incompetence. Without protection, these sources will be reluctant to come forward and valuable information may be lost.

Tragically, the First Amendment has taken a back seat in Florida courts. Recent Florida Supreme Court holdings have limited the constitutional protections and lower court rulings have all but eviscerated the privilege. Judges are now jailing reporters for doing their jobs.

In 1993, Tim Roche, then with The Stuart News, spent 18 days in jail for refusing to disclose a confidential source. His case prompted legislators to pass a shield law four years ago, but Gov. Lawton Chiles vetoed it.

In October 1996, David Kidwell, a Miami Herald reporter, was jailed for refusing to answer questions about his jailhouse interview with child murder suspect John Zile. Kidwell was sentenced to 70 days in jail. He served two weeks before he was released after a federal court hearing. His case is on appeal.

In addition to facing the real possibility of jail, Florida reporters have been the targets of hundreds of subpoenas in recent years. A survey conducted by the Brechner Center for Freedom of Information found a dramatic increase in the number of subpoenas after the 1990 Florida Supreme Court decision in Miami Herald v. Morejon.

In Morejon, the Court upheld a lower court ruling that the reporter's privilege did not insulate a journalist from testifying if the reporter was an "eyewitness to a relevant event." The problem is, of course, that reporters are always witnesses to relevant events. It's their job.

The legislative initiative, supported by the Florida Society of Newspaper Editors and the Florida Press Association, is the result of an uneasy alliance between the media and the Legislature.

Many journalists have been reluctant to ask the Legislature and governor to grant protection that they believe already exists under the First Amendment. Some quote the adage, "What the Legislature giveth, the Legislature can taketh away."

Nevertheless, the relationship between a reporter and source is so important to the free flow of information that 29 states and the District of Columbia have similar statutes.

Journalists cannot and should not become extensions of the prosecutor's office, the police or any other agency.

Unfortunately, journalists can no longer depend on judges to protect them from the role of "unpaid investigator." Maybe this legislation will.

Sandra F. Chance is assistant director of the Brechner Center and an assistant professor of journalism at the University of Florida.

Port St. Lucie restricts access to city offices, records

PORT ST. LUCIE - The City Council voted to limit access to city administrators' offices and to public records.

The third floor of the Police Administration Building, where most city administrative offices are located, will be closed to public access. The city planned to install a security door with a cardkey system and bulletproof glass around the front desk. Anyone wanting to see an official would have to state his or her business and be allowed access.

The council also approved putting a sign in the city clerk's office telling the public that the number of records requests made close to 5 p.m. would be limited.

The moves were in response to what City Manager Don Cooper called "bizarre behavior" by vocal opponents of city government, including threats and excessive public records requests. City Attorney Roger Orr said one person put in seven public records requests for the same document, then filed requests for copies of the requests. Orr said the person, whom he didn't name, ignored the documents when the clerk produced them. (1/10/97)

Complaints not records until reasonable-cause decision

TALLAHASSEE - A discrimination complaint does not become a public record until it is determined whether reasonable cause exists to believe it is valid, Attorney General Bob Butterworth said.

Butterworth, in an advisory legal opinion, also suggested that the Metropolitan Dade County Equal Opportunity Board revamp its procedures to get reports on the complaints to the parties involved immediately after a reasonable-cause determination is made.

The Equal Opportunity Board is a unit of local government that deals with discrimination complaints.

The board's director investigates discrimination complaints and determines whether reasonable cause exists. The director then prepares a report on the complaint, which becomes final 10 to 20 days after it is written, after which it is served to both the complainant and the respondent.

A person seeking records from the board said the complaints should become public records when the board receives them. But Butterworth said the exemption for discrimination complaints, contained in section 119.07(3)(p) of Florida Statutes, meant that the complaint becomes a public record as soon as the director's report is written. He suggested the board deliver the copies to the parties immediately, rather than waiting. (Decisions on File, Fla. Atty. Gen. Op. 96-93, Nov. 14, 1996)

Letter released after paper complains

TARPON SPRINGS - A letter that the city tried to keep secret was released after a local newspaper complained. The letter indicated that the city was considering selling its interest in a local hospital.

The Suncoast News threatened to go to court to gain access to the letter after City Attorney John Hubbard told the city manager not to release it. Hubbard said the letter was exempt from the state Public Records Law because it dealt with a matter discussed during a closed City Commission session. He later agreed that the letter should be released after discussions with the newspaper's attorney. State law defines letters related to the official business of a public agency as public records.

The letter writer, whose identity could not be verified by the city or the newspaper, was opposed to the possible sale of the city's interest in Helen Ellis Memorial Hospital for $30 million. The letter said the sale was discussed during a City Commission executive session.

A confidential source told The Suncoast News that the letter was substantially correct. Voters in a 1995 referendum rejected the idea of the city selling its interest. (12/7/96)

Mazda pays fine

MIAMI - Mazda Motor Co. agreed to pay $875,500 in fines to Florida and 23 other states to settle charges that it misled consumers about leases. Florida's share is $42,500.

Florida and the other states complained that Mazda ads for "zero down" and "penny down" auto leases did not clearly disclose that a person would have to pay $900 in up-front fees to drive away from the dealership. State Attorney General Bob Butterworth said Mazda "buried" the fee information in its ads. (12/20/96)

Sex acts during nude dance not protected

WEST PALM BEACH - The 4th District Court of Appeal reinstated criminal charges against two exotic dancers and overturned a circuit court decision that said their erotic performance was protected by the First Amendment.

The women were charged with engaging in lewd acts after an undercover police officer said they performed sex acts on each other during a private performance at a Broward County club.

A circuit judge dismissed charges against the women, saying the erotic performance was protected by the First Amendment, that the law under which they were charged was vague and overbroad, and that their privacy had been violated.

Section 796.07(2)(e) of Florida Statutes says it is unlawful "to offer to commit, or to commit, or to engage in, prostitution, lewdness, or assignation." The statute defines lewdness as "any indecent or obscene act."

The Court of Appeal said that while the U.S. Supreme Court had ruled that nude dancing was protected expression, acts committed during a dance could still be punished.

The judges also upheld the statute's language and rejected the privacy argument, saying the women had no reasonable expectation of privacy. (State v. Conforti and Urbano, Case Nos. 95-0299 and 95-1299, Jan. 8, 1997)

Saluting Brechner Center for 20 years of service

This year marks the 20th anniversary of freedom-of-information activities at the University of Florida's College of Journalism and Communications. These activities began as the Florida FOI Clearing House at the request of the Florida Society of Newspaper Editors. The Clearing House thrived under the direction of Professor Jo Anne Smith and through the fund-raising effectiveness of the college's dean from 1976-1994, Ralph Lowenstein.

Dean Lowenstein appealed to newspaper publishers and editors, broadcasters and attorneys throughout Florida for donations to fund the queries and the original newsletter, the forerunner of The Brechner Report. From those modest beginnings to today's Brechner Center for Freedom of Information, issues of access to public information have played an important role in the educational mission of the College of Journalism and Communications.

How could it be otherwise? The First Amendment is the foundation for education in journalism and communications. The two precious freedoms of speech and the press, which the First Amendment guarantees, would be incomplete without the public's ability to gain access to information they need to make sense of their worlds.

Walter Lippmann wrote long ago that reliable information was essential for people to govern themselves. He knew it was difficult to get such information. He knew, too, that without reliable information, "violent prejudice, apathy, preference for the curious trivial as against the dull important, and the hunger for sideshows and three-legged calves" would win over democracy.

For journalists to do their jobs of providing reliable information, they must have access to persons and places where such information circulates, especially those persons and places whose functions directly affect our abilities to govern ourselves. Not every public official readily assumes that his/her meetings, letters, memos - or even arrest record - should be open to journalists. And journalists sometimes have to become pushy and feisty, even obnoxious, about their rights to public information. What better way to teach future journalists and other communications professionals the nuances of this role than to have in their midst a center whose job is to remind us all, as Florida Attorney General Bob Butterworth said in this space in January, "The right to know is the cornerstone of our democracy. ..."

That's what this college has been doing in a very forceful and visible way for 20 years. First under the name "Florida Freedom of Information Clearing House" and, since 1986, under the name of one of its earliest and strongest supporters, the Joseph L. Brechner Center for Freedom of Information is a living example to current students of the central importance of access to getting the story right.

The query service, The Brechner Report and other Center publications also show students in a very visible way that this college takes seriously its mission to provide service to the professional communities of journalists and lawyers who are the principal customers of these services.

Finally, particularly because it is housed in a major research university, the Brechner Center sponsors research designed to produce new knowledge and understanding about freedom of information issues. Doing such research is a necessary element in the growth of freedom of information.

Thus, the Center embodies the teaching, research and service functions that are the foundation of all major land-grant universities in the United States.

In the midst of the constant struggle to keep public information available to the public, we are proud to take time out this year to salute the Brechner Center's 20 years of contributions to the goal of continued access to public information.

Terry Hynes is the dean of the College of Journalism and Communications at the University of Florida.