Volume 21, Number 6
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Mary Gallant, Production Coordinator
- Kelly Kroll, Production Assistant
- Bill F. Chamberlin, Ph.D., Director
- Sandra F. Chance, J.D., Asst. Director
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611
Quick meeting leads to
School board critic
arrested at public meeting
Group libel suit dismissal upheld
DCA won't reconsider Davis ruling
Judge quashes subpoenas in
appointed superintendents public
DCA says judge
erred in excluding media at hearing
State sues to get hospital
Judge leaves Prudential records under wraps
Appeal court says denial
Court unseals hearing transcript
26-day wait unreasonable,
THE BACK PAGE
better option than 'privatizing' records
ESTERO - Four of the five members of the Estero Fire Commission
were charged with misdemeanor violations of the Open Meetings Law in the wake of a
The charges came nearly three weeks after a judge issued an
injunction against the fire board in a civil suit over the same meeting. In the civil
case, the Fort Myers News-Press accused the commission of excluding the public from
According to the circuit judge's order in the civil case, the
public was barred from entering a public library where the meeting was being held until 9
a.m., when the meeting was supposed to start. However, fire commissioners were allowed
into the room earlier. Press reports said that most people were still entering the room or
getting seated when the board, with one member absent, voted on one item and adjourned.
Judge R. Wallace Pack, 20th Judicial Circuit, wrote that the
commission should have known that 20 to 30 people were waiting to enter the library and
taken steps to accommodate them. Pack said there was no evidence that the violation was
Pack issued an injunction ordering the fire board to be sure that
its meeting places are accessible to the public. The injunction did not rescind the
commission's vote to buy two vehicles.
The Fire Commission has been the center of controversy since
January, when it voted to dismiss the town's 11 firefighters and hire Wackenhut Corp. to
provide fire services. One commissioner accused the other four members of prearranging the
deal in violation of the Open Meetings Law. The state attorney's office is investigating.
(2/12/97-4/30/97) (Decisions on File, News-Press v. John Kelley, Case No.
97-2741-CA-RWP, May 2, 1997)
DAYTONA BEACH - A trial court was correct in dismissing a group
defamation lawsuit by 637 commercial net fishermen, the 5th District Court of Appeal said.
The Court of Appeal agreed with Judge George Sprinkel, 9th
Judicial Circuit, that the group was too large for any one member to be singled out for
defamatory injury. (Brechner Report, February 1996)
In a suit against three Orlando television stations, the
fishermen said that paid political advertisements favoring a constitutional amendment that
effectively banned net fishing in coastal waters incorrectly portrayed them as insensitive
to natural resources. (Decisions on File, Adams v. WFTV, 5th DCA, Case No. 96-126,
April 11, 1997)
LAKELAND - The 2nd District Court of Appeal will not rehear a
case in which it vacated a man's conviction and sentence because a reporter avoided
testifying at his criminal trial.
The St. Petersburg Times sought a rehearing because it was
not notified that an issue affecting its rights was to be heard in the appellate court.
The newspaper also wanted a chance to challenge the appellate court's reasoning. However,
the DCA rejected the paper's motion as "unauthorized."
In March, the Court of Appeal ruled that the judge in Merlan
Davis' trial on an aggravated assault charge erred when he quashed a subpoena for Diane
Mason, a Times reporter. The appellate court said Mason had no privilege against
testifying about her interview with Davis' alleged victim. (Brechner Report, May
In its motion for rehearing, the Times said the DCA erred
when it said that Tribune Co. v. Green was "no longer viable." In Green,
the 2nd DCA ruled in 1983 that a reporter could not be compelled to testify unless the
party issuing the subpoena proved that the information sought could not be obtained
elsewhere, was needed and was relevant. (Florida FOI Clearing House Newsletter,
In the Davis case, however, the 2nd DCA said that two state
Supreme Court decisions, Miami Herald v. Morejon (Brechner Report, June
1990) and CBS v. Jackson (Brechner Report, May 1991) had rendered Green
moot. In those cases, the Supreme Court did not recognize a reporter's privilege to
refuse to testify when journalists witnessed arrests.
The Times argued that the Supreme Court rulings did not
apply in cases where journalists were not direct witnesses of a crime or arrest and did
not affect the qualified privilege for non-confidential sources. (Decisions on File,
State v. Davis, 2nd DCA, Case No. 94-04304, April 23, 1997)
VERO BEACH - A critic of the Indian River County School Board was
arrested after he called board members names and then refused to leave a public meeting.
The board was discussing whether it should change its policy on
citizen input. The board decided to keep its policy, which allows a board member to call a
point of order to stop a speaker using personal attacks or making a speech to the audience
instead of addressing the board.
While the discussion was under way, Edward Livaudais, a frequent
critic of the board, stood at the podium and accused the board and superintendent of
shutting out the public. He then called the board members "eunuchs" and called
the superintendent "Der Fuhrer."
Several board members called for a point of order and summoned a
police officer stationed at the back of the room, who escorted Livaudais from the room,
according to press reports.
He was charged with disruption of a school function, trespassing
after a warning and resisting arrest without violence. He was released on bond. (4/9/97)
TALLAHASSEE - Individual school board members' written
evaluations of an appointed school superintendent are not exempt from the Public Records
Law, Attorney General Bob Butterworth said.
In an advisory opinion, Butterworth also wrote that a meeting of
an individual school board member with the superintendent to discuss the member's
evaluation was not subject to the Open Meetings Law.
The opinion was in response to a question from an attorney for
the Palm Beach County School District. Each school board member fills out an evaluation
form rating the superintendent and adds written comments. The forms are then compiled into
a "summative evaluation" and discussed and voted upon publicly.
Butterworth wrote that the individual forms and the summative
evaluation are all public records under the definition in Florida Statutes. He said that
Public Records Law exemptions for school district employee evaluations do not apply to the
appointed superintendent because he is employed at the board's discretion. (Decisions
on File, Fla. Atty. Gen. Op. 97-23, April 15, 1997)
DAYTONA BEACH - A Seminole County circuit judge should have
allowed media attorneys to participate in a hearing about barring public access to
evidence, the 5th District Court of Appeal ruled.
Judge Thomas G. Freeman, 18th Judicial Circuit, agreed to a
defense motion in September to keep audio and video tapes recorded during a
murder-for-hire investigation away from the public before the trial. The defendant, former
radio evangelist George Crossley, is accused of solicitation to commit murder. Police said
they taped conversations between Crossley and an undercover officer posing as a "hit
man." (Brechner Report, December 1996)
The Court of Appeal said attorneys for local media filed motions
to intervene in the evidence hearing, but Judge Freeman did not allow them to participate.
The appellate court said that Judge Freeman should have addressed the media motion to
intervene before ruling. The DCA did not rule on the merits of the decision to withhold
the tapes. (Decisions on File, WESH-TV v. Freeman, 5th DCA, Case No. 96-3572, April
JACKSONVILLE - University Medical Center agreed to turn over
documents requested by the Attorney General's Office after the state filed a
University withheld a number of files from the state, which
looked into the medical center's deal with Columbia/HCA Healthcare Corp., but changed its
mind when the state sued.
University, a private, not-for-profit hospital, agreed to turn
over daily management to Columbia, a for-profit hospital chain, in return for a share of
the profits from Columbia's Jacksonville facilities. The city, which owns University's
facility and leases it to a non-profit corporation, asked the state to investigate the
deal because the city was not consulted. (3/18/97)
TALLAHASSEE - The Florida Department of Law Enforcement has set
up a Web site and a toll-free phone line so that people can find out if felons released
from prison early are living near them.
FDLE Commissioner Tim Moore said the Web site and phone line came
in response to public outcry over the court-ordered early release of hundreds of state
prisoners. The department estimated that 2,700 inmates, some of them violent offenders,
eventually would be released early.
On the Web site, a computer user can choose a county and learn
the names of all early-release felons living in that county. The user also can call up a
photo of the felon and his or her criminal record.
The Web site address is http://www.fdle.state.fl.us/early_release/.
The toll-free phone number is 888-357-7332. (4/11/97)
TAMPA - A circuit judge ordered the state not to release records
related to its investigation of Prudential Insurance Co.
Prudential agreed to pay a $15 million fine to the state for
deceptive life insurance sales tactics. Investigators in Florida and nationwide have
accused Prudential's sales force of persuading policyholders to cash in valuable older
policies in return for new policies that cost more money for fewer benefits. In addition
to the Florida settlement, Prudential has agreed to pay a multistate insurance task force
$35 million in fines and $410 million in damages.
After the settlement in Florida, policyholders asked the state
for copies of some of the company documents it used in its investigation. However,
attorneys for Prudential sued to block release of the records, saying some of them were
stolen from the company. Circuit Judge Charles D. McClure, 2nd Judicial Circuit, agreed to
issue a temporary injunction barring release of the files. (3/28/97-4/3/97)
LAKELAND - The 2nd District Court of Appeal said public defenders
gave no legal reason for denying copies of court records to a defendant.
Kurtis J. Smith was convicted of misdemeanors in three cases. He
asked the public defender's office for copies of all records related to the cases.
After the public defender's office failed to respond,
Hillsborough Circuit Court rejected his request for a writ of mandamus because he did not
have an appeal pending.
The Court of Appeal said that a prisoner was entitled to request
records under the Public Records Law regardless of his appeal status. The judges also
noted that Smith did not say who should pay for the records, but the public defender's
office assumed he wanted free copies he was not entitled to. (Smith v. State of Florida,
2nd DCA, Case Nos. 96-00365, 96-00599, 96-00606, March 12, 1997)
TAMPA - A circuit judge agreed to unseal the transcript of a
closed hearing about a jail search.
Attorneys for The Tampa Tribune filed a motion seeking the
transcript after Judge Diana Allen, 13th Judicial Circuit, closed the hearing without
allowing the press or public a chance to object. The Tribune said an inmate whose
cell was searched, murder suspect Glen Rogers, had raised the issue of prosecutorial
misconduct in challenging the search. The hearing was the public's only opportunity to
learn about the possible misconduct, the Tribune said.
The transcript showed that prosecutors were looking for evidence
of a plot to free Rogers. A jail inmate testified at the hearing that the plot involved
implicating another inmate in the slaying. Rogers later was convicted of first-degree
murder. (Decisions on File, State v. Rogers, Case No. 95-15314, April 28, 1997)
ANNA MARIA - Twenty-six days was too long to wait for public
records from the city of Anna Maria, a judge ruled.
Judge Robert Boylston, 12th Judicial Circuit, said resident Ken
Peterson was entitled to attorney's fees from the city. Peterson sued because he requested
records on Jan. 17 but the city did not comply until Feb. 12. Boylston said the delay was
unreasonable and constituted an unlawful refusal to produce public records.
The state Public Records Law does not state a specific time limit
for an agency to comply with a records request. However, the state Supreme Court ruled in
1984 in Tribune Co. v. Cannella that agencies must not delay their responses beyond
the time it takes to compile the information requested and to delete any exempted
information from the file. (3/5/97)
JACKSONVILLE - A circuit judge ruled that reporters would not
have to testify at a change of venue hearing in a civil suit.
Judge Bernard Nachman, 4th Judicial Circuit, said that the
reporters were protected by a qualified privilege. He said the plaintiff in the lawsuit
had not shown that the information sought from the reporters was relevant and could not be
found elsewhere or that there was a compelling need for the information.
The plaintiff, Ghada E. Farhat, is seeking a change of venue in
her suit against her former in-laws alleging intentional infliction of emotional distress.
Farhat said she could not get a fair trial in Duval County
because of publicity from a criminal trial in which she was acquitted of killing her
Judge Nachman said the subpoenaed reporters, June Bell of The
Florida Times-Union and Winston Dean of WTLV-TV, were unlikely to know how their
stories affected the state of mind of potential jurors. (Decisions on File, Farhat
v. Farhat, Case No. 97-01395-CA, April 17, 1997)
A dangerous trend is sweeping through the field of record-keeping
in the United States - government agencies letting companies "privatize" public
records for profit. The danger to news gathering is real. If not carefully policed, this
practice can give for-profit companies a virtual monopoly over computerized versions of
"public" records. To remain competitive, news organizations may find themselves
paying steep prices for this "improved" form of access, with no guarantee
records are not modified.
Privatization apparently began in Western states as a means of
dealing with three related problems: shrinking government budgets, rising costs of storing
and handling paper, and the complexities of new information technology. Private companies
typically have offered a ready solution: They will bear up-front costs of automation in
exchange for the right to "resell" the electronic version of the records. The
agency pays nothing, and the company makes its profit from those who pay for access -
including the press.
At least one lawsuit already has been filed. In January 1996, The
American Bar Association Journal reported that the Los Angeles Times had
sued Los Angeles County for entering into a privatization contract. The Times
complained that the $5,000 annual user fee it would pay for access plus transaction
costs violated the First Amendment and public records laws.
Despite controversies such as these, privatization still is
touted at trade shows and government conferences as the ultimate solution to
record-keeping problems. Yet the hawkers and salesmen fail to mention another trend
centered on the Internet, which is rapidly emerging as the most democratic and least
expensive means of distributing and organizing governmental information.
Privatization is based on a "closed standards" model in
which the standards used for storing and transferring records are owned by the private
company. Ownership is the reason the company can make a profit. Closed standards tend to
result in closed records. The Internet, in contrast, is based on "open
standards" - those that can be used for free because no one owns them. Open standards
tend to favor open records.
Although the Internet still is in its infancy, its phenomenal
growth has left little doubt it will be a dominating factor in the years ahead. One of the
largest record-making agencies in the nation - the federal court system - made this
conclusion plain in late 1996 when it proposed electronic record-keeping guidelines based
almost entirely on the Internet's "open standards" model. Other agencies
certainly will follow suit.
As Internet standards dominate information, privatization will
become less justifiable. The technology underlying the Internet is relatively inexpensive,
easily developed and maintained in-house. Agencies must put out more effort than with
privatization, but the result is sounder: The public continues to own public records.
The challenge for news organizations over the next few years is
vigilance against unreasonable privatization. Although for-profit companies clearly can
provide sound solutions consistent with the First Amendment, any sweeping privatization of
records should be regarded with suspicion. It could lock government agencies into
long-term contracts that will cost the press dearly, even if the "open
standards" model ultimately prevails.
At the very least, the "open standards" model should be
preferred today because it offers the most flexible stance in these times of explosively
changing technology. Long-term contracts are a poor means of addressing problems that may
yet prove short-term.
Robert Craig Waters is executive assistant to Florida Supreme
Court Chief Justice Gerald Kogan and coordinator of the Chief Justice's Access Initiative.
Waters formerly was an award-winning journalist with Gannett Newspapers. He can be reached
by e-mail at firstname.lastname@example.org
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