The Brechner Report
Volume 21, Number 7
July 1997

A monthly report by:

• 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

Table of Contents

ACCESS MEETINGS
AGO says museum is public agency
Grand jury indicts 2 city council members
Commission agrees to public vote
DCA: Hospital subject to access laws
Chiles suspends 4 from board
Commission ejects 2 members of public
Meeting dispute leads to 3 suits

NEWS & NOTES
Brechner Center searching for FOI hall-of famers

REPORTER'S PRIVILEGE
Judge denies gag order to dealership

ACCESS RECORDS
Records open if youth tried as adult
3 Fernandina Beach officials face charges
Judge tells clerk to stop sending out juvenile reports
Clerk’s office removes victim names

LEGISLATIVE UPDATE
1997 session notable for what didn’t happen
Passed
Did not pass

BACK PAGE
Shield Law fell victim to the legislative process

AGO says museum is public agency

ST. PETERSBURG -- Florida International Museum Inc.’s documents and board meetings are subject to Florida’s open government laws, according to Attorney General Bob Butterworth.

In an advisory opinion, Butterworth noted that the museum was created by an independent group of citizens as a nonprofit corporation. Recently, however, the city of St. Petersburg agreed to buy the museum building for $3.9 million and lease it back to the corporation.

Butterworth used a totality of factors test developed by the Florida Supreme Court in News and Sun-Sentinel v. Schwab in 1992 to determine whether a private corporation is acting on behalf of a public agency and is subject to the Open Meetings and Public Records laws. (Brechner Report, March 1992) He said the museum now falls under the definition of "agency" in the Public Records Law because the city monitors and audits its activities, reviews its budget and owns its building, among other reasons.

The museum’s board of trustees is subject to the Open Meetings Law for many of the same reasons, Butterworth said, and because of the "substantial interaction" between the city and the board. (Decisions on File, Fla. Atty. Gen. Op. 97-27, May 16, 1997) (5/10/97-5/17/97)

Grand jury indicts 2 city council members

RIVIERA BEACH -- Two members of the Riviera Beach City Council were indicted on charges of violating the Open Meetings Law.

A grand jury returned the indictments on misdemeanor charges after hearing two days of testimony. The indictments said that Marge Confrey and Marilyn Moffitt met privately one or more times between Feb. 1 and March 19. It is against the law for two or more elected officials to meet privately to discuss public business.

The indictments did not say what the meeting or meetings were about, but witnesses told newspapers and investigators that Confrey and Moffitt were seeking support to fire City Manager Gerald Adams and Police Chief Jerry Poreba. Adams, who some residents said was unresponsive to their complaints, lost his job when the council voted not to renew his contract. Press reports said Poreba learned of the plot between the two council members and three police lieutenants to get rid of him and went public with it. Poreba’s supporters started a petition drive to remove Confrey and Moffitt from office, and Poreba kept his job. (4/17/97-5/15/97)

Commission agrees to public vote

BEVERLY BEACH -- After a reporter objected to a private meeting held in a corner of the meeting room, town commissioners voted publicly for a commission chairman. Commission members moved to a corner table in the meeting room shortly after newly elected members were sworn in, according to the News Tribune. A reporter for the weekly paper in Bunnell objected to the closed meeting, and commissioners agreed they might have erred. In a public vote, James Fallon was re-elected commission chairman unanimously. (5/10/97)

DCA: Hospital subject to access laws

DAYTONA BEACH -- A not-for-profit company that operates a hospital for a public taxing district is subject to the Open Meetings and Public Records laws, the 5th District Court of Appeal ruled.

A three-judge appeal court panel unanimously reversed a circuit court ruling that said the open-government laws did not apply to Memorial Hospital-West Volusia Inc. The appeal judges said the operating company clearly was acting on behalf of a public agency as defined in laws and court rulings.

The Daytona Beach News-Journal sued for access to hospital records and meetings after the West Volusia Hospital Authority, the tax district that built and ran West Volusia Memorial Hospital, leased the hospital to the company. After the private company took over hospital operation, it cut off access to records and meetings.

The appeal court said private companies that provide materials and certain services, such as cleaning, to public agencies are not subject to the Open Meetings and Public Records laws. However, the situation is different when the company relieves a public agency of a public obligation, such as operating a jail, providing fire protection or operating a hospital, the judges said. The situation also is different in a case such as the Volusia hospital when the private company uses facilities and equipment acquired by public funds and previously used by the public body, the court added. (2/18/97-5/17/97)

Chiles suspends 4 from board

ESTERO -- Gov. Lawton Chiles suspended four members of the Estero Fire Commission from office after the state attorney’s office charged them with violating the state’s Open Meetings Law.

The state attorney’s office accused the members of failing to allow members of the public into the meeting room in time to take seats before an April meeting began. The board took one vote and adjourned before many of the spectators could enter the room, witnesses said. A judge issued an injunction requiring the board to obey the Open Meetings Law after the Fort Myers News-Press sued over the April meeting. (Brechner Report, June 1997)

Chiles called the alleged violation of the Open Meetings Law "remarkable." The board members have pleaded not guilty to the misdemeanor charges. A fifth board member who did not attend the meeting was not charged or suspended.

Meanwhile, a group of Estero residents has filed suit against the fire board, claiming that members violated the Open Meetings Law when they dismissed the town’s 11 firefighters in January and contracted with Wackenhut Services to replace them.

The suit alleges that board members failed to properly notify the public about the meeting and secretly deliberated and negotiated before the Jan. 14 gathering, resulting in a "rubber stamp upon a predetermined outcome." The suit asks that all actions taken at the meeting, including the dismissal of the firefighters and the hiring of Wackenhut, be voided. (5/10/97-5/30/97)

Commission ejects 2 members of public

PORT CHARLOTTE -- Two members of the public were removed from a Charlotte County Commission meeting after they demanded to see copies of papers being passed out to commissioners.

Commission Chairman Matt DeBoer declared Nancy St. Lawrence out of order when she stood up during a commission discussion and said she wanted to see the documents. When St. Lawrence continued her actions after a brief recess, DeBoer had sheriff’s deputies remove her from the room.

After St. Lawrence was removed, Richard Lewis made the same request and also was removed.

DeBoer said after the meeting that the document in question was an index for an ordinance being discussed. (4/16/97)

Meeting dispute leads to 3 suits

BRADENTON -- A dispute over whether a committee that ranked the bidders for a port project violated the Open Meetings Law has resulted in three lawsuits.

The dispute began after the Manatee County Port Authority awarded a contract to NDC Construction Co. for a $3.5 million cruise and warehouse facility at the port. Manatee County Clerk R.B. Shore refused to pay any bills submitted by the company because he contended that the committee, composed of a county commissioner and two port employees, did not properly notify the public about its meetings. NDC and the Port Authority say the committee was not subject to the Open Meetings Law because it was performing a staff function, not a public board function.

NDC has sued Shore for payment of a $15,000 bill it submitted for preliminary work. Shore and an environmental group, ManaSota-88, have sued the County Commission, which also acts as the Port Authority, to settle the open meetings question. (4/16/97-5/16/97)

Judge denies gag order to dealership

TAMPA -- A federal judge denied a car dealership’s request for a gag order to keep lawyers and witnesses in a sexual harassment suit from talking to reporters.

The dealership, Brandon Ford, asked U.S. District Judge Susan C. Bucklew to order Kristen Matthews, a former plaintiff in the suit against the company, and others not to talk publicly about the case. The dealership’s attorneys said that press reports based on interviews with Matthews were jeopardizing the company’s right to a fair trial.

However, after reviewing newspaper articles and television stories about the lawsuit, including interviews with Matthews, Judge Bucklew said the dealership had not demonstrated a need for a gag order. She said it was unlikely that the amount of publicity generated by the suit would make it difficult to find a jury pool for the civil trial. (2/28/97-3/12/97)

Records open if youth tried as adult

TALLAHASSEE -- The court records of a juvenile tried as an adult are public even if the defendant receives juvenile sanctions, Attorney General Bob Butterworth said. In an advisory opinion, Butterworth wrote to Polk County Court Clerk E.D. "Bud" Dixon that once a juvenile has been transferred to adult court for trial, his or her records become public in the same way that an adult’s records are public. Butterworth said it would make little sense to have a public trial and allow public access to a juvenile’s records during prosecution, then close the records if the defendant received a juvenile punishment. (Decisions on File, Fla. Atty. Gen. Op. 97-28, May 21, 1997)

3 Fernandina Beach officials face charges

FERNANDINA BEACH -- Three members of the city’s staff pleaded not guilty after being charged with violating the Public Records Law.

City Manager Zachary Zoul, Community Development Director Mary McKinney and Code Enforcement Officer Brenda Rothwell were facing a June trial date on charges of failing to disclose public records and destroying public records.

The charges stem from a request by a reporter for the weekly News-Leader paper to see records about the city’s removal and replacement of a "Jerry’s Chicken" sign. The State Attorney’s Office claims that Zoul and McKinney illegally denied the reporter access to the records, and that the three city staff members destroyed some documents. (4/29/97-5/14/97)

Judge tells clerk to stop sending out juvenile reports

VERO BEACH -- A judge ordered the Indian River County court clerk’s office to stop sending confidential juvenile arrest information to the county school district.

Chief Circuit Judge Paul Kanarek, 19th Judicial Circuit, said the school district was only entitled to the same information from the court clerk that was available to the public. That meant, he said, that information about arrests for non-violent misdemeanors was not available because it was generally considered confidential. However, Judge Kanarek said his order did not include information about juvenile arrests for violent misdemeanors, more than three misdemeanors, or crimes that would be considered felonies if committed by an adult. That information is available to the public, he said.

Kanarek said he issued his order after learning that the court clerk’s office routinely sent all juvenile arrest reports to the county school superintendent’s office. A school attendance officer said the non-violent misdemeanor reports stopped at her desk unless they involved drug charges, in which case principals were notified that the student might need counseling. (3/6/97)

Clerk’s office removes victim names

CLEARWATER -- The Pinellas County Clerk of Court’s office, fearing that it had been violating state law, began removing all names of rape and child-abuse victims from public documents.

Clerk of Court Karleen DeBlaker said her office recently discovered that Florida Statutes make it illegal for court clerks to release the names. She has ordered her staff to block the names before releasing otherwise public records. In some cases, the "sanitizing" process has led to delays of several days in releasing files to attorneys, reporters and members of the public.

The Tampa Tribune reported that Hillsborough County also removes the names of victims, based on its interpretation of state law. However, Pasco County does not remove the names.

Florida Statutes Section 92.56 exempts from the Public Records Law any court records that reveal the photograph, name or address of a sexual assault or child abuse victim if certain factors are demonstrated to the trial court. Section 119.07(3)(f) also exempts identifying information about victims of certain crimes contained in police and court records. (4/25/97)

Brechner Center searching for FOI hall-of famers

GAINESVILLE -- The Brechner Center for Freedom of Information is establishing a Florida Freedom of Information Hall of Fame to honor individuals who helped develop and defend Florida’s government-in-the-sunshine laws, including the Public Records Law, the Open Meetings Law, and the Sunshine Constitutional Amendment.

"Our goal is to recognize and thank the people who have made Florida one of the country’s leading government-in-the-sunshine states," said Sandra F. Chance, assistant director of the Brechner Center.

The first inductees into the Hall of Fame will be recognized and honored at the Center’s 20th Anniversary "Florida Sunshine Summit," Oct. 17 at the University of Florida College of Journalism and Communications in Gainesville.

"If you know someone who belongs in the Florida Hall of Fame, please let us know," Chance said. Letters outlining a nominee’s contributions should be sent to Chance at the Brechner Center and must be received by Aug. 1.

QUOTE OF THE MONTH

"I can’t believe they would yank this off the air. There’s no vulgarity. No nudity. No abuse. No pornography. This is just women dancing in their underwear. What’s the big deal?"

--Paul Berman, producer of The Search for the World’s Sexiest Dancer, after Continental Cable of Broward pulled the show off its public access channel for being "indecent."

1997 session notable for what didn’t happen

TALLAHASSEE -- The Florida Legislature’s regular session for 1997 yielded fewer than 15 bills affecting public records, open meetings, and other media and First Amendment issues. In fact, the session may be more noteworthy for what it did not do than for what it did.

Two controversial measures, a journalist’s shield law and the creation of a Florida Information Council, did not make it to a floor vote. In both the House and Senate, the shield law was bottled up in committees. (See related story, page 6.) The Florida Information Council bill, opposed by media and public advocacy groups because it would have changed the fee structure for public records, died in a Senate committee.

Bills that passed create a few new exemptions, including one for personal information on driver’s license records to conform with federal law. Legislators also made it easier to get information about doctors practicing in Florida by requiring physicians to submit biographical information to the state Department of Health and requiring the department to make the practitioner profiles available to the public.

Two of the exemptions passed have raised constitutional questions. The First Amendment Foundation in Tallahassee said two exemptions were passed as parts of bills dealing with other issues. The Florida Constitution (Art. I, Section 24) was amended in 1992 to require that all exemptions to the Public Records and Open Meetings laws be created through single-subject bills. The two exemptions in question deal with information furnished to the Insurance Department that may reveal trade secrets and the extension of state Ethics Commission exemptions to any county Commission on Ethics and Public Trust.

Under new House rules, each bill now has a two-year lifespan in that chamber. That means, in effect, that bills that passed in the House but were not considered in the Senate were placed on the House Consent Calendar for reapproval next year. Also, bills stuck in House committees are still alive until they are withdrawn or defeated. In the Senate, a bill that does not pass still must be re-introduced and go through the committee process again if it is to be considered the following year.

Bills listed below as "passed" were approved by both houses and either signed by Gov. Lawton Chiles or allowed to become law without his signature. Some bills that did not pass may have been approved in the House but not in the Senate or remain alive in a House committee.

For more information about any particular bill, including the full text and voting record, visit the Legislature’s Web site at http://www.leg.state.fl.us/.

CS/HB 95 -- Provides an exemption from the Public Records Law for personal identifying information in Department of Highway Safety and Motor Vehicles records upon the request of the subject of the records, to conform with federal law. Provides a number of exceptions. Became law without governor’s signature.

HB 99 -- 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. Became law without governor’s signature.

CS/HB 181 -- Exempts from the Public Records Law any information about a crime victim or witness, his or her family and relocation sites connected to victim and witness protection programs and held by government agencies or businesses. Became law without governor’s signature.

CS/HB 269 -- Establishes the Florida Surplus Lines Service Office for surplus lines insurance. Exempts from the Public Records Law any information furnished to the Insurance Department that would reveal a trade secret. Became law without governor’s signature.

CS/CS/HB 313 -- Specifies how a county or municipal government may obtain or hold a telecommunications certificate. Provides that certain telecommunications services provided for hire by governments will no longer be exempt from taxation. Became law without governor’s signature.

CS/HB 461-- Amends Florida Statute limitations on the amount of campaign contributions. Makes numerous changes to other campaign laws. Signed into law by governor.

CS/HB 493 -- Provides exemptions for certain records and meetings of the Florida Violent Crime Council and defines the council as a "criminal justice agency" for purposes of public records and open meetings provisions. Became law without governor’s signature.

CS/HB 605 -- Expands the current exemptions for investigations of complaints about licensed health care and social services professionals to include interns and provisional professionals. Became law without governor’s signature.

SB 98 -- 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. Limits the signs to 8 feet square. Became law without governor’s signature.

CS/CS/SB 404 -- 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. Prohibits any municipal, gross receipts, or sales tax on any Internet access service, electronic mail service, electronic bulletin board service, or computer exchange service. Became law without governor’s signature.

SB 884 -- Exempts information obtained for purpose of creating a medical practitioner profile until the profile has been released to the public. (See CS/SB 948 below.) Became law without governor’s signature.

SB 904 -- Creates exemptions to the records and meetings laws for information about an insurer’s risk-based capital reports to the Department of Insurance. Exempts any county Commission on Ethics and Public Trust from the records and meetings laws until a preliminary investigation is completed. Became law without governor’s signature.

CS/SB 948 -- Requires physicians to furnish certain biographical data to the state Health Department. Requires department to verify the information and make the practitioner profiles available to the public. Signed into law by governor.

SB 958 -- Requires public to be notified about the presence of a "sexual predator" in a community, including that person’s name and address. Allows state and local law enforcement agencies to release information about sexual offenders without being asked. Signed into law by governor.

SB 1634 -- Exempts personal and medical information about someone who complains to a statewide or district managed care ombudsman committee and portions of committee meetings where personal information is being discussed. Became law without governor’s signature.

HB 39 -- Would have required 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). Tabled in House.

CS/HB 49-- Would delete 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. Passed House, died in Senate committee.

CS/HB 71 -- Would have created a limited journalist’s privilege not to disclose the identity of a confidential source or information the journalist has agreed to keep confidential. Would have created a limited privilege not to testify about non-confidential information. House version in committee and carried over to 1998. Similar SB 304 died in committee.

HB 243 -- Would have made it a felony for a political candidate to lie about a material fact about an opposing candidate. Withdrawn.

CS/HB 327 -- Would authorize local governments to prohibit graffiti and to pass anti-graffiti ordinances that provide for higher penalties than those provided by state statutes. In House committee, carried over. Identical SB 936 died on Senate calendar.

CS/HB 901 -- Would require that information about state, county and municipal employees’ use of assistance programs be kept confidential. Passed in House, died in Senate committee. Similar SB 1832 died on Senate calendar.

CS/HB 1105 -- Would create exemption from Public Records Law for videotaped statements of minors who were victims of certain crimes. Passed in House, died in Senate committee. Similar SB 1396 died in Senate.

HB 1139 -- Would create exemption from Public Records Law for veterinarian records about rabies vaccinations. Passed in House, died in Senate committee. Similar SB 1580 died on the Senate calendar.

CS/HB 1167 -- Would provide exemptions from the Public Records Law for personal information about the health care and education personnel employed by the Department of Corrections and their families. Passed in House, died in Senate Committee. Similar SB 1322 died in Senate.

HB 1197 -- Would have made active disciplinary investigations of state Department of Business and Professional Regulations and Department of Health confidential. Carried over in House committee. Similar SB 2078 died in Senate committee.

HB 1433 -- Would have provided for release of Department of Children and Family Services records concerning deaths of children, disabled adults and elderly persons because of abuse, with some exceptions. Carried over in House committee. Similar SB 888 died on Senate calendar.

CS/HB 1437 -- Would have exempted from the Public Records Law personal information obtained by the Agency for Health Care Administration. Would have exempted meetings of provider and subscriber assistance panels at which personal information or trade secrets would be discussed. Passed in House, died in Senate committee. Similar SB 364 died in Senate.

HB 1537 -- Would have prohibited gambling interests from contributing to political campaigns or committees. Carried over in House committee. Similar SB 1316 withdrawn.

CS/HB 1613 -- Would have exempted from the Public Records Law some information furnished to agencies for housing assistance programs. Passed in House, died in Senate committee. Similar SB 240 died in the Senate.

HB 1685 -- Would have defined public hospital "strategic plans" for purpose of determining when meetings to discuss such plans can be closed to the public. Withdrawn. Similar SB 952 withdrawn.

HB 1939 -- Would have exempted from Public Records Law bank account and debit, charge and credit card numbers possessed by a state agency. House version passed, died in Senate committee. Similar SB 1010 died in Senate committee.

SB 220 -- Would have created the Florida Information Council to establish ways to format, enhance and provide information to the public. Died in Senate committee.

SB 354 -- Would exempt from the Public Records Law personal information and photographs of people who the state has licensed to be family foster parents and their spouses, children and other adult household members. Passed in Senate, sent to House. Similar HB 1849 carried over in House committee.

SB 1768 -- Would have allowed county staff members or consultants to attend private sessions to discuss settling litigation. Died in Senate committee.

SB 1858 -- Would have allowed the settlement of some lawsuits against counties or cities without a public hearing. Died in Senate committee.

SB 2160 -- Would have allowed some advisory committees to public bodies to meet in private. Withdrawn.

Shield Law fell victim to the legislative process

By David Bralow

As journalists and media attorneys, we are, of course, First Amendment absolutists. There can be no compromise, we assert, when our constitutional rights are at stake. What then were we doing this spring in Tallahassee proposing a journalist’s privilege, a shield law, on behalf of the Florida Society of Newspaper Editors? Isn’t the very essence of the legislative process one of unpalatable compromise?

It is! And the experience of trying to win passage of a reporter’s shield law in 1997 demonstrates the danger of compromise.

The need for a shield law is clear. Although Florida courts have been friendly to the idea of a reporter’s privilege in the past, recent courts have not protected reporters. The Florida Supreme Court held that reporters have no privilege when they are eyewitnesses. Last year, the Fourth District Court of Appeal held that reporters must testify about non-confidential information. Subpoenas were beginning to flow like floodwaters through the newsrooms of Florida.

So on the first day of the 1997 session, we were in Tallahassee with a shield law. Sen. Donald Sullivan and Rep. Luis Rojas were willing and energetic sponsors. The proposed legislation created an absolute privilege for confidential sources. That meant that a reporter would never face jail for refusing to disclose a source. The law created a qualified privilege for all other information. Reporters would have to testify only if the party with the subpoena proved that the testimony was relevant, absolutely necessary, and could not be provided by alternative sources.

However, both the governor’s office and representatives of the state attorneys’ organization opposed the creation of an absolute privilege for confidential information. They said the qualified privilege was sufficient for all purposes. Despite the fact that about 10 states have absolute privileges FOR CONFIDENTIAL SOURCES, we agreed to make the confidential-source privilege qualified to ensure quick passage of the bill.

We believed it was a compromise worth making to get the bill into law. In fact, the bill passed out of the House Civil Justice Committee unanimously. Unfortunately, it never reached the House floor. Certain members did not want to pass any bill that Rep. Rojas sponsored because of his unsuccessful attempt to become House speaker.

Because the bill had stalled in the House, passage was essential in the Senate. But Sen. Fred Dudley refused to put the bill on the agenda of the Senate Judiciary Committee until the last meeting of the session.

Sen. Dudley also wanted a significant compromise. He insisted that the bill be amended to create a journalist registration system. To our mind, such a system seemed akin to state-sanctioned journalism and was antithetical to the First Amendment. To Sen. Dudley, the system was a prerequisite for the bill to get on his agenda. HE ALSO WANTED TO LIMIT THE QUALIFIED PRIVILEGE TO CRIMINAL CASES, NOT CIVIL TRIALS.

We swallowed hard and decided to remain silent when our bill was amended to create a registration system. We had assurances that we could amend the bill on the Senate floor to delete the offending system or kill the bill if we failed.

As time passed, however, we realized that our silence was wrong. The deal Dudley wanted to extract required us to ignore First Amendment principles for the expedience of legislative action. We debated whether to speak against the amendment and kill the bill.

We were saved from making that decision. Sen. Dudley -- even after his demand was met -- did not allow the bill to be discussed in his committee. It died that day from inaction. We breathed a sigh of relief. We could remain First Amendment absolutists -- at least until next year.

DAVID BRALOW IS A PARTNER AT THE HOLLAND & KNIGHT LAW FIRM IN TAMPA AND PRACTICES MEDIA LAW. DURING THE 1997 LEGISLATIVE SESSION, HE WAS A LOBBYIST ON THE SHIELD LAW BILL FOR THE FLORIDA SOCIETY OF NEWSPAPER EDITORS.

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