The Brechner Report
Volume 21, Number 9
September 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
Economic board won't face charges
Members of 2 boards can meet, Butterworth says
AGO says hospital foundation must operate in open
Lantana pays $1,426 to settle citizen's suit
Grand jury indicts no one in Martin County

LIBEL
News-Press wins dismissal of suit

ACCESS RECORDS
Ex-city official pleads guilty in Dade
DCA says Disney can deny access to security records
Tobacco company releases papers
Personnel files must stay open
AGO: Records seeker can't dictate electronic format

FIRST AMENDMENT
Parent gets book taken off reading list
Principal reverses ban on Steinbeck novel

THE BACK PAGE
Students serve and learn at Brechner Center

Economic board won't face charges

HOLLYWOOD – An assistant state attorney said no charges would be brought against members of the Hollywood Economic Growth Corp. board for meeting in private.

City Commission opponents filed complaints after the board met behind closed doors in February to recommend a hotel developer for city-owned land on the beach. The corporation is a private, nonprofit group that is city-funded, and the city manager and a city commissioner serve on its board. It makes recommendations to the City Commission.

Assistant State Attorney John Countryman said the board did not appear to act as a surrogate for the City Commission and its recommendations were not binding on the commission, two factors that he said argued against the group being subject to the Open Meetings Law. (7/17/97)

Members of 2 boards can meet, Butterworth says

TALLAHASSEE – Meetings between one member of a community college board and one member of a public school board are not subject to the Open Meetings Law as long as the matter being discussed can only be decided by one of the boards, Attorney General Bob Butterworth said.

In an advisory opinion to an attorney for Florida Keys Community College, Butterworth wrote that one member of the college board and one member of the public school district’s board could meet privately. A member of the college’s board wanted to discuss with a school board member problems the school board was having acquiring land for a building. The building would be used by both the college and school district and is being funded by each.

Butterworth said the meeting would be legal if neither person was delegated any decision-making power by his or her board. Butterworth also said his opinion was contingent on the fact that only one of the two bodies – the school board – would make decisions about the matters being discussed. Although the college is providing some of the construction money, all decisions about the site and construction of the building are in the school board’s hands. (Decisions on File, Atty. Gen. Op. 97-52, Aug. 5, 1997)

AGO says hospital foundation must operate in open

TALLAHASSEE – Attorney General Bob Butterworth, citing a recent Court of Appeal decision, said that meetings and records of the foundation operating a Tarpon Springs public hospital are subject to the Open Meetings and Public Records laws.

Tarpon Springs created a health authority to provide financing to Helen Ellis Memorial Hospital in 1982. The city leases the hospital to the authority, which sub-leases it to a foundation that operates it. The city attorney asked Butterworth if the foundation was subject to the Open Meetings and Public Records laws.

In an advisory opinion, Butterworth said the foundation appeared to be serving much the same function as the not-for-profit company at issue in News-Journal Corp. v. Memorial Hospital-West Volusia, Inc. The 5th District Court of Appeal ruled in May that because the company in Volusia County was providing a service formerly provided by a public agency, it was acting on behalf of a governmental agency and was subject to the Open Meetings and Public Records laws. (Brechner Report, July 1997) (Decisions on File, Fla. Atty. Gen. Op. 97-49, Aug. 1, 1997)

Lantana pays $1,426 to settle citizen's suit

LANTANA – The Town Council voted to pay a local resident $1,426 in legal fees to settle a lawsuit that accused the council of violating the Open Meetings Law. The town did not admit wrongdoing.

Cindy Jezewski sued after the town released a statement indicating the council had decided not to seek prosecution of former Mayor Robert A. McDonald, who resigned and repaid the city $50,000 that he had deposited into his business’ bank account. Whether to prosecute McDonald or not had not been discussed in a public meeting.

Town Manager Ron Ferris said the statement was poorly worded and that the council members had not formally decided what to do about McDonald. Ferris said the statement was based on his conversations with individual board members that indicated "a general feeling" that McDonald should not be prosecuted.

Ferris said a formal decision on whether to press charges against McDonald would be reached after an investigation is completed. (6/21/97-6/26/97)

Grand jury indicts no one in Martin County

STUART – A grand jury investigating charges that Martin County administrators violated the state’s Open Meetings Law did not return any indictments, and its report was sealed.

However, copies of the report were delivered to the nine people named in it, including all five county commissioners and an assistant county administrator.

The County Commission agreed in March to pay The Palm Beach Post $15,900 in legal fees to settle a lawsuit alleging violations of the Open Meetings Law. The newspaper claimed the commission had approved lawsuit settlements totaling $4.1 million in private sessions without making the settlements public as required by law. (Brechner Report, May 1997) The grand jury was looking into whether to charge commissioners with breaking the Open Meetings Law in that case.

The grand jury also was investigating allegations that commissioners met in secret illegally before voting to fire County Administrator Peter Cheney. Cheney signed a statement the day before he died of cancer saying that he thought two of the commissioners had discussed his firing in private.

The grand jury report was expected to be kept sealed for 15 days, but any of the nine people named in it could appeal to keep it sealed longer, State Attorney Bruce Colton said. (3/3/97-7/25/97)

News-Press wins dismissal of suit

FORT MYERS – A judge dismissed a libel suit against the Fort Myers News-Press after finding that the disputed statements were substantially accurate and were protected by the fair reporting privilege.

Dr. David Fancher claimed that articles published in 1996 about his suspension from the staff veterinarian position at the Lee County Humane Society defamed him. He argued that the use of the term "suspended with pay" in newspaper stories was false because he had in fact been placed on administrative leave with pay. Judge R. Wallace Pack, 20th Judicial Circuit, wrote that the two terms were so close in meaning as to be nearly the same.

Judge Pack also noted that Fancher argued in his lawsuit, which also named the Humane Society and individual employees as defendants, that the organization was acting as an arm of government in its animal control functions. Therefore, the judge said, statements made by Humane Society officials and employees about Fancher were subject to the fair reporting privilege, which protects the press from liability for accurate reports about information gathered from government proceedings, even if the information proves to be false. (Decisions on File, Fancher v. Lee County Humane Society, Case No. 96-8498-CA-RWP, July 14, 1997)

Ex-city official pleads guilty in Dade

OPA-LOCKA – Former City Manager Earnie Neal pleaded guilty to violating the state’s Public Records Law. The Miami Herald reported that he was the first local official in Dade County to be found guilty of a records violation.

Neal said he ignored 35 records requests from his predecessor as city manager, Dennis Whitt, because the requests were frivolous and amounted to harassment. Whitt, who was suing the city for wrongful termination, wanted Neal’s cellular telephone records and copies of any ethics complaints against Neal.

The city will pay a $500 fine, $108 in court costs and a $500 donation to the United Way for Neal’s violation. Neal resigned in May after state investigators said he withheld the records and sexually harassed employees. A complaint to the state Ethics Commission about the harassment allegation is pending. (6/20/97)

DCA says Disney can deny access to security records

DAYTONA BEACH – The 5th District Court of Appeal ruled that Walt Disney World’s security force is not a public law enforcement agency and is not subject to the Public Records Law.

The ruling affirming a circuit judge’s decision was filed without comment, although one judge wrote a special concurring opinion.

Bob and Kathy Sipkema, who are suing Disney in a wrongful-death action, sought access to Disney security records to support their claim that the security force caused their son’s death by negligently chasing a truck in which he was a passenger. Robb Sipkema died when the truck crashed after leaving Disney property.

Judge Belvin Perry, 9th Judicial Circuit, denied the Sipkemas access to the records because he said the security force was more like a "night watchman" service for a private company than a public law enforcement agency.

Disney employs about 800 security personnel at its theme parks near Orlando. In 1967, the Florida Legislature created the Reedy Creek Improvement District, which encompasses all of Disney’s property. The district gives Disney municipal-like powers to control its own property without interference from local governments. (6/4/97-6/21/97)

Tobacco company releases papers

WEST PALM BEACH – The 4th District Court of Appeal ordered a tobacco company to release eight internal documents to the state as Florida moved forward in its suit against cigarette makers.

The appeal court’s decision could lead to hundreds of other documents being released to the state and eventually the public, Attorney General Bob Butterworth said.

The state is suing tobacco companies to recover the money Florida has spent through its Medicaid program on treatment of smoking-related illnesses. The state originally was seeking $16 billion to cover both past and future expenses, but a judge limited the amount that could be awarded to $2.7 billion.

The documents the state sought from the Liggett Group were internal memoranda about how to protect the industry from charges of misconduct and how to shape public opinion about smoking. Tobacco companies have fought for months to keep many internal documents from attorneys for the state. Once the documents become part of the case file, they are subject to Florida’s sunshine-in-litigation law, which bars the sealing of court documents that reveal hazards to human health. (6/27/97-8/7/97)

Personnel files must stay open

STUART – Martin County Attorney Gary Oldehoff said he could not restrict access to county employees’ personnel files after two employees complained that people were seeking their files to harass them.

Building and Zoning Director Mike Sinkey and County Commission secretary Beth Bobango both testified against commissioners during a grand jury investigation of possible Open Meetings Law violations. The grand jury returned no indictments. (Related story, page 1)

Sinkey said he and Bobango were concerned about the "integrity and accuracy" of their files after commission supporters requested the files during the grand jury’s meetings. Sinkey also said the requests were designed to intimidate him and Bobango.

Oldehoff said he could do nothing to seal the files because county personnel files are considered open under the Public Records Law. (7/10/97-7/12/97)

AGO: Records seeker can't dictate electronic format

TALLAHASSEE – A school district is not required to reproduce electronic records in a format that the district normally does not use, Attorney General Bob Butterworth said.

In an advisory opinion, Butterworth wrote that the Palm Beach County School District does not have to spend its own money to convert information stored electronically into a format requested by a newspaper.

The newspaper was seeking food-service records that the district stored in a format commonly used by IBM mainframe computers. The district estimated it would cost $4,400 to convert the records into the American Standard Code for Information Interchange (ASCII) format, but it would cost only $100 to provide the records in the format the district normally used. The newspaper maintained that the district was required to provide the records in the format the paper requested and to pay for converting the records into that format.

Butterworth said the Public Records Law only requires that a records custodian maintain records in a commonly used format. The law only requires a public agency to provide electronic records in a certain format if the agency usually uses that format, Butterworth said. The agency is not required to pay the cost of converting information into a format it usually does not use, he added. (Decisions on File, Fla. Atty. Gen. Op. 97-39, June 30, 1997)

Parent gets book taken off reading list

PORT ST. LUCIE – A parent’s complaint about an award-winning book led a St. Lucie County middle school principal to pull it from the sixth-grade supplemental reading list.

Anna Cerbasi called The Giver a "horrible, disturbing" book. It describes a society in which people feel no emotions and are not allowed to choose their roles in the community. The only person who remembers emotions is the Giver, who chooses a 12-year-old boy for special training. The boy learns about emotions, pain and pleasure and eventually rebels and leaves the society.

Cerbasi said she was especially upset by scenes in the book in which an infant is killed by its father for being the smaller of twins and an elderly women is killed for no longer being useful.

Principal John Townsend of Northport Middle School said the book would be pulled from the supplemental reading list and reviewed by a school district committee for future use. He said it was inappropriate for sixth-graders but would be no problem for older students. (6/20/97-6/24/97)

Principal reverses ban on Steinbeck novel

PANAMA CITY – A high school principal reversed his ban on assigning John Steinbeck’s Of Mice and Men after teachers, parents, the American Civil Liberties Union and others accused him of censorship.

Mosley High School Principal Bill Husfelt restricted use of the book in December after a parent complained about a racially offensive word. The book is about California ranch workers in the 1930s.

Husfelt said he sent a memo to all English teachers at Mosley instructing them to use the book as they saw fit. (7/17/97)

Students serve and learn at Brechner Center

By Anthony L. Fargo

On the first day of a Constitutional Law class at the University of Florida, the professor began by telling her students about the people behind the U.S. Supreme Court's decisions in Plessy v. Ferguson and Brown v. Board of Education: a man who wanted to sit in the same railroad car as whites and a girl who wanted to go to school seven blocks from her home instead of miles away. The purpose of the introduction, the professor said, was to remind students that the law had a human face. It is a lesson that is reinforced each day for the graduate students who work in the Brechner Center for Freedom of Information.

As the Brechner Center recognizes its 20th anniversary, it is a fitting time to consider the contributions that the center has made to students’ educations and the contributions those students have made to the center.

Students have always been a part of the center, beginning with its days as the Florida Freedom of Information Clearing House. Through the generous contributions of Joseph L. Brechner and his family, the Brechner Center has been able to employ up to two graduate students each semester. One graduate student edits The Brechner Report and another aids the center’s public service mission and provides direct assistance to the center's director, Dr. Bill F. Chamberlin.

As one of only a handful of freedom-of-information centers nationwide that are based on university campuses, the Brechner Center has a threefold mission that parallels the university's: teaching, public service and research. Students play an integral role in each part of the mission, and are in turn enriched by each.

Because of the presence of Dr. Chamberlin, the Joseph L. Brechner Eminent Scholar in Mass Communication, Sandra Chance, the center’s assistant director, and the other faculty members specializing in media law in the College of Journalism and Communications at UF, the media law sequence in the college's doctoral program is consistently recognized as one of the best in the nation.

The Brechner Center fulfills its public service function in a number of ways, and students are involved in all of them. The center produces a number of publications, including the monthly Brechner Report, a citizen’s guide to the state’s Sunshine laws and the State Media Law Sourcebook, which a graduate student recently updated and placed on the World Wide Web through a grant from the National Freedom of Information Center. The Brechner Report is

mostly student-written and edited, and students provided research and editing assistance for the citizen’s guide. The center also answers nearly 500 queries a year from media professionals and other citizens. Although no one at the center can give legal advice, both Professor Chance and graduate students can and do help people understand the intricacies of the Open Meetings and Public Records laws in Florida.

Students also do research in the center. For example, Michael Hoefges recently completed an update of our list of

fines and punishments for violators of the Open Meetings and Public Records law. The results of Michael’s work will appear in the October issue of The Brechner Report.

Perhaps the best education for graduate students in the Brechner Center, however, is a lesson in humanity. Our work with queries and with the stories that come to our attention through The Brechner Report teach us more than the dry recitation of facts in a textbook could. They give the laws of access to information a human face. They remind us that the problems faced by reporters and other citizens have faces and names attached to them. It is a valuable lesson, and one that I hope all of us who work at the Brechner Center as students will pass on to our own students when we leave here.

Anthony L. Fargo is a doctoral student in mass communications at the University of Florida and a Brechner Fellow. He is the editor of The Brechner Report.

Return to the Online Issue Index

Return to the Brechner Center Homepage