The Brechner Report
Volume 21, Number 10
October 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Jackie Thomas, Production Coordinator
• Sarah Rabin, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Jury convicts fire board member
Possible violation forces Lake Mary to start over

LIBEL
ABC won't get new trial, federal judge says
Judge orders losing plaintiff to pay fees

PRIVACY - INTRUSION
Abortion information law on hold

REPORTER'S PRIVILEGE
Man's plea prevents possible debate over testimony
Subpoena quashed for reporter in Estero case

COURTS
Judge cancels private hearing after paper complains

ACCESS RECORDS
Regional DER office refuses to change photo ID policy
DCA: Pastor's bank records can be examined
Judge orders FAU to pay attorney's fees in suit
DeSoto County, company settle lawsuit over records

NEWS & NOTES
Sun-Sentinel wins Brechner Award

SPECIAL REPORTS - FEES
Fee and court costs continue to add up for access violations

ADVERTISING REGULATION
Tobacco companies agree to remove billboard ads

THE BACK PAGE
Brechner Center poised to continue fight for access

Jury convicts fire board member

ESTERO – A Lee County Court jury convicted a member of the Estero Fire Commission of violating the state’s Open Meetings Law, and Gov. Lawton Chiles removed him from office.

Vernon Conly, 27, was one of four fire board members that the State Attorney’s Office charged with violating the law. Prosecutors said the commissioners rushed through an April meeting before many members of the public had a chance to enter the meeting room. (Brechner Report, June 1997)

Chiles suspended the four board members pending their trials on misdemeanor criminal charges of violating the Open Meetings Law. The other three board members’ trial was postponed when prosecutors asked to consolidate all the cases into one trial. Only Conly’s attorney said he was ready to proceed to trial.

Conly’s sentencing was scheduled for Sept. 22, but his attorney has appealed his client’s conviction to Circuit Court. If the conviction is overturned, Conly said he would ask Chiles to return him to the fire board for the remainder of his term.

Conly could be sentenced to 10 days in jail, which the prosecution recommended, and fined $250. If he is sent to jail, Conly would become the first public official in Florida sentenced to jail for violating the Open Meetings Law, according to research conducted by the Brechner Center for Freedom of Information. (Related story, this page) (7/18/97-8/13/97)

Possible violation forces Lake Mary to start over

LAKE MARY – A committee that ranked the eight companies bidding for a consulting job with the city may have violated the Open Meetings Law, a critic of the group said. The City Commission responded by deciding to rank the companies itself and interview the top three consultants before making a choice.

The city’s Land Planning Agency chose the committee that originally ranked the consulting companies, who are bidding to evaluate Lake Mary’s comprehensive plan. Doug Forner, a member of the city’s planning board, said agency staff members conducted a secret telephone poll to determine which planning board member to appoint to the board. Forner had volunteered, but the agency staff picked another board member.

Forner said the secret phone poll might have violated the Open Meetings Law, which generally requires that all decisions of public bodies be made in public. City Manager John Litton suggested that to avoid the appearance of a violation, the agency should pick a new board and repeat the evaluation process. But commissioners decided to serve as the screening committee instead. (7/25/97-8/2/97)

ABC won't get new trial, federal judge says

MIAMI – A federal judge in Miami denied ABC’s motions for a new trial in the libel case brought by Fort Lauderdale banker Alan B. Levan.

Levan and BFC Financial Corp. sued after a segment on the 20/20 show in 1991 indicated that Levan sold investors bonds that ABC characterized as "junk." A jury awarded Levan and BFC $10 million. (Brechner Report, February 1997)

ABC said it would appeal the jury decision after U.S. District Judge C. Clyde Atkins, who presided at the trial, denied the network’s motions for a new trial. (7/18/97)

Judge orders losing plaintiff to pay fees

FORT LAUDERDALE – A federal judge ordered a former program director at WIOD-AM radio to pay $5,000 to the Sun-Sentinel Co., one of the parties he unsuccessfully sued for libel.

The program director, Gary Bruce, sued the Sun-Sentinel and its TV and radio columnist, Tom Jicha, saying stories the newspaper ran about his departure from WIOD cost him a job in Los Angeles and tarnished his reputation. A federal judge dismissed the suit in October 1996, saying Bruce failed to prove that any allegedly false statements made about him were published with actual malice – knowledge of falsehood or a careless and reckless disregard for whether they were false or not. (Brechner Report, February 1997)

The Sun-Sentinel’s attorney said he offered Bruce and his attorney the option of writing a letter of apology to Jicha for comments made about Jicha during the litigation. He said Bruce and the attorney did not respond to the offer, so he sought legal costs instead. (7/24/97)

Abortion information law on hold

WEST PALM BEACH – A judge agreed to stop enforcement of a new state law that requires physicians to give women seeking abortions a state-produced brochure about pregnancy and abortion alternatives.

Judge Kathleen J. Kroll, 15th Judicial Circuit, enjoined enforcement of the law the day after it took effect. State Rep. Barry Silver, D-Boca Raton, sued to stop enforcement of the law, saying it unconstitutionally inhibited a woman’s right to an abortion. He was representing clients from throughout the state.

Judge Kroll said the law was vague, misleading and potentially dangerous because it could be read to pertain to medically necessary abortions. The judge also expressed doubts about the accuracy of the state Department of Health’s brochure.

The state Health Department has agreed not to enforce the law statewide until an appeal of Judge Kroll’s ruling is decided. (7/17/97-8/27/97)

Man's plea prevents possible debate over testimony

SANFORD – A man whose conviction was overturned because the trial judge allowed a newspaper article to be entered into evidence at his trial has pleaded no contest rather than face a second trial.

Terry Dollar, a former radio disc jockey, entered the plea to a charge of solicitation to procure a person younger than 16 for prostitution. He was sentenced to two years of probation.

Dollar was convicted in 1995 of two felony counts after police said he asked a prostitute to find him an 11-year-old girl for sex. However, the 5th District Court of Appeal ordered a new trial, saying the trial judge should not have allowed a newspaper article to be entered into evidence while quashing a subpoena for the Florida Today reporter who wrote the story. Without the reporter’s testimony, the DCA said, the article about Dollar’s arrest, which contained comments from him, amounted to hearsay. (Brechner Report, February 1997) (7/29/97)

Subpoena quashed for reporter in Estero case

FORT MYERS – A judge quashed a subpoena for a Naples Daily News reporter in the open-meetings trial of Estero Fire Commission member Vernon Conly.

Lee County Judge Edward J. Volz ruled that Janel Shoun should not have to testify because the information sought by the defense was available elsewhere. Conly’s attorney argued that Shoun was a material witness who attended the meeting in question.

Conly was convicted of violating the state’s Open Meetings Law. Three other members of the fire board face charges in connection with the same meeting. (Related story, page 1) (7/25/97)

Judge cancels private hearing after paper complains

DAYTONA BEACH – A judge canceled a private conference with attorneys in a murder case after a newspaper asked to attend.

Judge R. Michael Hutcheson, 7th Judicial Circuit, said he could not hold a private conference with prosecutors and defense attorneys because The Orlando Sentinel and other media had not been given proper notice of the closed hearing or a chance to protest the closure. Judge Hutcheson also said the defense attorneys who requested the private meeting to discuss whether sensitive evidence should be excluded from the trial did not give him enough details to determine whether the media should be excluded from the conference.

The judge gave defense attorneys the option of filing a new motion for a closed conference, with proper notice to the media, or holding the hearing in public. Defense attorneys chose the latter course and lost a bid to keep from prosecutors the handwritten notes of a psychologist and a psychiatrist who examined defendant Michael Garner. The 5th District Court of Appeal upheld Judge Hutcheson’s decision on admissibility of the notes with no comment.

Garner was charged with first-degree murder in the shooting death of his pregnant ex-wife and manslaughter in the death of her 9-month-old fetus. He admitted shooting his ex-wife during an argument but claimed the shooting was accidental. (7/31/97-8/14/97)

Regional DER office refuses to change photo ID policy

PENSACOLA – Despite a protest from a group of 26 environmentalists, the administrator for the Pensacola office of the Florida Department of Environmental Regulation refused to change a policy requiring anyone asking to review records to present a photo identification.

The group complained that the policy violated the state’s Public Records Law and was designed to discourage members of the public from viewing records. DEP officials countered that the policy, adopted in June, was legal and necessary for security.

The Pensacola office is the only one of the six regional DEP offices in Florida with the policy. Other offices require people seeking records to sign in but do not require an ID.

A 1991 Attorney General’s Opinion stated that a person seeking records could not be required to disclose his or her name, address or telephone number to a records custodian as a condition for seeing records. A 1992 opinion stated that an agency also could not seek any background information on the record seeker. (8/1/97)

DCA: Pastor's bank records can be examined

ST. PETERSBURG – The 2nd District Court of Appeal cleared the way for state investigators to examine the bank records of the Rev. Henry Lyons, the leader of the National Baptist Convention USA.

Lyons, of St. Petersburg, is under investigation by the State Attorney’s Office, the U.S. Attorney’s Office and the Baptist organization. All are questioning Lyons’ financial dealings, including how he spent money from a church building fund and his dealings with Bernice Edwards, a convicted embezzler with whom he owns a $700,000 waterfront home.

A circuit judge ruled that the bank should release Lyons’ records to investigators, but Lyons appealed, citing privacy concerns. A three-judge appeal court panel said it could find no reason to overturn the circuit court’s decision. (8/23/97)

Judge orders FAU to pay attorney's fees in suit

WEST PALM BEACH – A judge ordered Florida Atlantic University to pay $8,595.90 in attorney’s fees and court costs to a former dean who successfully sued the university for access to public records.

Sandra K. Norton won the suit against FAU last year. She said university officials refused to allow her to see correspondence between the university and a philanthropist and his family over how FAU was to spend a $10 million gift. (Brechner Report, November 1996) (Decisions on File, Norton v. Catanese, Case No. CL-96-6873-AF, July 30, 1997) 

DeSoto County, company settle lawsuit over records

PORT CHARLOTTE – DeSoto County and a company that sued it, claiming the county violated the Public Records Law, have settled out of court.

Comp-Lete Food Inc., which operates a composting plant near Nocatee in DeSoto County, sued after it filed three requests for all county records pertaining to the plant. Comp-Lete said the county only responded to the second request, and then incompletely. After a judge told the county it must comply with the Public Records Law, the company said it still would take the suit to trial to show that the county had violated the law.

However, the company later decided to drop the suit, saying it had proved its point. Both sides agreed not to pursue further litigation or court costs.

Nocatee residents repeatedly have complained to the DeSoto County Commission that the odor from Comp-Lete’s plant is unbearable. The county is considering hiring an odor expert to find the source of the smell, which Comp-Lete insists is not coming from its plant. (6/11/97-8/13/97)

Sun-Sentinel wins Brechner Award

GAINESVILLE – The Fort Lauderdale Sun-Sentinel won this year’s Joseph L. Brechner Center for Freedom of Information Award for its series "Quick Cash with Few Questions." The series focused on Fort Lauderdale pawnshops that operate as fronts for criminals to convert stolen goods into quick cash.

The articles shed light on Florida’s new pawnbroking act and the little known provision that exempted pawn slips from Florida’s public records law. The public records exemption made it impossible for them to discover the pawner’s name and more difficult for crime victims to recover their goods.

After the Sun-Sentinel series, new legislation was introduced and passed that allows crime victims access to the pawn slips.

The Honolulu Star-Bulletin and the Daytona Beach News-Journal received special commendations for their series on freedom-of-information issues.

The $3,000 cash award recognizes excellence in reporting about freedom-of-information and First Amendment issues. The award will be presented at the Florida Sunshine Summit on Oct. 17 on the University of Florida campus.

Fee and court costs continue to add up for access violations

Since 1981, media and non-media litigants have obtained at least $815,035 in attorneys’ fees and court costs in public records and open meetings cases, according to data compiled by the Brechner Center for Freedom of Information.

In a related study, Brechner Center data indicate that 96 public officials and employees have either pleaded no contest or guilty or were convicted of criminal or civil charges under the Public Records and Open Meetings laws in 23 cases since 1978. At least 11 officials were either removed or suspended from office. None were jailed, but some were ordered to pay fines or perform community service. In some cases, charges were dropped in exchange for commitments to study the open-government laws.

The Brechner Center last studied fees and court costs in 1994 (Brechner Report, April 1994) and prosecutions of public officials and employees in 1992 (Brechner Report, February 1992). Since 1994, fees and court costs in records and meetings cases have been at least $153,093.90. Since 1992, 15 public officials have pleaded no contest or guilty or have been found guilty of violations.

To date, the single largest amount of legal fees and court costs obtained in a public records or meetings case is $100,000. In 1991, the St. Petersburg City Council and the Chicago White Sox agreed to pay that amount to the St. Petersburg Times after the newspaper was denied access to a draft lease between the city and the professional baseball team. The case stemmed from the 1988 negotiations for the team to move to St. Petersburg from Chicago.

The following chronology lists cases in which fees or court costs have been awarded or government actions have been nullified because of Public Records or Open Meetings law violations. Next, there is a list of cases in which public officials or employees have been convicted by juries, found guilty by judges or pleaded guilty to violating the open-government laws. This listing is based on a survey of past issues of The Brechner Report and its predecessor, The Freedom of Information Clearing House Newsletter. For a more complete and up-to-date list of fees and costs paid and prosecutions, see the Brechner Center Web site at http://www.jou.ufl.edu/brechner/brochure.htm.

NOTE: An update on the number of public officials and employees prosecuted for violations of the records and meetings laws will appear in a later addition of the Brechner report.

JULY 1997 -- Judge John J. Hoy, 15th Judicial Circuit, ordered Florida Atlantic University President Anthony J. Catanese to pay attorneys’ fees and costs of $8,595.90 to a former dean who won a public-records lawsuit against the university.

JUNE 1997 -- The Lantana Town Council voted to pay a local resident $1,426 in legal fees to settle a lawsuit in which the town was accused of violating the Open Meetings Law. The town did not admit wrongdoing. The resident sued after the town released a statement indicating the council had decided in secret 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.

JUNE 1997 -- Judge Robert Boylston, 12th Judicial Circuit, ruled that Ken Peterson, a private citizen, was entitled to recover attorneys’ fees from the city of Anna Maria in a public records suit against the city. Peterson had to wait 26 days for records, which Boylston said was unreasonable and constituted an unlawful refusal to produce public records.

MAY 1997 -- The 3rd District Court of Appeal ruled that a Miami-Dade Community College committee’s recommendation to award a contract was void because the panel violated the Open Meetings Law. The court said that a committee appointed by the college purchasing director to review and rank proposals for providing flight-training services at Kendall-Tamiami Airport was subject to the Open Meetings Law but failed to give public notice of its meetings.

MAY 1997 -- Martin County commissioners admitted violating the Open Meetings Law by settling lawsuits in closed-door meetings and agreed to pay The Palm Beach Post $15,900 in attorneys’ fees. The Post had sued in February after learning that the commission had agreed to settle a number of lawsuits in executive session without taking a public vote on the settlements. The settlements were approved in a public vote at the same meeting in which the commission voted to settle the Post lawsuit.

APRIL 1997 -- The city of Fort Pierce agreed to pay $15,000 in legal expenses incurred in a public records dispute by The Stuart News/Port St. Lucie News, although the city did not admit any wrongdoing. The dispute stemmed from a memo written by City Manager Dennis Beach saying that a reporter for the newspaper could not view public documents without a written application, an appointment and Beach’s approval. Also, the city was charging the newspaper 10 cents more per copy for public records than other newspapers.

NOVEMBER 1996 -- The Duval County School Board agreed to pay The Florida Times-Union $25,000 for attorneys’ fees in a court action filed by the paper seeking the release of transcripts of closed school board meetings.

SEPTEMBER 1996 -- The 5th District Court of Appeal held that the town of Eatonville must pay attorneys’ fees and court costs after violating the Public Records Law. Michael Barfield sued the town after being denied access to public records related to the opening of a topless club in the town. He sought $65,000 in attorneys’ fees from the town.

SEPTEMBER 1996 -- The Palm Beach County School Board agreed to pay $39,000 in attorneys’ fees and court costs to resolve a public records action filed by the Fort Lauderdale Sun-Sentinel and The Palm Beach Post. The board had refused to release a survey that was commissioned by the board and conducted by a private research company.

AUGUST 1996 -- Judge R. Wallace Pack, 20th Judicial Circuit, ordered State Attorney Joseph P. D’Allessandro to pay $2,054 for attorneys’ fees and court costs incurred by the Fort Myers News-Press after the paper obtained a court ruling releasing portions of a surveillance audio-tape recording of a Fort Myers city council member.

JUNE 1996 -- To resolve a public records action filed by the St. Petersburg Times, Tampa General Hospital stipulated in court documents that it illegally withheld public records about the search for a new president of the public hospital. The hospital agreed to pay $12,100 to the newspaper for attorneys’ fees and court costs.

FEBRUARY 1996 -- The 5th District Court of Appeal held that Dunnellon Mayor Larry Winkler violated the Open Meetings Law by not naming two attorneys who attended a private city council meeting. The city was ordered to pay nearly $17,000 for the attorneys’ fees of Dunnellon police Sgt. Luis Aran, a non-media party who had requested the records.

SEPTEMBER 1995 -- The 4th District Court of Appeal upheld a lower court’s order that ruled invalid a contract awarded by the Port Everglades Port Authority. The port authority’s selection and negotiation committee had asked bidders on a port authority project to leave the meeting room voluntarily while their competitors presented proposals.

JULY 1995 -- The 4th District Court of Appeal upheld a lower court’s judgment that declared invalid a land-swap contract between Broward County and Nathan and Maria Conner because the contract had not been acted upon by an official county body at a public meeting.

MAY 1995 -- A 1st Judicial Circuit judge ordered the Florida Department of Law Enforcement and the Okaloosa County Sheriff’s Department to pay more than $6,200 to the Northwest Florida Daily News for attorneys’ fees and court costs incurred to obtain access to a convicted serial killer’s confession.

MARCH 1995: The Ocala Star-Banner was awarded $5,473 for attorneys’ fees and court costs after gaining access to police records dealing with a 1989 criminal complaint filed against a private citizen who later became a city employee.

NOVEMBER 1994: After a court order commanding the City of St. Petersburg to permit St. Petersburg Junior College to inspect and copy certain documents, a 6th Judicial Circuit court awarded the college attorneys’ fees incurred in the court action.

OCTOBER 1994: The 2nd District Court of Appeal awarded attorneys’ fees to a law firm that had sued to gain access to water authority records. The trial court had refused to award Smith & William’s attorneys’ fees for its litigation against the West Coast Regional Water Supply Authority. Smith & William’s sued the water authority to gain access to records of payments to private attorneys handling water authority litigation.

Tobacco companies agree to remove billboard ads

WEST PALM BEACH – As part of their settlement with the State of Florida, five tobacco companies agreed to remove advertisements for tobacco products from all billboards in the state, with special attention to billboards within 1,000 feet of schools or playgrounds.

The state sued the major tobacco companies to recoup the money the state said it spent in social-service programs to aid people suffering from tobacco-related illnesses. The tobacco companies agreed to pay the state more than $11 billion and made other concessions, including the advertising ban.

In addition to billboards, the tobacco companies agreed to stop using "transit advertisements," such as signs on vehicles and ads in or near bus stops, taxi stands, waiting areas, train stations, or airports. If billboards are near schools or playgrounds, the tobacco companies agreed to make every effort to remove their ads or allow the state to put up anti-smoking ads in their place for the remainder of the billboard contracts. (Decisions on File, State of Florida v. American Tobacco Co. et al., Case No. 95-1466 AH, 15th Judicial Circuit, Aug. 25, 1997)

Brechner Center poised to continue fight for access

By Bill Chamberlin

Jo Anne Smith and Ralph Lowenstein opened the Florida Freedom of Information Clearing House in 1977. I arrived in 1987 after Joseph L. Brechner donated funding for an eminent scholar chair and office space in the College of Journalism and Communications.

Since 1987, we have expanded The Brechner Report to a monthly publication and often print six pages rather than four. We now receive in the Brechner Center more than 500 inquiries about open meetings, open records, and other media law topics. Prof. Sandra Chance, the center’s assistant director, answers most of those questions. Prof. Chance and I frequently speak about access to government to media lawyers, journalists, citizen activists, and journalism educators.

This fall, we are publishing 10,000 copies of the revised Florida Government in the Sunshine: A Citizen’s Guide. The Media Law Sourcebook was first published in 1992, and an updated version is now available at our Web site. The Web site, http://www.jou.ufl.edu/brechner/brochure.htm, also contains recent editions of The Brechner Report and the most comprehensive available list of Florida officials punished for violating access laws or required to pay attorneys’ fees for access violations. The Web site also contains a letter that can be used when asking for public records and links to the best sites across the nation for material about access to government information.

This year the Brechner Center, working closely with Joel Campbell of Utah, now vice president of the National Freedom of Information Coalition, helped develop a home page for people seeking information about freedom of information in any state. The information is on the Web site of the NFOIC, which provided money for the project through a grant from the John S. and James L. Knight Foundation.

The center annually helps sponsor the Media Law Conference and a workshop designed to help journalists report about the courts. The center also has sponsored programming at meetings of the National Freedom of Information Coalition, the umbrella group of state FOI organizations. I am a member of the NFOIC executive board and Prof. Chance is a member of the board of directors of the Florida First Amendment Foundation and is the state sunshine chair for the Society of Professional Journalists.

This October, of course, we are sponsoring the Florida Sunshine Summit, a one-day exploration of access issues, in honor of the Brechner Center’s 20th anniversary. At the Florida Sunshine Summit, we will inaugurate the Florida Freedom of Information Hall of Fame. In addition, the center annually sponsors the Joseph L. Brechner Freedom of Information Award, which provides $3,000 to the journalists in the country providing the best writing and reporting about access to government information.

But perhaps the contributions of the center that will have the longest-lasting impact are the research publications being produced by Prof. Chance, me, and the students attracted to the Ph.D. program in media law in the college. For 10 years I have been writing the access chapter in one of the most widely used mass media law textbooks for undergraduate communications students. This month, at a national scholarly conference, I will present a paper that will challenge the traditional approach of thinking about access to government information. I was among the first published authors, working with a few of our graduate students, to provide guidelines for state laws protecting access to government information stored on computers. While we were working on that project, I encouraged the Florida Society of Newspaper Editors to take a hard look at the problem of access to computerized records. Our discussions led to a committee that developed guidelines that were considered by both the state legislative and executive branches as they adopted rules and laws affecting access to government information stored on computers.

Prof. Chance has published articles on cameras in the courtroom and the use of gag orders in courts. She and I have worked with two of our graduate students to produce the most comprehensive examination of the enforcement of open meetings laws available. The center also sponsored a study of subpoenas in the state of Florida involving Prof. Laurence Alexander of UF’s Journalism Department, a graduate student, and me. That project helped galvanize support for a shield law in this state.

Student research has led to a book about access to courts and at least a half-dozen articles on subjects such as the conflict between privacy interests and access, the secrecy of many searches for university presidents, and access to discovery records in criminal proceedings. Students have presented more than two dozen academic conference papers on access issues and many others on the First Amendment and other media law topics.

The center’s research efforts are helping everyone -- not just journalists and lawyers and not just people in the state of Florida -- to understand the issues and the importance of protecting access to government information.

Sandi and I are grateful for the opportunity to work in the center for part of its 20-year history. We are looking forward to the contributions we can make in the future.

Bill F. Chamberlin is the director of the Brechner Center for Freedom of Information and is the Joseph L. Brechner Eminent Scholar in the College of Journalism and Communications at the University of Florida.

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