Volume 21, Number 11
A monthly report by:
Brechner Center for Freedom of Information
- Anthony L. Fargo, Editor
- Jackie Thomas, Production Coordinator
- Sarah Rabin, Production Assistant
- Stacey Silver, 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
Attorney-client privilege doesn't apply to board
City agrees to part of
Estero fire board members fined
DCA says law firm can
stay in access fight
UF changes tenure
and promotion committee rules
dismissal of net fisherman's lawsuit
Supreme Court to be on TV
AGO: Conflict of laws should go to court or
Anna Maria ordered to turn
orders child-abuse file opened after girl, 7, dies
agency can't charge for electronic search
Report says Charlotte
sheriff acted legally
settle dispute over Web site
80 public officials since 1978 punished for access violations
THE BACK PAGE
death no excuse to trash First Amendment
privilege doesn't apply to board
TALLAHASSEE The attorney-client privilege does not apply
to relationships between public school boards and their attorneys, Attorney General Bob
In an advisory opinion, Butterworth told John Bowen, the Pinellas
County School Board attorney, that his conversations with individual board members and the
superintendent are not covered by the attorney-client privilege because only the school
board as a whole is his client. Discussions between the board and its attorney are subject
to the Open Meetings Law, which generally requires that discussions of school business be
conducted in public, with some exceptions for specific legal matters.
Also, any notes that the board attorney takes during a meeting
with a member are subject to the Public Records Law, Butterworth added.
Butterworth also wrote that an attorney does not violate any due
process or privacy rights of individual members if he discusses their conversations with
other members or the superintendent. However, Butterworth said, an attorney must not act
as a go-between among members to sidestep the Open Meetings Law.
Bowen sought the opinion after some Pinellas County School Board
members criticized him for not keeping conversations they had with him confidential. (Decisions
on File, Fla. Atty. Gen. Op. 97-61, Sept. 15, 1997) (9/18/97-9/24/97)
agrees to part of paper's contention
WEST PALM BEACH The city agreed to publicly advertise
lawsuits it settles for more than $30,000 after The Palm Beach Post raised
questions about the way the city disposed of suits.
The newspaper contends that state law requires a public hearing
and vote for a lawsuit settlement of more than $5,000. The Post reported that West
Palm Beach routinely settled lawsuits without public discussion.
The city agreed that the law required it to vote publicly and
hold hearings before settling some lawsuits. However, the city contends that state law
allows it to settle claims of between $5,000 and $30,000 without a public vote unless the
suit involves a dispute between two governments.
The Post has filed a lawsuit against the city of Boca
Raton, which claims it lawfully can settle suits of up to $100,000 without a public
hearing, to determine what the dollar limit is. (9/7/97-9/11/97)
board members fined
ESTERO Three members of the Estero Fire Commission pleaded
no contest to charges of violating the Open Meetings Law and were fined $250 each. A
fourth member, convicted in a July trial on the same charge, was fined $500.
Georgia Gates, George Horne and John Kelley pleaded no contest
and agreed not to seek reinstatement to the fire board. In return, Lee County Judge Edward
Volz agreed to withhold a formal finding of guilt, meaning that the three board members
can petition later to have their criminal records sealed.
Judge Volz also withheld a formal adjudication of guilt for
Vernon Conly, who was convicted of violating the Open Meetings Law in July. Gov. Lawton
Chiles, who had suspended all four board members from office pending the outcome of their
cases, formally removed Conly from office after his trial. (Brechner Report,
The charges against the fire board members stemmed from a meeting
in April. The four members called a meeting to order, voted on one item and adjourned
before most members of the public could get into the meeting room and find a seat. The
doors to the room were locked until time for the meeting to start, witnesses said. (Brechner
Report, June 1997 and July 1997) (9/23/97)
says law firm can stay in access fight
VERO BEACH The 4th District Court of Appeal
refused to disqualify the law firm representing Frank Zorc, a real estate agent suing Vero
Beach over an alleged Open Meetings Law violation.
The city filed a motion to disqualify Zorcs attorneys, who
work for Cobb Cole & Bell of Daytona Beach, because the law firm mediated an unrelated
dispute between the city and a contracting firm. The Court of Appeal affirmed a decision
by Judge Charles Smith, 19th Judicial Circuit, that said the law firms handling of
the dispute and Zorcs suit did not amount to a conflict of interest.
Zorc is appealing a ruling by Judge Robert Makemson, 19th
Judicial Circuit, earlier this year. Judge Makemson ruled that there was no evidence that
the city violated the Open Meetings Law when it met secretly to discuss possible
litigation involving a tenant at the city-owned airport. Zorc contends the discussion went
beyond the litigation to include his demand that the city test his airport property for
contamination. (Brechner Report, March 1997) (7/16/97-9/4/97)
changes tenure and promotion committee rules
GAINESVILLE The University of Florida has halted a
long-standing practice of holding secret tenure and promotion committee meetings after the
universitys general counsel said UF might have been breaking the law inadvertently
for six years.
General Counsel Pam Bernard said a change in state law in 1991
required that meetings of decision-making bodies be open to the public unless the group
was specifically exempted by the Legislature. There is no exemption for meetings of tenure
and promotion committees. Previously, Bernard said, it had been assumed that a meeting at
which documents exempt from the Public Records Law would be discussed was not subject to
the law. Written evaluations of faculty members by their peers are exempt from the Public
UF President John Lombardi and Provost Elizabeth Capaldi sent a
memorandum to UFs vice presidents, directors and deans telling them to change tenure
and promotion practices immediately. Lombardi and Capaldi also told administrators that
any review process underway should start over to conform to the new rules.
Lombardi and Capaldi said deans at UFs colleges still could
form committees on tenure and promotion, but the committees could only do "fact
finding" for the dean and could not make recommendations. Some committees at UF
already performed in this way, but other deans encouraged committees to recommend whether
a candidate should be promoted or granted tenure. (10/12/97)
upholds dismissal of net fisherman's lawsuit
TALLAHASSEE The 1st District Court of Appeal
upheld the dismissal of a group libel suit filed by 436 commercial net fishermen against
four Jacksonville-area television stations.
A three-judge panel unanimously held that the group was too large
for any one member to be defamed individually by advertisements supporting a
constitutional amendment to restrict net fishing in Florida waters. The amendment passed.
Judge L. Haldane Taylor, 4th Judicial Circuit, dismissed the suit
in January 1996. Judge Taylor noted that group libel cases filed by more than 25 people
consistently have been dismissed. (Brechner Report, March 1996)
The ad that aired on WJKS-TV, WAWS-TV, WTLV-TV and WJXT-TV was
bought by a group called Save Our Sealife Inc., which supported the amendment. The
fishermen said that the ad falsely portrayed them as "irresponsible, indiscriminate
killers" of sea life, including dolphins and sea turtles. (Decisions on File,
Janie G. Thomas et al. v. Jacksonville Television Inc. et al., Fla. 1st DCA, Case No.
96-706, Sept. 25, 1997)
to be on TV
TALLAHASSEE The Florida Supreme Court will be on
television for one week in November.
The Florida District Learning Networks board agreed to give
the court free air time for a week to broadcast oral arguments before the court. Chief
Justice Gerald Kogan, who asked for the time, said he believed televising oral arguments
would help the states residents better understand the workings of the court system.
The FDLN controls a state-owned satellite and its board decides
who can broadcast over it. The FDLN often sells its satellite time to commercial networks,
but agreed to give the court a one-month trial to see how much interest the oral arguments
The oral arguments will be broadcast the week of Nov. 3. The
broadcasts will be available to local-access channels, schools and universities.
The Supreme Court generally has not allowed cameras in its
courtroom, but Chief Justice Kogan has shown a willingness to change that. In September,
he authorized a live television broadcast of oral arguments in a case challenging the
constitutionality of Floridas electric chair. (9/11/97-9/17/97)
AGO: Conflict of laws
should go to court or Legislature
TALLAHASSEE Attorney General Bob Butterworth said the
courts or the Legislature, not his office, are the best places to resolve a conflict
between a Public Records Law exemption and another state law.
Orange County Comptroller Martha Haynie sought the opinion after
police officers asked her to expunge any identifying information about them from records,
including real estate records. Haynie refused, stating that Florida law required her to
keep the real estate records open and unaltered.
However, a Public Records Law exemption requires records
custodians to delete identifying information about law enforcement officers and their
families from public records if the officers request the deletions. Haynie has refused
three such requests in two years.
Butterworth wrote that there was a conflict between the laws,
especially in regard to real estate records, which need to be accurate and complete to
protect homeowners from title claims. He suggested that a clerk of courts could come up
with a way to expunge the identifying information from records open to the public while
keeping the unaltered records elsewhere. But he said the best way to get a definitive
answer on how to resolve the conflict would be for the clerk to seek a declaratory
judgment in court or ask the Legislature to clarify the laws. (Decisions on File,
Fla. Atty. Gen. Op. 97-67, Sept. 25, 1997) (9/20/97)
Maria ordered to turn over records
ANNA MARIA A judge ordered city officials in Anna Maria to
provide records to a local newspaper within 48 hours.
The Islander Bystander weekly newspaper reported that it
verbally asked for a copy of an engineers pipeline study in July. The paper followed
up with written requests for the information twice in August, and also requested financial
records for the Anna Maria City Pier and an application for a building permit.
The paper said it was told that some of the records were not
available, that one of its requests was "too vague," and that it would have to
fill out a "Copy Request Form." The form, according to the newspaper, stated
that the mayor must approve all requests for copies of public records.
Judge Paul E. Logan, 12th Judicial Circuit, ruled that the city
could not require mayoral approval for copy requests. He ordered the city clerk and mayor
to comply with the newspapers records requests within 48 hours or appear in his
chambers for a hearing two weeks later to explain why they had not complied. The newspaper
reported that the city complied with the request. (9/13/97-9/17/97)
Judge orders child-abuse file opened after girl, 7, dies
TAMPA A judge ordered the state Department of Children and
Families to open the confidential files of its investigation into child abuse allegations
against the mother and stepfather of a child found dead in Ohio.
Judge Gregory Holder, 13th Judicial Circuit, said he hoped that
information in the files could be used to help find Seleana Gambles siblings.
Department of Children and Families investigation files are nearly always confidential
under exemptions to the Public Records Law.
Newspaper reports said the files showed that the Department of
Children and Families investigated accusations of violent and sexual abuse of Seleana and
her siblings at the hands of their mother and stepfather, Mona and Jack Volgares. But the
department could never find any proof of child abuse.
The body of a girl, believed to be Seleana, 7, was found in a
trash can in Ironton, Ohio, where the Volgares family lived after leaving Florida.
Neighbors said the rest of the family, which includes three other children, left and gave
conflicting stories about where they were going. (9/14/97)
says agency can't charge for electronic search
TALLAHASSEE A judge has ruled that a state agency may not
charge for the time it takes to screen electronic messages before releasing the
information to members of the public.
Judge Charles D. McClure, 2nd Judicial Circuit,
said under the Public Records Law the state Department of Transportation could charge 15
cents per page for paper copies of the messages. However, he said that the company
requesting two years worth of e-mail messages from the DOT should not have to pay
for access problems caused by the DOTs internal decisions about what software to buy
and how to store electronic messages. He also said the company should not be charged for a
review of the records by DOT attorneys to delete exempt information.
Cone & Graham, which is working on a road project in
Hillsborough County for the DOT, requested all e-mail messages sent between 17 DOT
employees over a two-year period. The company and the DOT agree that the messages are
public records. The DOT stores messages automatically for 25 days, then sends the messages
to an electronic file for 425 more days. After that, the messages are stored permanently
on magnetic tape.
The agency said it would take 16 hours of overtime work for
employees to sift through the e-mail files and find all the messages between the 17
employees. DOT attorneys would then have to go through the files to delete Social Security
numbers, trade secrets and other information exempt from the records law. (9/18/97)
says Charlotte sheriff acted legally
PORT CHARLOTTE State investigators concluded that no laws
were broken when documents about the detention of Sheriff Richard Worchs son at the
county jail were altered or destroyed.
State Attorney Joseph DAlessandro, whose office called for
the investigation by the Florida Department of Law Enforcement, said no crime was
committed because the documents were not public records yet.
Worch took his teen-age son to the Charlotte County jail after
the son punched the sheriff in the nose during a domestic dispute. Worch eventually
decided not to file charges, and Sheriffs Office and jail records about the
detention were destroyed or altered.
DAlessandro said the arrest process had not been completed
when the sheriff decided not to file charges, so the records produced up to that point
were not open to the public. However, the state attorney did recommend that Worch review
jail policies about record keeping to avoid future problems. (8/28/97)
NFL settle dispute over Web site
JACKSONVILLE The National Football League and The
Florida Times-Union settled a dispute over the newspapers use of photographs of
the Jacksonville Jaguars team on the papers Web site.
The dispute arose after the NFL demanded that newspaper
photographers covering the Jacksonville-Charlotte preseason game sign a waiver prohibiting
them from posting photographs on the Internet. The NFL explained later that its waiver
policy was designed to protect its broadcast rights to real-time coverage of games against
the Internet, which it saw as a competitor to broadcasters.
While the Times-Union and the NFL were negotiating the
waiver issue, the league also raised questions about the papers Jaguars Web page.
The NFL said the Web page looked too much like an official team Web page, and it also
objected to the paper using its photos of players and game action in what the league
called a "noneditorial section" of the Web site. Newspaper editors responded
that the Web site was an extension of the newspaper and the NFL had no right to try to
control its content.
The NFL later dropped its waiver policy and agreed not to
challenge the Times-Unions Web site, at least for now. In return, the paper
placed its disclaimer that the Jaguars page was not affiliated with the team or the NFL in
a more prominent position. (8/7/97-8/23/97)
public officials since 1978 punished for access violations
By R. Michael Hoefges and Anthony L. Fargo
At least 77 public officials and employees have either been
convicted of violating the Open Meetings Law and Public Records Law or have pleaded guilty
or no contest since 1978, according to data compiled by the Brechner Center for Freedom of
At least 11 officials were either removed or suspended from
office in connection with accusations of violating the meetings or records laws. 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 reported on prosecutions
of public officials and employees in 1992 (Brechner Report, February 1992). Since
1992, at least 18 public officials have pleaded no contest or guilty or have been found
guilty of violations.
The following chronology lists cases in which public officials or
employees have been convicted by juries, found guilty by judges or pleaded guilty or no
contest to violating the open-government laws. The listing includes cases in which charges
were dropped in exchange for commitments to study the Open Meetings and Public Records
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 prosecutions, see the Brechner Center Web site at
http://www.jou.ufl.edu/brechner/brochure.htm, which is updated monthly.
SEPTEMBER 1997 Lee County Judge Edward Volz accepted
no-contest pleas from three former members of the Estero Fire Commission and sentenced the
three, plus a fourth member convicted in a July trial. All four Fire Commission members
were suspended by Gov. Lawton Chiles after they were charged by the State Attorneys
Office with violating the Open Meetings Law. In April, members of the public complained
that the fire board kept them out of a meeting room until the moment a meeting was
supposed to start, then voted on one item and adjourned before most people could find
seats. (Related story, page 1.)
JUNE 1997 -- The City of Opa-Locka paid a $500 fine, $108 in
court costs, and made a $500 donation to the United Way after former City Manager Earnie
Neal pleaded guilty to violating the states Public Records Law. Neal said he ignored
35 records requests from his predecessor as city manager, Dennis Whitt, because the
requests were frivolous and amounted to harassment.
MAY 1997 -- The Florida Supreme Court removed a Broward County
judge from office for falsifying public records. In a 5-2 vote, the justices removed
County Judge LaRan Johnson for back-dating records in 42 to 57 DUI cases in order to
reduce her caseload.
JUNE 1996 -- Dade Metro Commission Chairman Arthur Teele Jr.
agreed not to contest a civil Open Meetings Law charge and to pay a $250 fine. The State
Attorneys Office alleged that Teele met secretly in 1994 with Commissioners Bruce
Kaplan and Maurice Ferre, who paid fines in 1995 to settle similar charges against them.
(See AUGUST 1995 for more information).
AUGUST 1995 -- Two Dade County commissioners agreed to pay fines
stemming from civil charges of Open Meetings Law violations. Bruce Kaplan agreed to pay
$500 and Maurice Ferre agreed to pay $250 to settle charges that they met secretly in
December to discuss the selection of a new county manager.
MARCH 1995 -- On the eve of his scheduled trial, Kenneth City
Mayor Harold Paxton pleaded no contest to violations of the Open Meetings Law. Paxton was
fined $400 in court costs. The charges stemmed from six closed meetings that Paxton
allegedly attended in 1991 and 1992 regarding city construction projects.
AUGUST 1992 -- In December 1992, a Hernando County judge found
school board member Diane Rowden guilty of one misdemeanor count of violating the Open
Meetings Law. She was fined $322 and ordered to pay court costs and spend four hours
reading the Government-in-the Sunshine Manual. Rowden pleaded no contest to
12 other misdemeanor and two non-criminal charges during her trial. Governor Lawton Chiles
removed Rowden from office, but changed his order to a suspension after the Florida
Supreme Court said he did not have authority to remove her from office. Subsequently, the
Florida Senate voted in March 1994 not to reinstate Rowden. School board members Susan
Cooper, Paul Clemmons, Nancy Gordon, and Leland McKeown pleaded no contest to charges in
January 1993. As part of their plea agreements, they agreed to study the Open Meetings
SEPTEMBER 1991 -- Seven Sumter County Board of Adjustments
members, three Big Corkscrew Island fire commissioners and two former Center Hill City
Commission members were charged with violating the Open Meetings Law. Charges against five
of the 12 accused were dropped when the fire commissioners and former council members
agreed to study the law and perform 5-10 hours of community service.
MAY 1991 -- Open Meetings Law violation charges were dropped
against eight members of a Eustis advisory committee after they agreed to spend four hours
studying the Government-in-the-Sunshine Manual.
APRIL 1991 -- Seven Highlands County officials pleaded no contest
to non-criminal Sunshine Law violations. Four county commissioners and a former
commissioner were charged with hiring a county attorney by secret ballot. One commissioner
and two county administrators were charged with holding a secret meeting to double the
county attorney's salary. Adjudication of guilt was withheld, and each defendant paid $25
in court costs.
The Brechner Center would like to receive information about other
open meetings or public records cases in which a public official or employee has been
prosecuted. The Center also would like to receive additional or updated information on any
of the cases listed in the chronology. If you would like to bring any information to our
attention, please contact us by mail, telephone, or fax:
Attention: Editor, The Brechner Report
Brechner Center for Freedom of Information
College of Journalism and Communications
University of Florida
P.O. Box 118400
Gainesville, FL 32611-8400
death no excuse to trash First Amendment
By Sandra F. Chance
Like millions of Americans, I was stunned and
heartbroken when I heard about the tragic accident that killed Princess Diana.
The world's anger, not surprisingly, was immediately directed at
the out-of-control paparazzi and at the media in general. Attacking the media
sometimes with good cause -- has become one of the worlds most popular sports.
The rush to judgment was on. There was an immediate outcry for
new laws to protect celebrities privacy, followed by the quick introduction of
legislative solutions to control the paparazzi. For example, one California lawmaker has
proposed legislation that would require photographers to stay at least 15 feet from
subjects who dont want their pictures taken. Jane Fonda's ex-husband, state Sen. Tom
Hayden, wants to ban telephoto lenses altogether. In Congress, California's Rep. Sonny
Bono is attempting to ban "egregious or unacceptable behavior" by photographers.
These proposals and others like them are ill conceived and
blatantly unconstitutional. They are also wonderful examples of the worst kind of
pandering to rich and famous constituents and to the publics need to blame someone
for this tragedy.
But, as the old legal axiom goes, bad facts make bad law. And the
facts do not get any worse than the fatal accident that prematurely ended the life of one
of the worlds most popular public figures.
Nevertheless, these attempts to restrict photographers would
ultimately infringe on more mainstream news gathering efforts and stomp on the First
After all, we already have laws designed to prevent this type of
accident. It is illegal to drink too much and drive. It is illegal to speed. And it is
illegal to invade someone's privacy and intentionally intrude on his or her seclusion in a
highly offensive manner.
These laws protect all of us, including celebrities, from peeping
Toms, eavesdroppers, electronic surveillance and stalkers. No one, including the news
media, can legally stalk, harass, trespass or unreasonably intrude on anyones
In Florida, we are protected by Statute 784.048, which makes it
illegal to willfully, maliciously, and repeatedly follow or harass another person.
Violators can be criminally prosecuted.
In addition to filing criminal complaints, celebrities can file
civil suits. For example, Jacqueline Kennedy Onassis won an injunction 25 years ago
against a photographer, Ron Galella, who hounded her and her family.
Celebrities can also organize boycotts, as George Clooney did
against the television show Hard Copy. But let us not forget that many celebrity
critics of media coverage are actually skilled manipulators who use the media for their
own ends. Take, for example, Clooneys diatribe on the media and tabloid journalists.
How did he get his message out? He called a press conference. It is somewhat hypocritical
for a celebrity who invites and depends on public attention to demand special protection
when it arrives.
Ideally, all journalists would behave responsibly and abide by
the Society of Professional Journalists Code of Ethics. This code encourages journalists
to recognize that gathering and reporting information may cause harm or discomfort.
"Pursuit of the news is not a license for arrogance,"
according to the code, which also encourages reporters and photographers to "show
good taste" and "avoid pandering to lurid curiosity."
On that Saturday night in Paris, the paparazzi probably went too
far in their manic quest for a celebrity photograph. But imposing more severe restrictions
on photographers to protect celebrities will not solve the problem.
A free and vigorous press is essential in our delicate system of
checks and balances on power. The First Amendment must not be another casualty in this
Sandra F. Chance is assistant director of the Brechner Center
and an assistant professor of journalism at the University of Florida.
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