The Brechner Report
Volume 22, Number 5
May 1998

A monthly report:

• Michele D. Bush, 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

Table of Contents

ACCESS MEETINGS
AGO: Hospital meetings open

BROADCASTING
Tampa man guilty of 14 FCC charges

FIRST AMENDMENT
Bible history curriculum lawsuit settled

PRIVACY
Police seize newspaper’s bathroom camera

COURTS
Notice only to newspaper not enough
U.S. Supreme Court rules in favor of tax refund
Judge refuses gag order in molestation case
State withdraws TV station’s subpoena for tourists’ tape
Attorney general’s memos about litigation not public
London’s sanctions delayed for appeal
Fort Myers mayor denies hitting reporter
City manager’s negotiations not a violation

ACCESS RECORDS
Judge allows access to medical records
DEP director charged with open records violation

THE BACK PAGE
Government wasting money opposing public access

ACCESS MEETINGS

AGO: Hospital meetings open

TALLAHASSEE – Florida Attorney General Bob Butterworth has determined that the board of directors of a nonprofit company that operates a publicly owned hospital is subject to Florida’s Open Meetings Law and is required to hold public meetings.

Butterworth’s opinion in AGO 98-21 was in response to an inquiry resulting from the 5th District Court of Appeal’s ruling in News-Journal Corporation v. Memorial Hospital-West Volusia. In that ruling, the court also held that a nonprofit foundation operating a municipal hospital is subject to Florida’s Open Records and Open Meetings laws. (Brechner Report, July 1997) The Supreme Court of Florida is currently reviewing the court’s determination in that case.

Three bills before the Legislature, SB 748. SB 1044 and HB 3585, would provide exemptions from the Open Meetings and Open Records laws for private corporations leasing public hospitals.

In the same opinion, Butterworth also determined that an exemption to Florida’s Open Meetings Law that allows attorney-client communication to remain secret does not apply when litigation has not been filed. The exemption to the law allows attorney-client privilege only for pending litigation, but not in instances when both parties involved believe litigation, which has not yet been filed, is inevitable. (3/19/98)

BROADCASTING

Tampa man guilty of 14 FCC charges

TAMPA – A man faces prison and fines after a jury found him guilty of 14 criminal counts of operating an unlicensed radio station.

Arthur Kobres, 54, was found guilty for broadcasting "Lutz Community Radio," which aired anti-government programming on an FM radio signal. Each of Kobres’s 14 counts represents a day Federal Communications Commission agents detected transmissions from his home. Each charge carries a possible two-year prison sentence.

Kobres had argued that he didn’t think he needed a license from the FCC based on his interpretation of the U.S. Constitution and an FCC manual he obtained in the 1960s. (2/26/98)

FIRST AMENDMENT

Bible history curriculum lawsuit settled

FORT MYERS – The Lee County School Board settled its suit with the ACLU over a bible history class by dropping the controversial class and paying $95,000 in legal fees.

Instead, the school district will offer a class called Introduction to the Bible, which teaches the Bible as a book that has existed in history, but not a book that contains accounts of historical facts.

The suit arose after the school board approved two classes for high school curricula, one class on the New Testament and one class on the Old Testament, both teaching the Bible as historic facts. U.S. District Judge Elizabeth Kovachevich, of the Middle District of Florida, had ruled the New Testament class unconstitutional because there was no way to teach it as secular history while remaining objective. (Brechner Report, March 1998).

The new class, as were the other two classes, is an elective for high school students. (2/27/98)

PRIVACY

Police seize newspaper’s bathroom camera

FRANKLIN COUNTY – A state attorney launched an investigation into allegations that the Apalachicola Times videotaped employees in the paper’s unisex bathroom.

The bathroom camera was part of a video-surveillance network installed to deter theft. Three to four cameras were positioned throughout the newspaper’s offices and transmitted images to a monitor in the general manager’s office. The bathroom camera was camouflaged and positioned directly over the toilet.

Police seized the camera and 29 videotapes. After sheriff’s deputies seized the equipment and announced the ongoing investigation to employees, five women walked off their jobs. (3/14/98)

COURTS

Notice only to newspaper not enough

FORT MYERS – A circuit judge held that notice letters served on a newspaper, rather than to specific editors, publishers or reporters, do not satisfy Florida’s presuit notice requirement.

Judge R. Wallace Pack, 20^th Judicial Circuit, dismissed several defendants in Wilson v. Gannett Co. Inc., et al. on the grounds that the plaintiff sent notice only to the News-Press Publishing Co., Inc., but not to the newspaper’s parent company, the chairman and board of directors of the parent company, the former publisher of the paper, two reporters and three editors.

The plaintiff, David Wilson, filed a defamation suit against the News-Press because of an article the paper wrote concerning his retirement. (3/25/98)

U.S. Supreme Court rules in favor of tax refund

Washington, D.C. – The U.S. Supreme Court ruled that Newsweek magazine is entitled to a refund of the sales tax it paid for the magazine prior to Florida declaring the tax unconstitutional.

Florida exempted newspapers, but not magazines, from its sales tax as of Jan. 1, 1988. In 1990, the Florida Supreme Court held the exemption unconstitutional and magazines were also exempted.

Newsweek filed suit for a refund of the taxes it paid between 1988 and 1990. Florida law allows taxpayers to seek refunds for taxes paid under unconstitutional statutes. The trial and appellate courts denied Newsweek’s request for a refund on the grounds that the magazine had the opportunity to file a prepayment tax challenge.

The U.S. Supreme Court held that Newsweek reasonably relied on the availability of a postpayment refund when it paid its taxes. Therefore, it should be granted its refund. (Decisions on file: Newsweek, Inc. v. Florida Department of Revenue, U.S. Supreme Court, No. 97-663, Feb. 23, 1998)

Judge refuses gag order in molestation case

STUART – A circuit judge refused to place a gag order on participants in a $1 million sexual molestation lawsuit against Palm City Community Baptist Church.

Judge Larry Schack, 19th Judicial Circuit, said there wasn’t enough evidence that the plaintiff’s attorney was attempting to taint a jury pool by speaking with reporters about the case. However, Schack warned attorneys against talking to reporters, and he said he intends to refer further comments to the Florida Bar.

The plaintiff in the case is a 14-year-old boy who said he was molested by a church volunteer, a convicted sex offender. (3/18/98).

State withdraws TV station’s subpoena for tourists’ tape

MIAMI – The state’s attorney withdrew a subpoena served on WPLG-TV that attempted to force the television station to release a videotape that showed an altercation between two Fort Lauderdale police officers and a man they were arresting.

The 4th District Court of Appeal affirmed a lower court’s ruling requiring the station to hand over the tape, which the television station received from Polish tourists who witnessed the altercation. (Brechner Report, April 1998) The court also issued a stay withholding the surrender of the tape until the television station could argue against the appeals court’s ruling before the Florida Supreme Court.

The state wanted to use the tape to contact the tourists to question them about the incident, but it dropped the subpoena after finding the sources without it. (4/3/98)

Attorney general’s memos about litigation not public

TALLAHASSEE – The Florida Supreme Court held that memos in Attorney General Bob Butterworth’s files concerning a convict on death row are not subject to Florida’s Open Records Law because the memos are work product.

Florida grants an exemption for records prepared by an agency’s attorney during civil or criminal litigation that reflect the attorney’s mental impressions, litigation strategies or legal theories.

Terrell M. Johnson requested access to any memos concerning his death sentence and conviction contained in Butterworth’s files. When the request was denied, Johnson sued Butterworth, alleging that the work product exemption discriminated against death penalty defendants because the files are typically disclosed at the end of all litigation – or when the death sentence has been carried out.

The Court held that if the documents are work product, they never will be disclosed, therefore making no distinction between death-sentenced inmates and all other inmates. (3/19/98)

London’s sanctions delayed for appeal

GAINESVILLE – Judge Martha Lott, Eighth Judicial Circuit, approved a motion to delay any sanctions against Sondra London, former fiancee of convicted killer Danny Rolling, until after London’s appeal.

London is appealing an order to turn over to the state money she received in connection with the sale of Rolling stories and merchandise. London had been required to produce the money and accounting within five days of the trial court’s order. When she didn’t, prosecutors had asked the court to impose sanctions.

Judge Lott is allowing the matter of sanctions to be held until the 1st District Court of Appeal hears London’s case. (3/21/98)

Fort Myers mayor denies hitting reporter

FORT MYERS – The Mayor of Fort Myers denies that he hit a News-Press reporter during an argument about a story about manatees. Mayor Bruce Grady was charged with one count of battery.

The altercation between Grady and reporter Roger Williams occurred just before a public meeting Feb. 9. Williams was asking the mayor if the city had researched the impact on the manatee population of proposed high-speed ferries. The discussion escalated when the mayor invited the reporter to "step outside." Williams said that it was then that the mayor shouted profanities at him and hit him open-handed on the neck. Grady’s attorney said that physical contact between the two parties occurred, but he would not characterize it as hitting.

Grady entered a written plea of not guilty. (3/28/98 – 4/7/98)

City manager’s negotiations not a violation

PUNTA GORDA – Judge William McIver, 20th Judicial Circuit, ruled that a city manager’s negotiations with a developer did not violate Florida’s Public Meetings Law.

The Sun Coast Media Group sued the city of Punta Gorda, alleging that the city manager’s negotiations with a developer violated the law because a government agency cannot delegate decision-making authority to a committee or person without making the decision-making process open to the public.

Judge McIver ruled that based on the records of public meetings, the city manager’s meetings with the developer did not violate the law. The Sun Coast Media Group is appealing McIver’s decision. (3/3/98 – 4/6/98)

ACCESS RECORDS

Judge allows access to medical records

DADE CITY – A circuit judge allowed prosecutors access to a defendant’s medical records to find evidence corroborating witness testimony.

Judge Maynard Swanson, 6th Judicial Circuit, allowed prosecutors to subpoena Kelly Stephenson France’s medical records from the day of a car accident in which France was charged with driving drunk and leaving the scene of the accident. France suffered a broken leg in the accident, and a passenger in the car was paralyzed.

Prosecutors were looking for results of a hospital-administered blood test and any observations of France’s behavior by doctors or nurses. France’s attorney, Assistant Public Defender Michael Tewell, argued that releasing the records violated France’s right to privacy. (3/11/98)

DEP director charged with open records violation

PENSACOLA – An administrator for the Department of Environmental Protection has been charged with violating Florida’s Open Records Law.

Bobby Cooley, regional director for the DEP in Pensacola, is accused of violating the law by requiring records requesters to surrender driver’s licenses or other forms of identification while viewing public records.

State Attorney Curtis Golden’s office filed the civil complaint against Cooley because according to Florida law and attorney general opinions, a records custodian may not require identification as a condition of access to public records. (3/22/98)

THE BACK PAGE

Government wasting money opposing public access

By Robert Rivas

The Brechner Report occasionally publishes an update of its ongoing project to keep track of how much money state government agencies spend in attorney’s fees awarded by courts to people who were forced to bring a lawsuit to obtain access to public records or meetings. At last count, when the update was published in October 1997, the total came to $815,035. While that may seem like a lot of money, it is only a fraction of the amount wasted by government agencies to oppose the public.

A lawsuit I filed in 1996 provides a case in point. The October 1997 Brechner Report included this entry in its ever-growing tally:

July 1997 -- Judge John Hoy, 15th Judicial Circuit, ordered Florida Atlantic University to pay attorney's fees and costs of $8,595.90 to a former dean who won a public-records lawsuit against university President Anthony J. Cantonese.

I brought the lawsuit on behalf of Dean Sandra K. Norton because FAU gave an overbroad interpretation to an exemption from the Public Records Law. The exemption applied on the records of the FAU Foundation, a separate entity from FAU, but FAU tried to claim that all letters to and from President Cantanese are exempt from public disclosure if they happen to make reference to fund-raising.

The suit was filed on August 8, 1996. Public records actions usually move more swiftly, and this one certainly did. A final hearing was held on August 20, 1996. FAU was represented by its in-house attorneys.

Judge Hoy entered an order on August 30, 1996 requiring President Cantanese to give up the public documents Dr. Norton sought. Cantanese immediately gave them up, deciding not to appeal.

At this point, the case was over in three weeks.

Still there remained the little matter of determining how much FAU had to pay my client to reimburse her for the attorney’s fees she had spent. I demanded $12,073. Admittedly, this amount was high because it included some amounts that FAU would insist were not recoverable. I expected to negotiate for something less.

Instead, FAU hired outside counsel, the West Palm Beach firm of Boose Casey Ciklin Lubitz Martens McBane & O’Connell, to mount an aggressive opposition to the award of attorney’s fees and costs. The litigation dragged on for 11 months. At various times, five attorneys and four paralegals fought the battle.

Their final bill: $29,018.

This is the measure of a government agency’s respect for the taxpayer’s money: FAU spent 11 months in litigation over a fee claim when the underlying lawsuit took only three weeks. Talk about the tail wagging the dog. FAU spent $29,018 to oppose paying a claim of $12,073, knowing all along that it would have to pay some amount of the claim, and in the end, having to pay $8,585.90 of the claim. SO FAU spent $37,603.90 through mid-1997 to fight paying $12,073 in mid-1996.

And that’s not counting the value of time spent by the FAU staff attorneys to oppose the public records lawsuit before Boose Casey Ciklin entered the case only to oppose the claim for fees.

The next time you see the Brechner Report’s update on attorney’s fee awards, you can only wonder how much the taxpayers are really spending to oppose open government.

Robert Rivas is a media lawyer in Boca Raton. In 1993, Rivas initiated an effort to update the Brechner Center’s tally of attorney’s fee awards that began in 1991.

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