Volume 22, Number 6
A monthly report:
Brechner Center for Freedom of Information
- Michele D. Bush, Editor
- Jackie Thomas, Production Coordinator
- Allyson Beutke, Production Assistant
- Jennifer Page, Production Assistant
- Sarah Rabin, 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
to keep cameras from courtrooms denied
changes meetings procedures to comply with law
Former members drop bug board
hospital after access to meeting denied
Members may participate
out $1 million libel suit over cartoons
Judge dismisses paper,
publisher from suit
Suit against radio station
Hours" ordered to hand over tape
Governor signs bill for shield
Reporters sue TV station over
seals Versace photos
Judge bans activist from
Students suspended for
THE BACK PAGE
Access to electronic
records improved, not perfect
to keep cameras from courtrooms denied
MIAMI Two circuit judges denied separate murder defendants
motions to block cameras from their courtrooms.
In one case, Juan Carlos Chavez, who was being tried for raping, killing
and dismembering a 9-year-old boy, attempted to keep cameras out of the courtroom during
his trial to protect his right to a fair trial. However, Judge Marc Schumacher, 11th
Judicial Circuit, held that Chavez can be assured a fair trial with alternative measures
such as questioning potential jurors and instructing them properly. Also, Judge Schumacher
said, much of the information that concerned the defendant was already published,
therefore offering little justification for closing the proceedings.
Rory Conde, also known as the "Tamiami Strangler," also filed
a motion to keep cameras out of the courtroom during his pretrial proceedings. Conde was
accused of murdering six prostitutes. Circuit Judge Gerald Bagley, 11th
Judicial Circuit, held that Conde failed to prove that cameras in the courtroom during the
proceedings would have a substantial effect on the jury. Judge Bagley also said that Conde
failed to show that cameras would have a more detrimental effect than other types of media
coverage. Therefore, Bagley denied Condes motion. (1/16/98 - 4/22/98)
University changes meetings procedures to comply with law
GAINESVILLE The University of Florida has changed its tenure and
promotion meeting procedures, but it still plans to bar public access.
The university decided to revamp its procedures after a legal opinion
from a university attorney said that its procedures for closing access to the tenure and
promotions meetings may have violated Floridas Open Meetings Law.
The new procedures allow faculty to cast secret ballots for tenure and
promotion candidates, and individual faculty members will be allowed to make tenure and
promotion recommendations to administrators. However, faculty committees will not make
recommendations to the president, but instead will serve as fact-finding bodies.
Committees that strictly gather and report information without making
recommendations are exempt from Floridas Open Meetings Law. (4/17/98 4/30/98)
Former members drop
bug board suit
KEY WEST Two former member of the Monroe County Mosquito Control
District dropped a lawsuit against mosquito control board members that alleged violations
to Floridas Open Meetings Law.
In their 1997 lawsuit, Greg Scott and Dennis Wardlow had alleged that
board members Steve Smith and Bill Shaw had conspired in private to fire Scott and
Wardlow. (Brechner Report, August 1997) According to Florida law, members of a
public body cannot discuss in private issues that may come up for a vote. (3/25/98).
sues hospital after access to meeting denied
TITUSVILLE A video company filed suit against Parrish Medical
Center claiming the hospital violated Floridas Open Meetings Law by refusing to
allow the company to film a staff committee meeting.
SunCam Inc., a Miami video company, planned to videotape a hospital
committee meeting during which three companies were to make presentations for bids for
preconstruction services for a new hospital building. The hospital committee reviewed and
ranked six companies bidding for the work.
The attorney for the hospital said the meeting was not open to the
public because the committee was not acting as a selection or advisory committee to the
board of directors for the hospital. (4/1/98)
TALLAHASSEE Florida Attorney General Bob Butterworth has
determined that members of school boards may participate in public meetings by electronic
means, such as by speakerphones.
Butterworth said, in opinion 98-28, that physically absent members may
attend public meetings via electronic meeting technology as long as a quorum of members is
physically present at the meeting site. (4/6/98).
Judge throws out
$1 million libel suit over cartoons
SARASOTA A circuit judge threw out a $1 million libel suit against cartoonist
Tom Armstrong, the creator of the nationally syndicated comic strip "Marvin."
Judge Lee Haworth, 12th Judicial Circuit, said Armstrongs comic strips are
protected by the free speech right guaranteed by the First Amendment. Armstrongs
strip is about a baby named Marvin and his parents.
Jerry Glauser, the owner of a Mercedes-Benz dealership, had filed the suit against
Armstrong after Armstrong portrayed Glauser and his son in the Marvin comic strip.
(Brechner Report, March 1998) Armstrong was unhappy with the service he received at
the dealership. After complaining to Glauser, Armstrong published six strips depicting the
main character, Marvin, talking to another baby named Chad who wants to run his
fathers car dealership when he grows up. In one strip, the Chad character said,
"I like to fib," and in another strip, he said he fabricated a charge during a
Judge dismisses paper,
publisher from suit
NAPLES Circuit Judge Hugh Hayes, 20th Judicial Circuit, dismissed the Naples
Daily News and the Collier County Publishing Company from a libel suit that stemmed
from a story about a check writing scam.
Steven Popp brought the suit against the newspaper, the publishing company, the Collier
County Sheriffs Office and First Union bank after his photograph accompanied stories about
the check scam. Popp was not a suspect in the scam. His image was recorded on security
cameras at First Union bank and passed along to the sheriffs office. The
sheriffs office gave Popps photo to the newspaper.
Hayes dismissed the newspaper and the publishing company from the libel suit because
they published little more than a press release that came directly from the sheriffs
office. Also, the newspaper did not show any malice toward Popp, and it printed a
correction after learning of the error. (4/22/98)
Suit against radio station
FORT LAUDERDALE A circuit judge dismissed with prejudice a defamation complaint
against radio talk show hosts on WFTL-AM on the grounds that the plaintiff was never
identified, and the radio personalities opinions were protected speech.
Morgan Anson filed suit against the radio station claiming that he was defamed during a
broadcast. During the broadcast in question, the radio personalities, Steven Kane and Nick
Lawrence, spoke of two unidentified men, one of whom was Anson. However, Anson was never
named in the broadcast. Judge Leonard L. Stafford, 17th Judicial Circuit, said in his
reasoning that to allow a plaintiff, who was not identified, to bring forth a defamation
suit poses an "unjustifiable threat to society."
Also, Judge Stafford said, radio talk shows are forums in which listeners expect
controversial opinions. During Kanes and Lawrences broadcast, another
broadcaster debated their opinions. Therefore, listeners had the opportunity to arrive at
different opinions, Judge Stafford said.
Judge Stafford dismissed Ansons defamation suit with prejudice. (5/4/98)
Hours" ordered to hand over tape
ST. AUGUSTINE A circuit judge in St. Johns County ordered the
television news magazine program "48 Hours" to hand over to prosecutors outtakes
of an interview.
The television program broadcast in March an interview with Tanya
Hudson, who is on trial for murdering her infant, in March. Prosecutors are seeking the
unbroadcast portions of the interview.
Attorneys for CBS had argued that the outtakes were protected by
reporters privilege. Judge Robert Mathis, 7th Judicial Circuit, ruled that such a
privilege exists only when reporters are protecting confidential sources. Therefore,
Mathis ruled, the news magazine must release the tapes. (4/10/98).
Governor signs bill
for shield law
TALLAHASSEE Governor Lawton Chiles signed into law a
journalists privilege, adding Florida to the other 29 states in the country with
such a provision.
Professional journalists in Florida now have a shield law granting them
a qualified privilege not to disclose information, including the identity of sources,
gathered while on duty.
This privilege will not apply to physical evidence, eyewitness
observations of crimes, or visual or audio recordings of crimes. The privilege also may
not apply when the information being sought cannot be obtained from other sources and when
a compelling interest exists for divulging the information.
This privilege will apply only to journalists who regularly gather and
publish or broadcast news for full or part-time "gain or livelihood." Book
authors are not covered by the shield law. (5/12/98)
Reporters sue TV station over
TAMPA Two investigative reporters for WTVT, Channel 13, filed suit against the
station alleging the station fired them in an attempt to suppress a story about a growth
hormone given to Florida dairy cattle.
Steve Wilson and Jane Akre, a husband and wife reporting team, accuse the television
station of firing them because they would not give a story about the growth hormone a
positive slant, according to news reporter. Wilson and Akre are seeking damages of more
than $15,000 for wrongful termination.
Management at the television station maintains that the reporters were fired because
they were not being objective in reporting about the use of the bovine growth hormone.
Miami judge seals
MIAMI Autopsy photos of slain fashion designer Gianni Versace
will not be released into the public domain.
Versaces brother and sister sought to block release of the autopsy
photos, but not records of the investigation into Versaces murder. Versace was shot
twice in the head on the steps of his Miami home.
Circuit Judge Fredericka Smith ordered the photos sealed because
activist from courthouse
PANAMA CITY -- A circuit judge filed an order barring a community
activist from entering the Bay County Courthouse to access court records without an escort
from a sheriffs deputy.
Circuit Judge Glenn Hess, 14th Judicial Circuit, is also requiring the
activist, Kevin Wood, to make all demands for public records in writing, except for
requests he makes directly to department heads. Wood is not to bring a tape recorder or
video camera, and he can be arrested or ejected from the courthouse if he violates the law
or becomes disruptive, according to the order.
Hess said in his order that Wood has repeatedly intimidated and harassed
court clerks. Wood once tracked down a court clerks name and address and went to her
home, and in another case, Wood called a courthouse employees home, claiming to
represent the Florida Department of Law Enforcement, according to the Panama City News
Wood said he will appeal Hesss order. (5/6/98)
Students suspended for
EAST LAKE Two high school students were suspended after circulating a newspaper
that was not approved by school administrators.
The students distributed the eight-page newspaper to classmates at East Lake High
School. The publication contained references to guns, pimps, drugs and directions on how
to make a potato cannon.
The students were suspended because of the inappropriate content of the publication and
because they did not seek approval from the schools principal before distribution.
to electronic records improved, not perfect
By Dan Keating
When I was asked by the folks at the Brechner Center for the view from
the battlefield of electronic public records, I took stock and realized something that
surprised me -- It had been more than two years since any government official had even
tried to tell me that something wasn't a public record because it was on computer. An
issue that posed such a controversy just a few short years ago has been transformed, I
guess at about the same pace that computers have changed our lives in so many ways.
It's hard in retrospect to remember how difficult the challenge was. A
shift in how people think always seems anticlimactic after the fact. For example, it
hardly seems dramatic now to argue that drunk driving is a serious crime that should not
be tolerated, or that women can do any job men can do. But if you can remember the
attitude 20 years ago, the change is amazing.
So the chance to reflect made me sit up and realize: We've won the
battle on electronic public records. Victory is ours. Let's pack up and go home.
Unfortunately, there are still a few sticking points. And even more
unfortunately, it wasn't hard to think of them. I haven't surveyed the field or reviewed
the body of court opinion. But from my working day perspective, these are ten problems
I've experienced in getting electronic public records in Florida:
1) The news that computerized information is a public record is still
filtering down to some smaller agencies and government bodies, especially
quasi-governmental agencies like the Port of Miami. While state agencies are peppered by
regular records requests and advised by up-to-date attorneys, the smaller backwaters are
surprised when we ask for things that no one has ever asked for before. Once they get over
the shock, they don't really try to claim that electronic information isn't public. But
having to educate slows things down.
2) The biggest problem in getting computerized records is the price. I
can sympathize from the point of view that information has come to be valuable in our
society, and I can understand government agencies eager to find revenues wanting to cash
in on their information. But the law
says the records are public. The problem is worsened by some commercial
businesses that don't mind paying huge sums for government data, because they make even
more by repackaging and reselling it. I recently requested an electronic copy of
Miami-Dade County's list of lobbyists and was told by a clerk that his boss had recently
ordered staff to "assess the value of data" on hand in hopes of generating
revenue. Assess all you want, I told the clerk, but don't think we're paying more than the
cost of copying.
3) A whole special subset of the cost issue is the fees charged for
computer programming. I think programming fees are the most convenient tool for
uncooperative officials who want to thwart requests for public information. Fees can
easily run into the thousands of dollars for even
a simple request. A tip that I heard a few years ago and have often
passed on is to request a printout of any programming code written on your tab. If I'm
paying for the computer program, I own it, I argue. Interestingly, I'd been making the
request for a couple years without ever getting a copy of any program. But the technique
paid off, because every time I demanded the copy of the program, programming fees
practically disappeared. Recently, I got my first printout of a program from an agency. It
was quite an eye-opener. One part of the printout instantly proved that we had been
overbilled more than $500 for computer usage. We pointed it out and they admitted they
were wrong. And for the programming, they tried to bill us more than two full days work
for less than one full page printout of relatively simple programming. I showed the
program to experts who confirmed my suspicion that it couldn't have taken more than two
hours to do. The case is in mediation, and I'm more convinced than ever that demanding a
printout of any program is the best way to fight outrageous fees.
4) A whole different problem arises with agencies established as
self-supporting enterprise funds. The saddest in my experience is the state Office of
Vital Statistics. The agency is a treasure-trove of interesting and important data. In my
experience, the employees there have been helpful. But the agency has fees set by the
Legislature for all of its information. And the fees aren't set to cover copying, but to
fund the agency. The antiquated fee structure charges the same $7 cost for a document,
whether you're asking to have one copy of a record on paper or requesting 8 million of
them electronically. I can understand some charge for getting the computerized record, but
$56 million seems excessive. The folks at Vital Statistics have been sympathetic, but the
change has to come from the Legislature. A postscript that is even sadder is that Vital
Statistics produces a wonderful annual tome of data about births, deaths, marriages and
divorces in Florida. But for the last five years, the books has gotten slimmer and slimmer
and slimmer as the agency has been able to afford to publish less of its information. So
in the information age, Florida residents are being starved of data.
5) A change that I think would benefit absolutely everyone would be
requiring that campaign finance disclosures be filed electronically. Exempting tiny
candidates who raise less than some set amount say $2,500 for starters - the system
could be quite simple. It would be very easy to include in the packet for any registered
candidate a computer diskette with a simple database program. The program could be set up
to handle campaign contributions and expenditures, to make the basic printouts required by
law and to deliver an electronic version to election clerks.
Currently, almost all candidates keep the information on a computer, but
have to pay someone to set up a program to handle it. Then the campaigns pay to figure out
how to make a printout that matches the state's required forms. Then, for statewide races,
the state takes the filed papers and pays people to punch the information back into the
computer. For local races, organizations like The Miami Herald spend thousands of
dollars having the reports typed into the computer. A new system would be better for the
candidates, better for the election supervisors, better for the media and better for the
6) An enormous pet peeve of mine is the state restriction on obtaining
an electronic copy of the list of registered voters. Implemented more than 20 years ago to
keep the Ku Klux Klan from harassing blacks who registered to vote, the law is now
counterproductive. The law lets candidates, politicians, political parties and consultants
get the voting list to do mailings. But it won't let the public get it. In fact, the
Herald obtained a copy after the recent mayoral election in
Miami, and used it to ferret out hundreds of ineligible and illegal
voters. The election was subsequently overturned. That example alone stands as a beacon
for why the roll should be public information. If the very people who are inclined to
commit vote fraud can have the information, why can't watchdogs and the general public? It
would be a lot harder to hide phony voters and out-of-town voters in an address if the
neighbors could look on the World Wide Web and see who was registered to vote on their
street. I was disappointed that the Florida Legislature did not include this provision in
election reform actions taken this year. Despite all the changes, they left in place the
legal restriction against exposing voter fraud.
7) A nagging problem with electronic records is their fleeting nature.
Unlike paper records, they don't have a natural tendency to exist forever. I'm not naive
enough to think that paper records are never destroyed, but electronic records just
naturally come and go a lot faster. New records often automatically overwrite old ones,
sometimes eliminating information that cannot be retrieved. And the mindset about
destroying electronic records is not firmly in place. We had a county commissioner who
intentionally altered and deleted thousands of fields of information after they had been
requested as a public record. We discovered the deletion. But the local state attorney
decided that the changes didn't constitute destroying public records.
8) Some legitimate restrictions on public information are being abused
to prevent access to otherwise public and valuable data. Often the most important part of
an electronic document is a field for comments or remarks, where enlightening details are
kept. But more than once I've been told that it's quite possible that a judge's home
telephone number might be in some of those comment fields, or the name of a caller to 911,
or some other legally restricted information. In those cases, I've been told the data
either has to be screened record by record, which is prohibitively time-consuming and
expensive, or the entire comment field has to be deleted. It's a no-win choice for people
trying to get public information. It seems that use of these fields as a catch-all is
increasing. To me the solution is simple, the law should say that designated fields for
restricted information can be excised, but not any field that
"might" have sensitive information. If the agencies are worried about the
sensitive information, then they should keep clean records, not assume that everything can
be kept from public inspection.
9) Sometimes agencies claim they'd be glad to hand over the electronic
records - if only they knew how. This happens more often with less sophisticated smaller
government bodies. But it can arise with the biggest when government computer systems are
designed with any thought
to allowing easy extracts of information. To me it's gross negligence to
run a public agency with a computer system that has no way to let the public share the
information. The situation ends up being a complete block on public records. It's one
thing to ask a media conglomerate to routinely pay hundreds of dollars for data from the
court system or property appraiser's office,
but could anyone argue that the information is being made readily
available to members of the general public when those charges are levied?
10) Privatization poses a serious threat when business-government deals
are cut that keep information out of the public light. A well-known case in point is
Miami-Dade County's arrangement with Florida Power & Light to create a very
sophisticated computerized mapping system of the county. The map includes the shape of
each parcel of land, as well as power lines, roads, canals, bus routes and more. The local
zoning, actual land-use and other details are kept on every single parcel of land. The
integrated system offers powerful ways of analyzing local
information. But the public can't get at it. Under the deal between the
county and FP&L, the county paid for much of the data and gets to use it. But the
information belongs to FP&L and is not available to the public. How can government
money be spent to create non-public information? That's a pattern that can lead to more
trouble in the future.
That's my list of woes. I'm sure it doesn't cover everything that's
wrong out there with electronic public records, but it gives a sampling of the
frustrations that still face us, even though we've won the war.
Dan Keating is research/technology editor of The Miami Herald.
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