The Brechner Report
Volume 22, Number 9
September 1998

A monthly report

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Allyson Beutke, Production Assistant
• Jennifer Page, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Activist acquitted of trespassing
Attorney General defines access to nonprofit agencies

PRIVACY
Golfer files privacy suit against newspaper

DEFAMATION
Judge dismisses suit against News-Press

REPORTER'S PRIVILEGE
Case against reporters will not be pursued

COURTS
Court overturns judge's block on access
Court rules private jail health service open

ADVERTISING
Bar reaches settlement with attorney

ACCESS RECORDS
Newspaper denied access to city personnel records
Judge to review access to religious records
Politicians request public records for campaigns
Possession does not determine custody

NEWS & NOTES
Bar to sponsor courts workshop

THE BACK PAGE
Hospital exemption subverts open government laws

Activist acquitted of trespassing

GULFPORT -- A jury acquitted a community activist of trespassing and disrupting an assembly.

John Freiberger was arrested at an April Gulfport City Council meeting after he refused to stop talking after a council member ruled him out of order. Freiberger was questioning whether the city had violated the state Open Meetings Law.

Freiberger's comments were technically out of order because the Council had reconvened as the city's redevelopment agency. When Freiberger refused to stop talking, he was led away in handcuffs by police. (7/23/98)

Attorney General defines access to nonprofit agencies

TALLAHASSEE – Two opinions from Attorney General Bob Butterworth shed light on whether nonprofit agencies that work in conjunction with government agencies are subject to Florida’s Open Meetings Law.

Butterworth said in Attorney General Opinion 98-47 that a nonprofit agency that works with a government agency but does not perform functions integral to the government agency’s decision-making process is not subject to the open meetings law.

Butterworth said in Attorney General Opinion 98-49 that a nonprofit agency that fulfills the functions of a former county agency is subject to Florida’s Open meetings Law. The determining factor is whether the agency acts on the government agency’s behalf. When a public agency delegates its powers to a private agency, the private agency is subject to the Open Meetings Law, Butterworth said, and any meetings during which the private agency is to take official action should be open to the public. (7/14/98 - 7/31/98)

Judge says hospital meeting should have been open

TITUSVILLE -- A public hospital’s committee meeting during which it reviewed and ranked six construction companies bidding for work should have been open to the public, according to a circuit judge.

Suncam, Inc., a Miami video company, sued Parrish Medical Center because the hospital would not allow the video company to attend and videotape the meeting with the construction companies. (Brechner Report, June 1998) The committee sent its recommendations to the hospital’s governing board, and the governing board voted unanimously to accept the committee’s rankings.

Judge Bruce W. Jacobus, 18th Judicial Circuit, said that the hospital committee meeting should have been open to the public because meetings during which a public agency’s employees rank, select or eliminate candidates for planning, design or construction contracts are subject to Florida’s Open Meetings Law. (7/28/98)

Golfer files privacy suit against newspaper

MELBOURNE -- Professional golfer Fuzzy Zoeller filed suit against Florida Today and sports columnist Peter Kerasotis over a satirical column.

Zoeller claims in a suit filed in U.S. District Court in Orlando that the column was dishonest and fraudulent and invaded his privacy.

The April 12 column poked fun at comments Zoeller made in 1997 about golfer Tiger Woods after Woods won the Masters Tournament. Zoeller publicly apologized after making comments many people viewed as racist about Woods after the tournament. The column attributed a number of statements to Zoeller that poked fun at ethnic stereotypes.

Zoeller's suit said the column made him appear unrepentant and bigoted and indicated he learned nothing from the Woods incident. (7/11/98)

Judge dismisses suit against News-Press

FORT MYERS – A circuit judge dismissed a defamation suit against the Fort Myers News-Press brought by a former Lee County Sheriff's’s Department employee.

Former undersheriff David Wilson contended that the paper had published an article about him that contained a number of defamatory statements, including that he was nearly indicted by a federal grand jury. Judge R. Wallace Pack, 20th Judicial Circuit, said that none of the statements were actionable.

Previously, Judge Pack dismissed several defendants in the case because they were improperly notified. (Brechner Report, May 1998). Judge Pack determined that notice served to a newspaper is not sufficient notification for specific publishers, editors or reporters. (7/21/98)

Case against reporters will not be pursued

WASHINGTON -- The U.S. Attorney's Office for the District of Columbia will not pursue a case against two St. Petersburg Times reporters whom a congresswoman accused of harassing her.

U.S. Rep. Corrine Brown, D-Jacksonville, filed a complaint with Capitol Police after reporters David Dahl and Bill Adair asked her questions in the corridor of a Capitol office building. The questions concerned a $50,000 luxury car Brown's daughter received as a gift from a convicted felon.

Brown refused to answer the questions and filed a complaint accusing the reporters of conspiring to impede a member of Congress, a federal crime punishable by up to six years in prison. Brown also tried to get the reporters' press credentials revoked.

The Times reported that the car was a gift from Foutanga Sissoko, a West African millionaire who Brown tried to keep out of prison after he pleaded guilty to bribing Customs officials. Brown's daughter said she sold the car after questions were raised about the gift and donated the proceeds to a scholarship fund. (8/1/98)

Court overturns judge's block on access

TAMPA – The Second District Court of Appeal overruled a trial judge’s decision to close access to his courtroom. The trial judge had closed his courtroom during a hearing about whether three people charged with manslaughter should be granted a new trial.

Circuit Judge Robert Mitcham, 10th Judicial Circuit, closed access to the hearing when a defense attorney argued that he should be allowed to present testimony against a prosecutor accused of intimidating a witness. Judge Mitcham had also sealed the transcripts of the two-hours of testimony during the closed part of the hearing.

The trial centers on three people charged with manslaughter after they pulled up a stop sign as a prank. As a result of the stop sign being removed, three men drove into the path of an oncoming truck and died.

The Tampa Tribune, WFLA-TV and the St. Petersburg Times filed an emergency petition with the court of appeal. The court overturned Judge Mitcham’s decision and ordered the transcripts unsealed. (7/31/98 – 8/1/98)

Court rules private jail health service open

TAMPA – The Second District Court of Appeal affirmed a trial court’s ruling that a private jail health service is subject to Florida’s Open Records Law. The Lakeland Ledger newspaper sued Prison Health Services, Inc. because the health service refused to provide information to the paper regarding a lawsuit settlement in connection with an inmate’s death. (Brechner Report, January 1998) Prison Health Services, Inc. is a private company paid with public funds.

The appellate court affirmed the trial court’s ruling because the private company was working on behalf of the sheriff, and the company agreed to comply with Florida’s Public Records Law in its contract. (7/22/98)

Bar reaches settlement with attorney

CLEARWATER -- The Florida Bar and Clearwater lawyer Thomas Carey have reached a settlement over a magazine article that the Bar said was improper advertising. Terms of the settlement were not disclosed.

The Bar took disciplinary action after a laudatory article about Carey appeared in Tampa Bay Magazine. The article appeared under the byline of Aaron Fodiman, the magazine's publisher, but Carey's former publicist told the Bar he wrote the article, not Fodiman. The former publicist, who filed the complaint with the Bar, said the article was a payoff for Carey's purchase of a full-page ad in the magazine.

Fodiman and Carey both denied that there was a link between the ad and the story. The Bar said before the settlement that Carey had editorial control over the article and that some of the laudatory statements violated Bar advertising rules. (7/15/98)

Newspaper denied access to city personnel records

ST. PETERSBURG – A circuit judge denied the St. Petersburg Times’ attempt to gain access to documents relating to the firing of the Pinellas Park assistant city manager.

The newspaper asked for access to a diary kept by one employee and a memo that was placed in the former assistant city attorney’s personnel file. A city employee created the diary on his home computer and the paper contended it was used as evidence for the assistant city manager’s termination. (Brechner Report, August 1998)

Circuit Judge John Lenderman, 6th Judicial Circuit, said the document was a private diary and unrelated to city business. Judge Lenderman said that because the diary was never brought to city hall or used for a city purpose, it does not fit the definition of a public record. Judge Lenderman said that memo was also not open for public inspection because it was prepared in anticipation of a lawsuit and contained litigation strategy. (8/6/98)

Judge to review access to religious records

TAMPA – A circuit judge has agreed to review his ruling that granted access to Church of Scientology file on a former follower.

In March, Circuit Judge James S. Moody, 13th Judicial Circuit, granted the estate of Lisa McPherson access to the records kept about her courses and counseling sessions with the church. The second District Court of Appeal declined to review Moody’s decision. McPherson died of a blood clot in her left lung after spending 17 days in the care of church staff members. McPherson’s family filed a wrongful death suit against the church.

Church officials said they hope Judge Moody will reverse his decision in light of a new law regarding religious freedom. The Florida Legislature enacted the Religious Freedom Restoration Act of 1998 in June, and it mandates that government agencies – including the courts—should not burden the free exercise of religion without a compelling government interest. (8/6/98)

Politicians request public records for campaigns

TALLAHASSEE -- Election-year politics is leading to some unusual public records requests, state officials say.

For example, Tim Ireland, a Republican challenger to Democratic Insurance Commissioner Bill Nelson, has requested a litany of documents that includes all documents dealing with insurance rate increases from Jan. 1, 1995 to Jan. 1, 1998, a list of every homeowner whose insurance policy was canceled during the past four years, and a list of all Insurance Department employees. The Joint Underwriting Association, Florida's government-backed insurer of last resort, has sued to block Ireland's request for a database containing the name and address of every policy-holder.

The state Republican Party agreed to pay $26,000 in copying fees for the records Ireland requested, The Orlando Sentinel reported. Ireland found that Nelson's office was doing business with Swiss banks accused of withholding money owed to Holocaust survivors. Nelson promised to reevaluate the contracts.

Pat Gleason, general counsel for the Attorney General's Office, said she could not remember a year when there were so many public records requests. Officials in a number of state offices said challengers to incumbents from both parties are using public records to try to find something they can use against the incumbents. (7/19/98-8/98)

Possession does not determine custody

WEST PALM BEACH -- The 4th District Court of Appeal ruled that mere physical possession of a record was not enough to show that a person had "custody" of it as defined in the Public Records Law.

In a per curiam decision, the appeal court agreed with a circuit judge's ruling that West Palm Beach police officer Mark Mintus should be denied a writ of mandamus ordering the city and police department to comply with the Public Records Law.

Section 119.07(1)(a) of Florida Statutes says that "every person who has custody of a public record" must permit inspection of the record. Mintus said he asked police Lt. Ronald A. Kirkman if he could see a copy of another officer's file. Kirkman refused to provide a copy, and the court ruled that even though Kirkman temporarily had the file he did not have "custody" of it. The court defined custodians as "all agency personnel who have it within their power to release or communicate public records."

The court said Mintus could request the file from the officer who did have custody of all such files if he wished to do so. (6/24/98)

Bar to sponsor courts workshop

WEST PALM BEACH – The Florida Bar will sponsor a workshop for journalists who cover courts or Florida Law.

Veteran judges, attorneys, editors and reporters will share their expertise to help reporters from all mediums better understand the judicial process.

Participation is on a scholarship basis, which covers workshop materials, hotel accommodations and meals. For more information, contact Toyca Williams, director of public relations for the Florida Bar, at (850)561-5600, extension 5766. (8/19/98)

Hospital exemption subverts open government laws
By John Kaney 

Should the corporate veil be a nightshade for state agencies seeking to evade the Sunshine law? That would be the effect of an exemption for public hospitals adopted in the 1998 legislature.

At the urging of lobbyists for several hospital corporations who had assumed they were beyond the reach of open government laws before the decision in News-Journal Corporation v. Memorial Hospital--West Volusia, Inc., (review pending in Supreme Court), the legislature adopted an exemption that allows any public hospital in Florida to defeat the public right of access by undergoing a simple change in its form of organization.

In short, the exemption allows any public hospital in Florida to evade the public right of access solely by changing the entity through which it operates from that of a state agency to that of a corporation controlled by the state agency. The public hospital thereby gains exemption for all records and all meetings of the corporation regardless of the content of the records or of the discussion in the meetings.

The exemption covers all records and all meetings of any corporation that leases a public hospital provided that it meets certain criteria stated in the statute. The ostensible purpose of these criteria is to deny exemption to corporations under the "control" of the public lessor.

The criteria are illusory. The draftsman of a lease could assure the corporate lessee qualified for the exemption merely by inserting some harmless provisions into the lease. For example, the lessee will be exempt if the lease states (i) the funds of lessee and lessor shall not be commingled; (ii) the lessee is not required to comply with open government laws; and (iii) the lessee may not participate in the decision-making process of the lessor.

If these criteria are satisfied, or if certain other equally innocuous criteria are met, then all meetings and all records of the corporate lessee are exempt from the public meetings and public records clauses of the Constitution. The statute grants this exemption because, so it says, "applying the standard codified in this act, the public entity does not retain control over the private entity."

The control test is bogus. In the example, the lessee would be exempt even if its corporate board served at the pleasure of the district board and even if the district board also reserved the power to approve or veto any motion or resolution approved by the corporate board. For that matter, the lessee would be exempt even if the district board itself served, ex officio, as the board of directors of the corporation.

This gaping loophole was not an oversight because the legislature rejected an earlier draft that would have denied exemption when public officials made up a majority of the board. The legislature intentionally granted exemption without concern with whether the district truly controls the lessee.

For hospitals, compliance with open government is now voluntary. There is no significant impediment to the not-for-profit conversion that invokes this expansive exemption.

Aside from the constitutional issue, which is presently being tested, the exemption is troubling on several grounds:

The exemption endorses a sham. It blesses transactions concocted for the purpose of evading the open government laws. An old tax professor once observed that in a land that levied taxes on mules, someone would paint stripes on his mule and call it a zebra. Those corporations that escape the Sunshine under this new exemption are striped mules.

The exemption applies not to a particular record or meeting but to a corporate entity. This is a worrisome precedent with far-reaching potential. It would allow agencies to evade the open government laws by draping themselves with the corporate veil. Even the thinnest gauze of "privatization" could avoid Sunshine under statutory exemptions modeled after this one.

The passage of the exemption is a defeat for the advocates of Sunshine that shows, once again, the strength of the special interest over the public interest. The focused attention of a particular affected interest too often prevails over the diffuse interests of advocates of open government. It is rare that the generalized appeal to the values of open government will persuade the legislature to reject a well-organized lobbying campaign by an affected special interest.

Perhaps most troubling of all is the Orwellian doublespeak of the exemption. The act's definition of "control" means exactly the opposite of what it says. The act pretends to serve the value of open government but in fact subverts it.

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