The Brechner Report
Volume 23, Number 11
November 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

Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611

Table of Contents

ACCESS MEETINGS
Overcrowded room not a meetings law violation
Judge reverses access to hospital ruling

Overcrowded room not a meetings law violation

PUNTA GORDA – After more than a year of investigation, a state attorney determined that the Punta Gorda Community Redevelopment Agency did not violate Florida’s Public Meetings Law.  Citizens filed complaints with the state attorney in July of 1997, complaining that a CRA meeting violated the law because there was not enough space in the meeting room to hold everyone who wanted to watch it. The crowd overflowed into the halls and the parking lot outside the room. The city piped the meeting over speakers into the parking lot.   State Attorney Joseph D’Alessandro said in his report that the city took adequate measures to accommodate the crowd. (9/12/98)

Judge reverses access to hospital ruling

TARPON SPRINGS – A circuit judge has revised his ruling about the accessibility of hospital meetings in light of a new Florida law.  Originally, Judge Crockett Farnell, 6th Judicial Circuit, said the Helen Ellis Memorial Hospital was subject to Florida’s Open Records and Open Meetings laws (The Brechner Report, July 1998). Judge Farnell reversed his ruling after the 1998 Florida Legislature enacted an exemption to the open government laws for private, non-profit corporations leasing public hospitals.    Judge Farnell said that the hospital fits the requirements of the exemption, and is therefore not subject to open government laws. (9/25/98 – 9/26/98)

Police must release records about informer’s payments

ST. PETERSBURG – The 2nd District Court of Appeal ruled that the St. Petersburg police must release records regarding payments to an informer during the past decade.   Public Defender Bob Dillinger sought the records. The city argued that releasing the information would compromise the safety of informers.   The court ruled that because the informer’s identity had been revealed when he testified in a criminal trial last year, the police department should release to Dillinger the records pertaining to the dollar amounts paid to the informer, omitting information about the informer’s assignments. (9/12/98)

Collier County did not violate records law

NAPLES - A Collier County circuit judge ruled that the county did not violate Florida’s Public Records law when it failed to produce zoning records.   Businessman Samuel Smart filed suit against the county after several requests for records regarding a road near his property. Smart wanted to prove that the road was private, so he requested any records from the county showing the road was public. An assistant county attorney said filling the request was impossible because the county had no records showing the road was public.  Judge Ted Brousseau, 20th Judicial Circuit, said the county did not violate the law because the records did not exist. (10/4/98)

Securities dealers’ information should be open to public

TALLAHASSEE – Securities dealers’ applications and disciplinary reports are public records, according to Attorney General Bob Butterworth.  Butterworth issued an opinion that said that such records are open to the public because they are used by the Department of Banking and Finance to license and regulate securities dealers doing business in Florida.   Butterworth also said in AGO 98-54 that the records should remain accessible to the public even though they are stored and maintained by two national organizations, the National Association of Securities Dealers and the North American Securities Administration Association. The organizations maintain the records electronically in the National Association of Securities Dealers Central Registration Depository, a clearing house of information.   In Florida, when a public agency delegates its responsibility to maintain records it uses to perform its functions, the records should remain accessible to the public, Butterworth said. (8/28/98

Candidate not subject to records law

TALLAHASSEE – An unopposed candidate running for election should not be considered a member-elect for purposes of Florida’s Open Records and Open Meetings laws until after the election, according to Attorney General Bob Butterworth.  Butterworth said in AGO 98-60 that the election must first take place before a candidate is considered a member-elect by the Florida Election Code. Therefore, the candidate does not have to comply with open records and meetings laws until after the election. (10/1/98)

Campus bookstore must share professors’ orders

DADE COUNTY – An appellate court ruled that a private bookstore is required to share professors’ book requests for two Florida universities.  Barnes and Noble, an on-campus bookstore at Florida Atlantic and Florida International universities, distributed forms that professors filled out requesting certain books be carried by the bookstores.  The Third District Court of Appeal ruled that the book requests are public records and Barnes and Noble is the custodian of those records.    Booksmart, a private bookstore, asked for access to the forms, claiming they were public records. Booksmart wanted copies of the forms so it, too, could stock the books professors would be using for their classes. The trial court in the 11th Judicial Circuit had denied Booksmart’s request.  Barnes and Noble argued that the completed forms were trade secrets and that the company was not acting as an agent for the universities.   The forms are made and used in connection with university business, and therefore should be open to any member of the public, the court said. Booksmart’s reasons for accessing the forms are irrelevant in the case, the court said. (8/19/98)

Official arrested for illegal access

FORT PIERCE – A county commissioner was arrested after allegedly directing employees to illegally obtain computerized voter rolls, according to the Florida Department of Law Enforcement.  Former County Commissioner Ken Sattler was charged with computer theft, a felony, and violating state election codes, a misdemeanor.    The two employees he directed to get the voter rolls were also charged. Bob Searl, director of automated services, and William Klimovich, a systems analyst, got the names and addresses of all voters in St. Lucie County for Sattler.   Sattler admitted to the FDLE that he had asked the county employees to get the records, bypassing the records custodian, because it was taking too long for the custodian to fill his records request.  Sattler, who resigned his position as county commissioner after his arrest, and Klimovich admitted to illegally accessing the records, according to the FDLE. Klimovich told the FDLE in an affidavit that he accessed and copied the records out of friendship and the possibility of career advancement.  Sattler used the voter rolls to send political flyers to republicans in his failed bid for re-election in October. (10/8/98)

Palm Beach revises store’s advertising requirements

PALM BEACH -- The Town Council of Palm Beach revised its original proposed advertising restrictions, which would have required a new Neiman Marcus department store to promise to advertise in publications that serve only Palm Beach.  The council was attempting to limit the number of nonresident shoppers in the store. (The Brechner Report, August, 1998)  After members of the media expressed their concerns with the constitutionality of the provision, the town council revised the provision to require Neiman Marcus to advertise mainly in media that targets the town’s limits. But the store is not prohibited from advertising outside the town’s limits. (10/1/98)

Model may move forward with lawsuit

WEST PALM BEACH – The 4th District Court of Appeal has cleared the way for a model to sue an insurance company for defamation over photos the insurance company used for advertising.  Paul V. Facchina Jr. sued Mutual Benefits Corp., claiming that the insurance company implied in advertisements that he was a homosexual dying from AIDS. The insurance company advertises benefits for the terminally ill in publications directed toward homosexuals. Facchina said he had signed a contract with the company that said the photographs would be used solely in relation to advertising for life insurance policies and "related interests."  The appellate court ruled that Facchina can move forward on his complaint against the insurance company. Facchina is seeking damages for humiliation, loss of reputation, severe emotional distress and loss of employment opportunities and profits. (9/23/98)

Felon’s suit against paper dismissed

TAMPA – A circuit judge dismissed a convicted felon’s defamation suit against the Tampa Tribune.  Raymond McMahon sued the newspaper, claiming a columnist defamed him by publishing a column just before McMahon’s parole hearing that included information from a third party that may have been false. McMahon is serving a life sentence after being convicted of two counts of first-degree murder. He has also served a two-year sentence for kidnapping a 7-year-old girl, and he was charged and jailed for entering a hospital and cutting open patients’ surgical gowns.  Judge James S. Moody, 13th Judicial Circuit, said he dismissed McMahon’s claim because the libel proof doctrine bars an action such as McMahon’s. According to the libel proof doctrine, a person’s reputation may be so badly tarnished that the person cannot be further injured by allegedly false statements. (Decisions on file: McMahon v. Tribune Co., Case No. 01-98-862, Sept. 20, 1998)

Court questions definition of public figure

ORLANDO – The Second District Court of Appeal reversed the dismissal of a defamation complaint against the Florida Democratic Party.  C.C. "Doc" Dockery sued the FDP claiming that it defamed him by distributing flyers that said he and his wife were under investigation for tax evasion. Dockery’s wife was running for a seat in the Florida House of Representatives at the time the flyers were distributed.   The trial court dismissed Dockery’s suit because it said that he fit the definition of a public figure. The appellate court said that the trial court came to that determination without evidence. Therefore, the appellate court overturned the dismissal. (8/21/98)

Lake Worth paper sued for libel

LAKE WORTH – A Lake Worth man filed a libel suit against The Lake Worth Herald Press after the newspaper inaccurately reported charges against him.  The paper reported that Michael Sarge was arrested and charged with "causing death/bodily injury while driving with a suspended license." Sarge had been arrested and charged with driving with a suspended license. The newspaper published a retraction.  Sarge filed a $15,000 libel suit against the paper, claiming that the discrepancy injured his reputation and exposed him to hatred and ridicule. (9/3/98)

New Jersey series wins Brechner Award

GAINESVILLE – A reporter from The Asbury Park Press, a New Jersey daily newspaper, won the 13^th Annual Joseph L. Brechner for Freedom of Information Award for a series on the state’s antiquated public records law.  Paul D’Ambrosio won the award for his series, "The Right to Know Nothing," which showed that the law worked against citizens attempting to access government information. The series also profiled a failed reform bill which would have made all government documents, whether stored on paper or computerized, open to the public unless specifically exempted. The bill moved slowly through the legislature. After several rewrites, the bill lost its effectiveness and failed at the end of the session.  The Brechner Center will give D’Ambrosio a $3,000 cash award during an awards ceremony Nov. 9. (10/12/98)

By Susan Tilloston Mills

Two recent decisions of Florida appellate courts signal a welcome judicial trend toward disregarding privatization as a means of shielding government activity from public scrutiny. Both cases recognize that private companies that provide private services in place of the government may be treated as government agencies under Florida’s Public Records Act based merely on the nature of the services they provide.

The Act extends to records of private companies who act "on behalf of" government agencies. Government agencies are delegating more and more of their responsibilities to private companies. Florida citizens are now invoking the "on behalf of" provision of to get a peak at records of the private companies that do business with the government. In response, the Florida Supreme Court in Sun Sentinel v. Schwab Twitty & Hanser developed a multi-factor test that required consideration of several factors to determine whether a private company was acting "on behalf of" the government agency.

The application of this test potentially requires extensive – and expensive – discovery before the court can decide whether a private contractor is acting "on behalf of" the government. As a result, it may seem cost-prohibitive for a citizen to gain even simple records from private contractors. Inevitable, this economic reality will deter many otherwise legitimate public records requests.

Schwab Twitty involved a private contractor that provided its services to a governmental agency. The Florida Supreme Court determined that the architectural firm was not subject to the public records law. Florida courts are beginning to acknowledge the marked difference between a company like Schwab Twitty and private companies that contractually assume responsibility for a governmental function. That is, while some private companies merely provide services to the government, others provide a service to the public in place of the government.

It makes little sense to distinguish between the records of a government agency providing essential services and a private company providing the same services. It makes no sense to allow private contractors to hide behind a test that requires the cost-prohibitive discovery before the public can review the records that would have been easily reviewable in the hands of the government. Such and outcome merely offers greater incentive to the government to privatize essential functions and avoid the mandates of the Act.

In Stanfield v. Salvation Army, the Salvation Army had agreed to administer the misdemeanor probation services for Marion County. The court concluded that the Salvation Army was not merely providing a service to Marion County; rather, it was providing a service in place of Marion County. In this situation, the court decided as a matter of law that the Salvation Army was acting "on behalf of" Marion County. No extended or protracted litigation concerning the individual factors was necessary.

More recently, the Lakeland Ledger requested certain records from Prison Health Services, a private company that had provided medical services to Polk County inmates. The records concerned the disposition of a lawsuit filed by an inmate’s widow, alleging inadequate medical care. Like the Salvation Army, PHS and the county explicitly agreed that PHS’s records, at least as they pertained to health care, were public records. Nevertheless, PHS refused to produce the records and insisted that the trial court could only decide whether PHS had been acting "on behalf of" the county after a prolonged discovery process.

Based on the contract, the trial court concluded that PHS had acted "on behalf of" the county and granted summary judgement. The court further held that in refusing to surrender the records, PHS had acted unlawfully, which means that an award of attorney’s fees would be permissible. The Second District Court of Appeal affirmed both conclusions and awarded appellate attorney’s fees. PHS has asked the Florida Supreme Court to review both rulings under its discretionary authority.

Stanfield and PHS make it clear that Florida courts will not permit public agencies to avoid the spirit of the Public Records Act by out-sourcing their important functions. If a private company agrees to provide government services in place of the government, it should be prepared to open up the relevant records for inspection.

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