The Brechner Report
Volume 23, Number 5
May 1999

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

ADVERTISING
 Transit agency bans messages from public service groups

County Attorney: art council subject to Sunshine Laws

Hendrick issued opinion at the request of Bill Andersen, who was elected a new council chairman. Two council members resigned claiming Andersen violated the Open Meetings Law by meeting privately with some board members prior to elections. The council held a public meeting and a new election for the chairman to cure the violations. Anderson won the election. (3/25 – 4/7/99)

This decision is a reaction to the recent controversy between the Church of Scientology and its critics who placed anti-Scientology ads on 10 city buses. (Brechner Report, March 1999) Scientology attorneys requested the ads be removed because they allegedly violated a 1945 state law against exposing religious groups to hatred and contempt. (2/28/99)

In 1996, ACLU filed a federal suit under the state’s Religious Freedom Restoration Act on behalf of seven local families, both Christian and Jews. The Act prohibits government from "substantially" restricting the right to exercise religious freedoms. (3/23 – 4/2/99)

In June, Judge Lewis ruled that, given the nature and volume of the materials requested, their location and the need for close supervision of the records’ review, the county’s delay in releasing the documents was not unreasonable. However, he said the county should provide Herskovitz with files containing all her medical records and legal bills or statements for legal services. (Decisions on File, Herskovitz v. Leon County, Case No. 98-22, December 29, 1998) (6/9 - 12/29/98)

In January, the Florida Supreme Court ruled that the private corporation created to run Memorial Hospital is subject to the Open Meetings and Public Records Laws because it acts on behalf of the taxing district’s Hospital Authority. The Court did not rule on the constitutionality of the 1998 exemption, but refused to apply it retroactively to the Memorial Hospital. (Brechner Report, March 1999)

Memorial Hospital’s attorney claims that it cannot comply with the Public Records Law until the court decides the constitutionality of the 1998 exemption. The News-Journal contends that the hospital failed to comply with its obligations to release public documents despite the clear mandate of the Supreme Court. (4/2 – 21/99)

According to Florida Rules of Criminal Procedure, an indictment must be signed by a foreperson of a grand jury returning it. The indictment becomes public record after a year elapses or after the defendant is placed in custody. (Opinion on File, No. 99-09, February 25, 1999)

In June, the U.S. District Court of Appeals for the 11th Circuit upheld a lower court ruling that a defamation complaint filed in a Florida district court was subject to California’s one-year statute of limitations, rather than Florida’s two-year statute of limitations. Given the nature of Jaisinghani’s business and personal contacts with California, the district court ruled that he was a California citizen who was temporarily residing in Florida. (Decisions on File, Jaisinghani v. Capital Cities/ABC Inc., Case No. 98-1019, February 22, 1999).

The city blocked trucking companies from moving extra fill from developments in Miramar. The company, Ryan Eastern, sued the city claiming commissioners met privately to discuss the problem concerning extra fill. The suit also says the city violated the company’s constitutional right to due process.

However, Judge Jeffrey Streitfeld, 17th Judicial Circuit, ruled that the Open Meetings Law allegations against the city commission were not specific enough to meet the legal standard. Judge Streitfeld said, they did not include the time and place of alleged secret meetings. (3/18/99)

Naples police argued that the file was missing because, prior to 1989, there was no standardized way of labeling the files. Lt. Robert Bock found the 3-page report on the 1987 incident in the bottom of a drawer in the process of cataloging the older files. State Attorney found no evidence of an intentional Public Records Law violations on part of the Naples police. According to the State Attorney’s investigation, the failure to produce the file in a timely fashion was "an oversight and not an intentional act." (Case Report on File, State Attorney’s Office, 20th Judicial Circuit, Case No. 99-306, March 4, 1999).

Senior Justice Gerald Kogan stressed that Henderson filed a public records request amidst his pending criminal prosecution by a Florida state attorney. Kogan said the court could not ignore the fact that the documents Henderson requested became public only because his co-defendant agreed to reciprocal discovery. "Were we to allow a codefendant to escape a reciprocal discovery obligation, one perpetrator would be unfairly disadvantaged simply because he or she participated in pre-trial discovery first," said the court.

The court amended the Florida Rules of Criminal Procedure to provide that, when a defendant files a public records request for the law enforcement records relating to his or her pending prosecution, such filing would trigger a reciprocal discovery obligation for the defendant. (Decision on File, John Wesley Henderson v. State of Florida, Case No. 92-885, February 18, 1999)

In October 1998, the Supreme Court ruled that to compel a reporter’s testimony, government has to show that: a reporter possesses relevant information; the information is not available from alternative sources; and there is a compelling need for the information. The court stressed that the suspect interviewed by Kidwell gave similar information in his confession to police. (Brechner Report, December 1998)

Kidwell’s attorney said the reporter might be ordered to serve the rest of his sentence if the appellate court does not find in his favor. (Decision on File, Kidwell v. State, Case No. 90-839, March 4, 1999)

State law provides that advisory boards making recommendations to a public agency are subject to the Open Meetings Law even if they possess no authority to bind that agency in any way. However, the lawyer advising the committee issued an opinion earlier this year claiming the Open Meetings Law does not apply to the advisory board because it was not appointed by public officials and will act independently of the university. (2/11 - 25/99) 

However, Judge James Paine, U.S. District Court for the Southern District of Florida, held that mass media broadcasters and publishers "owe no duty to the general public." According to the station’s attorneys, the judge recognized the possible free speech restrictions on the media if such a lawsuit succeeded. (Decision on File, Brandt v. The Weather Channel, Case No. 98-10060-Civ-Paine, March 18, 1999)

The legal battle began in the early 1970s, when brothers Jim and Tom Stephanis, owners of the Yardarm Inc., tore down their successful waterfront restaurant and obtained permits to build a hotel on their land. However, the Hillsboro Shores Improvement Association, city officials and the neighboring condominium residents opposed the project because the hotel would have blocked the view of the inlet and the lighthouse. After Yardarm Inc. declared bankruptcy in 1986, the city bought the land and used it as a city park.

Judge Herbert Moriarty, 17th Judicial Circuit, held that the city deprived brothers Stephanis of their civil rights without due process of law by preventing the construction of a hotel. Moriarty said the highest city officials including the city attorney and the city manager exchanged a variety of interoffice communications in a plot to kill the Yardarm project. (2/25 – 4/1/99) 

A major gift from long-time Orlando broadcasting executive Marion Brechner will enable the University of Florida to evaluate citizen access to information about state and local government in every state in the nation. In announcing the $600,000 gift, expected to be matched with an additional $420,000 from Florida’s matching gifts program, UF President John Lombardi said the new Marion Brechner Citizen Access Project will provide "comparative information that will encourage more open government in all 50 states."

It will take four years to compile information about laws regarding public access and freedom of information in all 50 states. Thereafter, information on every state will be updated each year. The project will be supervised by the Brechner Center for Freedom of Information in UF’s College of Journalism and Communications. No organization in the United States has ever undertaken such a massive, long-term project of this magnitude to help legislators, lawyers, journalists, and other citizens understand the open meetings and open records laws in every state.

As a result of the project, information comparing states on a variety of access issues will be disseminated to communication media and legislators in every state, with the data also posted on a permanent web site. This is the kind of comparative information that the press and interested individuals throughout the United States have been asking for. Until now, information has been gathered about individual state access laws but no comprehensive overview of all the laws together has been undertaken on a consistent basis. The Marion Brechner Citizen Access Project will assure complete, comparative data about every state, and the data will be constantly updated as the law changes. That has not been available before.

Eminent scholar and director of the Brechner Center Prof. Bill Chamberlin will supervise the project. "For the first time, legislators will be able to examine the best and worst laws of the 50 states in several different categories, including access to electronic records, fees, enforcement provisions and privacy protections," Chamberlin said.

In making her donation, Mrs. Brechner said, "I am convinced about the need for this project and the Brechner Center’s ability to accomplish it. My late husband, Joseph L. Brechner, fought all his adult life for freedom of information for all citizens. This gift will continue his work."  With this gift, the Brechner family’s total contribution to the College of Journalism and Communications reaches more than $3 million, most of it for freedom of information activities. Joseph L. Brechner, who died in 1990, endowed the Brechner Center initially with a gift of $1 million. He was the founder and an owner of WFTV-Channel 9 in Orlando. Mrs. Brechner is president of Brechner Management Company, which owns television and radio stations in Maryland, Kansas and Ohio.