The Brechner Report
Volume 19, Number 7
July 1995

A monthly report of Florida mass media law published by The Brechner Center for Freedom of Information in the College of Journalism and Communications at the University of Florida. It is published 12 times a year under the auspices of the University of Florida Foundation and is a joint effort of The Brechner Center for Freedom of Information, the University of Florida College of Journalism & Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. Brechner Endowment. The Brechner Report would like to thank Barbara Petersen and Monroe Trieman for their contributions.

• Mary A. Giery Smith, Editor
• Kelly Barber, Production Coordinator
• Michelle Quillen, Production Asst.
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS RECORDS
Agency Must Find, Release Immigration Decisions
Court Rules On Records

SPECIAL REPORT
Electronic Records

LEGISLATIVE UPDATE
A Review of Legislation Passed -- And Not Passed -- This Legislative Session

FIRST AMENDMENT
Evangelists Allowed To Pass Out Material
Ban On Street Begging Unconstitutional

LIBEL
Prodigy: Exercising On-Line Editorial Discretion Increased Liability
Public Apology Settles Pignone Suit
Clinics Settle Lawsuit
State Case Might Go To U.S. High Court

OBSCENITY
Copying Videos Ruled Illegal Seizure
State Case Denied Review

PRIVACY
Supervisor's Remarks Not Privileged

THE BACK PAGE
The Florida Legislature Takes Aim at Public Access

Agency Must Find, Release Immigration Decisions

MIAMI -- Judge Wilkie Ferguson, U.S. District Court for the Southern District of Florida, recently ordered the Justice Department's Executive Office for Immigration Review to release records of decisions by Immigration Judge Philip Montante regarding the disposition of Haitian nationals.

The agency had initially refused to search for the records, stating that its computer system was not set up to identify decisions according to judge and that the agency had no obligation to create a program to do so.

A federal magistrate who had conducted an initial review and issued recommendations in the case pointed out that the agency had ignored the possibility of conducting a manual search of its records. He also suggested that the agency had the obligation to create a program if necessary because the request did not obligate the creation of any new records. (5/10/95)

Court Rules On Records

by Sandra F. Chance

A recent decision issued by the Florida Supreme Court regarding access to judicial records has potential implications for taxpayers, crime victims and anyone needing copies of court records. The court ruled against the St. Petersburg Times in the paper's suit to recover attorneys' fees from Hillsborough Clerk of Courts Richard Ake. The court said that when clerks are dealing with judicial records, they are bound by the state Constitution to follow judicial rules rather than the Public Records Law.

The implications sparked debate among media lawyers and lawyers for the state's clerk of courts. Court rules allow greater access to records than the Public Records Law, according to Alison Steele, an attorney for the Times. The ruling, which exempts clerks from the statutory 15-cents-per-page limit, could bar access to citizens unable to afford higher fees. (Decisions on File, Times Publishing v. Ake, No. 84,513 (June15, 1995))

By Mary A. Giery Smith

The Electronic Records Act (HB 1163) and a related bill addressing remote access to electronic records (HB 1149) provide clarification of the definition of electronic public records and contain strong statements of legislative intent clearly indicating it is the duty of a public agency to provide access, including remote access, to electronic records. HB 1163 provided a clarification that the form in which the records exist does not affect their status as open public records.

Two bills, SB 496 and SB 819, create exemptions for crime victims. SB 496 exempts all court records, including testimony, that could identify a victim of child abuse or sexual crimes. It also prohibits publication or broadcast of identifiable photographs or voice recordings. The bill criminalizes the release of such information by a public employee and provides the victim with a right to file a civil lawsuit against any person or entity that intentionally communicates exempt information to the public prior to open judicial proceedings.

HB 819 creates an exemption for the home address, telephone number, listings of assets and other information that could be used to identify or locate victims of specified crimes. The crimes include sexual battery and aggravated child abuse, battery, stalking, harassment or domestic violence. The exemption, which prohibits disclosure for five years, is available upon written request of the victim and verification that the crime actually occurred. B 819 was one of few open records-related bills actually signed into law by Gov. Chiles. A revision of the Open Government Sunset Review Act will require a one-time automatic review of all new or significantly amended Public Records Law and Sunshine Law exemptions five years after the exemptions are enacted.

The laws affecting fees charged by clerks of circuit court have remained unchanged, however SB 764 codified how the funds collected may be used. Clerks of court may charge $1 for the first page and 50 cents for every subsequent page of court documents other than judgments and notices of lis pendens. The law requires that every clerk's office must provide an annual report indicating that the funds were used for equipment, equipment maintenance, furniture or supplies pertaining to the upkeep or improvement of the public records system. The law specifically prohibits use of the funds for expenses unrelated to the public records system. The University Limited Access Records Act (SB 2404)limits the records that universities are entitled to designate as "limited access." The law mandates that universities adopt rules that provide definition and procedures for denoting a record as a limited access record, as well as rules governing the content and custody of such records.

The bill states that the only records that may qualify for exemptions are academic evaluations of employee performance, investigations into charges of employee misconduct, disciplinary proceedings and grievances regarding collective bargaining agreements. The investigatory records are public once there is a final decision. The bill specified that student evaluations of instructors are public records. A summary of each open government bill presented during this session follows in our legislative update, part two of our Special Report.

The following bills became law this legislative session:

• CSHB 5. Allows the public to speak with, or write to, local public officials about any matters on which the officials take action; removes the assumption of prejudice that had accompanied unofficial communications between officials and interested parties as long as such communications are disclosed prior to final action being taken.
• HB 29. Amends open meetings law to require reasonable notice of any meeting; provides that conduct engaged in by officials out of state that would violate open meetings law if conducted in the state is a misdemeanor.
• HB 257. Exempts the Spaceport Florida Authority from open meetings law when discussing trade secrets; exempts any records generated at such meetings.
• HB 263. Exempts information gathered during investigations of non-profit organizations by the Department of Legal Affairs as long as the investigations are active; defines active.
• HB 279. Exempts the Lottery Commission from the open meetings law when confidential matters are discussed; exempts any records generated at such meetings; allows the commission to determine what is confidential. HB 291 Expands the exemption of trade secrets and proprietary confidential information received by request or subpoenaed by the Department of Agriculture and Consumer Affairs during investigations of alleged violations of the Motor Fuel Marketing Practices Act.
• CSHB 819. Exempts identifying information of victims of certain specified crimes for five years upon written request of victims and official verification that the crime occurred.
• CSHB 1149. Stipulates that fees for remote electronic access to public records are permissible rather than mandatory; includes statement of legislative intent that it is the duty of all agencies to provide remote electronic access to records.
• CSHB 1163. Codifies the Public Records Mediation program in the Attorney General's Office; adds statement of legislative intent regarding automation of public records; amends definition of public records to include e-mail and software; requires an agency to provide a copy of a record in the medium requested if the record is maintained in the medium; includes statement of legislative intent that it is the duty of all agencies to provide electronic access to records.
• CSHB 1269. Prohibits binding agreements between a public entity and private entity or person who requests confidentiality, until 90 days after the information about the agreement has been made public.
• CSHB 1485. Exempts identifying information obtained by the Department of Elderly Affairs about elderly persons; prohibits such information from being disclosed publicly.
• SB 166. Exempts meetings by public hospitals when discussing HMO contracts; requires that transcripts of the meetings be kept and eventually made public.
• CSSB 226. Expands health care facilities' exemption for documents that identify specific patients; closes meetings of grievance and appeal proceedings of such facilities when such documents are considered but requires a court reporter at the meetings.
• SB 496. Exempts court records revealing identifying information of victims of certain sexual crimes; creates a civil right of action for victims against any entity or individual communicating such information prior to open judicial proceedings.
• SB 1664. Exempts open claims files and related minutes of the state-run property insurance pool, the Residential Property and Casualty Joint Underwriters Association; closes meetings relating to the evaluation or compromise of claims but requires a court reporter at closed portions of meetings.
• SB 1784. Expands current exemption for prepaid limited health service organizations to include proprietary financial information contained in contracts entered into with such organizations; exempts information obtained during an investigation until the investigation is complete or no longer active.
• SB 1818. Reenacts exemptions for the F. Lee Moffitt Cancer Center; closes Center meetings unless discussing state-funded expenditures; exempts minutes of such meetings from current or future review; opens some records.
• SB 2404. Narrows the limited access exemption for certain university personnel records; requires the creation of rules defining the content and custody of limited access records; limits universities' ability to determine what will be closed.
• SB 1632. Expanded the exemption of business-related information gathered and held by the Enterprise Florida Innovation Partnership including information about finances, proposals and agreements, and information about the organization's affiliates, subsidiaries and partners.
•  

The Legislature failed to pass the following bills this session:

• HB 109. Would have exempted the names and addresses of jurors in civil and criminal trials.
• HB 137/HB 139. Would have created a Statewide Managed Care Ombudsman Committee; would have exempted patient records held by the committee and identifying information about complainants to the committee; would have closed meetings during which the above information is discussed.
• HB 167. Would have required the Joint Legislative Management Committee to make specified legislative information, the state Constitution and state statutes available on the Internet at no charge.
• HB 269. Would have exempted information gathered during investigations by the Department of Business and Professional Regulation of the pari-mutuel industry until the investigation was closed or a complaint was issued.
• HB 277. Would have amended the exemption for Department of Revenue audits of the Professional Golf Hall of Fame to require that the department provide a summary of the audit including the facility's statutory compliance.
• HB 321. Would have exempted criminal, juvenile and abuse records gathered by the Agency for Health Care Administration for use in determining moral character of home health agency and nurse registry personnel, sitters, companions and home-makers.
• HB 365. Would have created the Florida Geographic Information Council to facilitate the identification, sharing and coordination of geographic information among federal, state, regional and local agencies.
• HB 423. Would have exempted identifying information about recipients of specific federal entitlement programs and mandated that such information be used only to prevent duplicate enrollments; the information would have been exempt from subpoenas and orders from any agency.
• HB 497. Would have opened all meetings and records of a governing board of a university health services support organization, and provided exemptions of specific records including "credentialing" and peer review.
• HB 709. Would have exempted environmental audit reports and documents related to environmental self audits.
• HB 1739. Would have prohibited clerks of the circuit court form charging more than 15 cents per page for copies of public records.
• HB 2217. Would have exempted meetings of the probable cause boards that investigate complaints against funeral homes and cemetery owners.
• SB 342. Would have provided record duplication fees in excess of statutory limits but authorized by a county and charged by court clerks could be used for purchasing and maintaining equipment.
• SB 810. Would have exempted trade secrets obtained by the Department of Health and Rehabilitative Services.
• SB 1034. Would have revised public notice procedures for the adoption of county and municipal ordinances.

High Court: Cross-Burning Statute 'Reasonably Necessary,' Constitutional

TALLAHASSEE -- The Supreme Court recently reversed the 1st District Court of Appeal's ruling that held Florida's cross-burning statute unconstitutional, stating that it is "the extraordinarily threatening mode of expression, not the idea expressed, that is intolerable."

The high court denied the claim that the statute violated First Amendment rights to free expression and described an unauthorized cross-burning by intruders as a "terrifying symbolic threat" with a clear and direct connection to forthcoming violence. The court held that the statute is "reasonably necessary" to protect the state's compelling interest in promoting peace, protecting its citizens from threats of violence and protecting citizens' rights to free expression and association.

The ruling stated that "[f]ew things can chill free expression and association to the bone like night-riders outside the door and a fiery cross in the yard." (Decisions on File, State v. T.B. D., No. 84,013 (June15, 1995))

Evangelists Allowed To Pass Out Material

FORT LAUDERDALE -- The Broward County Commission is expected to approve an ordinance that would implement a recent settlement in a federal lawsuit. The revised ordinance would require groups to register with airport authorities prior to distributing materials at the Fort Lauderdale-Hollywood International Airport. Permits would be issued the same day.

The settlement concluded a lawsuit filed in December by the evangelical group "Jews for Jesus." The religious group challenged a county requirement that organizations apply for a permit prior to distributing or soliciting at the airport, a process that could take up to two weeks. Group members contended that the rule violated their First Amendment rights to free speech.

Although groups still must register, under the settlement they may distribute materials the same day. No more than 12 members of a group may distribute material at a time and all must wear badges. In anticipation of the settlement, airport officials set up indoor and outdoor "First Amendment zones" in February. The zones indicate areas in which groups may operate without disturbing traffic patterns. Indoors, groups may only distribute material and are prohibited from soliciting money. Outdoor restrictions are more liberal. (6/3/95)

Ban On Street Begging Unconstitutional

ST. PETERSBURG -- The 2nd District Court of Appeal has recently declared unconstitutional a St. Petersburg ordinance that prohibits begging for money on city streets.

The court said the ordinance, which forbids begging on "any public way," infringes on free speech rights more intrusively than is necessary.

The court pointed out that ordinance does not define begging and does not differentiate between passive and aggressive begging and could therefore be enforced arbitrarily.(Decisions on File, Ledford v. State, 20 Fla. Law Weekly 876 (1995)

Prodigy: Exercising On-Line Editorial Discretion Increased Liability

NEW YORK -- Justice Stuart Ain of New York's trial-level Supreme Court recently ruled that Prodigy, an on-line information service, must defend itself in a pending libel suit because it screens messages for content. The ruling enables a $200 million suit filed by Stratton Oakmont, Inc., an investment bank, to proceed. The suit followed a subscriber's allegation that the bank had committed fraud.

The ruling states that the service's decision to exercise editorial discretion increased its liability for its users' messages. The judge denied Prodigy's claim that it functioned more as a bookseller than a publisher, but made it clear that, generally, computer bulletin boards do not exercise editorial discretion and should therefore be regarded "in the same context as bookstores, libraries and network affiliates."

Prodigy, jointly owned by Sears and IBM, has changed its editorial policy. (Decisions on File, Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94 (May 26, 1995))(5/27/95)

Public Apology Settles Pignone Suit

ORLANDO -- Orlando investment banker Rick Fitzgerald accepted a public apology from former Orange County Commissioner Fran Pignone as part of an otherwise confidential settlement in Fitzgerald's libel and slander lawsuit against Pignone and her husband.

Fitzgerald initiated the suit after Pignone distributed literature during her unsuccessful 1994 campaign for the county chair. The literature, mailed weeks after the Security and Exchange Commission began reviewing county bond issues and contributions to county political campaigns, implied Fitzgerald had received a large portion of municipal bond business in return for his work on incumbent chairwoman Linda Chapin's 1990 campaign. (5/28/95; Brechner Report, June 1995)

Clinics Settle Lawsuit

MIAMI -- The Center for Special Immunology clinics have settled their 2-year-old lawsuit against Medical Business for a series of articles alleging the clinics engaged in unethical practices. After the articles appeared, the stock price of the parent company, Health Professionals, Inc., dropped and shareholders initiated a class action lawsuit.

According to the Miami Herald, the articles in Medical Business alleged that the clinics altered research data, performed unnecessary medical tests and over-charged for some tests. The clinics research and provide treatment for immune system disorders, including HIV and AIDS. (5/23/95)

State Case Might Go To U.S. High Court

MIAMI -- An unsuccessful Congressional candidate has said she will appeal a recent 3rd District Court of Appeal ruling that a 1992 editorial in a Cuban exile weekly did not libel her when it labeled her a "Castrista," or Castro sympathizer.

Magda Montiel Davis filed the suit against La Verdad, a Spanish language newspaper, and the writer, Hilda Inclan, after the paper identified Davis as a Castro supporter. Davis' suit contends the accusation is highly inflammatory in the volatile emotional climate of Miami's Cuban exile community. Davis claims that since the columns appeared the public response has ranged from public contempt to death threats. (5/10/95)

Copying Videos Ruled Illegal Seizure

NAPLES -- The 2nd District Court of Appeal recently issued a rebuke to the Collier County Sheriff's Department and the 20th Judicial Circuit Court in a case involving allegedly obscene video tapes seized without a warrant. The appellate court ruled that the circuit court violated a "clearly established principle of law" when it reversed a county court's order suppressing the videos seized by sheriff's department officials.

Officers had rented three "randomly selected" tapes from a video store, viewed them at the sheriff's department, copied the tapes and returned them to the store. They retained the copies as evidence to present to the state attorney. The store's owner, Carlos Miragaya, was later arrested for possessing and intending to sell obscene films.

The trial court held that the warrantless seizure and duplication of the tapes constituted an illegal seizure and that the seizure, without a determination of the tapes' obscenity, amounted to a prior restraint. The circuit court reversed the lower court's ruling.

The Court of Appeal, however, agreed with the trial court that there must be a judicial determination of obscenity prior to seizure and said the officers erred in copying the videos prior to receiving a warrant. (Decisions on File, Miragaya v. State, 20 Fla. L. Weekly 1050 (1995)

State Case Denied Review

WASHINGTON - The U.S. Supreme Court recently refused to hear a case brought by a Sebring woman who claims a state law against obscene telephone calls intended to offend, annoy, abuse, threaten or harass violated her right to free speech.

In 1992, Sara Gilbreath was convicted for making an obscene telephone call to a postal employee and fined $50. Earlier this year, the state Supreme Court upheld both the constitutionality of the law and Gilbreath's conviction. (5/19/95)

Supervisor's Remarks Not Privileged

TALLAHASSEE -- The 1st District Court of Appeal recently upheld a ruling that the Department of Agriculture and Consumer Services did not have cause to fire an employee who tape-recorded a work-related conversation with his supervisors. State law prohibits recording oral communication unless all parties are aware of the recording.

The court held that the taped conversation about a job transfer he was protesting did not constitute an invasion of the supervisors' privacy. (5/10/95)

The Florida Legislature Takes Aim at Public Access

By Sandra F. Chance

A lobbyist friend of mine proudly displays this sign in his Tallahassee office: "No man's life, liberty or property are safe while legislature is in session." The quote, attributed to a New York legislator in 1866, could easily apply to this year's legislative session with a slight modification. "No person's right of access to governmental information is safe while the legislature is in session."

While there are now more than 550 separate exemptions to public access, the Florida Legislature routinely seeks to exclude more information from the public and close more meetings. This session was no exception. Nearly 100 bills were introduced this year.

Lawmakers passed at least 17 new laws that either restrict access to public records and meetings or expand existing exemptions. Compare this to the six new laws that promote access and you can begin to appreciate the problem. The trend toward closing entire records to prevent disclosure of sensitive information, rather than redacting only the portion that is exempt, was alive and well and very much in operation this session.

This was true in spite of Florida's Constitutional Amendment, guaranteeing access to governmental information, in spite of Florida's Public Records Law, mandating access to governmental records, in spite of Florida's Sunshine Law, protecting the right to attend meetings and in spite of Florida's status as a national leader in Government-in-the Sunshine. Public access was clearly a casualty during this legislative session, however it could have been worse.

A few new laws will actually enhance access to records, making it easier and cheaper to acquire governmental information. The most important guarantees access to public records on computers. The bill, which died last session because of a controversial fee provision, specifies that electronic records are public records and governments must ensure reasonable access.

One of the most troubling new laws prohibits disclosure of rape victims' names: a familiar issue in Florida, but this time in a new package. It seems that the legislators did not read the Florida Supreme Court's decision declaring blanket prohibitions against disclosing rape victims' names are unconstitutional. The new law exempts all court records revealing identifying information of victims of sexual crimes. In addition--and the news media really need to pay attention to this part--the law creates a civil cause of action against anyone, including the media, who reveals the information. This could have an immediate and direct impact on editorial choices.

Are these new exemptions even constitutional? Do they meet the requirements laid out in the Public Access Amendment to the Florida Constitution? Do they "state with specificity the public necessity?" Are they "narrowly tailored?"

Maybe the governor and legislators forgot that an overwhelming number of voters supported the 1992 Constitutional Amendment that guarantees the right of access to public records and meetings. More than 80 percent of the voters approved the Public Access Amendment. Maybe they forgot that an informed electorate is essential to a democracy. Maybe they forgot that unless the voters know how their government is operating, they can't fully appreciate their elected officials. Maybe they just don't care. If faulty memory is at the root of this problem, we must, at every opportunity, remind our elected officials and the general public of the importance of our access laws. If apathy, ignorance or antagonism is the reason, let's cover this during election interviews and reveal the candidate's position on public access issues in our editorials.

Finally, let us track officials' responses to legislative proposals. We must hold accountable those officials who threaten our right to know and recognize those who promote access.

Sandra Chance is the assistant director of the Brechner Center for Freedom of Information and an assistant professor in the College of Journalism and Communications.

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