The Brechner Report
Volume 19, Number 10
October 1995

A monthly report of Florida mass media law published by The Brechner Center for Freedom of Information in 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 Pat Gleason for her contributions.

• Susan D. Ross, 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 MEETINGS
Hung jury ties up Sunshine suit
School support group considers, drops private meetings

ACCESS RECORDS
Court does not seal public documents
Gainesville publicizes criminal history
AGO says city audit reports not exempt
State improves elections records' access
Chiles folds records into exempt clemency file

COURTS
Camera denied access to trial in progress
Judge refuses to remove camera from sentencing phase of trial

FIRST AMENDMENT
Anti-Defamation League opposes cross
Nudists protest, sue to strip off clothes law

NEWS NOTES
AGO asks reader input on Sunshine Manual

THE BACK PAGE
Court Files Hold Wealth Of Otherwise Exempt Records

Hung jury ties up Sunshine suit

CHARLOTTE HARBOR -- Judge Thomas Gallen, 12th Judicial Circuit Court, recently rejected an opinion by the Attorney General and held that the Englewood Water District does not fall under the jurisdiction of Florida Statute 120, which allows citizens to initiate hearings in state administrative agencies. Under the ruling, citizens must challenge water district rulings in court, not through administrative hearings.

Judge Gallen said it was "beyond the court's logical reasoning" to place the water district in the same category as a large state administrative agency covered by F.S. 120. The decision could affect more than 50 special districts statewide. (7/4/95)

State Attorney Seeks To Remove Victims', Witnesses' Names From Police Reports

TAMPA -- Hillsborough State Attorney Harry Lee Coe III wants to remove from police reports the names, addresses and telephone numbers of anyone other than the suspect. Although Coe's office had not set a date by which police reports would eliminate information on all other individuals, including victims, witnesses and complainants, new police forms were being printed to accommodate the change.

According to Coe's office, the change is intended to help protect victims and witnesses from publicity. Prosecutor Douglas Covington said the office was concerned that under the old policy all the information in police reports immediately became public record when filed with the county clerk. Covington said Coe's proposal "will prevent" immediate disclosure of victim information to the defendant or friends of the defendant. Instead, prosecutors in Hillsborough would release such information only upon request.

Attorneys and media experts across the state have said that consequences of the proposal could include clogging the judicial system with paperwork and suits, impeding disclosure of information to the public, violating the Public Records Law and gutting the ability of the media to report effectively on the criminal justice system.

David Evans, attorney for the Orlando Sentinel, said the proposal would prevent media from telling the victim's story and assure that "nobody knows the victim but the perpetrator." Lawrence McConnell, managing editor of The Tampa Tribune, said the policy invited "mischief" and could lead to frivolous charges. (7/22/95)

Doctor's Criminal Trial Records To Stay Open

ORLANDO -- The court records of a criminal trial in which an Orlando pediatric orthopedist was acquitted of charges of molesting, and taking lewd pictures of, juvenile male patients cannot be sealed despite the discomfort caused for the physician and his family, 9th Judicial Circuit Court Judge Alice Blackwell White ruled recently.

Judge White said that so much information is publicly available about the trial of Dr. William Zink that closing the court and prosecution files would have little effect on publicity. (7/20/95)

Court Denies FOIA Access To IRS Records

MIAMI -- A federal district court judge has ruled that the Internal Revenue Service properly rejected a Freedom of Information Act request made to the incorrect office. The IRS regional office in Atlanta told Russell Sands to seek records not from the regional office but from the IRS office in Ft. Lauderdale, the district in which he lives.

Judge Edward Davis said Sands had not properly routed his request because he had not asked for the records from the person who controlled them. Judge Davis said that, under the FOIA, it is not the responsibility of an agency to forward a request to the appropriate office. (July 19, 1995)

Law Enforcers Define Initial Status Of 911 Transcripts

TALLAHASSEE -- In response to a question from the Leon County Commission, Attorney General Robert Butterworth issued an opinion that the county's Division of Emergency Management may delete a portion of a 911 transcript that the sheriff's department rules to be part of an active criminal investigation.

The opinion clarifies a related opinion issued in 1993. The earlier opinion stated that those calls recorded by an emergency management agency were considered public records except for identifying information specifically exempt under Florida law.

The recent question arose in response to requests by media outlets for transcripts of 911 calls in Leon County. Some 911 calls in Leon County are received simultaneously by both the sheriff's office and the emergency management agency, which records them. Statutory and administrative oversight of the single recording was at issue in the most recent opinion.

That opinion says that "at least initially" the law enforcement agency may determine whether information in a 911 call is part of an active criminal investigation, and therefore exempt from disclosure under the Public Records Law. (Fla. Atty. Gen. Op. 95-48, August 8, 1995)

Hillsborough Increases Its Court Records' Fee

TAMPA -- In light of a recent ruling by the Florida Supreme Court (Brechner Report, July, 1995), the cost of copies of Hillsborough County court records has increased from 15 cents per page to $1 per page.

In Times v. Ake, the court ruled that clerks of court are under the control of the Supreme Court rather than the legislature when acting in their official judicial capacities. As such, the clerks are not subject to the state's Public Records Law mandating a 15 cent per page cap on copy charges.

Court clerks in Citrus, DeSoto, Hardee, Hernando, Highlands, Polk, and Pinellas had been charging $1 per page prior to the ruling. (6/29/95)

UF Publishes Policies On E-Mail

GAINESVILLE -- In a recently distributed booklet, the University of Florida informs faculty and administrative staff that e-mail and all electronic communications are subject to the dictates of the state's Public Records Law.

The university's policy makes it clear that any e-mail message or other electronic communications related to official business, "which perpetuates, communicates or formalizes knowledge," is a public record that may be deleted only according to the university's record retention schedule -- generally after three years or until their purpose is served.

Copies of electronic records must be made available for public inspection. When records contain statutorily exempt information, university employees must delete exempt information and release the redacted version.

The policy states that all public records requests should be handled by the department chair or by the administrative supervisor, and questions about whether specific material is exempt should be referred to the university's Office of News & Public Affairs. Copies of e-mail and other electronic records will be provided at 15 cents per page. (6/95)

University Of Florida To Ask Legislature To Exempt Some Health-Services Records

GAINESVILLE -- Stating that the Public Records Law is hurting their ability to compete, University of Florida officials are seeking to reduce access to some records concerning university health service organizations during a special legislative session on Sept. 11. A bill which would have provided exemptions for certain records and parts of meetings of those organizations passed unanimously in the House but was defeated in the Senate in the last legislative session. Discussion and records of managed-care arrangements, marketing plans, reimbursement rates and peer-review procedures would be exempt from disclosure under the proposed bill.

State University System Chancellor Charles Reed said university health-services support organizations find it "virtually impossible" to function under open record regulations that do not affect their private counterparts and competitors.

UF Vice President for Health Affairs David Challoner said that, in his opinion, the organizations ought to be permitted to function as private, not-for-profit hospitals. (8/9/95)

Sarasota Paper Will Not Advertise Prostitutes' Clients

SARASOTA -- The Sarasota Herald-Tribune has frustrated city officials' wishes by refusing to run a series of advertisements that contain the names, ages and addresses of "johns" arrested for solicitation. The city's mayor, commission and police chief, who made the request, view the paper's decision as frustrating the city's attempt to use public ridicule as a means of discouraging prostitution-related activities along a stretch of North Trail road notorious for prostitution.

Labeling the decision "a judgment call," Lynn Matthews, publisher of the Herald-Tribune, said the paper does not accept negative ads about companies or individuals. He added that the paper covers arrests in its news pages. (7/19/95-7/21/95)

Deerfield Beach Firm To Pay $1.1 Million Copyright Judgment

MIAMI -- U.S. District Judge Kenneth L. Ryskamp, Southern District of Florida, recently held Starware Publishing Corp. and its president, D. Andrew Kasanicky, liable in a $1.1 million lawsuit for the unauthorized use and distribution of photographs and trademarks belonging to Playboy Enterprises.

The software company had downloaded the images from a computer bulletin board, placed them on a CD-ROM and sold the collection under the title "Private Pictures I."

Starware's attorneys had argued that their clients did not know the photos of celebrities, including Kim Basinger, Margeaux Hemingway and Jessica Hahn, were copyrighted. The judge called the argument "incredible."

Judge Ryskamp said he ordinarily would have fined $10,000 for each of the 53 violations, but he said he doubled the figure because the company had, by its actions, encouraged uploading of the material on to other bulletin boards and, therefore, the continued recycling of copyrighted material.

In addition to the fine for each violation, the judge awarded Playboy an additional $50,000 -- the amount Starware profited from sales of the CD-ROM -- for trademark infringement under the Lanham Act. (7/20/95- 7/21/95)

First DCA Rules Ban On Political Ads Unconstitutional

TALLAHASSEE -- The 1st District Court of Appeal recently ruled that a court order that forced political ads off the air during the last weeks of last year's elections was an unconstitutional prior restraint.

In late October, the Republican Party of Florida produced two television advertisements that attacked by name several Democratic candidates for state cabinet positions and urged voters to vote Republican. In court, Republicans described the ads, which did not mention specific Republican candidates, as voter mobilization ads.

Last November, the state Democratic Party requested and received an injunction from the 2nd Judicial Circuit Court prohibiting the Republicans from airing the ads.

The appeals court declined to rule on the Democrats' assertion that the ads, which cost $300,000, were illegal campaign contributions because individual Republican candidates had already accepted the maximum amount of contributions allowable under state law.

Instead, the court said that the injunction was extreme and inappropriate because statutory remedies that were available to address the problem had not been exhausted. (8/3/95) (Decisions on File, Republican Party of Florida v. Florida Elections Commission, No. 94-4083, Aug. 1, 1995)

Fired Broward County Deputies Lose First Amendment Bid For Job Re-Instatement

MIAMI -- A lawsuit brought by four high-ranking deputies claiming that they were fired from the Broward County Sheriff's Office because they supported the former sheriff during the 1992 election campaign has been thrown out of federal court. The four former deputies claimed that their dismissals amounted to infringements of their First Amendment rights to engage in political speech.

In ruling for a summary judgment, U. S. District Court Judge Wilkie Ferguson Jr., Southern District of Florida, stated that the four had failed to prove the firings constituted violations of their rights to free speech. The judge said the four never proved that they had engaged in political speech or participated in the election campaign. He also said that local law enforcement requires "high levels of trust and confidence" between the sheriff and the deputies. (7/11/95)

Judge Gags WJNO Radio Talk Show Host

STUART -- Judge Robert Hawley of the 19th Judicial Circuit Court recently banned WJNO talk show host Jack Cole and Cole's attorney from discussing a $3 million slander suit that has been brought against Cole, according to news accounts. The judge said the two may, however, refer "without comment" to information otherwise available in public records.

The libel suit was filed against Cole two years ago by former Palm Beach County Court Administrator Susan Ferrante. The suit alleges that, during a broadcast, Cole implied that Ferrante and her husband had been involved in illegal business practices 14 years earlier. (6/9/95-7/22/95)

Suit Filed Over Allegations Of Misconduct

ORLANDO -- Robyn LaBreck, outgoing general manager of the Orlando/Orange County Convention and Visitors Bureau, has filed a libel suit against Roland Payer, owner of All Ticket Promotions, alleging that Payer libeled her in letters he sent to bureau members, the Florida Attorney General's Office and media outlets.

According to news reports, the letters allege that LaBreck "distort[ed] facts" and influenced testimony in connection with depositions given in a $5 million breach of contract lawsuit filed by Payer against the visitors bureau. (7/15/95)

Court Files Hold Wealth Of Otherwise Exempt Records

by Jeff Newell

Reporters attempting to obtain records from state agencies to document sensitive -- and newsworthy -- stories collide almost daily with exemptions to Florida's Public Records Law. Among the obstacles is Florida Statute 415, which grants legal confidentiality to those named in state adult abuse reports.

Until the Legislature revisits these laws, a trip to the courthouse can fill in some important gaps. Records that state agencies will not release without a court order can be tucked away in court files, the result of earlier court action, just waiting for you to find them.

A recent records search that began with a nursing home indictment illustrates how much is out there to be found by running a courthouse computer index search at the start of every inquiry. It's a simple matter of not overlooking the obvious.

In November, a grand jury had indicted a nursing home's owners for the medical neglect of four patients, all of whom had since died. Some of the patients' family members urged us to check the background of the nursing home's medical director.

The courthouse computer showed no malpractice lawsuits against the doctor. But it did turn up a civil judgment against him, duly referenced by a civil court case number and by an official records book and page number. What tumbled out of the civil case file when it arrived from archives the next day was stunning.

The file showed that the doctor had sued his malpractice insurer for refusing to pay his legal bills in a dispute with the Department of Health and Rehabilitative Services eight years earlier. That dispute arose when HRS found indications of abuse resulting from medical neglect of a patient at another nursing home, according to records on file. The file indicated earlier concern about patient abuse by medical neglect by the medical director of the recently-indicted nursing home.

The doctor's lawsuit put documents ordinarily exempt from the Public Records Law into a civil court file, effectively making them a public record. These were documents that HRS, the state Department of Administrative Hearings and the 1st District Court of Appeals could not release on their own authority due to confidentiality laws. All of the agencies cited F.S. 415 in denying our records request.

The court file included an HRS lawyer's deposition and a memo outlining the case in graphic detail. (The HRS lawyer declined to comment about his deposition, or any aspect of his involvement in the eight-year-old abuse case, citing the confidentiality law.) Records also showed that the day HRS began its investigation of that case, the medically-neglected patient (named in the file) was taken from the nursing home and hospitalized.

The first story, which we published on Feb. 1, disclosed the existence of the old abuse case, although its eventual outcome was not available from the records discovered at that point. As a result, the doctor, a medical director for two nursing homes, lost one of those positions shortly after the story was published. His contract, meanwhile, was not renewed at the other facility, where the owners recently had been indicted.

Publishing the first story led us to an elusive case number for the doctor's final appeal to the 1st DCA. It turned up -- anonymously -- on voice mail from a source who wanted us to know that HRS had prevailed in its action against the doctor. While the file itself was legally sealed, a helpful appeals court clerk noted that the case had generated a published opinion.

Checking that citation at the county law library yielded conclusive proof that the appeals court had found no reversible error in the HRS investigation that placed the doctor on the state's abuse registry. With the clincher in hand, a second story was published to detail the outcome.

The nursing home case illustrates how just one hit in a records search can unearth a secret that confidentiality laws had hidden from the public for eight years.

Just imagine what else is out there. Happy hunting.

***Jeff Newell is the court reporter for the Northwest Florida Daily News in Fort Walton Beach. You can reach him via e-mail at JRN@FCIFWBFL.mhs.compuserve.com or phone him at (904) 864-0444.

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