The Brechner Report
Volume 19, Number 12
December 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 Mary A. Giery Smith for her contributions.

• Susan D. Ross, Editor
• Kelly Barber, Production Coordinator
• Michelle Quillen, Production Asst.
• Anna C. Alonso, Production Asst.
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS MEETINGS
Board desegregation transcripts are public
Mayor reprimands outspoken citizens, also receives reprimand

ACCESS RECORDS
Court says disclosing ballot contents meets access dictates
Director faces records tampering charges
Police murder files must be made public
Records of police interviews not exempt
Trial records not open
AG rules trade secrets not always secret
Litigants must request fees at appellate level

CENSORSHIP
Orlando principal sued for removing anti-abortion poster
DOT says wall censorship was an error

CIRCULATION
Hollywood adopts news rack regulations

COURTS
Judge upholds ban; rules that Rolling fiancée may not keep tabloid profits

FIRST AMENDMENT
High Court lets buffer zone stand

REPORTER'S PRIVILEGE
Testimony limited to published facts

THE BACK PAGE
New technologies must enhance access to government

Board desegregation transcripts are public

JACKSONVILLE -- Judge Virginia Q. Beverly, 4th Judicial Circuit Court, ruled that the Duval County School Board violated the Sunshine Law when it denied The Florida Times-Union access to closed meetings on compulsory school desegregation plans. The judge also granted the newspaper access to transcripts of the meetings attended by school board staff and consultants.

The school board had refused repeated requests for access to copies of the written desegregation proposals and to at least four meetings during which the proposals were discussed and voted upon. The school board has been under federal order to desegregate Jacksonville schools as the result of a lawsuit brought by the NAACP and settled in 1990.

The board maintained that the meetings were exempt from access requirements because they involved discussions of pending litigation. The board said the documents were legally exempt attorney work products. However, the school board released a copy of the proposal to the NAACP before announcing the plan to the public and the media. The court found that while meetings between the superintendent and the board to discuss litigation are legally exempt, that exemption does not permit attendance by consultants. The meetings and the records related to them, therefore, were not exempt.

In addition, any work-product exemption that might have covered the proposal was waived when the board released the document to the NAACP. (Decisions on File, Florida Publ. Co. v. School Board, Duval County, 23 Med. L. Rptr. 2302 (Fla. Cir. Ct., 4th Cir., 1995))

Mayor reprimands outspoken citizens, also receives reprimand

OLDSMAR -- Mayor Jerry Beverland, annoyed by audience comments and heckling during a recent city council meeting, reprimanded the speakers and threatened to eject them from the public meeting.

City Attorney Bryan Kutchins, later reprimanded the mayor and cautioned him that such actions could lead to a lawsuit. Kutchins cited a Key West suit in which he said the mayor was found liable for damages in excess of $30,000 for removing a citizen from a council meeting.

In response, Beverland's attorney, Alan Zimmet, said the Key West ruling had been overturned. Months prior to the exchange, Beverland asked for Kutchins' resignation. (10/2/95)

Court says disclosing ballot contents meets access dictates

TAMPA -- A 13th Judicial Circuit Court recently ruled that although a high school principal's ballot in a vote on athletic playoffs is a public record, the principal may meet the obligations of the Public Records Law by reporting the contents of the ballot rather than by producing the ballot itself.

Judge John M. Gilbert ruled that Land O'Lakes High School Principal Albert Bashaw's completed Florida High School Activities Association ballot, on which he voted on whether he favored the creation of separate playoff systems for public and private schools throughout the state, was a public record. The judge also ruled that, by law, Bashaw was required to retain a copy of that ballot and to make it available to the public upon request.

However Bashaw did not retain a copy of his completed ballot and was, therefore, unable to produce it upon the request of an individual. Judge Gilbert accepted a settlement reached by the parties in which Bashaw would write a letter disclosing the contents of his ballot and would pay $140 toward the plaintiff's cost of bringing the suit. The principal was not held liable for the plaintiff's attorney's fees. (Decisions on File, McLaughlin v. Goddard, 23 Med. L. Rptr. 2278 (Fla. Cir. Ct., 13th Cir. 1995))

Director faces records tampering charges

BARTOW -- Polk County Opportunity Council Executive Director Carl Burgess recently pleaded innocent to first-degree misdemeanor charges of withholding and tampering with public records.

The charges stem from Burgess' repeated refusal to supply to The Ledger unedited copies of bills for telephone calls he made on a PCOC cellular phone. Burgess, who eventually reimbursed PCOC for the calls, initially refused to release the telephone records. After his arrest, he released a version with the reimbursed personal calls blacked out. Later he released an unedited version of the bill.

Editing of a public record violates the Public Records Law. If convicted, Burgess faces both a prison sentence and possible fines.

The council's board of directors placed Burgess on leave of absence without pay pending the outcome of a separate investigation into alleged misspending of agency funds. (10/5/95-10/24/95)

Police murder files must be made public

FORT LAUDERDALE -- 17th Judicial Circuit Judge Leroy Moe said Hollywood police must open the files in a 14-year-old abduction and murder case by Feb. 16, 1996, unless they find the killer.

Several newspapers, including the Ft. Lauderdale Sun-Sentinel, The Miami Herald and The Palm Beach Post asked to view the files related to the July 27, 1981, abduction of 6-year-old Adam Walsh from the Hollywood Mall. Walsh's severed head was found two weeks later, but police never located the rest of his body or his killer.

The Public Records Law exempts criminal files from disclosure while an investigation is active but requires the files to be opened if there is no hope of arrest or prosecution in the near future. Police admitted they have no suspects or leads in the case. (9/27/95-10/26/95)

Records of police interviews not exempt

FORT LAUDERDALE -- 17th Judicial Circuit Judge Estella Moriarty ordered Hallandale officials to release recordings of police interviews made during the investigation of the drowning death of a 5-year-old boy in a municipal pool.

The death was ruled accidental, but the family of James Lee Johnson has notified the city that it will file suit.

The city argued that the tapes were exempt from disclosure because they were made for the City's Risk Management division to protect the city from lawsuits. The Ft. Lauderdale Sun-Sentinel and The Miami Herald countered that the records were public police records.

Moriarty said that the commingling of the police investigation and the risk management assessment eliminated the secrecy protection afforded to records related to pending litigation and risk management. (10/12/95)

Trial records not open

BARTOW -- 10th Judicial Circuit Judge E. Randolph Bentley denied the request of appeal attorneys for convicted murderer and death-row inmate George Trepal to make public certain Coca-Cola records related to the case.

The judge ruled that the records, including tests conducted by the company, were not public. The case involves the 1989 poisoning of Peggy Carr, who died after she drank Coca-Cola reportedly laced with thallium nitrate.

The contested records will be subject to subpoena by the appeal attorneys later in the judicial process. (10/21/95)

AG rules trade secrets not always secret

TALLAHASSEE -- In a recent written opinion, Attorney General Bob Butterworth said that when employees of a non-profit corporation subject to the Public Records Law create, copy or otherwise process the records of private corporations, those records are no longer exempt from disclosure as trade secrets.

The opinion came in response to a request from the State Insurance Commissioner about records held by the Florida Residential Property and Casualty Joint Underwriting Association.

Litigants must request fees at appellate level

TALLAHASSEE -- The 1st District Court of Appeal ruled that a successful litigant in an access to public records appellate case may not rely on the mandatory award of attorney's fees at the district court level to claim appellate fees.

The court rejected the plaintiff's argument that the Public Records Law's mandatory language that "the court shall assess a reasonable attorney's fee" dictates the automatic award of fees at the appellate level.

Instead, the court ruled that the Florida Rule of Appellate Procedure governs the award of attorney's fees at the appellate level. The rules require that an explicit request be made for attorney's fees. (10/11/95)

Orlando principal sued for removing anti-abortion poster

ORLANDO -- A group of Flagler Palm Coast High School students have filed suit in federal court charging the principal with violating their First Amendment rights.

The suit, filed in August in U.S. District Court for the Middle District of Florida, came in response to the principal's decision to remove anti-abortion posters from school property. Principal Larry Hunsinger said the posters disrupted student instruction and upset individual students.

Four members of the Teens for Life student club filed the lawsuit, in which they claim the principal's action discriminated against the club and violated their rights of political and religious expression. (8/10/95)

DOT says wall censorship was an error

GAINESVILLE -- Department of Transportation officials acknowledged that they made a mistake in removing controversial messages earlier this year from a public wall alongside the busy 34th Street thoroughfare. The wall historically has served as a "free speech wall."

Although authorities have a policy to allow the wall to be used as a public forum, DOT employees removed certain messages from the wall following the Oklahoma City bombing. A DOT official since has said that the decision selectively to paint over or scrape off political statements including references to the Waco, Texas, raid by federal agents was a mistake. (Summer 1995)

Hollywood adopts news rack regulations

HOLLYWOOD -- After months of negotiations, Hollywood recently adopted a city ordinance that tightened restrictions on permitted locations of newspaper boxes located on public property.

The law, which the city said was needed to increase sidewalk safety and enhance aesthetics, says news racks cannot sit within five feet of any driveway or within two feet of a bus bench. Boxes may not reduce sidewalk width to less than three feet, must be rust-free, and must be in good working order and relatively free of graffiti.

The city eliminated color and material requirements after newspaper officials complained that those restrictions were excessive. Once city commissioner said the law would help ensure that "everything looks nice." (9/5/95-9/24/95)

Judge upholds ban; rules that Rolling fiancée may not keep tabloid profits

GAINESVILLE -- 8th Judicial Circuit Judge Nath Doughtie continued an injunction that prohibits Sondra London, fiancée of Danny Rolling, from receiving income for a series of stories published in September 1994 in the Globe tabloid.

Rolling was sentenced to death for the 1990 murders of five Gainesville students.

London claims she was paid the contested $15,000 to serve as literary agent for the three-part Globe series that provided graphic details of the crimes and was attributed to Rolling.

London was sent a $15,000 payment for her role in the series but the state attached a lien on the money, citing a state statute that prevents felons from profiting from their crimes.

The $15,000 is being held in a trust fund by the state. (9/14/95)

High Court lets buffer zone stand

WASHINGTON -- The U.S. Supreme Court refused to reconsider a Florida Circuit Court ruling that established a 36-foot buffer zone around a Melbourne abortion clinic. In early October, the Supreme Court justices let stand the ruling of Judge Jere E. Lober, who said the buffer zone does not violate the First Amendment rights of abortion protesters.

The decision paves the way for six Florida anti-abortion activists to begin serving 30-day jail sentences for violating the buffer zone in 1994.

The Supreme Court also rejected another separate constitutional challenge presented to the recently enacted federal Freedom of Access to Clinic Entrances statute. (10/5/95)

Testimony limited to published facts

DELAND -- 7th Judicial Circuit Judge Edwin Sanders ruled that News-Journal reporter John Holland could not be forced to testify before a grand jury about unpublished information he may possess related to the April 23 drowning death of an 8-year-old boy. State Attorney Steve Alexander said he would appeal the ruling.

The DeLand grand jury was considering whether OraLee Moore should be indicted in the death of her son, Dimitric.

Holland interviewed Moore on June 28 and published a story the next day that suggested Moore had specific knowledge about Dimitric's death that had not been provided to her by the police.

The grand jury sough Holland's testimony about the unpublished contents of his interview with Moore. The newspaper argued that the forced testimony would violate First Amendment protections of the press and chill its ability to gather information. The state argued that Holland was the only source of information vital to its investigation. (10/4/95)

New technologies must enhance access to government

by Bob Butterworth

"A popular government, without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own governors, must arm themselves with the power which knowledge gives." -- James Madison (August 4, 1822)

When James Madison wrote these words in 1822, he and his contemporaries conveyed information to one another using most of the same methods employed by their grandparents. Handwritten letters carried the news of the day from one person to another, and government documents were laboriously copied and filed in records books stored at the county courthouse. Yet even though it was difficult to ensure a wide dissemination of the workings of government, Madison and the other early leaders of our nation recognized that it was vital to the future of the new democracy that government be accountable and accessible to the people.

Today, Madison would be amazed at the advances that have been made in information resources and communications technology. Computer systems permit government officials to store, process and communicate public records more rapidly and more efficiently than even the most fanciful dreamer could have envisioned in 1822. Yet, Madison might ask this question: What has the government done to ensure that this new technology not only advances its own interests, but also that it is used to serve the people to enable them to become the informed citizens necessary to a free healthy society?

In recent years, Florida's leaders have responded to the challenge. With the adoption of Chapter 95-296, Laws of Florida, the Legislature has signalled governmental agencies that, "given advancements in technology, providing access to public records by remote electronic means is an additional method of access that agencies should strive to provide to the extent feasible..."

Additionally, the Florida Supreme Court has emphasized that "[t]he fact that information made or received in connection with the official business of the judicial branch can be made or received electronically does not change the constitutional and rule-mandated obligation of judicial officials and employees to direct and channel such official business information so that it can be properly recorded as a public record." In re Amend. to Rule of Jud. Admin. 2.051, 651 So. 2s 1185 (Fla. 1995), at 1187.

Florida's policy of open government, embodied both in law and in the Constitution, offers Floridians the right to become knowledgeable about their government and, thus, to be active and participating members of our democracy. The new technologies available must be applied to enhance the opportunities for knowledge, and not to defeat them.

Robert A. "Bob" Butterworth was elected Florida's 33rd attorney general in 1986. He was re-elected attorney general in 1990 and 1994. Butterworth's office produces the Florida Government-in-the-Sunshine Manual. The 1996 edition will be available in mid-January. For more information, call 904/222-3518.

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