The Brechner Report
Volume 20, Number 3
March 1996

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.

• R. Michael Hoefges, J.D., Editor
• Anna C. Alonso, Production Assistant
• Michelle Bernstein, Production Assistant
• Sandra F. Chance, J.D., Asst. Director
• Bill F. Chamberlin, Ph.D., Director

Table of Contents

ACCESS MEETINGS
City enacts public disclosure rules
Private talks on FAA complaint OK
Officials cleared in Sunshine Law inquiry

ACCESS RECORDS
Spaziano refused access to FDLE file
DCA affirms discharge of records suit
AGO permits release of emergency records to city attorneys
Records policy criticized by State Attorney
Supervisor charged

ADVERTISING
Vote held valid despite lack of ads

FIRST AMENDMENT
School board settles Bible-ban lawsuit
Poet's autobiography escapes school ban
Principal orders cover-up of nude sculpture

GAG ORDERS
Judge rejects closure and gag requests in murder trial

LEGISLATIVE PREVIEW
Legislature slated to consider access bills for 1996 session

LIBEL
Another group libel suit thrown out of court

NEWS NOTES
1996 Sunshine Manuals ready
Brechner Report available online

THE BACK PAGE
Host of proposed bills seek to restrict access

City enacts public disclosure rules

GREEN COVE SPRINGS--A city resolution now requires Green Cove Springs officials to disclose communications they have outside a public meeting with anyone involved with a matter pending before the city council.

The resolution permits city officials to review items such as written reports, letters and expert opinions related to a pending matter only if these items are placed in the public record before or at the public meeting at which the city council votes on the matter.

The resolution also requires disclosure of verbal discussions and activities such as site visits and investigations by officials. (12/23/95)

Private talks on FAA complaint OK

ARCADIA-The Arcadia City Council may meet in private to discuss a Federal Aviation Administration order without violating the Florida Sunshine Law, said Chief Assistant State Attorney Henry Lee.

The FAA ordered Arcadia to end a ten-year agreement that gives one company, Air-Cadia, the exclusive right to provide services at the Arcadia Municipal Airport.

A complaint filed with the FAA alleged that the agreement prevented other businesses from setting up at the airport.

Lee stated that the meeting would fall under a Sunshine Law exemption that permits limited closed meetings to discuss "pending litigation." (12/12/95-12/27/95)

Officials cleared in Sunshine Law inquiry

TAMPA-The State Attorney's Office recently cleared two county commissioners of alleged Sunshine Law violations.

While attending a seminar on race relations, Hillsborough county commissioners Joe Chillura and Chris Hart discussed a newspaper article about a local theater that was still involved in a zoning dispute with the county.

Assistant State Attorney Robert Shimberg found no evidence that the two commissioners discussed the actual zoning issue or conducted any public business in private. (12/29/95)

Spaziano refused access to FDLE file

SANFORD--A circuit court judge recently ruled that Joseph "Crazy Joe" Spaziano, who has spent nearly twenty years on death row, could not obtain the 1995 report of a confidential investigation into the case ordered by Gov. Lawton Chiles.

In 1976, Spaziano was convicted of murder. However, last summer, Joseph DiLisio the key prosecution witness from the 1976 trial, recanted his testimony that Spaziano had shown him a decomposed corpse in a dump. After DiLisio recanted, Gov. Chiles ordered an investigation by the Florida Department of Law Enforcement and relied on the report of the investigation in signing a fifth death warrant for Spaziano.

Spaziano then served Gov. Chiles, Attorney General Bob Butterworth and the FDLE with subpoenas seeking the report. Spaziano also served subpoenas on two Orlando Sentinel reporters who had written about the case.

Eighteenth Judicial Circuit Court Judge O. H. Eaton refused to enforce the subpoenas, ruling that the FDLE report was part of a confidential executive clemency procedure. The fact that the governor may have disclosed parts of the report to the news media did not entitle Spaziano to the whole report, according to the judge.

In a subsequent ruling in the case, Judge Eaton threw out the 1976 murder conviction anyway and ordered a new trial. The judge said he was convinced that DiLisio lied at the original trial and that Spaziano had been unfairly convicted. The state planned to appeal. (1/5/96-1/31/96)

DCA affirms discharge of records suit

LAKELAND--The Second District Court of Appeal has upheld the discharge of a public records action because there was no evidence that the requested document still existed.

Melissa Skeen made a Public Records Law request to State Attorney Joseph D'Alessandro, her previous employer, for personnel and investigation records. Skeen, a former prosecutor, has claimed that she was harassed while employed by D'Alessandro's office.

D'Alessandro produced some of the requested documents, but not a five-page report Skeen wanted. At a circuit court hearing, D'Alessandro testified that he could not locate the five-page report and had never seen it. The circuit court refused to let Skeen offer evidence that the document had existed at one time and discharged the action.

The appeals court affirmed, stating that an order to produce the document would be "unavailing" since the document was not shown to have existed at the time of the hearing before the trial court. The appeals court noted that Skeen's evidence that the document had existed before the hearing did not show that the document was still available. (01/12/96) (Decisions on File, Skeen v. D'Alessandro, No. 95-01467 (Dec. 22, 1995))

AGO permits release of emergency records to city attorneys

TALLAHASSEE-A city attorney may review city fire-rescue records containing patient information without violating statutory confidentiality provisions, according to a recent opinion of the Attorney General.

Under Florida Statute section 401.30(3), emergency records containing patient examination or treatment information are exempt from disclosure under the Public Records Law and may not be released without the patient's consent.

Although the statute permits release of these records in limited circumstances, such as to hospital emergency personnel who are treating a patient, it does not specifically state that city attorneys and other officials may review the records.

In his written opinion, Attorney General Bob Butterworth stated that attorneys and city officials who advise the city on matters regarding emergency medical services or who defend the city against potential claims arising from emergency medical services may review the records without violating the statutory confidentiality provisions.

Opinions from the attorney general give advice to state officials. (Fla. Atty. Gen. Op. 95-75, Dec. 5, 1995)

Records policy criticized by State Attorney

OCALA--Inquiries into Public Records Law complaints against the Ocala City Manager's Office resulted in a critical memo from the State Attorney's Office.

The first complaint alleged that documents related to hotel reservations made by Assistant City Manager Janet Tutt for a Dade County Public Works Crew were not produced in response to a public records request. Eventually, the records were produced and Tutt was cleared of any wrongdoing.

The second complaint came during the investigation of the first and involved allegations that a request for a city wage and salary study had been denied and that Tutt had polled city council members on whether the firm that prepared the study should appear before the council.

The results of the inquiry into the second complaint remained pending, although the requested wage and salary study was eventually produced.

In a memo from the State Attorney's Office, Herb Hoskins stated that the "apparent lack of understanding by Janet Tutt and her subordinate city administrators of what are public records, the laws governing public records, and public records issues are going to be future problems for the City of Ocala unless corrective action is taken." (12/14/95)

Supervisor charged

BARTOW-The State Attorney's Office charged Bartow county supervisor Emily Burgner with an unintentional Public Records Law violation after a former county employee claimed that the county took three months to produce public records he requested. If convicted, the supervisor faces a fine of up to $500, but no jail time. (1/24/96)

Vote held valid despite lack of ads

DELTONA-A circuit judge recently ruled that a city incorporation referendum was valid even though the county did not run required legal classified advertisements announcing the election.

Deltona residents voted last fall to become the second largest incorporated city in Volusia County. However, the county had not run advertisements three and five weeks before the election as required by Florida statute.

After the election, a group of Deltona residents who opposed incorporation challenged the vote in court.

After a two-day trial, Seventh Judicial Circuit Court Judge John V. Doyle upheld the election. He found that although the county violated the notice statute, the election was valid since there was no evidence of fraud.

Judge Doyle wrote in his order that despite the absence of the required notices, there had been "vigorous public debate" on the incorporation issue prior to the election and that 43 percent of the electorate had voted in the election. (12/14/95-12/28/95)

School board settles Bible-ban lawsuit

ORLANDO-To settle a lawsuit, the Orange County School Board has adopted President Clinton's guidelines on religion in the public schools and will permit students to bring Bibles to school.

A fifth-grade student sued the school board in federal court after his teacher told him not to bring his Bible to school. The student claimed that the Bible-ban violated his First Amendment right to free speech and to practice his religion.

Following the settlement, Superintendent Donald Shaw planned to distribute the presidential guidelines to all county principals and enforce them in the district.

The presidential guidelines permit students to bring religious literature to school and to pray voluntarily at certain times, such as before meals.

The school board also agreed to pay $10,000 toward the student's legal fees as part of the settlement. (01/25/96)

Poet's autobiography escapes school ban

DAYTONA BEACH-A county-wide committee of school officials and parents voted not to ban the best-selling autobiography of poet Maya Angelou from Volusia County high school classes and libraries.

In her book, I Know Why the Caged Bird Sings, Angelou depicts events of her childhood and young adult years, including having been raped when she was 8 years old. The book was a national bestseller and has received widespread critical acclaim.

Two Deland High School parents complained that the book was immoral and anti-religious. The review committee disagreed, finding that the book was appropriate for high school students.

The committee also voted to keep a school policy requiring that parents be notified before potentially objectionable readings are assigned. (12/15/95)

Principal orders cover-up of nude sculpture

MIRAMAR-After receiving complaints from teachers and students, a high school principal ordered an art student to cover up her nude sculpture with a tarp. When the student refused, the principal pulled the sculpture from display.

Dillard High School art student Rebecca Antolak created the eight-foot wire and plaster statue of a seated, nude male figure. The complaints began after she added a penis to the sculpture. Principal John Kelly had the statue moved out of the school's lobby and into a prop room.

Antolak's sculpture was removed from a display that included depictions of nude females. (01/15/96-01/28/96)

Judge rejects closure and gag requests in murder trial

KISSIMMEE-A circuit judge refused a defense request to close pre-trial proceedings and to gag trial participants in an Osceola County murder case.

Jeremy Skocz, who was charged with the murder of four-year-old Shelby Cox, asked the court to close all pre-trial proceedings and gag trial attorneys, parties, witnesses, law enforcement officials, and court personnel from releasing information.

The Orlando Sentinel, WESH-Channel 2, WFTV-Channel 9 and WCPX-Channel 6 intervened and opposed the motion.

Under Florida law, one seeking to close pre-trial criminal proceedings must prove that closure will prevent a serious and imminent threat to justice, that there is no alternative to closure and that closure would protect the rights of the accused without being overly broad.

In his order, Ninth Judicial Circuit Court Judge Frank N. Kaney found that Skocz failed to demonstrate a "strict and inescapable necessity for closure of pre-trial proceedings in this case."

The judge also refused the gag order request since none of the trial participants had made prejudicial comments. (Decisions on File, Florida v. Skocz, No. CR95-2245 (Jan. 17, 1996))

Legislature slated to consider access bills for 1996 session

TALLAHASSEE--Florida legislators are debating a number of bills that have implications for freedom of information.

As of February 15, 1996, 48 bills and companion bills had been filed that impact public records, open meetings and First Amendment issues, according to Barbara Petersen, Executive Director of the First Amendment Foundation.

Further information on filed bills, including full text and detailed legislative summaries, is available online at the Florida Legislature's home page on the Internet. The address is http://www. scri.fsu.edu/fla-leg/. Petersen also may be contacted for additional information by calling (800) 337-3518.

HB 47 (Gay, R-Cape Coral) and SB 202 (Rossin, D-West Palm Beach)--Creates Public Records Law exemption for information that identifies jurors in criminal trials and prohibits release of the information.

HB 115 (Brooks, R-Winter Park)--Creates the "Woman's Right-To-Know Act." Requires the physicians performing abortions to provide certain information to pregnant women and written certification that women have received the information.

HB 165 (Chestnut, D-Gainesville) and SB 560 (Sullivan, R-St. Petersburg)--Creates Public Records Law and Sunshine Law exemptions for university health services support organizations.

HB 171 (Rayson, D-Pompano Beach) and SB 42 (Weinstein, D-Coral Springs)--Creates Public Records Law exemption for patient records and identifying information regarding complainant to managed care ombudsman committees.

HB 183 (Miller, D-Tampa) and SB 92 (Grant, R-Tampa)--Creates Public Records Law exemption for proposals, counterproposals and financial records regarding deepwater ports.

HB 231 (Arnall, R-Jacksonville Beach)--Creates Sunshine Law exemption for Restorative Justice Board when discussing resolution of a pending juvenile matter. Creates Public Records Law exemption for minutes, tapes, notes, and other records generated at closed portions of meetings. Contingent upon passage of HB 229, which creates board.

HB 323 (Rodriguez-Chomat, R-Miami)--Authorizes new corporations to issue bearer stocks with the identity of original owner or individual who established the corporation being confidential unless a court orders otherwise.

HB 553 (Governmental Operations)-- Provides legislative intent to create uniform standards of accountability of public program and service providers. Stipulates the applicability of the Public Records and Sunshine Laws to these providers.

HB 629 (Eggelletion, D-Lauderdale Lakes)--Creates Public Records Law exemption for information identifying current and former Medicare fraud investigators and their families.

HB 689 (Trovillion, R-Winter Park) and SB 426 (Dyer, D-Orlando)--Creates Public Records Law exemption for certain information in possession of the Orlando-Orange County Expressway Authority relating to the use of credit cards and checks for toll payments.

HB 709 (Tourism and Cultural Affairs)--Creates public Records Law exemption for identities of those who respond to marketing or advertising research projects on behalf of the Florida Commission on Tourism. Protects trade secrets.

HB 717 (Heyman, D-North Miami Beach)--Creates the "Uniform Motor Vehicle Records Disclosure Act" to conform to the requirements of the federal Driver's Privacy Protection Act of 1994. Creates Public Records Law exemption for personal information obtained by the Department of Highway Safety and Motor Vehicles in connection with motor vehicle records. Creates exceptions and provides penalty for violation.

HB 739 (Judiciary) and SB 78 (Burt, R-Ormond Beach)--Provides Public Records Exemption for personal information obtained during background investigation of potential guardians ad litem to represent abused and neglected children.

HB 815 (Rayson, D-Pompano Beach) and SB 368 (Meadows, D-Ft. Lauderdale) --Requires Department of Education to maintain data base of employees terminated for such reasons as misconduct in office and make it available to district superintendents.

HB 889 (Goode, D-Melbourne) and HB 1035 (Graber, D-Coral Springs)--Creates Public Records Law exemption for information submitted by health care providers, insurers, networks or purchasers in connection with antitrust review.

HB 969 (Greene, D-Magonia Park) and SB 538 (Rossin, D-West Palm Beach)--Requires the Department of Law Enforcement to establish a protocol within each county for providing protection to crime victims and witnesses.

HB 977 (Martinez, D-Tampa)--Provides an exemption from public records requirements for records delivered to appropriate law enforcement officers relating to pawnbroker transactions.

HB 1023 (Klein, D-Boca Raton) and SB 942 (Sullivan, R-St. Petersburg)-Creates the "Electronic Signature Act of 1996." Secretary of State authorized to verify electronic signatures. Requires Secretary of State to study the use of electronic signatures for commercial purposes and report to the Legislature.

HB 1067 (Johnson, R-Plant City) and SB 286 (Grant, R-Tampa)--Stipulates that reports of the risk-based capital of insurers filed with the Department of Insurance are confidential and permits disclosure for law enforcement purposes. Makes certain assets and reinsurance reports confidential.

HB 1069 (Sindler, D-Apoka)--Charges Department of Legal Affairs with investigating and prosecuting computer pornography and child exploitation offenses. Criminalizes acts such as using computer online services, including the Internet, to facilitate or solicit sexual conduct with one thought to be a minor. Provides criminal penalties for violation.

HB 1111 (Sembler, R-Sebastian)--Makes public certain information that religious, literary, scientific or charitable organizations submit to the state when seeking an ad valorem tax exemption.

HB 1115 (Stafford, D-Wilton Manors) and SB 674 (Jones, D-Miami)--Exempts counties and municipalities from some Litigation in the Sunshine statutory requirements. Permits cities and municipalities to settle tort claims involving more than $5,000 in public funds at a public hearing without prior notice if emergency exists and circumstances are placed on the record. Exempts settlements entered into by insurers of local governments from public hearing requirements.

HB 9019 (Albright, R-Ocala)--Recognizes May 2, 1996 as National Day of Prayer in Florida.

SB 66 (Williams, D-Tallahassee)--Permits district school board to pass resolution allowing voluntary invocation or benediction at some high school events.

SB 72 (Crist, R-St. Petersburg)-Stipulates that desecration of the U.S. flag is a first-degree misdemeanor.

SB 110 (Burt, R-Ormond Beach)--Creates Public Records Law exemption for identifying information concerning grand jury members and exempts provision from Open Government Sunset Review Act.

SB 224 (Latvala, R-Palm Harbor)--Prohibits solicitation of voters within 100 feet of the entrance to a polling place or polling room, but authorizes a supervisor of elections to make exceptions. Requires law enforcement officer be assigned to a precinct to inform solicitors of the 100-foot zone and to remove those who are disruptive or unruly.

SB 468 (Bronson, R-Satellite Beach)--Creates Public Records Law exemption for information in rabies vaccination control certificates identifying an animal's owner.

SB 486 (McKay, R-Bradenton)--Authorizes the Department of Revenue to share confidential information with tax collectors. Failure by tax collectors to maintain the confidentiality of the information is a first-degree misdemeanor.

SB 606 (Latvala, R-Palm Harbor)--Provides that existing Public Records Law exemption for registration and circulation information maintained by public libraries does not prohibit a library or a business operating jointly with a library from disclosing information from the library registration or circulation records to certain officials for the purpose of recovering overdue library materials or collecting fines on those materials.

SB 616 (Dantzler, D-Winter Haven)--Authorizes the Game and Fresh Water Fish Commission to charge for producing printed material.

SB 668 (Reform and Oversight)--Removes "obsolete" Public Records Law exemptions relating to items such as identifying information in Department of Revenue records, drop-out and graduation information in student records, certain information in student and juvenile justice records, certain information in Professional Golf Hall of Fame records and information concerning HIV test results in patient and inmate clinical records.

SB 766 (Transportation)--Creates Public Records Law for certain information contained in motor vehicle records, but provides exemptions. Limits access to motor vehicle titles and driver's license records.

SB 894 (Governmental Reform and Oversight)--Amends the Open Government Sunset Review Act of 1995, including by changing review date of exemption and providing criteria that must be followed before Public Records Law or Sunshine Law exemptions are created.

SB 946 (Kurth, D-Malabar)--Stipulates that the identities of donors to the direct-support organization for the Florida Commission on the Status of Women are confidential.

Another group libel suit thrown out of court

JACKSONVILLE--Fourth Judicial Circuit Judge L. Haldane Taylor dismissed a group libel action against four Jacksonville television stations that aired a political advertisement supporting state constitutional restrictions on commercial net fishing in Florida waters.

A group of 436 net fishermen alleged that the ad falsely depicted negative consequences of net fishing in Florida and defamed the fishermen. The ad was aired on WJKS-Channel 17, WAWS-Channel 30, WTLV-Channel 12 and WJXT-Channel 4, the fishermen alleged in their lawsuit.

Under Florida libel law, if a defamatory statement is made about a group, an individual member may sue for liable only if the group is small and the statement may be understood to apply to the individual member.

Judge Taylor ruled that none of the net fishermen could prevail in the libel action because the group was too large and individuals were not identified.

Judge Taylor wrote in his order that libel actions filed by large groups of over 25 members had been "consistently and uniformly dismissed" by other courts. (Decisions on File, Thomas v. WJKS, No. 95-04218 (Jan. 17, 1996)).

Late last year, another circuit judge dismissed a nearly identical group libel action filed by 637 net fishermen against Orlando's three largest television stations. (Brechner Report, Nov. 1995, Feb. 1996) The ruling in that case has been appealed. (1/25/96)

1996 Sunshine Manuals ready

TALLAHASSEE-The 1996 edition of the Government-in-the-Sunshine Manual is now available. The new edition lists 694 exemptions to the Florida Sunshine and Public Records Laws, according to Patricia Gleason, General Counsel with the Office of the Attorney General.

The manual is prepared by the Office of the Attorney General as a compliance guide for state agencies. To order a manual at $11, call the First Amendment Foundation at (800) 337-3518.

Brechner Report available online

The Brechner Report is available online at the Brechner Center home page on the Internet. Back issues and links to other freedom of information sites are available there. The address for the Brechner Center home page is: http://www.jou.ufl.edu/brechner/brochure.htm.

Host of proposed bills seek to restrict access

by Barbara A. Petersen

According to a recent St. Petersburg Times editorial, the Florida Legislature is creating new Public Records Law and Sunshine Law exemptions at a rate of nearly 25 a year. There were close to 700 exemptions in existence following the 1995 legislative session. There are nearly 30 bills filed in the current legislative session that would create new exemptions, most to the Public Records Law. Legislators can continue to file new bills until March 8.

A number of the new bills close public records in the name of privacy. Rep. Greg Gay (R-Cape Coral) and Sen. Tom Rossin (D-West Palm Beach) have filed legislation exempting information identifying jurors in criminal trials after voir dire, and Senator Locke Burt (R-Ormond Beach) is sponsoring a bill that would exempt all information about grand jurors.

Rep. Gay argues that citizens are less willing to sit as jurors because personal information submitted to the courts becomes public record. He cites to an incident in Charlotte County where a disgruntled victim wrote letters to members of the jury after the defendant in the case was acquitted. This is the only reported "threat" to juror safety in Florida so far, and the question arises whether the jurors bills are an overreaction. A better response to threats to juror safety can be found in another bill that would make it a crime to willfully and maliciously harass a juror.

Other bills filed in the guise of protecting individual privacy include those exempting information on individuals using an automated expressway toll system, identifying information in rabies vaccination certificates, information identifying investigators of the Medicaid Fraud Control Unit, and information identifying donors to the Florida Commission on the Status of Women.

Legislation has also been filed that would implement the federal Driver's Privacy Protection Act, requiring all states to adopt legislation to protect personal information contained in motor vehicle records. In compliance with the federal law, the Senate Transportation Committee has drafted legislation providing that personal information contained in any motor vehicle record is exempt upon request by the subject of record; in other words, licensed drivers may "opt-out" of the public disclosure requirements. In direct contrast, Rep. Sallie Heyman (D-North Miami Beach) has sponsored legislation that reverses the presumption of openness. Under Heyman's bill, a licensed driver must opt-in, thus allowing access to driver history and other motor vehicle records.

Not all the news this session is gloomy, however. Rep. Mary Brennen (D-Pinellas Park) has filed a bill that would require the reporting of health care information by health care providers and expand public access to such information. Also, Rep. John Cosgrove (D-Miami) amended a proposed committee bill by the House Judiciary Committee that would allow public access to certain records and meetings of the judicial nominating committee. Rep. Charles Sembler (R-Vero Beach) has sponsored legislation making certain information submitted in connection with a determination of the nonprofit status of applicants for exemptions from ad valorem taxation a matter of public record. In addition, the Senate Governmental and Reform Committee has filed a bill that deletes several public records exemptions.

If you have any questions about any of these bills, or would like information about other public access legislation, you can call the First Amendment Foundation at (800) 337-3518 or (904) 222-3518. If you would like to voice your opposition to or support for a bill, I strongly urge you to call or write your local representatives as well the sponsor of the bill. Your opinion does count, and can go a long way in determining whether a bill passes or fails.

Petersen is the Executive Director of the First Amendment Foundation in Tallahassee.

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