The Brechner Report
Volume 20, Number 5
May 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
  • Eric Fritz, Production Coordinator
  • Anna C. Alonso, Production Assistant
  • Michelle Bernstein, Production Assistant
  • Bill F. Chamberlin, Ph.D., Director
  • Sandra F. Chance, J.D., Asst. Director
Brechner Center for Freedom of Information
3208 Weimer Hall
College of Journalism and Communications
University of Florida, Gainesville, 32611

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Table of Contents

Fired official denied injunction in open meetings action
Sports authority may have met illegally
Highlands official will not be charged

DOC officials accused of destroying public records
Judge opens sealed murder files
Hospital admits possible records violation
Judge denies access to booking photo of cop
Polk official cleared public records dispute

FCC shuts down Tampa radio station

Reporter ejected from hearing

City ban on street performers struck down

Federal court dismisses libel action
Third fishermen group libel suit dismissed

Elections records are now online
Track current bills at online state site

Court rejects reporter's appeal on subpoena

Sunshine needed for desegregation policy decisions

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Fired official denied injunction in open meeting action

VENICE- Twelfth Judicial Circuit Judge James Parker refused to grant a temporary injunction reinstating former Venice Housing Authority Executive Director Emory Shaw pending resolution of an Open Meetings Law action that he filed. Shaw alleged that the board that fired him violated the Open Meetings Law.

The Authority's board fired Shaw at a February meeting that Shaw claimed was not adequately noticed to the public. One notice of the meeting was posted inside the Authority's office and the media were not notified.

The judge ruled that Shaw had presented insufficient evidence for a temporary injunction returning him to his position of executive director until his case can be decided in court. Despite the setback, Shaw planned to continue with his lawsuit.(3/5/96-3/23/96)

Sports authority may have met illegally

TAMPA-Hillsborough County State Attorney Harry Lee Coe III asked Gov. Lawton Chiles to appoint a special prosecutor to look into allegations that members of the Tampa Sports Authority violated the Open Meetings Law.

The governor was expected to grant the request for a special prosecutor to look into allegations that a closed meeting was held to discuss the building of a new stadium for the Tampa Bay Bucaneers.

In requesting the special prosecutor, Coe cited a potential conflict of interest since one of his assistants, Assistant State Attorney Robert Shimberg, is the nephew of authority member Hank Shimberg.

Authority members Hank Shimberg, Jim Norman and Ronnie Mason attended a closed meeting in March at which the stadium issue was discussed. Authority attorney Don Gifford advised them that the meeting did not have to be open. (3/13/96)

Highlands official will not be charged

SEBRING- The State Attorney's Office investigated allegations that a county administrator violated the Open Meetings Law by holding closed interviews, but declined to file charges.

Highlands County commission candidate Preston Colby claimed that county administrator Carl Cool held interviews for the positions of county engineer and personnel director without public notice.

In a report on the incident, state attorney investigator Robert Stamper wrote that the failure to notify the public about the interviews did not violate the Open Meetings Law.

Stamper wrote that the interviews were conducted to obtain information from the candidates on the "technical aspects of their occupations."

The ultimate hiring authority rested with the full county commission, Stamper wrote, not with Cool alone. (2/28/96)

DOC officials accused of destroying public records

TALLAHASSEE- The chief inspector general issued a report accusing two Department of Corrections officials of destroying public records and then covering up their actions. Although no criminal charges were filed against the officials, both were subsequently demoted.

Inspector General Harold Lewis wrote in his report that Assistant Secretary Ron Kronenberger and General Services Chief Jim Morris ordered Mike Johnson, a DOC employee, to remove and destroy records pertaining to the award of an inmate telephone services contract worth up to $10 million. Johnson complied with the request, but saved copies of the documents for his own files.

According to the report, Kronenberger and Morris awarded the telephone service contract to the company that finished second in an evaluation of all bidders, bypassing the first place finisher, MCI.

MCI challenged the bid award and in a hearing on the matter, a judge agreed that the award was improper. The destruction of the documents came to light during the hearing on MCI's bid challenge.

The DOC planned to rebid the telephone services contract. (2/22/96-3/15/96)

Judge opens sealed murder files

DADE CITY- In an action filed by the St. Petersburg Times, 6th Judicial Circuit Judge Maynard Swanson ordered the Pasco County Clerk of Court to open the court files of two teenagers charged with killing a 71-year-old Seven Springs woman.

Johnathan Grimshaw and Nathan Ramirez were charged with first-degree murder in the 1995 killing of Mildred Boroski. Grimshaw was 18 and Ramirez was 17 at the time of the killing.

Both teens were charged as adults although Ramirez was a juvenile.

Clerk of Court Jed Pittman had sealed the murder file of Ramirez, citing Florida statutes that prohibit the release of juvenile records. Pittman had also refused to release any document or information in the Grimshaw file pertaining to Ramirez.

Judge Swanson ruled that since Ramirez was never charged as a juvenile, the law protecting juvenile records did not apply to the documents and information regarding Ramirez.(3/7/96-3/23/96)

Hospital admits possible records violation

TAMPA- Tampa General Hospital trustees recently admitted that their search for a new president of the public hospital may have violated the Public Records Law. As a result, the will start the costly search process again.

In the first search, the trustees hired Ed French, a Texas-based consultant, to screen applicants. French and his committee conducted a closed search, claiming that releasing the resumes to the public might deter applicants.

The St.Petersburg Times sued for the release of copies of the applicants' resumes and obtained an emergency restraining order signed by 13th Judicial Circuit Judge Manuel Menendez Jr. To prevent destruction of the search records.

After the suit was filed, the hospital released 29 of the nearly 275 resumes that had been received, claiming that those were all that remained.(2/29/96-3/13/96)

Judge denies access to booking photo of cop

SARASOTA- Twelfth Judicial Circuit Court Judge Becky Titus ruled that the Charlotte County Sheriff's Office was not required to release a booking photograph of a Charlotte County sheriff's deputy who was arrested in a bar fight incident.

The ruling came in a lawsuit filed by the Sarasota Herald-Tribune seeking the release of the photograph. The paper did not plan to appeal the ruling.

Judge Titus relied on a Public Records Law exemption for law enforcement agency information that identifies an officer employed by the agency.

The Herald-Tribune argued that the exemption should not apply to the booking photograph of a law enforcement officer charged with a crime.(2/29/96-3/1/96))

Polk official cleared in public records dispute

LAKELAND- Polk County Judge Michael Raiden dismissed Public Records Law charges against Emily Burgner, a Polk County benefits and payroll supervisor.

A former county employee complained that he was not given county records that he had requested. A state investigator looking into the incident then found the records and Burgner was charged.

The judge ruled that the records in dispute had not been in Burgner's "custody or control" and that the initial records request was insufficient.(Brechner Report, Feb. 1996)(3/15/96)

FCC shuts down Tampa radio station

TAMPA- Federal agents seized the broadcasting equipment of a radio station broadcasting as Lutz Community Radio.

The Federal Communications Commission claimed that the station was operating without a license at 96.7 FM. The FCC traced the station to the home of Arthur Lonnie Kobres after another local radio station complained about the broadcasts.

Kobres' broadcasts included talk shows downloaded from satellite transmissions and warnings about an elitist conspiracy that he claimed planned to take over the world.(3/9/96-3/10/96)

Reporter ejected from hearing

OCALA- Fifth Judicial Circuit Judge Thomas Sawaya ejected a St. Petersburg Times reporter from a divorce proceeding that involved Hernando County Commissioner John Richardson.

Times reporter Lisa Buie entered the hearing at the Marion County Courthouse after the judge's receptionist pointed out the location to her. Unknown to Buie, the judge had closed the hearing to the public.

The proceedings had begun when Buie entered and she was permitted to observe testimony for almost an hour before the judge asked who she was.

When Buie identified herself as a reporter, the judge asked her to leave. After the hearing ended, the judge ordered Buie not to report on what she had heard during the hearing.

The Times planned to seek an order opening the proceedings.

A grand jury called for Richardson to resign last year amid allegations that he violated federal coastal construction laws.(3/12/96)

City ban on street performers struck down

ST. AUGUSTINE- Seventh Judicial Circuit Court Judge Richard O. Watson ruled that a St. Augustine ordinance that banned street performances for tips in the city's historic district violated the free speech clause of the First Amendment.

"Even begging has been afforded First Amendment protection," Watson wrote in his ruling in a case in which Roger Jolley had been arrested for violating the ban.

The city passed the ordinance last year after merchants complained that the street performers were blocking the street and bothering tourists.(3/20/96)

Federal court dismisses libel action

NEWARK, N.J.-U.S. District Judge Garrett E. Brown dismissed an action filed by the Florida Prepaid College Program against the College Savings Bank for defamation, product disparagement and trade libel.

The judge ruled that Florida Prepaid, an agency of the state of Florida, could not maintain an action for defamation or the related causes of action of product disparagement and trade libel.

The judge relied on court opinions that have held that commentary about the government is "absolutely privileged" under the First Amendment.

College Savings is a private bank that offers a college savings program that competes with a similar program offered by Florida Prepaid. College Savings originally sued Florida Prepaid for unfair competition.

Florida Prepaid filed a counterclaim for defamation and libel after bank president Peter Roberts was quoted in the Miami Daily Business Review accusing Florida Prepaid of using false and misleading information in promotion materials.(3/13/96-3/23/96)(Decisions on File, College Savings Bank v. Florida Prepaid College Program, Civ. No. 95-4516 (March 22, 1996))

Third fishermen group libel suit dismissed

MIAMI- Eleventh Judicial Circuit Judge Sam Silver dismissed a group libel action filed by 1,553 commercial net fishermen against Post-Newsweek Stations of Florida. The suit arose from the broadcast of a political advertisement that was critical of commercial net fishing.

In his ruling, the judge relied on court opinions that have held that individual group members could not sue for defamatory statements pertaining to a group of more than 25 members.

The advertisement did not identify any of the fishermen individually.

The ruling followed dismissals of similar cases in Orlando and Jacksonville.(Brechner Report, Nov. 1995, Feb. 1996, March 1996)(Decisions on File, Bass v. Post-Newsweek Stations of Florida, Case No. 95-16623 CA (20)(Feb. 7, 1996)).

Elections records are now online

TALLAHASSEE- The Florida Division of Elections now has a home page on the Internet for electronic access to information. Users can access campaign financial reports on political candidates, parties and committees that have been filed electronically this year. The information is free to those with Internet access.

The division was the first state elections division to make records available on the Internet. The address is []. (3/3/96).

Track current bills at online state site

TALLAHASSEE- Internet users can access the latest information on the current legislative session at the Florida Legislature's home page, OnLine Sunshine.

The site contains information about pending legislation, calendars, statutes and lobbyists and can be reached at [].

Another site, the Florida Government Information Locator Service, provides information about government agencies, courts and public access issues. The site can be accessed at [].(3/3/96)

Court rejects reporter's appeal on subpoena

WEST PALM BEACH- The 4th District Court of Appeal left standing a trial court's refusal to quash a subpoena that prosecutors served on a journalist.

The journalist, Jeffrey Harrell, had interviewed the defendant in a murder prosecution for an article on the case.

The court concluded that Florida's "qualified journalist privilege only protects a journalist's confidential news sources" and that the subpoena in dispute did not require the journalist to identify a confidential source.

Harrell wrote a news article about the murder and included attributed quotes from the defendant, George Blancett, charged with second degree murder. The article was published in XS Magazine in January 1995.

Prosecutors then subpoenaed Harrell to give a statement and the trial judge refused to quash the subpoena. (Decisions on File, Gold Coast Publications v. Florida, Case No. 95-2249 (Mar. 13, 1996))

Sunshine needed for desegregation policy decisions
by George D. Gabel, Jr.

During its lengthy desegregation struggle, the Duval County School Board has been sued by several plaintiffs, most recently the NAACP. To keep the public informed, the media has covered the progress of desegregation plans, including coverage of school board desegregation meetings that have sometimes become contentious.

Perhaps uncomfortable with publicity, the school board closed desegregation meetings and access to desegregation records last year. In denying public access, the board attempted to avoid public scrutiny of its actions on desegregation policy decisions despite limitations in the law that arguably preclude this.

While Florida Statute 286.001(8) permits a state agency, such as a school board, to meet privately with its attorney, the exemption is narrowly defined. The exemption only permits closed discussions of pending litigation to which the entity presently is a party and the subject matter of the meeting must be confined to settlement negotiations or strategy related to litigation expenditures.

Similarly, Florida Statute 119.07(3)(l)1 exempts from public disclosure documents prepared by an agency's attorney, or at the express direction of an attorney, but only to the extent that the documents reflect the attorney's or agency's mental impressions, conclusions, litigation strategy, or legal theories prepared for current or imminent litigation.

In perhaps misplaced reliance on these exemptions, the school board closed its desegregation meetings and withheld transcripts even though the substance of the talks may have exceeded the specific trial strategy of the pending NAACP litigation. At the meetings, attended by numerous school board staff members, discussion included busing plans and the proposed location of new schools. In fact, the board developed a desegregation plan at one of its closed meetings and delivered a copy to the NAACP.

The Florida Times-Union filed a complaint in the 4th Judicial Circuit to force the school board to open its meeting and release records and transcripts. The trial court held that the school board had violated Florida's Open Meetings Law and ordered the release of the transcripts and documents created at the meeting. (Brechner Report, Dec. 1995) (Florida Publishing Co. v. Duval County School Board, 23 Media L. Rep. 2302 (4th Cir. 1995)). The school board appealed.

The 1st District Court of Appeal affirmed, holding that the Open Meetings Law exemption for discussions of pending litigation is specific on who may attend closed meetings, and that staff and consultants do not fit within the exemption. (Brechner Report, April 1996) (Decisions on File, Duval County School Board v. Florida Publishing Co., Case No. 95-1965 (Feb. 20, 1996)). The appellate court recently denied the school board's motion for a rehearing on the matter.

Unfortunately, neither the trial court nor the appellate court discussed the issue of whether the school board could have properly closed its desegregation meetings had staff and consultants not been present. This left the propriety of the substance of the closed talks undecided and a potential problem for the future.

The school board admitted that it had a constitutional duty to maintain a desegregated school system and that, regardless of any lawsuit, it would have addressed the same desegregation issues it discussed in the NAACP action. Accordingly, the issues discussed by the board at the closed talks existed independently of the NAACP lawsuit and they should not be considered to be litigation strategy. Even if discussed only between an attorney and the superintendent of schools, plans for desegregation policy involve the fundamental powers of the school board, not settlement proposals, trial strategy or attorney work product.

Hopefully, courts in future Sunshine Law cases will expand the holding of the 1st District Court of Appeal. The courts must ensure that a public agency engaged in formulating broad public policy cannot avoid public scrutiny by closing meetings whenever an individual party files a suit challenging the policy.

George D. Gabel, Jr., is a name partner with the law firm of Gabel & Hair in Jacksonville and represents media clients.

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