The Brechner Report
Volume 20, Number 9
September 1996

A monthly report of mass media law in Florida

• R. Michael Hoefges, J.D., Editor
• Eric Fritz, Production Coordinator
• Bobbie Stewart, Prod. Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS RECORDS
Federal judge rejects accord in Scientology records case
5th DCA says town must pay fees for record violation
Court clerk may charge $1 per page
School board to pay $39,000 in legal fees
Woman may not sue for inaccurate records
Hispanic council subject to open records law

ACCESS MEETINGS
AG says meetings must be accessible

COURTS
Court denies motion to ban media access to evidence
Court denies to seal discovery in murder case
Judge releases court files to public

CIRCULATION
City passes news rack regulations and permit fees

FIRST AMENDMENT
2nd DCA strikes down Lee noise ordinance as unconstitutional
AG says officials do not have to swear oath

STUDENT PRESS
Paper's adviser reinstated after filing grievance

THE BACK PAGE
FOI and First Amendment information available on line

Federal judge rejects accord in Scientology records case

TAMPA - U.S. District Judge Susan C. Bucklew refused to approve a settlement agreement between the city of Clearwater and the Church of Scientology that would have sealed access to files detailing police investigations dating back to 1979 of church members. The investigations did not result in criminal charges against members.

The ruling came in a court action filed by the city in 1994 after the church objected to public release of the files. Clearwater officials claim that the files are subject to the Public Records Law.

The church filed a counterclaim against the city and removed the action to federal court. The church claims that release of the files would violate members' constitutional rights of privacy and religious freedom.

The settlement agreement would have sealed the records and required anyone seeking access to get a court order. The St. Petersburg Times and The Tampa Tribune intervened in the case and objected to the settlement agreement as a contravention of the Florida Public Records Law.

Bucklew agreed and refused to approve the settlement. The agreement would have "carved out an exemption" to the Public Records Law, she stated in her order.

With the settlement rejected, the court case could proceed to trial. The city had hoped to settle the case and avoid the expenses of more litigation. (4/13/96-6/21/96)

Records case against Ridder to continue

MIAMI - In a recent hearing, Judge Robert P. Kaye, 11th Judicial Circuit, denied a motion to dismiss a public records action filed by New Times Newspapers against Knight-Ridder chairman Tony Ridder.

New Times is seeking documents from Ridder concerning negotiations to finance and build a new arena for the Miami Heat professional basketball team.

New Times claims that the documents are subject to the Public Records Law because Ridder was acting on behalf of the the public during negotiations concerning the arena.

Ridder claims that the requested documents are not subject to the Public Records Law because they were not shown to public officials. He had agreed to produce the documents after suit was filed.

Kaye's ruling in the case means that the court ultimately could decide whether the documents are public records, which may affect other records in addition to those Ridder agreed to produce.

Ridder was appointed by the Metro-Dade Commission to lead efforts to keep the Heat in Miami. Ridder retained a private consultant to assist in the negotiations and half of the consultant's $490,000 fee was paid with public funds. The commission has announced plans to construct a new arena under a financing plan that Ridder helped to negotiate. (5/11/96-7/13/96)

5th DCA says town must pay fees for records violation

DAYTONA BEACH - The 5th District Court of Appeal held that the town of Eatonville must pay attorneys' fees and court costs after violating the Public Records Law. The decision reversed a lower court ruling that the town was not obligated to pay fees and costs.

Michael Barfield sued Eatonville after being denied access to public records related to the opening of a topless club in the town. Barfield prevailed in his suit, but the trial judge refused to order the town to pay fees and costs. Barfield ultimately received the requested documents. (Brechner Report, November 1995)

The appellate court found that Barfield was entitled to fees and costs despite the town attorney's argument that the town should not be responsible for the wrongful actions of its clerk, who ultimately was fired.

"The Town's defense, that the delay in production of the records was caused by either the intentional wrongdoing or ineptitude of its Town clerk, amounts to an unlawful refusal," the appellate court wrote. (Decisions on File, Barfield v. Town of Eatonville, Case No. 95-2715 (June 14, 1996))

Court clerk may charge $1 per page

WEST PALM BEACH - The 4th District Court of Appeal held that the Palm Beach County Circuit Court clerk can charge $1 per page for court records.

The maximum charge for the records under the Public Records Law would be 15 cents but the court held that those provisions do not apply to court records.

The court instead ruled that Florida Statute section 28.24(8)(a), which permits circuit court clerks to charge $1 per page for copies of "any instrument in the public records," applies to all court records.

The court distinguished the case of Times Publishing Co. v. Ake, in which the Florida Supreme Court ruled that access to records controlled by court clerks is governed by judicial rules and not the Public Records Law. (Brechner Report, July 1995)

However, the 4th District ruled that the Ake decision does not prevent the legislature from setting copy charges for court records, such as the charges set forth in section 28.24(8)(a). (Decisions on File, WFTV Inc., et al., v. Wilken, Fla. L. W. D1412 (June 19, 1996))

School board to pay $39,000 in legal fees

WEST PALM BEACH - The Palm Beach County School District has agreed to pay $39,000 in attorneys' fees and court costs to resolve a public records action filed by the Fort Lauderdale Sun-Sentinel and The Palm Beach Post .

The papers sued the school board in 1994 after the board refused to produce a school survey conducted by a private marketing company. (Brechner Report, January 1995).

At trial, the board was found to have violated the Public Records Law and was ordered to pay $30,163 in attorneys' fees and costs. In June, an appellate court upheld the judgment and ordered the trial court to recalculate the award of fees and costs after the appeal. (Brechner Report, August 1996) The settlement resolves that issue. (7/9/96)

Woman may not sue for inaccurate records

TALLAHASSEE - The 1st District Court of Appeal ruled that a woman may not sue the Florida Department of Highway Safety and Motor Vehicles for an inaccuracy in her driving record that resulted in her being arrested on a mistaken charge.

"We conclude that the maintenance of DHSMV records is a function undertaken by the government for the public generally and that the duty to perform this function runs to the public and not to individual licensed drivers," the opinion states.

Nancy Ann Layton was arrested and jailed on a charge of driving with a suspended license. The charge was dropped after it was discovered that a computer error had caused her license to be categorized as "suspended."

The court stated that the "state has no common law or statutory duty to Layton to accurately maintain motor vehicle records." (Decisions on File, Layton v. Florida Department of Highway Safety & Motor Vehicles, Case No.: 94-285 (July 2, 1996))

Hispanic council subject to open records law

WEST PALM BEACH - Judge Richard I. Wennet, 15th Judicial Circuit, ruled that the Hispanic Human Resources Council, a for-profit organization supported with tax dollars, is subject to the Public Records Law.

In 1994, columnist Ricardo Casas requested financial records from the council.

The council agreed only to provide some of the requested records, but Wennet ruled that all records of the council are subject to the Public Records Law. (6/29/96) (Decisions on File, Casas v. Hispanic Council, Inc., et al., Case No. CL 95-2041 AN (July 28, 1996))

AG says meetings must be accessible

TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that the Open Meetings Law requires that public meetings be held in places that are easily accessible to the public.

Butterworth advised the city of Sunrise against holding Police Pension Board meetings in a room that requires visitors to leave their identification with an officer, obtain a security pass and then ask a receptionist permission to enter the room. These procedures could create a "chilling effect" on the public's willingness to attend.

Butterworth also wrote in the opinion that the board may not refuse to honor public records requests until it can vote on each request. (7/18/96) (Decisions on File, Fla. Atty. Gen. Op. 96-55 (July 15, 1996))

Court denies defense motion to ban media access to evidence

FORT LAUDERDALE - Judge Robert B. Carney, 17th Judicial Circuit, denied a defense motion to ban media access to all prosecution evidence in the criminal trial of Kathy Bush. The prosecution evidence includes medical and financial records.

Carney also ruled, however, that he would review psychological records before permitting access to them.

Bush is charged with aggravated child abuse and organized fraud in connection with medical treatment she had obtained for her daughter, Jennifer, 9.

Officials claim that Bush suffers from a rare psychological condition that causes parents to harm their children to gain attention.

In other proceedings, the state is seeking to remove custody of Jennifer from Bush. The judge in that case denied a motion to close the custody proceedings but agreed to limit the reporting of personal information about relatives who offered to care for Jennifer. (Brechner Report, July 1996, August 1996) (6/29/96)

Court denies motion to seal discovery in murder case

FORT MYERS - Judge Isaac Anderson, Jr., 20th Judicial Circuit, denied a defense motion to seal pretrial discovery in what he called a "high profile" murder case.

Christopher Paul Black, indicted with three others for first-degree murder in the killing of a Lee County high school teacher, asked the court to seal discovery in his case due to extensive pretrial publicity.

Anderson held that despite the media coverage, the defendant had "failed to satisfy his burden to prove that sealing discovery is necessary to preserve his right to a fair trial."

"It is the Court's responsibility to ensure that public access remains unfettered except to the extent necessary to preserve the Defendant's right to an impartial jury," Anderson wrote in his order.

The Florida Supreme Court held in Miami Herald Publishing Company v. Lewis, a 1982 decision, that in order to close court proceedings, the party requesting closure first must demonstrate that closure is needed to prevent a serious and imminent threat to the administration of justice. (Florida Freedom of Information Clearing House Newsletter, September-October 1982) (Decisions on File, Florida v. Black, Case Nos. 96-1361 CFA, 96-1362 CFA, 96-1363 CF and 96-1364 CF (June 20, 1996))

Judge releases court files to public

CLEARWATER - Chief Judge Susan F. Schaeffer, 6th Judicial Circuit, unsealed court records in a case against James Randall, an ex-convict being investigated in the killings of four prostitutes. No charges have been filed against Randall.

The records included a search warrant for a truck allegedly driven by Randall. The type of tires on the truck allegedly matched tracks near where a body was found.

The records also indicated that investigators posed as dog groomers and gave a free bath to a dog belonging to Randall's girlfriend. Experts then determined that dog hairs from the towel used on the dog were similar to hairs found on another body.

Schaeffer's ruling came in an action filed by the St. Petersburg Times, The Tampa Tribune and WFLA-Channel 8 seeking to unseal the records. (7/16/96-7/17/96)

City passes news rack regulations and permit fees

COCONUT CREEK - Newspaper racks in Coconut Creek must be the same style and must be painted beige according to city regulations passed in June. Newspapers have 120 days to comply with the new regulations or appeal to the city commission.

The regulations allow no more than five racks grouped together at any one location, and authorize permit fees and insurance requirements. (6/14/96)

2nd DCA strikes down Lee ordinance as unconstitutional

LAKELAND - The 2nd District Court of Appeal ruled that key provisions of the Lee County Noise Control Ordinance violate the First Amendment of the U.S. Constitution.

The ordinance prohibits the "use or operation of any radio receiving set, musical instrument, television, phonograph, drum, exterior loudspeaker, or other device for the production or reproduction of sound" that is "plainly audible" between the hours of midnight and the following 10 a.m.

According to the ordinance, "plainly audible" means "clearly heard by a person using his or her normal hearing facilities" when 50 feet from the sound's source.

The court found that the "plainly audible" standard is vague and subjective, making it unconstitutional. The court relied on a 1980 federal court ruling in which a Texas ordinance with similar provisions was struck down. (Decisions on File, Easy Way of Lee County, Inc. v. Lee County, Case No. 95-02905 (May 24, 1996))

AG says officials do not have to swear oath

TALLAHASSEE - In a recent opinion, Attorney General Bob Butterworth stated that before taking office, elected officials must take a statutory loyalty oath and at least affirm that they will "support the Constitution of the United States and of the State of Florida."

An elected official may decline to swear to the oath, however, Butterworth wrote.

The opinion was requested by Tamarac city attorney Mitchell Kraft after an elected board member refused to take the oath for religious reasons. (Decisions on File, Fla. Atty. Gen. Op. 96-41 (June 5, 1996))

Paper's adviser reinstated after filing grievance

LAKE MARY - Lake Mary High School teacher Dianne Burd was reinstated in July as faculty adviser of the school newspaper, The Rampage. She had been fired from the position in June after the paper published a student column containing mild profanity.

In the column, senior Christopher Cline criticized "Bible-beating ... snake-handling, holier-than-thou people who believe I'm going to hell," and referred in jest to another student as a "bastard."

After she was fired, Hurd filed a grievance with the teachers union that resulted in her reinstatement. She agreed to advise an assistant principal before publishing material that may be controversial. (6/6/96-7/3/96)

FOI and First Amendment information available on line

by Patricia F. Lewis

The Internet has expanded the resources available for researching freedom of information and First Amendment topics. For instance, the Brechner Center web site is located at and includes the Brechner Center FOI Online Library with links to many FOI sites, some listed below. The Brechner site also features an on-line version of the State Media Law Sourcebook, on-line issues of The Brechner Report back to July 1995, and the Telecommunications Policy Online Library.

The following on-line links have been selected as particularly valuable sources of FOI and First Amendment information:

Electronic Frontier Foundation at : Articles and court cases about federal and state FOI issues.

Electronic Privacy Information Center : Homepage of public interest research center in Washington, DC has links to information about emerging civil liberties issues relating to the Internet.

Federal, State, and Local Government Links at : Links to federal government agency information.

FedWorld Home Page at : Extensive links to government information; the site is updated on a daily basis.

First Amendment Cyber-Tribune at : Links to information about the First Amendment; 1996 Editor & Publisher award-winning on-line site.

Florida Public Records Law at : Full text of Chapter 119, Florida Statutes, the Public Records Law.

Florida Open Meetings Law at : Full text of Chapter 286, Florida Statutes, the Open Meetings Law.

Florida Government-in-the-Sunshine Law at : View and search the Florida Government-in-the-Sunshine Manual online.

The Freedom Forum First Amendment Center at : Includes First Amendment resources and a timeline of First Amendment history.

Freedom of Information Center at the University of Missouri at : Wide range of FOI resources and links.

Galaxy's EINET State Government Site at : Links to a number of state government information sites.

Government Information Sharing Project at : Information on U.S. demographics, education, economics, and other government web sites.

Kennedy School Online Political Information Network at : Broad range of Internet-based information by and about individual states, local governments and related organizations.

The Reporters Committee for Freedom of the Press at : Site designed for journalists and media lawyers; links to the First Amendment Handbook and News Media & The Law, a bi-weekly news media law update.

Society of Professional Journalists Resources on FOI Issues at : Links to organizations and resource centers, hotlines, periodicals, books and other on-line resources.

U.S. House of Representatives Internet Law Library, Privacy and Information Access at : A collection of mostly U.S. links on privacy and information access.

U.S. Federal and State Government Information at : An extensive collection of federal and state government information links.

Patricia F. Lewis is a doctoral student in media law and policy at the UF College of Journalism and Communications and researches in the area of universal access and new technologies. She previously was employed as a telecommunications policy analyst for Booz-Allen & Hamilton, Virginia, and currently is working on a project for BellSouth.

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