The Brechner Report
Volume 21, Number 6
June 1997

A monthly report by:

• Anthony L. Fargo, Editor
• Mary Gallant, Production Coordinator
• Kelly Kroll, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Quick meeting leads to injunction,charges
School board critic arrested at public meeting

LIBEL
Group libel suit dismissal upheld

REPORTER'S PRIVILEGE
DCA won't reconsider Davis ruling
Judge quashes subpoenas in venue hearing

ACCESS RECORDS
Evaluations of appointed superintendents public
DCA says judge erred in excluding media at hearing
State sues to get hospital deal documents
Judge leaves Prudential records under wraps
Appeal court says denial unjustified
Court unseals hearing transcript
26-day wait unreasonable, judge rules

THE BACK PAGE
Internet a better option than 'privatizing' records

Quick meeting leads to injunction, charges

ESTERO - Four of the five members of the Estero Fire Commission were charged with misdemeanor violations of the Open Meetings Law in the wake of a three-minute meeting.

The charges came nearly three weeks after a judge issued an injunction against the fire board in a civil suit over the same meeting. In the civil case, the Fort Myers News-Press accused the commission of excluding the public from the meeting.

According to the circuit judge's order in the civil case, the public was barred from entering a public library where the meeting was being held until 9 a.m., when the meeting was supposed to start. However, fire commissioners were allowed into the room earlier. Press reports said that most people were still entering the room or getting seated when the board, with one member absent, voted on one item and adjourned.

Judge R. Wallace Pack, 20th Judicial Circuit, wrote that the commission should have known that 20 to 30 people were waiting to enter the library and taken steps to accommodate them. Pack said there was no evidence that the violation was intentional.

Pack issued an injunction ordering the fire board to be sure that its meeting places are accessible to the public. The injunction did not rescind the commission's vote to buy two vehicles.

The Fire Commission has been the center of controversy since January, when it voted to dismiss the town's 11 firefighters and hire Wackenhut Corp. to provide fire services. One commissioner accused the other four members of prearranging the deal in violation of the Open Meetings Law. The state attorney's office is investigating. (2/12/97-4/30/97) (Decisions on File, News-Press v. John Kelley, Case No. 97-2741-CA-RWP, May 2, 1997)

Group libel suit dismissal upheld

DAYTONA BEACH - A trial court was correct in dismissing a group defamation lawsuit by 637 commercial net fishermen, the 5th District Court of Appeal said.

The Court of Appeal agreed with Judge George Sprinkel, 9th Judicial Circuit, that the group was too large for any one member to be singled out for defamatory injury. (Brechner Report, February 1996)

In a suit against three Orlando television stations, the fishermen said that paid political advertisements favoring a constitutional amendment that effectively banned net fishing in coastal waters incorrectly portrayed them as insensitive to natural resources. (Decisions on File, Adams v. WFTV, 5th DCA, Case No. 96-126, April 11, 1997)

DCA won't reconsider Davis ruling

LAKELAND - The 2nd District Court of Appeal will not rehear a case in which it vacated a man's conviction and sentence because a reporter avoided testifying at his criminal trial.

The St. Petersburg Times sought a rehearing because it was not notified that an issue affecting its rights was to be heard in the appellate court. The newspaper also wanted a chance to challenge the appellate court's reasoning. However, the DCA rejected the paper's motion as "unauthorized."

In March, the Court of Appeal ruled that the judge in Merlan Davis' trial on an aggravated assault charge erred when he quashed a subpoena for Diane Mason, a Times reporter. The appellate court said Mason had no privilege against testifying about her interview with Davis' alleged victim. (Brechner Report, May 1997)

In its motion for rehearing, the Times said the DCA erred when it said that Tribune Co. v. Green was "no longer viable." In Green, the 2nd DCA ruled in 1983 that a reporter could not be compelled to testify unless the party issuing the subpoena proved that the information sought could not be obtained elsewhere, was needed and was relevant. (Florida FOI Clearing House Newsletter, December 1983)

In the Davis case, however, the 2nd DCA said that two state Supreme Court decisions, Miami Herald v. Morejon (Brechner Report, June 1990) and CBS v. Jackson (Brechner Report, May 1991) had rendered Green moot. In those cases, the Supreme Court did not recognize a reporter's privilege to refuse to testify when journalists witnessed arrests.

The Times argued that the Supreme Court rulings did not apply in cases where journalists were not direct witnesses of a crime or arrest and did not affect the qualified privilege for non-confidential sources. (Decisions on File, State v. Davis, 2nd DCA, Case No. 94-04304, April 23, 1997)

School board critic arrested at public meeting

VERO BEACH - A critic of the Indian River County School Board was arrested after he called board members names and then refused to leave a public meeting.

The board was discussing whether it should change its policy on citizen input. The board decided to keep its policy, which allows a board member to call a point of order to stop a speaker using personal attacks or making a speech to the audience instead of addressing the board.

While the discussion was under way, Edward Livaudais, a frequent critic of the board, stood at the podium and accused the board and superintendent of shutting out the public. He then called the board members "eunuchs" and called the superintendent "Der Fuhrer."

Several board members called for a point of order and summoned a police officer stationed at the back of the room, who escorted Livaudais from the room, according to press reports.

He was charged with disruption of a school function, trespassing after a warning and resisting arrest without violence. He was released on bond. (4/9/97)

Evaluations of appointed superintendents public

TALLAHASSEE - Individual school board members' written evaluations of an appointed school superintendent are not exempt from the Public Records Law, Attorney General Bob Butterworth said.

In an advisory opinion, Butterworth also wrote that a meeting of an individual school board member with the superintendent to discuss the member's evaluation was not subject to the Open Meetings Law.

The opinion was in response to a question from an attorney for the Palm Beach County School District. Each school board member fills out an evaluation form rating the superintendent and adds written comments. The forms are then compiled into a "summative evaluation" and discussed and voted upon publicly.

Butterworth wrote that the individual forms and the summative evaluation are all public records under the definition in Florida Statutes. He said that Public Records Law exemptions for school district employee evaluations do not apply to the appointed superintendent because he is employed at the board's discretion. (Decisions on File, Fla. Atty. Gen. Op. 97-23, April 15, 1997)

DCA says judge erred in excluding media at hearing

DAYTONA BEACH - A Seminole County circuit judge should have allowed media attorneys to participate in a hearing about barring public access to evidence, the 5th District Court of Appeal ruled.

Judge Thomas G. Freeman, 18th Judicial Circuit, agreed to a defense motion in September to keep audio and video tapes recorded during a murder-for-hire investigation away from the public before the trial. The defendant, former radio evangelist George Crossley, is accused of solicitation to commit murder. Police said they taped conversations between Crossley and an undercover officer posing as a "hit man." (Brechner Report, December 1996)

The Court of Appeal said attorneys for local media filed motions to intervene in the evidence hearing, but Judge Freeman did not allow them to participate. The appellate court said that Judge Freeman should have addressed the media motion to intervene before ruling. The DCA did not rule on the merits of the decision to withhold the tapes. (Decisions on File, WESH-TV v. Freeman, 5th DCA, Case No. 96-3572, April 4, 1997)

State sues to get hospital deal documents

JACKSONVILLE - University Medical Center agreed to turn over documents requested by the Attorney General's Office after the state filed a public-records suit.

University withheld a number of files from the state, which looked into the medical center's deal with Columbia/HCA Healthcare Corp., but changed its mind when the state sued.

University, a private, not-for-profit hospital, agreed to turn over daily management to Columbia, a for-profit hospital chain, in return for a share of the profits from Columbia's Jacksonville facilities. The city, which owns University's facility and leases it to a non-profit corporation, asked the state to investigate the deal because the city was not consulted. (3/18/97)

FDLE sets up Web site, phone line on felons

TALLAHASSEE - The Florida Department of Law Enforcement has set up a Web site and a toll-free phone line so that people can find out if felons released from prison early are living near them.

FDLE Commissioner Tim Moore said the Web site and phone line came in response to public outcry over the court-ordered early release of hundreds of state prisoners. The department estimated that 2,700 inmates, some of them violent offenders, eventually would be released early.

On the Web site, a computer user can choose a county and learn the names of all early-release felons living in that county. The user also can call up a photo of the felon and his or her criminal record.

The Web site address is http://www.fdle.state.fl.us/early_release/. The toll-free phone number is 888-357-7332. (4/11/97)

Judge leaves Prudential records under wraps

TAMPA - A circuit judge ordered the state not to release records related to its investigation of Prudential Insurance Co.

Prudential agreed to pay a $15 million fine to the state for deceptive life insurance sales tactics. Investigators in Florida and nationwide have accused Prudential's sales force of persuading policyholders to cash in valuable older policies in return for new policies that cost more money for fewer benefits. In addition to the Florida settlement, Prudential has agreed to pay a multistate insurance task force $35 million in fines and $410 million in damages.

After the settlement in Florida, policyholders asked the state for copies of some of the company documents it used in its investigation. However, attorneys for Prudential sued to block release of the records, saying some of them were stolen from the company. Circuit Judge Charles D. McClure, 2nd Judicial Circuit, agreed to issue a temporary injunction barring release of the files. (3/28/97-4/3/97)

Appeal court says denial unjustified

LAKELAND - The 2nd District Court of Appeal said public defenders gave no legal reason for denying copies of court records to a defendant.

Kurtis J. Smith was convicted of misdemeanors in three cases. He asked the public defender's office for copies of all records related to the cases.

After the public defender's office failed to respond, Hillsborough Circuit Court rejected his request for a writ of mandamus because he did not have an appeal pending.

The Court of Appeal said that a prisoner was entitled to request records under the Public Records Law regardless of his appeal status. The judges also noted that Smith did not say who should pay for the records, but the public defender's office assumed he wanted free copies he was not entitled to. (Smith v. State of Florida, 2nd DCA, Case Nos. 96-00365, 96-00599, 96-00606, March 12, 1997)

Court unseals hearing transcript

TAMPA - A circuit judge agreed to unseal the transcript of a closed hearing about a jail search.

Attorneys for The Tampa Tribune filed a motion seeking the transcript after Judge Diana Allen, 13th Judicial Circuit, closed the hearing without allowing the press or public a chance to object. The Tribune said an inmate whose cell was searched, murder suspect Glen Rogers, had raised the issue of prosecutorial misconduct in challenging the search. The hearing was the public's only opportunity to learn about the possible misconduct, the Tribune said.

The transcript showed that prosecutors were looking for evidence of a plot to free Rogers. A jail inmate testified at the hearing that the plot involved implicating another inmate in the slaying. Rogers later was convicted of first-degree murder. (Decisions on File, State v. Rogers, Case No. 95-15314, April 28, 1997) (4/11/97-5/1/97)

26-day wait unreasonable, judge rules

ANNA MARIA - Twenty-six days was too long to wait for public records from the city of Anna Maria, a judge ruled.

Judge Robert Boylston, 12th Judicial Circuit, said resident Ken Peterson was entitled to attorney's fees from the city. Peterson sued because he requested records on Jan. 17 but the city did not comply until Feb. 12. Boylston said the delay was unreasonable and constituted an unlawful refusal to produce public records.

The state Public Records Law does not state a specific time limit for an agency to comply with a records request. However, the state Supreme Court ruled in 1984 in Tribune Co. v. Cannella that agencies must not delay their responses beyond the time it takes to compile the information requested and to delete any exempted information from the file. (3/5/97)

Judge quashes subpoenas in venue hearing

JACKSONVILLE - A circuit judge ruled that reporters would not have to testify at a change of venue hearing in a civil suit.

Judge Bernard Nachman, 4th Judicial Circuit, said that the reporters were protected by a qualified privilege. He said the plaintiff in the lawsuit had not shown that the information sought from the reporters was relevant and could not be found elsewhere or that there was a compelling need for the information.

The plaintiff, Ghada E. Farhat, is seeking a change of venue in her suit against her former in-laws alleging intentional infliction of emotional distress.

Farhat said she could not get a fair trial in Duval County because of publicity from a criminal trial in which she was acquitted of killing her husband.

Judge Nachman said the subpoenaed reporters, June Bell of The Florida Times-Union and Winston Dean of WTLV-TV, were unlikely to know how their stories affected the state of mind of potential jurors. (Decisions on File, Farhat v. Farhat, Case No. 97-01395-CA, April 17, 1997)

Internet a better option than 'privatizing' records

A dangerous trend is sweeping through the field of record-keeping in the United States - government agencies letting companies "privatize" public records for profit. The danger to news gathering is real. If not carefully policed, this practice can give for-profit companies a virtual monopoly over computerized versions of "public" records. To remain competitive, news organizations may find themselves paying steep prices for this "improved" form of access, with no guarantee records are not modified.

Privatization apparently began in Western states as a means of dealing with three related problems: shrinking government budgets, rising costs of storing and handling paper, and the complexities of new information technology. Private companies typically have offered a ready solution: They will bear up-front costs of automation in exchange for the right to "resell" the electronic version of the records. The agency pays nothing, and the company makes its profit from those who pay for access - including the press.

At least one lawsuit already has been filed. In January 1996, The American Bar Association Journal reported that the Los Angeles Times had sued Los Angeles County for entering into a privatization contract. The Times complained that the $5,000 annual user fee it would pay for access plus transaction costs violated the First Amendment and public records laws.

Despite controversies such as these, privatization still is touted at trade shows and government conferences as the ultimate solution to record-keeping problems. Yet the hawkers and salesmen fail to mention another trend centered on the Internet, which is rapidly emerging as the most democratic and least expensive means of distributing and organizing governmental information.

Privatization is based on a "closed standards" model in which the standards used for storing and transferring records are owned by the private company. Ownership is the reason the company can make a profit. Closed standards tend to result in closed records. The Internet, in contrast, is based on "open standards" - those that can be used for free because no one owns them. Open standards tend to favor open records.

Although the Internet still is in its infancy, its phenomenal growth has left little doubt it will be a dominating factor in the years ahead. One of the largest record-making agencies in the nation - the federal court system - made this conclusion plain in late 1996 when it proposed electronic record-keeping guidelines based almost entirely on the Internet's "open standards" model. Other agencies certainly will follow suit.

As Internet standards dominate information, privatization will become less justifiable. The technology underlying the Internet is relatively inexpensive, easily developed and maintained in-house. Agencies must put out more effort than with privatization, but the result is sounder: The public continues to own public records.

The challenge for news organizations over the next few years is vigilance against unreasonable privatization. Although for-profit companies clearly can provide sound solutions consistent with the First Amendment, any sweeping privatization of records should be regarded with suspicion. It could lock government agencies into long-term contracts that will cost the press dearly, even if the "open standards" model ultimately prevails.

At the very least, the "open standards" model should be preferred today because it offers the most flexible stance in these times of explosively changing technology. Long-term contracts are a poor means of addressing problems that may yet prove short-term.

Robert Craig Waters is executive assistant to Florida Supreme Court Chief Justice Gerald Kogan and coordinator of the Chief Justice's Access Initiative. Waters formerly was an award-winning journalist with Gannett Newspapers. He can be reached by e-mail at s-0665@wpgate.courts.state.fl.us

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