The Brechner Report
Volume 22, Number 6
June 1998

A monthly report:

• Michele D. Bush, Editor
• Jackie Thomas, Production Coordinator
• Allyson Beutke, Production Assistant
• Jennifer Page, Production Assistant
• Sarah Rabin, Production Assistant
• Bill F. Chamberlin, Ph.D., Director
• Sandra F. Chance, J.D., Asst. Director

Table of Contents

ACCESS MEETINGS
Requests to keep cameras from courtrooms denied
University changes meetings procedures to comply with law
Former members drop bug board suit
Company sues hospital after access to meeting denied
Members may participate electronically

LIBEL
Judge throws out $1 million libel suit over cartoons
Judge dismisses paper, publisher from suit

DEFAMATION
Suit against radio station dismissed

REPORTER'S PRIVILEGE
"48 Hours" ordered to hand over tape
Governor signs bill for shield law

BROADCASTING
Reporters sue TV station over firings

ACCESS RECORDS
Miami judge seals Versace photos
Judge bans activist from courthouse

STUDENT PRESS
Students suspended for circulating newspaper

THE BACK PAGE
Access to electronic records improved, not perfect

ACCESS MEETINGS

Requests to keep cameras from courtrooms denied

MIAMI – Two circuit judges denied separate murder defendants’ motions to block cameras from their courtrooms.

In one case, Juan Carlos Chavez, who was being tried for raping, killing and dismembering a 9-year-old boy, attempted to keep cameras out of the courtroom during his trial to protect his right to a fair trial. However, Judge Marc Schumacher, 11^th Judicial Circuit, held that Chavez can be assured a fair trial with alternative measures such as questioning potential jurors and instructing them properly. Also, Judge Schumacher said, much of the information that concerned the defendant was already published, therefore offering little justification for closing the proceedings.

Rory Conde, also known as the "Tamiami Strangler," also filed a motion to keep cameras out of the courtroom during his pretrial proceedings. Conde was accused of murdering six prostitutes. Circuit Judge Gerald Bagley, 11^th Judicial Circuit, held that Conde failed to prove that cameras in the courtroom during the proceedings would have a substantial effect on the jury. Judge Bagley also said that Conde failed to show that cameras would have a more detrimental effect than other types of media coverage. Therefore, Bagley denied Conde’s motion. (1/16/98 - 4/22/98)

University changes meetings procedures to comply with law

GAINESVILLE – The University of Florida has changed its tenure and promotion meeting procedures, but it still plans to bar public access.

The university decided to revamp its procedures after a legal opinion from a university attorney said that its procedures for closing access to the tenure and promotions meetings may have violated Florida’s Open Meetings Law.

The new procedures allow faculty to cast secret ballots for tenure and promotion candidates, and individual faculty members will be allowed to make tenure and promotion recommendations to administrators. However, faculty committees will not make recommendations to the president, but instead will serve as fact-finding bodies.

Committees that strictly gather and report information without making recommendations are exempt from Florida’s Open Meetings Law. (4/17/98 – 4/30/98)

Former members drop bug board suit

KEY WEST – Two former member of the Monroe County Mosquito Control District dropped a lawsuit against mosquito control board members that alleged violations to Florida’s Open Meetings Law.

In their 1997 lawsuit, Greg Scott and Dennis Wardlow had alleged that board members Steve Smith and Bill Shaw had conspired in private to fire Scott and Wardlow. (Brechner Report, August 1997) According to Florida law, members of a public body cannot discuss in private issues that may come up for a vote. (3/25/98).

Company sues hospital after access to meeting denied

TITUSVILLE – A video company filed suit against Parrish Medical Center claiming the hospital violated Florida’s Open Meetings Law by refusing to allow the company to film a staff committee meeting.

SunCam Inc., a Miami video company, planned to videotape a hospital committee meeting during which three companies were to make presentations for bids for preconstruction services for a new hospital building. The hospital committee reviewed and ranked six companies bidding for the work.

The attorney for the hospital said the meeting was not open to the public because the committee was not acting as a selection or advisory committee to the board of directors for the hospital. (4/1/98)

Members may participate electronically

TALLAHASSEE – Florida Attorney General Bob Butterworth has determined that members of school boards may participate in public meetings by electronic means, such as by speakerphones.

Butterworth said, in opinion 98-28, that physically absent members may attend public meetings via electronic meeting technology as long as a quorum of members is physically present at the meeting site. (4/6/98).

LIBEL

Judge throws out $1 million libel suit over cartoons

SARASOTA – A circuit judge threw out a $1 million libel suit against cartoonist Tom Armstrong, the creator of the nationally syndicated comic strip "Marvin."

Judge Lee Haworth, 12th Judicial Circuit, said Armstrong’s comic strips are protected by the free speech right guaranteed by the First Amendment. Armstrong’s strip is about a baby named Marvin and his parents.

Jerry Glauser, the owner of a Mercedes-Benz dealership, had filed the suit against Armstrong after Armstrong portrayed Glauser and his son in the Marvin comic strip. (Brechner Report, March 1998) Armstrong was unhappy with the service he received at the dealership. After complaining to Glauser, Armstrong published six strips depicting the main character, Marvin, talking to another baby named Chad who wants to run his father’s car dealership when he grows up. In one strip, the Chad character said, "I like to fib," and in another strip, he said he fabricated a charge during a sale. (4/25/98).

Judge dismisses paper, publisher from suit

NAPLES – Circuit Judge Hugh Hayes, 20th Judicial Circuit, dismissed the Naples Daily News and the Collier County Publishing Company from a libel suit that stemmed from a story about a check writing scam.

Steven Popp brought the suit against the newspaper, the publishing company, the Collier County Sheriffs Office and First Union bank after his photograph accompanied stories about the check scam. Popp was not a suspect in the scam. His image was recorded on security cameras at First Union bank and passed along to the sheriff’s office. The sheriff’s office gave Popp’s photo to the newspaper.

Hayes dismissed the newspaper and the publishing company from the libel suit because they published little more than a press release that came directly from the sheriff’s office. Also, the newspaper did not show any malice toward Popp, and it printed a correction after learning of the error. (4/22/98)

DEFAMATION

Suit against radio station dismissed

FORT LAUDERDALE – A circuit judge dismissed with prejudice a defamation complaint against radio talk show hosts on WFTL-AM on the grounds that the plaintiff was never identified, and the radio personalities’ opinions were protected speech.

Morgan Anson filed suit against the radio station claiming that he was defamed during a broadcast. During the broadcast in question, the radio personalities, Steven Kane and Nick Lawrence, spoke of two unidentified men, one of whom was Anson. However, Anson was never named in the broadcast. Judge Leonard L. Stafford, 17th Judicial Circuit, said in his reasoning that to allow a plaintiff, who was not identified, to bring forth a defamation suit poses an "unjustifiable threat to society."

Also, Judge Stafford said, radio talk shows are forums in which listeners expect controversial opinions. During Kane’s and Lawrence’s broadcast, another broadcaster debated their opinions. Therefore, listeners had the opportunity to arrive at different opinions, Judge Stafford said.

Judge Stafford dismissed Anson’s defamation suit with prejudice. (5/4/98)

REPORTER'S PRIVILEGE

"48 Hours" ordered to hand over tape

ST. AUGUSTINE – A circuit judge in St. Johns County ordered the television news magazine program "48 Hours" to hand over to prosecutors outtakes of an interview.

The television program broadcast in March an interview with Tanya Hudson, who is on trial for murdering her infant, in March. Prosecutors are seeking the unbroadcast portions of the interview.

Attorneys for CBS had argued that the outtakes were protected by reporter’s privilege. Judge Robert Mathis, 7th Judicial Circuit, ruled that such a privilege exists only when reporters are protecting confidential sources. Therefore, Mathis ruled, the news magazine must release the tapes. (4/10/98).

Governor signs bill for shield law

TALLAHASSEE – Governor Lawton Chiles signed into law a journalist’s privilege, adding Florida to the other 29 states in the country with such a provision.

Professional journalists in Florida now have a shield law granting them a qualified privilege not to disclose information, including the identity of sources, gathered while on duty.

This privilege will not apply to physical evidence, eyewitness observations of crimes, or visual or audio recordings of crimes. The privilege also may not apply when the information being sought cannot be obtained from other sources and when a compelling interest exists for divulging the information.

This privilege will apply only to journalists who regularly gather and publish or broadcast news for full or part-time "gain or livelihood." Book authors are not covered by the shield law. (5/12/98)

BROADCASTING

Reporters sue TV station over firings

TAMPA – Two investigative reporters for WTVT, Channel 13, filed suit against the station alleging the station fired them in an attempt to suppress a story about a growth hormone given to Florida dairy cattle.

Steve Wilson and Jane Akre, a husband and wife reporting team, accuse the television station of firing them because they would not give a story about the growth hormone a positive slant, according to news reporter. Wilson and Akre are seeking damages of more than $15,000 for wrongful termination.

Management at the television station maintains that the reporters were fired because they were not being objective in reporting about the use of the bovine growth hormone. (4/3/98)

ACCESS RECORDS

Miami judge seals Versace photos

MIAMI – Autopsy photos of slain fashion designer Gianni Versace will not be released into the public domain.

Versace’s brother and sister sought to block release of the autopsy photos, but not records of the investigation into Versace’s murder. Versace was shot twice in the head on the steps of his Miami home.

Circuit Judge Fredericka Smith ordered the photos sealed because….. (5/1/98).

Judge bans activist from courthouse

PANAMA CITY -- A circuit judge filed an order barring a community activist from entering the Bay County Courthouse to access court records without an escort from a sheriff’s deputy.

Circuit Judge Glenn Hess, 14th Judicial Circuit, is also requiring the activist, Kevin Wood, to make all demands for public records in writing, except for requests he makes directly to department heads. Wood is not to bring a tape recorder or video camera, and he can be arrested or ejected from the courthouse if he violates the law or becomes disruptive, according to the order.

Hess said in his order that Wood has repeatedly intimidated and harassed court clerks. Wood once tracked down a court clerk’s name and address and went to her home, and in another case, Wood called a courthouse employee’s home, claiming to represent the Florida Department of Law Enforcement, according to the Panama City News Herald.

Wood said he will appeal Hess’s order. (5/6/98)

STUDENT PRESS

Students suspended for circulating newspaper

EAST LAKE – Two high school students were suspended after circulating a newspaper that was not approved by school administrators.

The students distributed the eight-page newspaper to classmates at East Lake High School. The publication contained references to guns, pimps, drugs and directions on how to make a potato cannon.

The students were suspended because of the inappropriate content of the publication and because they did not seek approval from the school’s principal before distribution. (5/7/98)

THE BACK PAGE

Access to electronic records improved, not perfect

By Dan Keating

When I was asked by the folks at the Brechner Center for the view from the battlefield of electronic public records, I took stock and realized something that surprised me -- It had been more than two years since any government official had even tried to tell me that something wasn't a public record because it was on computer. An issue that posed such a controversy just a few short years ago has been transformed, I guess at about the same pace that computers have changed our lives in so many ways.

It's hard in retrospect to remember how difficult the challenge was. A shift in how people think always seems anticlimactic after the fact. For example, it hardly seems dramatic now to argue that drunk driving is a serious crime that should not be tolerated, or that women can do any job men can do. But if you can remember the attitude 20 years ago, the change is amazing.

So the chance to reflect made me sit up and realize: We've won the battle on electronic public records. Victory is ours. Let's pack up and go home.

Not yet.

Unfortunately, there are still a few sticking points. And even more unfortunately, it wasn't hard to think of them. I haven't surveyed the field or reviewed the body of court opinion. But from my working day perspective, these are ten problems I've experienced in getting electronic public records in Florida:

1) The news that computerized information is a public record is still filtering down to some smaller agencies and government bodies, especially quasi-governmental agencies like the Port of Miami. While state agencies are peppered by regular records requests and advised by up-to-date attorneys, the smaller backwaters are surprised when we ask for things that no one has ever asked for before. Once they get over the shock, they don't really try to claim that electronic information isn't public. But having to educate slows things down.

2) The biggest problem in getting computerized records is the price. I can sympathize from the point of view that information has come to be valuable in our society, and I can understand government agencies eager to find revenues wanting to cash in on their information. But the law

says the records are public. The problem is worsened by some commercial businesses that don't mind paying huge sums for government data, because they make even more by repackaging and reselling it. I recently requested an electronic copy of Miami-Dade County's list of lobbyists and was told by a clerk that his boss had recently ordered staff to "assess the value of data" on hand in hopes of generating revenue. Assess all you want, I told the clerk, but don't think we're paying more than the cost of copying.

3) A whole special subset of the cost issue is the fees charged for computer programming. I think programming fees are the most convenient tool for uncooperative officials who want to thwart requests for public information. Fees can easily run into the thousands of dollars for even

a simple request. A tip that I heard a few years ago and have often passed on is to request a printout of any programming code written on your tab. If I'm paying for the computer program, I own it, I argue. Interestingly, I'd been making the request for a couple years without ever getting a copy of any program. But the technique paid off, because every time I demanded the copy of the program, programming fees practically disappeared. Recently, I got my first printout of a program from an agency. It was quite an eye-opener. One part of the printout instantly proved that we had been overbilled more than $500 for computer usage. We pointed it out and they admitted they were wrong. And for the programming, they tried to bill us more than two full days work for less than one full page printout of relatively simple programming. I showed the program to experts who confirmed my suspicion that it couldn't have taken more than two hours to do. The case is in mediation, and I'm more convinced than ever that demanding a printout of any program is the best way to fight outrageous fees.

4) A whole different problem arises with agencies established as self-supporting enterprise funds. The saddest in my experience is the state Office of Vital Statistics. The agency is a treasure-trove of interesting and important data. In my experience, the employees there have been helpful. But the agency has fees set by the Legislature for all of its information. And the fees aren't set to cover copying, but to fund the agency. The antiquated fee structure charges the same $7 cost for a document, whether you're asking to have one copy of a record on paper or requesting 8 million of them electronically. I can understand some charge for getting the computerized record, but $56 million seems excessive. The folks at Vital Statistics have been sympathetic, but the change has to come from the Legislature. A postscript that is even sadder is that Vital Statistics produces a wonderful annual tome of data about births, deaths, marriages and divorces in Florida. But for the last five years, the books has gotten slimmer and slimmer and slimmer as the agency has been able to afford to publish less of its information. So in the information age, Florida residents are being starved of data.

5) A change that I think would benefit absolutely everyone would be requiring that campaign finance disclosures be filed electronically. Exempting tiny candidates who raise less than some set amount – say $2,500 for starters - the system could be quite simple. It would be very easy to include in the packet for any registered candidate a computer diskette with a simple database program. The program could be set up to handle campaign contributions and expenditures, to make the basic printouts required by law and to deliver an electronic version to election clerks.

Currently, almost all candidates keep the information on a computer, but have to pay someone to set up a program to handle it. Then the campaigns pay to figure out how to make a printout that matches the state's required forms. Then, for statewide races, the state takes the filed papers and pays people to punch the information back into the computer. For local races, organizations like The Miami Herald spend thousands of dollars having the reports typed into the computer. A new system would be better for the candidates, better for the election supervisors, better for the media and better for the public.

6) An enormous pet peeve of mine is the state restriction on obtaining an electronic copy of the list of registered voters. Implemented more than 20 years ago to keep the Ku Klux Klan from harassing blacks who registered to vote, the law is now counterproductive. The law lets candidates, politicians, political parties and consultants get the voting list to do mailings. But it won't let the public get it. In fact, the Herald obtained a copy after the recent mayoral election in

Miami, and used it to ferret out hundreds of ineligible and illegal voters. The election was subsequently overturned. That example alone stands as a beacon for why the roll should be public information. If the very people who are inclined to commit vote fraud can have the information, why can't watchdogs and the general public? It would be a lot harder to hide phony voters and out-of-town voters in an address if the neighbors could look on the World Wide Web and see who was registered to vote on their street. I was disappointed that the Florida Legislature did not include this provision in election reform actions taken this year. Despite all the changes, they left in place the legal restriction against exposing voter fraud.

7) A nagging problem with electronic records is their fleeting nature. Unlike paper records, they don't have a natural tendency to exist forever. I'm not naive enough to think that paper records are never destroyed, but electronic records just naturally come and go a lot faster. New records often automatically overwrite old ones, sometimes eliminating information that cannot be retrieved. And the mindset about destroying electronic records is not firmly in place. We had a county commissioner who intentionally altered and deleted thousands of fields of information after they had been requested as a public record. We discovered the deletion. But the local state attorney decided that the changes didn't constitute destroying public records.

8) Some legitimate restrictions on public information are being abused to prevent access to otherwise public and valuable data. Often the most important part of an electronic document is a field for comments or remarks, where enlightening details are kept. But more than once I've been told that it's quite possible that a judge's home telephone number might be in some of those comment fields, or the name of a caller to 911, or some other legally restricted information. In those cases, I've been told the data either has to be screened record by record, which is prohibitively time-consuming and expensive, or the entire comment field has to be deleted. It's a no-win choice for people trying to get public information. It seems that use of these fields as a catch-all is increasing. To me the solution is simple, the law should say that designated fields for

restricted information can be excised, but not any field that "might" have sensitive information. If the agencies are worried about the sensitive information, then they should keep clean records, not assume that everything can be kept from public inspection.

9) Sometimes agencies claim they'd be glad to hand over the electronic records - if only they knew how. This happens more often with less sophisticated smaller government bodies. But it can arise with the biggest when government computer systems are designed with any thought

to allowing easy extracts of information. To me it's gross negligence to run a public agency with a computer system that has no way to let the public share the information. The situation ends up being a complete block on public records. It's one thing to ask a media conglomerate to routinely pay hundreds of dollars for data from the court system or property appraiser's office,

but could anyone argue that the information is being made readily available to members of the general public when those charges are levied?

10) Privatization poses a serious threat when business-government deals are cut that keep information out of the public light. A well-known case in point is Miami-Dade County's arrangement with Florida Power & Light to create a very sophisticated computerized mapping system of the county. The map includes the shape of each parcel of land, as well as power lines, roads, canals, bus routes and more. The local zoning, actual land-use and other details are kept on every single parcel of land. The integrated system offers powerful ways of analyzing local

information. But the public can't get at it. Under the deal between the county and FP&L, the county paid for much of the data and gets to use it. But the information belongs to FP&L and is not available to the public. How can government money be spent to create non-public information? That's a pattern that can lead to more trouble in the future.

That's my list of woes. I'm sure it doesn't cover everything that's wrong out there with electronic public records, but it gives a sampling of the frustrations that still face us, even though we've won the war.

Dan Keating is research/technology editor of The Miami Herald.

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