The Brechner Report
Volume 23, Number 8
August 1999

A monthly report:

Irina Dmitrieva, Editor
Jackie Thomas, Production Coordinator
Allyson Beutke, Production Assistant
Bill F. Chamberlin, Ph.D., Eminent Scholar
Sandra F. Chance, J.D., Director

ACCESS MEETINGS

Water managers settle with Indian tribe, cancel buyout plan
Butterworth: exemptions to be construed narrowly
Party a violation, says state auditor
Health agency to revise grievance policy
Court: city of Bradenton violated law
School board cleared of violation claims

Access Records

Court asked if e-mail address book is a public record
Judge awards attorney’s fees in Public Records Law suit
Court rules CORE is subject to Public Records Law
Mayor faces charges of law violations
Opinion addresses public records copying fees
Hospital records to remain closed to public
Judge denies paper’s request for records

REPORTER'S PRIVILEGE

Judge quashes TV reporter’s subpoena

THE BACK PAGE

Law enforcement offices not always complying with law

Court asked if e-mail address book is a public record

PENSACOLA – The Escambia County School Board and chairman Hal Mason asked a circuit court for a declaratory judgment on whether Mason should turn over his e-mail address book to Pensacola parent Susan Watson.

In April, Watson asked Mason to release his business-related e-mail and address book, but Mason denied the request, saying the book contained some private addresses. Watson filed a counterclaim in a circuit court alleging that the school board and its chairman violated the Public Records Law by withholding the records she requested.

Watson’s records requests previously were refused by a former school board member Vanette Webb, who was convicted of the Pubic Records Law violations and spent seven days in jail. (Brechner Report, June 1999) Governor Jeb Bush suspended Webb on May 21 and replaced her with Janice E. Gilley, a top legislative aide to Florida House Majority Leader Jerry Maygarden. (6/8/99)

Table of Contents

Judge awards attorney’s fees in Public Records Law suit

TARPON SPRINGS – A circuit judge awarded the St. Petersburg Times attorney’s fees in a suit against the governing foundation of Helen Ellis Memorial Hospital, even though he previously had decided that the foundation was exempt from the state access laws.

The case stemmed from the paper’s public records request to the hospital and a request to attend meetings. The foundation responded by filing a declaratory action against the Times, claiming it did not know its rights and obligations under the state access laws.

The Times argued that the foundation’s doubts were not legitimate and filing a declaratory action instead of granting or denying a public records request was frivolous.

Judge L. Ralph Smith, Jr., 2nd Judicial Circuit, found "a compete absence of justifiable issues of law or fact" in the foundation’s declaratory action. He previously had held that the foundation is exempt from the state access laws as a non-profit corporation running a public hospital. (Brechner Report, July 1999)(7/2/99)

Table of Contents

Water managers settle with Indian tribe, cancel buyout plan

WEST PALM BEACH – South Florida water managers settled the suit with the Miccosukee Indian Tribe over a controversial plan to buy and flood private land on the fringes of the Everglades in an effort to restore natural water flow to the park. The suit alleged that the water management district violated the state Open Meetings Law by secretly negotiating the plan. (Brechner Report, April, 1999)

The settlement, unanimously approved by the water board, nullifies the buyout plan and provides for a new investigation of the issue. It preserves the board’s option to again vote for a full buyout or any other option it thinks would best solve the Everglade’s restoration problem.

The Miccosukees favor an alternative plan proposed by the Army Corps of Engineers, providing for a drainage ditch and protective levee around the area properties instead of dismantling them. (6/25/99)

Table of Contents

Judge quashes TV reporter’s subpoena

LEE COUNTY – Judge William J. Nelson, 20th Judicial Circuit, ruled that WBBH-TV reporter Brad Clore did not have to testify in a trial involving a traffic accident. Clore videotaped the accident in his capacity as a videographer for a local NBC affiliate. The State wanted Clore to establish the authenticity of a video recording and its contents. (Decision on File, State of Florida v. Garnto, Case No. 98-002747-CF, 6/7/99)

Table of Contents

Butterworth: exemptions to be construed narrowly

TALLAHASSEE – Florida Attorney General Robert Butterworth issued three advisory opinions relating to the state Open Meetings Law.

He held that the exemption for closed-door meetings between a public board and its attorney should be construed narrowly. He said this exemption applies only in cases of pending litigation to which a municipality is a party and where discussion is limited to settlement negotiations or strategy sessions related to litigation expenditures. Butterworth stressed that the governmental body should not take a final action or discuss matters outside the two narrowly prescribed areas during such meetings.

Butterworth also ruled that county commissions are authorized to hold their regular meetings at a place other than within the county seat, provided they give a due public notice. He held that individual commissioners may establish remote offices to provide district constituents with better access to their elected representatives.

In another opinion, Butterworth ruled that a committee formed by a city manager to represent the city in labor negotiations may hold closed meetings with the city commission to discuss collective bargaining.

He said the exemption would not apply in the absence of actual or impending collective bargaining negotiations. (5/12 – 6/17/99)

Table of Contents

Party a violation, says state auditor

WINTER HAVEN – The state auditor general, Charles Lester, stated in his recent report that Polk Community College trustees violated the Open Meetings Law by inviting four candidates for the position of college president to an informal party.

The report said trustees scheduled the party at the home of their attorney, Don Wilson, so they could assess how four finalists interacted in social situations. Information gathered there was used in the screening process.

Lester said that the presence of three media members at the party was not enough for compliance with the state Open Meetings Law. He recommended that any similar events be open to the public. (6/7/99)

Table of Contents

Health agency to revise grievance policy

NAPLES – The Collier County State Attorney’s Office dropped civil charges of Open Meetings Law violations against three officials at the state Department of Health, after the health agency agreed to revise its written grievance policy.

The charges stemmed from the complaint of William McMullan, who claimed that the grievance committee at a county health department banned his wife from hearing testimony of the man she accused of sexual discrimination. (Brechner Report, June 1999)

Under the settlement terms, the state health agency admits no wrongdoing. However, the agency pledges to make its grievance proceedings subject to all provisions of the Open Meetings Law. In addition, there will be no sequestering of witnesses. The settlement also requires the agency to post a 24-hour advance notice of a grievance meeting in the building where the affected personnel office is located. (5/14/99)

Table of Contents

Court: city of Bradenton violated law

BRADENTON – A three-judge panel from the 2nd District Court of Appeal ruled that the city of Bradenton violated the Open Meetings Law by choosing contractors for a construction project without first meeting in public.

A local business woman, Dorothy Leach-Wells, sued the city in 1997, claiming that an ad-hoc committee violated the state access laws by establishing a short list of three contractors being considered for construction of a new City Center without proper public notice . The city responded by discussing the selection process at a subsequent meeting.

The appeals court agreed with a circuit court decision to dismiss the suit because the city corrected the violation. (6/19/99)

Table of Contents

School board cleared of violation claims

COLLIER COUNTY – The State Attorney’s Office ruled that Collier County School Board members did not commit a criminal violation of the Open Meetings Law by taking a vote for a superintendent during a special session on April 19.

Mark Albanese, co-chairman of the Collier County Education Organization, filed a criminal complaint with the county sheriff’s office alleging that the board’s meeting did not meet the state emergency meeting criteria.

Assistant State Attorney Amira Dajani said the school district could call a special session with a two-day public notice. The school board advertised its meeting two days in advance in the legal section of the Daily News. (5/18/99)

Table of Contents

Court rules CORE is subject to Public Records Law

ST. LUCIE COUNTY – A circuit court judge ruled that CORE, a private provider of misdemeanor probation services, is subject to the Public Records Law.

A private citizen, Paul Curry, said the agency denied him access to its records on a Oct. 22, 1998, visit. (Brechner Report, June 1999) Judge Rupert Jasen Smith, 19th Judicial Circuit, ordered CORE to allow Curry to inspect records in its Fort Pierce office and required the agency to reimburse him $30 for his expenses. (Decision on File, Curry v. CORE, Case No. 99-533-CA17, 5/21/99)

In a separate action, a jury convicted Curry of stalking his former neighbor, Jacqueline DiCarlo, by performing public document searches in effort to discredit her. (6/5/99)

Table of Contents

Mayor faces charges of law violations

ANNA MARIA – The State Attorney’s Office charged Anna Maria Mayor Chuck Shumard with two civil counts of violating the Public Records Law.

A city commissioner, Douglas Wolfe, accused Shumard of breaking the law when he locked the applications for the city clerk position in his desk drawer.

The Islander Bystander sued Shumard after the paper had to wait nine days for the requested records and was charged $20 in staff time for their preparation. However, contrary to an implication in a story in the June issue of the Brechner Report, the reasons for Shumard’s absence from his office when records were requested has not been definitely established.

Judge Durand Adams, 12th Judicial Circuit, found Shumard guilty of the records violation and ordered him to release the documents.

A local resident, James Conoly, also requested copies of the applications and was told they were unavailable for inspection the same day. The records were made available to him the next day. (5/29/99)

Table of Contents

Opinion addresses public records copying fees

TALLAHASSEE – Florida Attorney General Robert Butterworth ruled in an advisory opinion that the Division of Elections may charge only the actual cost of duplication for copies of voter registration records, unless a request involves extensive clerical or supervisory assistance or extensive use of information technology.

Butterworth also decided that an employee’s contractual right to have a union representative accompany him or her to an investigatory interview does not include the right to have a union representative present during discussion of confidential information taken from a child abuse investigation.

In another opinion, Butterworth ruled that presuit notices received by the Department of Health should be disclosed upon a public records request. Presuit notice is a notice of intent to initiate litigation for medical malpractice. (6/30 – 7/9/99)

Table of Contents

Hospital records to remain closed to public

DELAND – The records of Memorial Hospital-West Volusia will remain closed to the public while its governing corporation appeals a circuit court order comply with the Florida Supreme Court ruling and open its records to the public.

In January, the state Supreme Court ruled that the private corporation running Memorial Hospital is subject to the state access laws. (Brechner Report, March 1999) The Court did not rule on the constitutionality of the 1998 exemption, which makes records and meetings of privately leased public hospitals confidential. Memorial officials asked a circuit court to establish whether the exemption applies to the hospital. (Brechner Report, May 1999)

In May, Judge Joe Will, 17th Judicial Circuit, held that the exemption did not apply retroactively to the corporation. However, he allowed the hospital to keep its records confidential during the appeals process. (6/3/99)

Table of Contents

Judge denies paper’s request for records

BARTOW – A circuit judge denied a writ of mandamus filed by the Lakeland Ledger that sought records from three law enforcement agencies about the 1981 murder of Frostproof police officer David McCall by bank robbers.

The Polk County Sheriff’s Office, the Frostproof Police Department and the state Department of Law Enforcement said the requested information was not a matter of public record because it related to an ongoing criminal investigation.

The Ledger asked the court for the written order requiring the agencies to perform their duties and release the documents. Judge Charles Curry, 10th Judicial Circuit, denied the request but said the paper could refile a suit under the Public Records Law. (4/26/99)

Table of Contents

THE BACK PAGE: Law enforcement offices not always complying with law
by Michele Bush

Access to public records may be one of the most valuable tools in protecting citizens from government abuse of power. However, Florida’s Public Records Law is not a guarantee to access to government information.

I conducted an audit of Florida’s law enforcement agencies, and it showed that the offices were not consistently complying with Florida’s Public Records Law. The results of my study showed that approximately 34 percent of the law enforcement agencies did not provide access to records that were legally open to the public.

The study evaluated the responses of more than 100 police departments and sheriff’s offices in 28 counties across the state. University of Florida students participated in the study by requesting from each agency crime statistics, which were tabulations of crimes in the offices’ jurisdictions.

The most common reason records custodians gave for refusing to grant access to the statistics was that they were not authorized to grant access to the record. According to Florida’s Public Records Law, everyone who has custody of a public record is required to grant access to the record. Records custodians also claimed that the crime statistics did not fall under the statutory definition of public records. Not one of the records custodians approached in this study cited a statutory basis for denying access to the crime statistics.

When participants requested the crime statistics, they also requested a photocopy of the tabulations. The responses to the requests for copies were used to evaluate the fees agencies charged for photocopies. According to Florida’s Public Records Law, records custodians may not charge more than 15 cents per uncertified, one-sided photocopied page. Custodians may charge extra fees if the request requires extensive use of information technology resources. Records custodians’ fees for copies of the crime statistics ranged from no charge to $200. The custodians who charged the most excessive fees attributed the charges to the use of computers to access the crime statistics. However, the crime statistics were records that should have been easily accessible by computer because the document already existed in every law enforcement agency across the state. Custodians should have been able to search and retrieve the records more efficiently with the aid of a computer than they would have been able to retrieve the records stored on paper.

Denying access to public records 34 percent of the time is a dismal response rate from custodians – the rate should have been 100 percent compliance. This study did not evaluate why records custodians made the decisions to grant or deny access to records. It may have been misunderstanding, ignorance or disregard of the law. One of the most troubling aspects of the results of this study is that law enforcement agencies, which are responsible for upholding the law, are denying access to the public information they hold. The results of my study are not unique to Florida. Brown University conducted a similar study in Rhode Island, and newspapers in Indiana, New Jersey and Virginia have banded together to audit the access laws in their states. All of those studies showed that law enforcement agencies are usually the worst offenders when it comes to violating public records laws.

Although all of the reasons for the denials are unknown, the best solution is education. Citizens can take a part in educating records custodians by exercising their rights to government information and continuing to request access to public records. There must be a standard, mandatory training records custodians receive regarding the public records law. Records custodians must become more familiar with the law, or find avenues for advice about how to comply with records requests in accordance with the law.

It is incumbent on both the government and citizens to ensure that laws granting access to public records are properly carried out. Citizens’ rights to government information cannot be compromised.

Michele Bush is a doctoral student at the University of Florida and former editor of   The Brechner Report.

Table of Contents

Return to the Brechner Report Online Issues Page

Return to the Brechner Center Homepage