The Brechner Report
Volume 23, Number 9
    September 1999

A monthly report:

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

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ACCESS RECORDS

Policy would delay news flow to the public

Judge says e-mail address book is a public record

Lawsuit claims the school board violated state access laws

COURTS

Circuit judge allows media coverage at the child abuse trial

Attorney fined for breaking the gag order

FIRST AMENDMENT

Students sue college over free speech rights

Court upholds student’s right to display Confederate flag

Judge dismisses suits against student’s paper   

LIBEL

Court: warning did not hurt ex-employee   

NEWS NOTES

Chance named director of Brechner Center

PRIVACY

Supreme Court halts media “ride-alongs” with police

Suit alleges “unlawful media involvement”

Judge blocks the state from enforcing a law on abortion notice 

REPORTER'S PRIVILEGE

Court: privilege not waived by prior disclosure

THE BACK PAGE

State candidates to pay less for voter registration records

Supreme Court halts media “ride-alongs” with police

 WASHINGTON, D.C. – The U.S. Supreme Court held that police violate a person’s privacy by allowing the media to witness an execution of a search warrant inside that person’s home. In two companion cases, the Court ruled that police officers who executed the warrants, were not liable for monetary damages because the constitutional right at issue was not “clearly established” at the time of the searches.

In Wilson v. Layne, the Court upheld the judgment of the U.S. Court of Appeals for the Fourth Circuit, holding that media-police “ride-alongs” violate a person’s constitutional right against unreasonable searches and seizures. The case stemmed from a 1992 raid in a Washington, D.C. suburb, when police brought a reporter and a photographer from The Washington Post to serve an arrest warrant in a house belonging to the parents of a man sought in the warrant.

In Hanlon v. Berger, a Montana couple sued agents of the U.S. Fish and Wildlife Commission for bringing along a CNN crew when they executed a search warrant on their ranch. The justices agreed with the U.S. Court of Appeals for the Ninth Circuit, that federal agents violated the couple’s Fourth Amendment rights by allowing TV cameras to film the search. However, the Court vacated the part of the appellate court’s ruling, which denied the qualified immunity defense to law enforcement officials. (5/24/99)

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Suit alleges “unlawful media involvement”

TAMPA – A local pawn shop owner who was arrested last year for illegal possession of guns, but later acquitted of all the charges, sued the city for “unlawful media involvement” in his arrest.

In February 1998, police arrested Anthony DiPaolo as an alleged felon in possession of arms. Police took DiPaolo to one of his shops, where they confiscated hundreds of guns. DiPaolo claims that police waited for the news media to arrive before searching the shop.

Police dropped the charges after finding out that DiPaolo had been formerly convicted of a misdemeanor, not a felony, and had federal and state firearms permits.

DiPaolo’s suit alleges false arrest, wrongful search and seizure and violation of DiPaolo’s Fourth Amendment rights, referred to in his suit as “unlawful media involvement.” The suit seeks a permanent injunction that would prohibit police from dealing with the media in a way violating a person’s constitutional rights. (7/20/99)

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Judge blocks the state from enforcing a law on abortion notice 

TALLAHASSEE – A circuit judge blocked the state from enforcing a recent law requiring doctors to notify parents before performing abortions on minors.

Judge Terry Lewis, 2nd Judicial Circuit, issued the temporary injunction. The law would have required doctors to provide a 48-hours notice to a parent or a legal guardian of anyone younger than 18 seeking an abortion. The law included exceptions allowing minors to ask judges to waive the notice requirement.

In June, a group of abortion-rights supporters filed a suit claiming the new law violated the minors’ constitutional rights to privacy.

Lewis relied on the 1989 Florida Supreme Court’s ruling that struck down as unconstitutional a law requiring parental consent before minors could terminate their pregnancies.

Lewis said the state singled out abortion while ignoring other medical procedures that don’t require parental notification. He said the law could be unhealthy for some minors who would seek abortions in other states have illegal or self-induced abortions. (7/27/99)

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Policy would delay news flow to the public

    PALMETTO – The Palmetto City Council enacted a policy to delay telling the public about significant city developments. The motion by councilwoman Shirley Groover directs the city staff to notify the council about important events “prior” to disseminating the news to the press.

The motion came after media reports of an investigation by the state Department of Environmental Protection into problems at the city’s wastewater treatment plant. The news was reported before Groover had a chance to learn about the investigation from official sources. The law prohibits an automatic delay in the production of public records is impermissible. (7/7/99)

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Judge says, e-mail address book is a public record

PENSACOLA – A district judge ordered Escambia School Board Chairman Hal Mason to turn over his e-mail address book to a political activist and mother of three school children, Susan Watson.

In April, Watson requested Mason’s board-related e-mails and electronic address book so she could translate any aliases used in e-mail addresses and to better understand the workings of the board. Mason refused to release the address book saying it was created several years before he started serving on the school board, and contained private addresses. (Brechner Report, August 1999).

The board sued Watson and asked a circuit court to rule on whether the electronic address book is a public record.

Judge Nick Geeker, 1st Judicial Circuit, said Mason’s e-mail addresses associated with his district duties constitute public records. He said Mason could remove private addresses before turning the book to Watson. (7/13/99)

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Lawsuit claims, the school board violated state access laws

INDIAN RIVER COUNTY – A private citizen, Brian Heady, filed a civil complaint in a circuit court against the Indian River County School Board and its superintendent Roger Dearing, alleging violations of the state Public Records and Open Meetings laws.

Heady claims the board blocked his access to the educational plant survey, which contains an overview of the district’s current facilities and recommendations for future developments. Heady eventually obtained the survey through the state Department of Health in Tallahassee.

According to the Vero Beach Press Journal, Heady claims that the district conducted an illegal meeting in November, when it approved Dearing’s contract.

Dearing argues that the meeting was housekeeping for an action that took place four months earlier, when the contract was automatically approved by the board. (7/7/99)

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Circuit judge allows media coverage at the child abuse trial

  FT. LAUDERDALE – A circuit judge allowed media coverage at the trial of a woman accused of abusing her minor daughter. Judge Victor Tobin, 17th Judicial Circuit, said he will rule later whether to prevent cameras from filming or photographing the 12-year-old alleged victim, if she testifies in court.

Kathy Bush, 41, of Coral Springs is charged with aggravated child abuse, organized fraud and welfare fraud. Prosecutors say she fabricated symptoms of various illnesses in her daughter, causing her to undergo 40 surgeries and about 200 hospital visits by the time she was 8 years old. The girl’s guardian argued against media presence at the trial saying the girl would be embarrassed by public discussion of her medical records.

Tobin decided that “the interest of public as a whole and the interest in the court being an open court freely accessible to the public and the media” outweighed the benefits of any particular party. (7/16/99)

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Attorney fined for breaking the gag order

TAMPA – A Tampa attorney will pay $2,000 in court fines for talking to The Tampa Tribune and St. Petersburg Times about the criminal conviction of Kristina Gaime, the central Pasco woman charged with slaying one of her sons and attempting to murder another.

Judge Vivian Corvo Maye, 13th Judicial Circuit, cited James R. Kramer for violating the gag order she issued in a custody dispute case between Gaimes and her ex-husband over their son, Adam Rotell. According to the judge, she imposed the gag order to ensure that “the case can be properly and professionally tried before this court and not the press.” (7/24/99)

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Students sue college over free speech rights

MIAMI – Five students sued Miami-Dade Community College claiming that the school’s policy, which requires students to obtain approval before distributing literature on campus, violates their free speech rights.

In July, several students tried to distribute business cards listing the phone number of a local Christian organization. They were approached by a police officer and administrative personnel who threatened to arrest them or take disciplinary action unless they leave the campus.

The college policy requires students to fill out an application stating their name and the purpose of their distribution, and then wait seven days for approval. The complaint asks the federal court to strike down the policy as unconstitutional. (7/29/99)

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Court upholds student’s right to display Confederate flag

VOLUSIA COUNTY – A federal appellate court upheld the right of a high school student to display a Confederate flag to his friends as long as this display does not disrupt regular school activities.

Linda Denno, a parent of Wayne Denno, sued two assistant principals at the Pine Ridge High School for suspending Wayne from school after he displayed a Confederate battle flag during a lunch-break discussion of the Civil War.

The federal district court dismissed Denno’s claims saying that the doctrine of qualified immunity shields government officials from liability if they do not violate any clearly established right of which a reasonable person would have known.

The U.S. Court of Appeals for 11th Circuit reversed the district court’s decision saying that students have the free speech right to display symbols if the display does not disrupt school activities.

At the same time, the court held that the Volusia County School Board cannot be held responsible for free speech violations by the high school officials, because the high school administrators lack the final policymaking authority in the district. (Decision on file, Denno v. School Board of Volusia County, No. 98-2718, July 26, 1999).

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Judge dismisses suits against student’s paper   

TALLAHASSEE – A circuit judge dismissed the suits filed by a Leon County High School teacher, Rosalind Nims, against the alleged authors of a satirical underground pamphlet that published insults and racial epithets about her.

Nims sued nine former Leon High students for “intentional infliction of distress,” claiming they authored the 1998 edition of Low Life, a parody of Leon’s student newspaper, High Life. The article in Low Life contained a paragraph threatening to rape and kill Nims, who is African-American.

Judge Terry Lewis, 2nd Judicial Circuit, ruled that Nims’ suits failed to meet the legal threshold of “outrageousness” necessary to prove her case. (7/17/99)

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Chance named director of Brechner Center

Sandra F. Chance has been named the director of the Brechner Center for Freedom of Information, according to UF's College of Journalism and Communications Dean Terry Hynes.  Chance, a media law attorney, is an associate professor in the college and served as assistant director since joining the college and center in 1993.

Chance has been directly involved in a wide range of center activities. Journalists, public officials, media lawyers and citizens around the country call on her for help with questions about access to government information.  Chance has also presented dozens of workshops and seminars on freedom of information and is frequently quoted in regional and national media as an FOI expert.  Chance just returned from Brazil, where at the request of the U.S. government, she discussed the importance of freedom of information legislation.

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Court: privilege not waived by prior disclosure

ORANGE COUNTY – The Fifth District Court of Appeals held that TV reporter Todd Ulrich did not waive his reporter’s privilege by pre-publication disclosure of information. The case arose when Coastal Dental Services, Inc., subpoenaed Ulrich in an effort to discover the identities of employees who provided him with information for the broadcast. (7/16/99).

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Court: warning did not hurt ex-employee   

CLEARWATER – A federal judge ruled that a Clearwater computer distributing company, Tech Data, did not defame its former employee when it posted his picture at a reception desk with a written warning as a security measure.

Tech Data fired Stephen Haase in June 1996, after a female co-worker he was dating accused him of sexual harassment. In May, a jury ordered the company to pay Haase $40,000 for portraying him as a violent man seeking revenge.

U.S. District Judge Thomas Wiseman Jr. overturned the jury verdict, saying posting the warning was within the company’s legal rights and did not harm Haase. (7/28/99)

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THE BACK PAGE: State candidates to pay less for voter registration records

by Kevin Wood

Candidates’ access to electronic copies of registered voters just got easier. Florida’s Attorney General Bob Butterworth recently issued an opinion stating that the Division of Elections of the Department of State can charge only the actual cost of duplication for voter registration information. This decision clearly has statewide implications. The changes will affect every candidate in Florida and, hopefully, save campaigns thousands of dollars over the old fee structure.

Over the years, I tried to resolve this problem not only for my own purpose as a candidate for Clerk of the Circuit Court in Bay County, but for all future candidates. After announcing my candidacy in February, I ran into a fee dispute with the current Supervisor of Elections over providing electronic copies of registered voters. The Supervisor’s office wanted to charge 1/2 cent for each registered voter record copied to floppy disks. Although this may not sound like much, the records of some 90,000 registered voters in Bay County would cost about $450 to copy to floppy disks.

In addition, throughout any political campaign, there may be a need to request this list on several occasions to update the campaign database. Under the old fee structure, this could run into thousands of dollars particularly for House, Senate, and congressional districts or statewide races including the races for governor and national offices.

Under the Public Records Law, a public agency could charge no more than 15 cents per page for photocopies of single-sided paper records and for “all other copies, upon payment of the actual cost of duplication.” Section 119.07 provides that the actual cost of duplication “means the cost of the material and supplies used to duplicate the record, but it does not include the labor cost or overhead cost associated with such duplication.”

The cost of “material and supplies” for the voter registration records would be limited to the cost of the floppy disks which is minimal, most likely less than $10. If a candidate provided his or her own blank floppies, then the cost could be eliminated entirely. Apparently, candidates in Florida have been paying this excessive “cost of duplication” without formally challenging the practice.

In 1997, the Florida Legislature directed the Department of State to create and maintain a “central voter file” (CVF). The CVF provided a central consolidation of data collected by the various Supervisors of Elections in each county in Florida. The CVF database is maintained by the Division of Elections under the Secretary of State, Katherine Harris, and is updated by each of the counties on a quarterly basis.

I also discovered that the Division of Elections in Tallahassee charges the same for copies of voter registration data copied from the CVF as the Supervisor of Elections did in Bay County. I then requested that Secretary Harris enter into mediation and she agreed to request an opinion from the Florida Attorney General.

On June 30, Attorney General Butterworth issued an opinion which stated that the Division of Elections “may charge only the actual cost of duplication for copies of voter registration records.” The only exception noted was if “the specific request for copies requires extensive clerical or supervisory assistance, or extensive use of information technology resources, or both.” The process of copying these records to a compact disc (CD) from the CVF is a routine procedure that takes only a few minutes and is certainly not “extensive” in nature. For example, the database of some 90,000 registered voters in Bay County fits on a single CD.

The head of the Division of Elections, Ethel Baxter, has confirmed that they are now charging only for the cost of the CD which is about $3. In addition, the Supervisor of Elections in Bay County has confirmed that they now charge only for the cost of the floppy disks. This change in the fee structure will ensure that candidates who are not as well funded as others will have an equal opportunity to access the critical campaign data.

Kevin Wood is a former Air Force officer and citizen’s right advocate.

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