THE

BRECHNER

REPORT

Volume 33, Number 11 A monthly report of mass media law in Florida
Published by The Brechner Center for Freedom of Information U College of Journalism and Communications U University of Florida
November 2009

Venice hit with record fee award in Sunshine suit

VENICE The city of Venice has
been ordered to pay more than $775,000
in legal fees in connection with an open
government lawsuit filed last year by a
citizen activist, the largest fee award in an
open government case.
Anthony Lorenzo, of
the nonprofit Citizens for AC (
Sunshine, alleged violations
of the Public Records and RECO
Open Meetings Laws by
members of the Venice City Council. The
violations centered on the use of private
e-mail accounts to discuss city business.
Lorenzo and the city settled the suit in

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)R

March 2009, but attorney fees remained
a sticking point, and in September, Judge
Robert Bennett presided over a hearing
on the legal fee issue. Brechner Center
Executive Director Sandra F. Chance
served as an expert witness at the hearing.
E gS Lorenzo's attorneys sought
a multiplier that could have
resulted in fees of more than $2
iD S million, but Bennett denied the
request. He also denied legal
fees for the time spent since the settlement
litigating the attorney's fee issue, citing a
lack of authority in Florida law.
Federal rules permit these types of

attorney fee awards, and Bennett noted
that such a system "would clearly promote
involvement in public interest cases
by lawyers who might be unwilling to
become involved in this type of litigation
knowing that substantial time and energy
may be expended in litigating their own
fees." Lorenzo was represented by Andrea
Mogensen and the law firm Carlton Fields.
The city will also have to pay its own
legal bills in excess of $600,000. The
city's liability insurance only covers
$10,000 of those fees.
Source: Sarasota County Circuit Court,
Sarasota Herald Tribune

NCAA records on custodial site ruled public

TALLAHASSEE The 1st District
Court of Appeal has ruled that the records
received by Florida State University
attorneys via a National Collegiate
Athletic Association (NCAA) Web site
are public records.
A hearing transcript and an NCAA
response to FSU's appeal of penalties
proposed by the NCAA were the
documents requested by several media
organizations. The university also sought
public disclosure of the documents.
The documents were accessed by
lawyers representing FSU in the dispute
via a password-protected Web site that

was maintained by the NCAA. The
disciplinary action stems from allegations
of cheating among student athletes.
The court reasoned that because "the
documents at issue in this case were
examined by lawyers for a public agency
. . and used in the course of the agency's
business" they are public records under
Florida law.
The NCAA argued that viewing of
a document by a state agent does not
equate to "receiving" the document under
Florida's Public Records Law. "If it was
received, that is enough," Judge Philip J.
Padovano wrote for the court.

The NCAA also cited the Family
Educational Rights and Privacy Act
(FERPA) as reason to keep the documents
secret, but the court ruled that the
disciplinary documents did not fall under
FERPA's definitions of student records.
Florida Attorney General Bill
McCollum said the ruling "emphasizes the
importance of applying the public records
laws to new and evolving technologies,"
according to The Associated Press.
McCollum's office intervened in the suit.
The NCAA has appealed to the Florida
Supreme Court.
Source: '1s DCA, The Associated Press

Doctor awarded $10M in libel suit against paper

ST. PETERSBURG A doctor
who alleged he was defamed in three
St. Petersburg Times articles has been
awarded $10.1 million in damages. Dr.
Harold L. Kennedy, former chief of
medicine at Bay Pines Veterans Affairs
Medical Center, sued Times Publishing
Co., the Times' parent company, in 2005.
Kennedy alleged that three December
2003 articles about his reassignment from
his position as chief of medicine damaged
his reputation and were defamatory. The

newspaper argued that the published Kennedy's attorney, Timothy Weber,
information was true. during closing arguments in the case.
The author of the articles, Paul de la Times Executive Editor and Vice
Garza, died in 2006. The Times tried to President Neil Brown was "very
use his notes to defend its disappointed" by the jury's
case, but the judge did not L IBT E L decision and stood by the paper's
allow them in the trial. work. "We believe our reporting
Kennedy, who now lives and editing of these stories met the
in St. Louis, was awarded $5.1 million highest journalistic and ethical standards,"
in compensatory damages and $5 million Brown said, according to the Times.
punitive damages. "He was not given The newspaper plans to appeal.
a fair shake by the defendant," said Source: St. Petersburg Times

ACCESS RECORDS

PSC messaging scandal prompts

TALLAHASSEE A controversy over
BlackBerry messaging codes given to a
Florida Power & Light attorney by Public
Service Commission aides has prompted
policy changes by Attorney General Bill
McCollum.
Two PSC aides were suspended and
one fired for providing BlackBerry PIN
numbers to FPL attorney Natalie Smith.
Each BlackBerry has its own unique
eight-character code which can be used

to send messages to other BlackBerry
devices, according to the Palm Beach
Post.
The PIN to PIN messages are a cross
between a text message and an e-mail but
are not retained by state servers.
FPL is seeking approval from the
PSC for an increase in its base rate.
PSC commissioners are prohibited from
discussing pending rate cases with utility
executives, but PSC staffers are not.

new AG policy
The scandal resulted in McCollum's
new policy on public records for his
office, which will now treat BlackBerry
PIN and text messages as public records
and automatically retain them on a server.
McCollum has also formed a
"Sunshine Technology Team" to explore
issues related to open government laws
and emerging technology.
Source: St. Petersburg Times, Palm
Beach Post

Official fined for deleting e-mails

BONITA SPRINGS A city
councilwoman charged with a civil
violation of the Public Records Law for
deleting city business e-mails from her
home computer will pay a fine as part of
her agreement with the State Attorney's
Office.
Janet Martin pleaded no contest to a
civil charge of unintentionally violating
the Public Records Law. She will pay a
$250 fine. The maximum fine is $500.
Bonita Springs Mayor Ben Nelson

defended Martin's actions as a common
mistake due to the "complex" nature
of Florida's open government laws,
according to an article in the News-Press
(Fort Myers). "I guarantee you every
state official has done the same thing Janet
Martin is accused of doing," Nelson said.
Martin maintains that she printed and
gave to the city e-mails she thought were
related to public business, according to
the Naples News.
Source: News-Press, Naples News

Official balks at citizen e-mails

FORT LAUDERDALE A city
advisory board member fed up with
e-mails from citizens about a controversial
development plan announced that he
deleted the e-mails without reading them.
Fred Stresau, a member of the Fort
Lauderdale Planning and Zoning Board,
was concerned that his private e-mail was
made public and his account "clogged up"
with correspondence from the public.
City attorney Harry Stewart gave the
green light for board members to delete
unread e-mails, citing a lack of case law

on the topic. Stewart said that if the
e-mails are read, board members must
provide a copy of the communications
to the city, according to the Sun-Sentinel
(Fort Lauderdale).
Mayor Jack Seiler suggested city
advisory board members get official city
e-mail addresses so that all e-mails could
be saved on the city's server.
Stresau, whose unread e-mails totaled
about 50, said that resident input should
be given in public.
Source: Sun-Sentinel

Company sues district for records

MARTIN COUNTY The removal of
more than 1,200 files from the computer
of a Martin County School district
attorney-without warning-is at the
center of a lawsuit filed by a Riviera
Beach company. The suit filed by Florida
Mechanical seeks the production of
those files, which it alleges were ordered
removed by Superintendent Nancy Kline.
Florida Mechanical also alleges the
district still owes it $235,000 for work
performed.
According to Florida Mechanical,
Kline ordered all records related to

Florida Mechanical's public records
requests made over the summer be deleted
in early September.
Kim Sabol, labor and employment
representative for the district, said
the files need to be reviewed and that
the removal would help "preserve the
integrity" of a Florida Department of Law
Enforcement investigation, according to
Scripps Treasure Coast Newspapers. The
FDLE is investigating fraud allegations
in the district's maintenance and facilities
departments.
Source: Scripps Treasure Coast

Man arrested

during meeting

settles lawsuit
VENICE A Venice man arrested
at a 2002 meeting of the Venice
City Council has settled his lawsuit
against the city in connection with
the incident.
Herb Levine, now 82, was
president of the Venice Taxpayers
League when he clashed with city
officials, calling them names before
being removed from the meeting in
handcuffs.
Charges of trespassing, disturbing
a lawful assembly and resisting
arrest
were ACCESS
dropped
by the MEETINGS
State
Attorney's Office after an
investigation. Levine then filed suit
against the city, the mayor and the
police chief for false arrest, alleging
he was injured during the arrest.
After years of litigation, the
suit was settled for $35,000. The
Sarasota Herald Tribune reports that
the city has been reluctant to release
information about the settlement,
with the city clerk going so far as to
redact the settlement figure out of a
letter after it had been observed by
newspaper employees.
Venice, just hit with a $775,000
attorney fee bill in an unrelated open
government lawsuit, has claimed that
making settlement documents public
would violate a confidentiality
agreement.
Source: Sarasota Herald Tribune

2 The Brechner Report U November 2009

FREEDOM OF INFORMATION

Obama reverses

visitor log policy
WASHINGTON The White House
has reversed its policy on visitor logs, in a
move that could bring more transparency
to the policymaking process. The Obama
administration had previously refused to
release details of White House visitors,
continuing the stance held by the Bush
administration.
"We will achieve our goal of making
this administration the most open and
transparent administration in history, not
only by opening the doors of the White
House to more Americans, but by shining
light on the business conducted inside,"
Obama said.
Obama was under legal pressure from
Citizens for Responsibility and Ethics in
Washington, a watchdog group that had
sued for access to the visitor logs. CREW
has since dropped its suit.
The policy will cover visits starting
Sept. 15, with information released every
90-120 days. This means the first release
will be posted on the White House Web
site approximately Dec. 31. The names
of visitors, who they met, and the length
of visits are expected to be included in the
records.
Names of some visitors will be
withheld for national security concerns.
Another exception excludes information
regarding "purely personal guests" of the
president and vice-president.
Source: The Associated Press

THE
BRECHNER
REPORT
Brechner Center for Freedom of Information
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College of Journalism and Communications
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The Brechner Report is published 12 times a
year under the auspices of the University of Florida
Foundation The Brechner Report is a joint effort
of The Brechner Center for Freedom of Information,
the University of Florida College of Journalism and
Communications, the Florida Press Association,
the Florida Association of Broadcasters, the Florida
Society of Newspaper Editors and the Joseph L
Brechner Endowment

Facebook frowned upon in Collier
COLLIER COUNTY Sunshine Law.
Commissioners in Collier County who Klatzkow coordinated with the
are fans of the social networking site county's information technology
Facebook have been warned by the department to help ensure that posts and
county attorney to avoid the site. responses are retained. He also cautioned
Sites like Facebook and Twitter can against commissioners becoming
be problematic for public "friends" on
officials due to the nature of N E W Facebook or even
Florida's open government befriending the
laws, according to Collier TECHNOLOGY same constituent for
County Attorney Jeff fear of inadvertent
Klatzkow. communication about public business.
"My conservative opinion is don't Cyndee Wooley, social media
use it, or else, print out everything," specialist with C2 Communications,
Klatzkow said, according to the Naples suggested commissioners have all
Daily News. Facebook notifications sent to county

The commission asked Klatzkow
to advise it on whether Facebook use
violates Florida's Public Records or

e-mails or set up a "fan page" where
personal messages are not permitted.
Source: Naples Daily News

Challenge to meetings law moot
NEW ORLEANS A First Amendment test, a law must further a compelling
challenge to Texas' Open Meetings Law government interest and be narrowly
is moot, according to a ruling by the 5th tailored in order to be constitutional.
Circuit Court of Appeal. The full court Attorneys general in several states,
dismissed the case, brought by former including Florida, urged the full 5t
Alpine, Texas, city council members who Circuit to hear the case after the panel's
allegedly violated the Open Meetings Law April ruling, fearing the decision could
when they discussed city FIR-S set the stage for many
business via private e-mails. FIR ST state Open Meetings Laws
A federal district court to be struck down. The
judge upheld the Open AMENDMENT Alpine council members
Meetings Law, finding also requested a rehearing.
that elected officials are not afforded The en bane rehearing of the case
First Amendment protection when acting resulted in 16 judges deciding the case
"pursuant to their official duties." was moot. Judge James L. Dennis
However, a three-judge panel of the 5t argued in a dissenting opinion that the
Circuit overturned that decision in April case should have been heard because it
2009, directing U.S. District Court Judge was an issue likely to come before courts
Robert Junell to determine whether the in the future.
Texas Open Meetings Act passed the strict Source: Reporters Committee for
scrutiny test. Under this First Amendment Freedom of the Press, Rangra v. Brown

Congress mulls newspaper tax cut

WASHINGTON Facing continued
losses that led to 15 percent of its work
force being cut, the newspaper industry
needs a tax break, according to Newspaper
Association of America President John
Sturm.
"Newspapers need cash now to
preserve jobs next year," Sturm said at a
Congressional hearing, according to The
Associated Press. "It's really that simple."
Sturm's suggestions included allowing
newspapers to use current losses to

offset profits from the previous five years.
Current law allows losses to be carried back
for two years, but some newspapers have
not posted profits in the past two years.
Expanding the time period to five years
would allow newspapers to get money back
from taxes previously paid.
The hearing was conducted by Rep.
Carolyn Maloney, who is sponsoring a bill
that would make it easier for newspapers to
convert to nonprofits.
Source: The Associated Press

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Military policy threatens quality of war coverage
Floridians understand the tension between access to As John Kifner put it in a Nov. 30, 2003 article in
images of death and concerns for familial privacy. The The New York Times, "modem war has given us iconic
battle over autopsy photos of a famous racecar driver images that both shape and reflect our views of conflict.
who died in a crash at the 2001 Daytona 500 prompted Consider, for example, the difference among some
then-Gov. Jeb Bush to quickly sign legislation keeping famous photographs burned into the nation's memory
autopsy photos closed to the public unless a judge the picture of the triumphant marines raising the flag
approves their release. over Iwo Jima toward the end of World War II and
The photos were sought by several media outlets then a grim triptych from Vietnam: images of a police
not for the gore-and-sensational factor, but instead to chief shooting a Vietcong prisoner in the head, a naked,
determine whether a certain head-and-neck support Clay Calvert screaming little girl burned by napalm running down a
device might have saved Dale Earnhardt's life had he road and a helicopter lifting off the roof of the American
been wearing it. With all due respect to NASCAR fans and Teresa embassy, leaving Vietnamese allies behind as Saigon fell."
Earnhardt, the widow of the seven-time Winston Cup champion, More recently, it was the image captured by AP photographer
an even more serious battle over images of death is now brewing. Julie Jacobson in August 2009 of a fatally wounded Marine who
In particular, it involves restrictions on images of dead was struck by a rocket-propelled grenade in a Taliban ambush
American soldiers. in Afghanistan that sparked the current controversy. The AP's
Th The Reporters Committee defense of that image is found online at http://www.ap.org/fallen
ThB e for Freedom of the Press in marine. Images of war and, especially, images of death during
B ack Page October 2009 reported that war thus are powerful.
By Clay Calvert "the agreement journalists must Apparently sensing the error of its ways, the military on
sign to become embedded with Oct. 15, 2009 issued more relaxed rules for embedding with
a military unit in Afghanistan now includes a prohibition against American forces at Regional Command-East at Bagram Air
any photographic or video coverage of U.S. troops killed in Field in Afghanistan. The new rules provide that "media will
action." That agreement took effect in late September 2009. not be prohibited from viewing or filming casualties; however,
The practice of embedding itself has been controversial, casualty photographs showing recognizable face, nametag or
While journalists gain up-close access to fighting by riding other identifying feature or item will not be published. In respect
along in armored vehicles with U.S. troops, some feared those to our family members, names, video, identifiable written/oral
same journalists would become, however slowly and subtly it descriptions or identifiable photographs of wounded service
might be, co-opted in their reporting by the troops shielding them members will not be released without the service member's prior

from harm's way on a daily basis. It would take much moxie,
after all, to report negatively on the very men who, to paraphrase
Demi Moore's line in "A Few Good Men," say "nothing is going
to hurt you, not on my watch."
But this show-no-death policy brings a more tangible worry to
the equation, just as the war in Afghanistan appears to be growing
worse for the United States. The new policy provides in relevant
part that the "media will not be allowed to photograph or record
video of U.S. personnel killed in action."
We all know that death occurs in war. That much is obvious.
So why, then, all the fuss over hiding images of death? The
answer is obvious.

written consent."
If a wounded solder who is photographed later dies, then the
photographs cannot be released until next of kin first have been
notified of the passing of their loved one.
This Oct. 15 revision clearly represents a step forward to
balance the interests between familial privacy and public access
to images that tell the reality of war. We all, however, must
remain vigilant in making sure that further attempts to shield the
horrors of battle are rebuffed.

Clay Calvert, J.D. and Ph.D., is the Brechner Eminent
Scholar in Mass Communication at the University of Florida.