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THE


BRECHNER


REPORT

Volume 34, Number 1 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
January 2010

City sues blogger for requesting e-mail records
HALLANDALE BEACH Rather denied his request. Instead, in April it pursuant to a law or ordinance." Henning,


than deny a public records request, a South
Florida city decided to sue the requester,
and a circuit judge ruled for the city.
Hallandale Beach blogger Mike Butler


hired a law firm and filed suit against
Butler.
Jamie Cole, attorney for the city, said
that "the city didn't want to break the


had requested a list of recipients of an law" and therefore wanted a judge's ruling
e-mail sent by Mayor Joy Cooper A C before denying the request,
on February 17 from her personal A ( ( E S S according to the South
e-mail account. The brief e-mail Florida Sun-Sentinel (Fort
included attachments to columns RECORD S Lauderdale).
Cooper wrote for a weekly Circuit Court Judge
newspaper and included Cooper's City Patti Englander Henning issued a written
Hall address and phone number, order stating that the e-mail was "not a
According to Butler, the city never public record because it was not created


who emphasized that Mayor Cooper paid
for her personal account and had other
city-affiliated accounts, ruled that even if
the e-mail was related to official business,
the list of recipients would be irrelevant.
Butler called the ruling "shocking"
and contrary to a 2007 opinion of
Florida Attorney General Bill McCollum
determining that public records include
e-mails from public officials "that are
intended to communicate, perpetuate or
formalize knowledge" of city business.
Source: South Florida Sun-Sentinel


Court considers pre-meeting records access


ALACHUA The 1st District Court
of Appeal is considering allegations that
the Alachua City Commission violated
the Sunshine Law by refusing to release
board minutes prior to approving them at
a meeting.
Alachua residents Michael Canney
and Charlie Grapski brought the suit
after their request for minutes of a board
that certified a disputed city election was
denied. The city commission placed
approval of the minutes on a consent
agenda, then approved the minutes without
making them public or discussing them at
the meeting.


Attorney and University o
Law School Professor Joe Li
Canney and Grapski in their
a circuit judge's ruling that b
city later released the records
was moot. Judge Robert
Roundtree Jr. also ruled
that the city commission
can approve items on its
consent agenda without
allowing public comment.
"Alachua hid the content
were doing," Little argued be
judges. "The public was left
contends that although the m


if Florida
ttle represents
appeal of
because the


the minutes were approved was physically
open to the public, it was not truly "open"
within the meaning of Florida's Sunshine
Law.


s, the lawsuit The city, represented by Gainesville
attorney Rod Smith, argued
that city made a mistake in
not releasing the records
MEETINGS but because they were later
released, the lawsuit was moot.
Smith told the judges timing was key,
of what they especially because Canney and Grapski
;fore appellate had the records at the time the suit was
out." Little filed.
meeting where Source: High Springs Herald


Meetings law faces second free speech challenge


PFLUGERVILLE, Tex. More The Texas law makes it illegal for
than a dozen public officials in Texas a quorum of members to deliberate in
have agreed to challenge that state's private, with penalties of up to six months
Open Meetings Act on the in jail and a $500 fine.
grounds it violates their First FIR ST Other states, such as
Amendment rights. Florida, do not require
The suit follows one AMENDMENT a quorum for the Open
dismissed by the U.S. Court Meetings Law to apply.
of Appeals for the 5th Circuit in Rangra The suit seeks "to declare
v. Brown as moot. That suit involved unconstitutional the criminal provision
officials in Alpine, Texas, who were that says that council members can't
indicted after e-mail correspondence talk to each other except at a meeting,"
about a pending water project. Those said Rod Ponton, who represents the 15
charges were later dismissed, elected officials who agreed to challenge


the law.
"Jail time is not the least restrictive
means of promoting open government,"
said Scott Houston of the Texas Municipal
League. That organization filed a "friend
of the court" brief in the Rangra case.
Several state attorneys general,
including Florida Attorney General Bill
McCollum, filed an amici brief warning
that applying strict scrutiny to open
meetings laws would "practically cripple
the operation of those laws" and conflicts
with U.S. Supreme Court opinions.
Source: Austin American-Statesman






ACCESS RECORDS CONTINUED


County housing agency disputes

city counterpart's records fees


ST. PETERSBURG A county
housing authority has complained to
prosecutors about its city counterpart,
alleging a violation of the Open Records
Law. The Pinellas County Housing
Authority has requested records from the
St. Petersburg housing agency over the
past two years.
More than 17,000 e-mails and records
since October 2007 are involved in the
request. The city housing agency wants
in excess of $19,000 to fulfill the records
requests. A county attorney calls the


city agency's response a "gross violation
of both their constitutional and statutory
duties."
The St. Petersburg housing agency
estimates it will take a supervisor 20 hours
per week for several months, at the rate
of $29 per hour, to review the records at
issue.
The city and county housing
agencies previously worked together,
including plans at one point to have joint
headquarters.
Source: St. Petersburg Times


BUNNELL Several boxes of records
containing sensitive information landed
in a Flagler County dumpster after the
building department purged its files.
Palm Coast resident Jean Fontana
found the documents in the dumpster
and alerted authorities and local media.
County Administrator Craig Coffey said
within 24 hours of being trashed, the
applications, deeds, notices and plans
were secured.
"Unfortunately, this same information
still exists in the county's official records
online," Coffey wrote in an online forum.
"Hence, they are viewable with any
computer, forget the Dumpster."


But state law requires that all sensitive
information be removed from electronic
records by January 2011, leaving county
clerks with the daunting task of ensuring
millions of documents are redacted.
Flagler County Clerk of Court Gail
Wadsworth said if the task of redacting
documents, which began last year, wasn't
complete by the deadline, the official
records Web site would be shut down.
The Flagler building department purges
its files every 10 years. The employees
who discarded the records were verbally
reprimanded.
Source: The Daytona Beach News-
Journal


Town manager loses job after

employee SSNs released on CD
LADY LAKE A town manager Security numbers while fulfilling his
was terminated after the inadvertent public records request. Lady Lake
release of a CD with the Social Security requested that French return the CD, but
numbers of 99 town employees, he refused.
Bill Vance was the town manager of "Under the direction of my attorney, I
Lady Lake since 2004 before being fired placed the three CDs into a safe deposit
by the town commission, box and have not shared, copied or
The termination stems from a public forwarded any of the files contained
records request by Mike French, who therein," French wrote commissioners.
requested more than 100,000 town "These discs will remain in my custody
e-mails after being denied a job with the until this matter is successfully resolved."
Lady Lake Police Department. French Also affected by the release was
alleges he didn't get the job due to age Human Resources Director Guy Shields,
discrimination and requested records to whom Vance had suspended for 30 days
support his claim, without pay.
Lady Lake employees mistakenly Source: Orlando Sentinel, The Daily
gave French a CD with the Social Commercial (Leesburg)


Brechner.org
Visit The Brechner Center's Web site
for more information about media law
in Florida. You can find:
* How Florida lawmakers voted on
open government issues.
* A history of open government
prosecutions and attorney's fees
awards in the state.
* Sample public records request letter.
* The Citizen's Guide and video
overview.


Investigation

prompts new

e-mail policy
MILTON Santa Rosa County
commissioners have adopted a
new e-mail policy based on the
recommendations of a State Attorney's
Office report.
The new policy prohibits the
use of private e-mails to conduct
county business. It also encourages
commissioners to avoid e-mail
communications with each other and
put a disclaimer on e-mails to other
commissioners warning against a
response.
All e-mails received by
commissioners should also be
automatically copied to the county for
retention on its server.
County Administrator Hunter
Walker said the new policy for elected
officials supplements the existing
employee e-mail and Internet policies.
Walker said Santa Rosa's new policy
is similar to one recently adopted by
Escambia County.
The State Attorney's investigation
was prompted in part by e-mail
correspondence between
commissioners Gordon Goodin and
Bob Cole regarding the Regional
Transportation Authority. The
investigation determined that exchange
was "troubling" but not a violation of
the Open Meetings Law.
Source: Pensacola News-Journal,
Northwest Florida Daily News (Fort
Walton Beach)


2 The Brechner Report January 2010


Building department records

purge leaves files in dumpster





2009 FREEDOM OF INFORMATION REPORT
Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida

Venice ordered to pay record attorney fee award


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 Sunshine, alleged violations
of the Public Records and 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
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.
Lorenzo's
attorneys sought
a multiplier thatC C
could have resulted
in fees of more MEETIN(
than $2 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 permits these types of
attorney fee awards, and Bennett noted


5;
S.


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
S, 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.
Mogensen said she would not appeal.
Source: Sarasota County Circuit Court,
Sarasota Herald Tribune


Open government reform panel issues report


TALLAHASSEE The Commission
on Open Government Reform released
its final report of recommendations for
reforming Florida's open government
laws. The nine-member commission was
created by Gov. Charlie Crist in June 2007
to review, for the first time, the state's
public records and public meetings laws in
their entirety.
Among the issues addressed in the
report were the number of redundant


exemptions within the laws, challenges to
access posed by new technology and the
use of excessive fees under the general
fee provision of the records law for public
records requests.
Among the recommendations, the
commission called on the legislature to
create universal exemptions that apply
to all agencies and repeal redundant
exemptions.
Also, the commission recommended


the legislature create new legal standards
for electronic records to facilitate public
access and reduce the cost of redaction
to such records. The commission also
recommended all agencies create a process
for public access to public record e-mail.
The report is available through the
governor's Web site at hup " Ilgo\.
com/og_home.
Source: Commission on Open
Government Reform Final Report


NCAA loses bid to keep discipline records secret


TALLAHASSEE The 1st District
Court of Appeal has ruled that the records
received by Florida State University
attorneys via a
National Collegiate
Athletic Association A C C
(NCAA) Web site are RECOR]
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
S disciplinary action stems from
allegations of cheating among
S 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.
The NCAA has appealed to the Florida
Supreme Court.
Source: 1s DCA, The Associated Press
Annual FOI Report U 2009 /


THE



BRECHNER


CENTER


D;






2009 FREEDOM OF INFORMATION REPORT


Facebook, settlements among


TALLAHASSEE Attorney General
Bill McCollum's office weighed in
on several open government issues in
2009, ranging from city Facebook pages
to litigation strategy sessions where a
municipality is not a named party but
would be a real party in interest. Below
are summaries of these Florida Attorney
General Advisory Legal Opinions.
McCollum's office also issued six
informal opinions on open government
issues in 2009.
Access to discrimination complaint:
Does the Public Records Law require
disclosure of a discrimination complaint
when the alleged victim has withdrawn the
complaint and requested confidentiality as
part of a settlement with the agency?
AGO 2009-10: Yes. The Public
Records Law contains an exemption for
employment discrimination complaints
where the
individual decides ATTOl R
not to pursue
the complaint. GENERAL
However, when
an individual proceeds to negotiate a
settlement of that claim, it would be
unreasonable to interpret that action as
choosing not to pursue the complaint.
Also, the Legislature has been clear that
with few exceptions, confidentiality
portions of settlements are void as against
public policy.
Conflict resolution, closed sessions:
Does the Open Meetings Law authorize a
city council to meet in executive session
to consider the terms of mediation
undertaken pursuant to the conflict
resolution procedure set forth in the
Florida Governmental Conflict Resolution
Act?
AGO 2009-14: No. The FGCRA
allows for civil proceedings between
governmental entities to be put hold while
conflict resolution is pursued according
to the procedure prescribed by the Act.
The Open Meetings Law contains an
exemption for settlement negotiations or
attorney-client strategy sessions related to
pending litigation. Discussions between
the city attorney and the city commission
related to a settlement of a conflict under
the FGCRA would not fall under a strict
reading of the Open Meetings exemption.
Litigation strategy session: May
a city hold an attorney-client session
under the Open Meetings Law to discuss
pending litigation where the named


defendant is a city employee who is
fully indemnified by the city and the
city is responsible for the full cost and
coordination of the defense, but the city is
not a named party?
AGO 2009-15: Yes, if the city is a real
party in interest of a pending lawsuit it
may conduct such a session even though it
is not a named party in the litigation.
Municipal Facebook page: Would
a city's Facebook page, including
information about the city's "friends" and
their pictures, and the friends' respective
Facebook pages, be subject to the Public
Records Law? Is the city obligated to
follow a public records retention schedule
for Facebook page records? Is Florida's
Constitutional Right of Privacy implicated
by the inclusion of information about the
city's "friends" and the respective link to
the friends' Facebook pages linked to the
city's page? Would
NEY communications on
the city's Facebook
DPINIONS page regarding city
business be subject
to Florida's Government in the Sunshine
Law?
AGO 2009-19: A city may create
a Facebook page in furtherance of a
municipal purpose. The material on the
page would presumably be subject to
the Public Records Law if it was made
or received in connection with official
business, and the city would be obligated
to follow public records retention
schedules. The constitutional privacy
provision specifically states that it "shall
not be construed to limit the public's right
of access to public records and meetings
as provided by law." Finally, city board
or commission members must not engage
in communications on a city Facebook
page on matters that foreseeably will come
before the board or commission for official
action.
Access to crash reports: Is Escambia
County entitled to receive crash reports
from law enforcement agencies at the
scene of a motor vehicle accident pursuant
to Escambia County's motor vehicle
accident cost recovery fee ordinance?
AGO 2009-22: No. Crash reports
are confidential for 60 days after filing,
although the reports are available
immediately on a limited basis to
statutorily enumerated individuals and
entities, such as parties to the crash,
insurers, attorneys, prosecutors and


2Annual FOI Report U 2009


AGO topics
newspapers. There is no statutory
exception for counties, and Escambia does
not have the authority to create such an
exception by local ordinance.
Emergency medical records:
Pursuant to sections 401.30(3) and (4),
Florida Statutes, is the entire record of
an emergency call which contains patient
examination and treatment information
confidential and exempt from the
provisions of section 119.07(1), Florida
Statutes?
AGO 2009-30: Yes. The record of the
emergency call (such as a form used to
maintain records of emergency calls) is
exempt from the Public Records Law per
401.30(4), Florida Statutes, and may only
be released under limited circumstances.
However, Department of Health statistical
reports are public records once any
patient-identifying information is redacted.
Pre-suit notice period not pending
litigation: May a town council which
has received a pre-suit notice letter under
the Bert J. Harris Act conduct a closed
meeting pursuant to section 286.011(8),
Florida Statutes, to discuss settlement
negotiations?
AGO 2009-25: No. The Harris Act
governs claims by property owners that
a law inordinately burdens their property
and includes steps that governmental
entities must take to settle a claim after
it receives pre-suit notice. The Open
Meetings Law permits confidential
meetings between a board and its attorney
only when the board is party to a court
or administrative agency proceeding.
At the time pre-suit notice is given, the
town council is not a party to an action
and therefore may not conduct a closed
meeting.
Confidentiality of assessment tests:
Are student assessment tests, developed by
teachers to measure student preparedness
for college board advanced placement
exams, public records subject to inspection
and copying under Chapter 119, Florida
Statutes?
AGO 2009-35: Section 1008.23
exempts development materials related
to testing but does not explicitly exempt
tests related to preparedness for advanced
placement exams. However, the plain
language of the statute and common sense
indicate that if the exemption didn't apply,
a student could simply make a public
records request for the blank test. The
assessment tests appear (cont'd. on pg.3)






2009 FREEDOM OF INFORMATION REPORT

Gov. Crist vetoes two public records exemptions


TALLAHASSEE The following is a
summary of the nine Public Records and
Open Meetings Law exemptions enacted
in 2009. However, two exemptions-one
for telecommunication company records
and one for information about donors
to public buildings-were vetoed by
Gov. Charlie Crist. Chief sponsors of
the bills are in parentheses at the end of
the summaries. Copies of the legislation
in full are available at the Florida
Legislature's Web site (www.leg.state.
fl.us). SB = Senate Bill; HB = House Bill;
CS Committee Substitute.
HB 7093 Telecommunications and
Broadband Companies: Creates a
public records exemption for proprietary
confidential business information obtained
from telecommunications companies and
broadband companies by the Department
of Management Services. Exempted
information includes plans, billing
and payment records, trade secrets or
other information that is intended to be
confidential and is not otherwise publicly
available in the format held by the
department. Information related to maps,
facility locations, broadband services and
speed is not proprietary. (H. Economic
Development Community Affairs Policy
Council) Vetoed by Gov. Crist June 24.
HB 7119 Education Records: Creates
a public records exemption for K-12
education records held by an agency,
public school, center, institution, or other
entity that is part of the state's education
system. The bill also expands an
exemption for records of students in public
postsecondary educational institutions
including education records and applicant
records. (H. Education Policy Council)
Signed by Gov. Crist June 24.
HB 7125 Military Base Closures:
Creates a public records exemption for
portions of records held by the Florida
Council on Military Base and Mission
Support on U.S. Department of Defense
Base Realignment and Closure Activities
related to 1) strengths and weaknesses
of military installations or missions; 2)
selection criteria for realignment and
closure of military bases and missions;
3) Florida's strategy to retain military
bases during federal base realignment
and closure procedures; 4) agreements or
proposals to relocate or realign military
units of missions. Also creates a public
meetings exemption for council meetings
at which exempt information is presented


or discussed. (H. Economic Development reported to the Department of Health
& Community Affairs Council) Signed by via the electronic prescription drug
Gov. Crist June 10. monitoring program. The exempted
SB 166 Donors to Public Buildings: identifying information of patients,
Creates a public records exemption for the health care providers, pharmacists and
name, address and telephone number of employees of practitioners includes the
donors or name, address, telephone
prospective LE GISLATIVE number, insurance plan
donors to number, social security
publicly SESSION REPORT number, provider number,


owned
buildings or facilities if the donor desires
to remain anonymous. (Ring, D-Margate)
Vetoed by Gov. Crist June 24.
SB 2158 Florida Insurance Guaranty
Association: Creates a public records
exemption for records held by the Florida
Insurance Guaranty Association: 1)
claims files until the end of litigation,
settlement and final closing of all claims
related to the incident; 2) medical
records and information relating to the
medical condition or status of a claimant;
and 3) records privileged by attorney-
client communications. (Haridopolos,
R-Melboume) Signed by Gov. Crist June
16.
CS/HB 135 Insured Dependents:
Creates a public records exemption for
the personal identifying information
of insured dependents of current and
former agency employees insured by an
agency group insurance plan. (McKeel,
R-Lakeland) Signed by Gov. Crist
June 1.
CS/HB 631 Estate Inventories and
Accountings: Creates a public records
exemption for estate or elective estate
inventories and accounting filed in an
estate proceeding. The records may
be disclosed in specific circumstances
including under court order upon showing
good cause. (Hukill, R- Port Orange)
Signed by Gov. Crist June 24.
CS/HB 895 School Testing
Investigations: Creates a public
records exemption for the identity of
an educational institution, the personal
identifying information of all personnel
and records of misconduct obtained or
reported in connection with investigating
testing impropriety by the Department of
Education. The records are exempt until
the investigation concludes or becomes
inactive. (Roberson, R-Port Charlotte)
Signed by Gov. Crist June 10.
CS/SB 440 Controlled Substances
Database: Creates a public records
exemption for information and records


Drug Enforcement
Administration number, and other unique
identifiers. (Fasano, R-New Port Richey)
Signed by Gov. Crist June 18.
Source: First Amendment Foundation,
http://www.flsenate.gov and http://www.
myfloridahouse.gov


AG OPINIONS
CONTINUED

to be exempt, but the Legislature may
wish to clarify the issue.
Disposition of public records: What
is the proper disposition of public records
of a municipal services taxing and
benefit unit that has been replaced by an
independent special district by special act
of the Legislature?
AGO 2009-39: The Public Records
Law requires records be kept in the
buildings where they are ordinarily
used; it also has a provision calling
for a records custodian to deliver
public records to her successor. This
is analogous to a public entity which
has been abolished by the Legislature.
Therefore, the defunct unit should
deliver the public records to the records
custodian of its successor.
Attendance at settlement
meetings: May attorneys representing
a superintendent of schools in an
administrative action before the
Department of Administrative Hearings
meet with the school board to discuss
settlement of the administrative
proceeding pursuant to section
286.011(8), Florida Statutes?
AGO 2009-52: No. The Open
Meetings Law has a limited exception
for litigation strategy or settlement
discussions between a school board as a
named party in an administrative action
and the board's attorney. The attorneys
representing the superintendent do not
fall within this exception.


Annual FOI Report U 2009






2009 FREEDOM OF INFORMATION REPORT


Half of sheriffs fail records audit


TALLAHASSEE Forty-three percent
of government agencies failed to comply
with the Public Records Law, according to
a statewide audit.
During the Florida Society of
Newspaper Editors' audit, reporters and
student volunteers requested records from
163 school, administrative and sheriff's
offices in 56 of Florida's 67 counties.
The individuals asked each office
to produce copies of e-mails created
in preparing the 2008-2009 fiscal-year
budgets.
If the agencies claimed there were no
e-mails on the issue, the individuals asked
for the latest correspondence or written


records on the budget.
The failing agencies either could not
produce a reasonable record, or they
required requestors to submit written
requests or give their names or reasons for
wanting the records.
Sheriff's departments were the worst at
complying. Almost 60 percent failed.
The audit would normally have been
conducted in March 2009 during Sunshine
Week, but it was moved to October 2008
because of Gov. Charlie Crist's open-
government commission's release of
recommendations for the 2009 session.
Source: Bradenton Herald, Naples
Daily News, and Orlando Sentinel


Doctor wins defamation lawsuit
ST. PETERSBURG A doctor who Garza, died in 2006. The Times tried to use
alleged he was defamed in three St. his notes to defend its case, but the judge
Petersburg Times articles has been awarded did not allow them in the trial.
$10.1 million in damages. Dr. Harold L. Kennedy, who now lives in St. Louis,
Kennedy, former chief of was awarded $5.1 million in
medicine at Bay Pines Veterans L IB E L compensatory damages and $5
Affairs Medical Center, sued million punitive damages.
Times Publishing Co., the Times Executive Editor and
Times' parent company, in 2005. Vice President Neil Brown was "very
Kennedy alleged that three December disappointed" by the jury's decision and
2003 articles about his reassignment from stood by the paper's work. "We believe
his position as chief of medicine damaged our reporting and editing of these stories
his reputation and were defamatory. The met the highest journalistic and ethical
newspaper argued that the published standards," Brown said, according to the
information was true. Times.
The author of the articles, Paul de la Source: St. Petersburg Times

Texas meeting challenge moot
NEW ORLEANS A First Amendment scrutiny test. Under this First Amendment
challenge to Texas' Open Meetings Law test, a law must further a compelling
is moot, according to a ruling by the 5th government interest and be narrowly
Circuit Court of Appeals. The full court tailored in order to be constitutional.
dismissed the case, brought by former Attorneys general in several states,
Alpine, Texas, city including Florida, urged the
council members who RP QT full 5h Circuit to hear the
allegedly violated the Open case after the panel's April
Meetings Law when they AMENDMENT ruling, fearing the decision
discussed city business via could set the stage for many


private e-mails.
A federal district court judge upheld the
Open Meetings Law, finding that elected
officials are not afforded First Amendment
protection when acting "pursuant to their
official duties."
However, a three-judge panel of the 5th
Circuit overturned that decision in April
2009, directing U.S. District Court Judge
Robert Junell to determine whether the
Texas Open Meetings Act passed the strict


state Open Meetings Laws to be struck
down. The Alpine council members also
requested a rehearing.
The en banc rehearing of the case
resulted in 16 judges deciding the case
was moot. Judge James L. Dennis argued
in a dissenting opinion that the case should
have been heard because it was an issue
likely to come before courts in the future.
Source: Reporters Committee for
Freedom of the Press, Rangra v. Brown


Court: Digital

audio is open
TALLAHASSEE A proposal to
restrict disclosure of digital recordings
of court proceedings was rejected
by the Florida Supreme Court,
which called the proposal "overly
restrictive and. .contrary to Florida's
well established public policy of
government in the sunshine and [the]
Court's
ACCESS longstanding
presumption
RECORDS in favor of
openness
for all court proceedings and
allowing access to records of those
proceedings."
The Commission on Trial Court
Performance and Accountability
had recommended that "electronic
records, videotapes, or stenographic
tapes of court proceedings" be deleted
from the definition of "court records"
in the Florida Rules of Judicial
Administration.
The proposed change would
have severely restricted disclosure
of electronic records. To address
concerns of courtroom recording
systems capturing confidential
conversations between attorneys and
clients, a new rule requires court
personnel to notify participants
when courtroom proceedings are
being recorded; attorneys must take
precautions to prevent disclosure of
confidential communications; and
participantsns have a duty to protect
confidential information."
The Court's decision followed the
May 2009 decision of the 2nd District
Court of Appeal denying Media
General Operations, Inc., publisher of
The Tampa Tribune, access to an audio
recording of a sentencing hearing.
The 2nd District concluded that
the written transcript of the hearing
provided by the 6th Judicial Circuit
was sufficient and that the actual
audio recording was not an "electronic
record" as defined in the Florida Rules
of Judicial Administration.
Media General has requested the
Court review the 2nd District's decision.
Source: floridasupremecourt. org


SAnnual FOI Report U 2009







ACCESS MEETINGS CONTINUED


Hospital board

target of suit

CITRUS COUNTY The Citrus
County Chronicle filed suit against a
hospital board alleging Sunshine Law
violations, but the board's attorney
quickly admitted the mistake and offered
to pay the plaintiffs' attorney fees.
The newspaper and the wife of a local
physician filed the suit, alleging that the
Citrus County Hospital Board illegally
held two private meetings to discuss a
potential lawsuit. Hospital board attorney
Bill Grant said the Sept. 10 meeting
occurred but the board did not vote, and
the Oct. 12 meeting did not take place.
Florida's Sunshine Law exempts
discussions about pending litigation that
has already been filed.
"We absolutely made a mistake,"
Grant said. "Taxpayers won't be paying
attorney's fees. We'll pay every damn
dime," he added.
Gerry Mulligan, publisher of the
Chronicle, said he appreciated Grant's
response. The newspaper's lawsuit
sought to have any actions taken by
the board during the closed meetings
nullified.
Prior to learning of the hospital's
response, Mulligan noted repeated
instances of closed meetings. "We want
this clarified," Mulligan said. "We don't
think any branch of government should be
making decisions behind closed doors."
Source: Citrus County Chronicle

THE
BRECHNER
REPORT

Brechner Center for Freedom of Information
3208 Weimer Hall, PO Box 118400
College of Journalism and Communications
University of Florida, Gainesville, FL 32611-8400
http //www brechner org
e-mail brechnerreport@jou ufl edu
Sandra F. Chance, J.D., Exec. Director/Exec. Editor
Christina M. Locke, Editor
Alana Kolifrath, Production Coordinator
The BrechnerReport 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


New software adoptions aim

to improve access, efficiency
Government entities across Florida "We've got to have something more
are looking to new technology to help efficient and a whole lot less expensive,"
streamline recordkeeping and increase Smith said. The new software will cost
public access. $68,000 initially and $39,000 per year
In Pompano Beach, the city thereafter. The current system, which
commission approved initial funding of Smith says is not fully utilized, costs
$14,000 to purchase hardware, software $71,000 annually.
and training that will enable the city to Court clerks are also implementing
stream meetings on the web. Another software changes to comply with new
$900 has been designated for monthly e-filing requirements. The new system
production of the meetings. will allow attorneys to file documents
"In today's society, people want fast online.
and convenient service. From computers "These days we're all having
to cell phones, web streaming falls in to do more with less," said Duval
with immediate access to information County Clerk Jim Fuller. "Our world
in the convenience of your own home," is becoming increasingly electronic
said Pompano Beach public information and many of our clerks have been at
officer Sandra King. "It's easier than the forefront of that trend by piloting
ever to stay informed and get involved programs within their circuits."
with your local government." In Marion County, electronic records
In Bradford County, commissioners access was recently expanded with
have agreed to purchase software that the launch of an expanded "Extranet."
will unify the records system across law For $150 per year, law firms and state
enforcement agencies, the clerk's office, agencies (but not the general public)
the jail, the State Attorney's Office and can view civil and criminal files dating
the courts. back to 2003. Marion County hopes its
Bradford Sheriff Gordon Smith, a current digitizing plans will help it meet
proponent of implementing SmartCOP the March 2010 deadline for Florida
from CTS America, said the goal is to clerks to implement e-filing.
enhance access to information by all Source: Pompano Pelican, Bradford
agencies and reduce time spent entering County Telegraph, Florida Bar News,
data multiple times in different offices. Ocala Star-Banner


Agency refutes Sunshine coverage


NICEVILLE A state senator has
formally requested the Attorney General's
advice on whether a panhandle economic
agency falls under the Sunshine Law. Sen.
Don Gaetz (R-Niceville) called Florida's
Great Northwest "a valuable, important
organization" and said the request was an
effort to obtain clarity "so none of its good
work can be undercut by Sunshine Law
violations."
Florida's Great Northwest maintains
that it is a private, nonprofit organization
exempt from the Open Meetings Law. The
majority of Florida's Great Northwest's $4
million budget comes from taxpayer funds.
The Destin-based group's mission is to
encourage economic development across
16 counties in the Florida panhandle. It
works with various county economic
development agencies and distributes


millions in grant money. Most of the grant
money comes from a $15-million grant
from the U.S. Department of Labor.
A similar organization in northwest
Florida, TEAM Santa Rosa, was
recently the subject of a State Attorney's
investigation regarding its Sunshine
Law obligations. Like Florida's Great
Northwest, the nonprofit TEAM Santa
Rosa's focus is to increase economic
development.
State Attorney Bill Eddins concluded
that because TEAM Santa Rosa conducted
business on behalf of a public entity, it
was subject to the Open Meetings Law.
Eddins declined to pursue any civil or
criminal penalties against TEAM Santa
Rosa.
Source: The News Herald (Panama
City)


The Brechner Report U January 2010




THE
BRECHNER Non-Profit Organization
BREACH NERU.S. POSTAGE
REPORT Permit No. 94
University of Florida Gainesville, FL
Brechner Center for Freedom of Information Gainesville, FL
3208 Weimer Hall, P.O. Box 118400
Gainesville, FL 32611
January 2010








F UNIVERSITY of
UF FLORIDA




My two cents (per copy): FOI should be nearly free
When the nonprofit Mackinac Center for Public Policy Freedom isn't free, but freedom of information should be
wanted copies of documents from the Michigan state as nearly free as possible!
police regarding federal Homeland Security expenditures,
the police were happy to comply. Tipsfor reducing copy fees
For $6,876,303.90. 1 c eet
That was the bill, sent to the Mackinac Center in 1. Narrow the request.
November, to cover search and copy fees. Mailing \ ould 2. Don't ask for copies. Look at the documents for
cost extra. The $7 million request isn't an isolated inc i idn free.
I often hear from journalists who are told it will cost 3. Take photos or use a portable scanner (about $100)
millions of dollars for copies. Agencies nationwide are Dave Cuillier 4. Ask for electronic files on CD or e-mailed for free.
jacking up copy fees, charging 50 cents a page or more, to 5. Ask the agency for an itemized list of expenses to
make up for budget deficits. justify the costs.
Enough already! Corporatizing freedom of information is 6. Question high staff search fees $100 per hour is
wrong. Exercising one's right to learn about government should equivalent to paying someone $208,000 a year.
never be turned into a profit 7. Request to see a copy of the contract the agency has with a
The center. Citizens should not stand copy company. My employer pays a company less than a penny
B ack P age fort it. (.9 cents) per page to provide the machine, service it and refill the
By Dave Cuillier About 35 states allow toner.
officials Dave Cuto charge for the actual 8. Survey local agencies to compare typical costs and expose
cost of photocopies, or a reasonable fee. Some states specify a the unreasonable.
fee (e.g., Florida's provision for 15 cents per page with no staff 9. Survey citizens to find out what they consider reasonable
time charged). Those are great policies. Unfortunately, some Most people will say 10 or 15 cents. If a profit-oriented store can
agencies go beyond the actual cost and what is reasonable. charge that, then surely a non-profit public agency can charge
So what's reasonable? In my opinion: less.
The actual cost of photocopies. Add paper (.7 cents per 10. If the unreasonable charge is for computer programming,
page based on a box of paper from Office Depot), machine call the company that makes the software and ask them if
depreciation (.2 cents per page based on a Xerox WorkCentre copying data should be time consuming. They often say it takes a
5225 that costs $4,299 and produces 75,000 copies a month), and few minutes.
toner (.6 cents per page), and you get 1.5 cents per page. Call 11. Publicize the unreasonable copy fees. Find out if an
it an even 2 cents per page and the agency is still making a 25 agency provides free copies to lawyers or commercial requesters
percent profit margin, but overcharges citizens. Interview elected officials and average
The cost of someone to retrieve and copy the files for people.
onerous requests. Searches that take less than an hour should be 12. Team with other requesters to share the bill.
free. After that, charging $10 an hour seems fair (college students 13. Ask an ombudsman or state attorney general to talk sense
will work for less). It's great that Florida and a few other states into the agency.
charge nothing for staff time, but that practice is a hard sell in 14. Sue or lobby for laws specifying reasonable fees.
most places, and a backlash against harassing, overly broad and David Cuillier, Ph.D., former journalist and current
frequent requests is leading to legislative proposals that limit journalism professor at the University ofArizona, is chairman of
requests, increase fees and close records. We need a sense of fair the Society of Professional Journalists 'Freedom of Information
play on both sides. Committee. He is co-author with I( hi/,., Davis of "The Art of
Covering the actual cost and no more for records requests Access: Strategies for Acquiring Public Records," and posts tips
is reasonable. Exorbitant copy fees should not be tolerated, on the SPJ FOI FYI blog athttp:-/ i. .I ,, orl '.. i-. i.