THE

BRECHNER

REPORT

Volume 34, Number 3 m 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
March 2010

1st DCA: Alachua violated records, meetings laws

TALLAHASSEE An appellate court the minutes in a May 15, 2006 meeting
has ruled that the city of Alachua violated using a consent agenda. A consent agenda
the Public Records and Open Meetings is approved without discussion and in
Laws when it refused to allow two citizens this case there was no notice that the
to review a canvassing board's minutes Canvassing Board minutes were going
before the City Commission approved to be up for approval. Months later,
them. the city finally turned over
Michael Canney and A C'QQ the minutes to Canney and
Charles Grapski requested A C E S Grapski.
the minutes of the city LAW S The 1st DCA overturned
Canvassing Board following the trial court's ruling that
a disputed election. Their because the city eventually
records request was denied by the Deputy provided the records, Canney and
City Clerk, who told them records would Grapski's claims were moot.
not be available until after they were The Court held that "the City's denial
approved, not only breached the duty to provide
City commissioners later approved such records at a reasonable time and

Citizens groups launch two open

government lawsuits in Sarasota

SARASOTA A citizens group that
landed a record-setting attorney fee award
in Venice currently has two new actions
pending in Sarasota County.
Citizens for Sunshine, Inc.'s first
challenge in Sarasota stems from
negotiations between the county with
the Baltimore Orioles regarding spring
training and stadium renovations. The
Sarasota County Commission voted last
year to allocate $31 million to renovate
a stadium in a bid to bring the Orioles'
spring training to Sarasota.
Citizens for Sunshine and Sarasota
Citizens for Responsible Government
allege that the county violated state open
government laws during the negotiations.
In a recent effort to settle the lawsuit,
the groups suggested the county hold a
public referendum on the stadium funding
issue. The county commission ruled out
that option, opting instead to hold another
hearing on the issue.
The other Sarasota open government
suit involves the Economic Development
Corp. of Sarasota County (EDC).

Citizens for Sunshine requested records
from the EDC in July 2009. But the EDC
maintains it is not subject to public records
requests, according to its president and
CEO's e-mail response to the request.
The EDC seeks to coordinate economic
development strategies in Sarasota County
and $1.2 million of its $1.6 million budget
comes from the county.
Recent disputes regarding whether
economic development agencies are
subject to open government laws have
gone both ways. In Santa Rosa County,
the State Attorney's Office determined
economic development agency TEAM
Santa Rosa was subject to the laws.
But Florida's Great Northwest, another
Panhandle economic agency, is not,
according to an informal opinion of State
Attorney General Bill McCollum's office.
The AGO opinion noted that the county
delegated duties to TEAM Santa Rosa but
the same delegation did not occur with
Florida's Great Northwest.
Source: Sarasota Herald-Tribune,
Charlotte Sun

under reasonable conditions, but also
contravened the purpose and mandate of
our public records law."
As to the Open Meetings Law claim,
the Court held that the city's failure to
allow a timely inspection of the minutes
"violated both the language and the
purpose of' the Open Meetings Law.
However, the 1st DCA rejected the
argument that the failure to list the
minutes as an agenda item violated the
Open Meetings Law. The Open Meetings
Law "does not require that specific items
to be considered by a public body be listed
in advance of the meeting on an agenda,"
the Court wrote.
Source: 1st DCA, The Gainesville Sun

Anti-corruption

panel formed
BROWARD COUNTY High-
profile arrests of public officials
in South Florida has resulted in
a statewide grand jury that will
investigate corruption. Gov. Charlie
Crist's request to convene the grand
jury was initially denied by the
Florida Supreme Court as too vague.
However, in December the Court
approved
his petition. ETHICS
Grand jury ETHICS.
summons
were sent to more than 300 people
in the counties of Miami-Dade,
Broward, Palm Beach, Charlotte,
Collier, Glades, Hendry and Lee.
Eighteen people and several alternates
will serve on the grand jury.
Florida Attorney General Bill
McCollum has established a toll-free
hotline for whistleblowers to submit
complaints to the grand jury. Tipsters
can report public corruption by calling
1-800-646-0444.
Source: The Miami Herald

ACCESS RECORDS

DOT chief cleared in 'pancake' e-mail inquiry

TALLAHASSEE Florida's
Transportation Secretary and her aide were
not using code words when corresponding
about a high profile rail project using
words like "pancake" and "French Toast"
in the subject lines, according to a report
by Gov. Charlie Crist's chief inspector
general.
The e-mails between Stephanie
Kopelousos and her aide were sent
before state lawmakers passed legislation
approving a commuter rail in the Orlando
area. Kopelousos claimed the unusual
subject lines were used to help her find
important e-mails on her Blackberry.

'Tweeting'

new lingo in

instructions
TALLAHASSEE In light of
recent mistrials due to juror use of
technology, the Florida Supreme
Court is considering new jury
instructions that specifically address
social media and Internet use.
The new instructions follow a
mistrial in Bartow after a juror used
the
COURTS Internet
to
retrieve a defendant's criminal
record and then shared that
information with other jurors,
according to The Tampa Tribune. In
Miami, a federal trial was called off
after jurors admitted to researching
the case online by Googling
attorneys and parties and using
Wikipedia for definitions.
Current jury instructions warn
jurors about talking to others
about cases, reading about cases
in the newspaper and listening to
reports on television or the radio.
The proposed instructions would
have judges instruct jurors against
"tweeting, texting, blogging,
e-mailing, posting information on
a website or chat room" about the
case.
The Florida Supreme Court will
accept comments on the proposed
instructions until March 17.
Source: The Tampa Tribune

2 The Brechner Report U March 2010

State Sen. Paula Dockery, a Republican
gubernatorial candidate and critic
of the $432-million deal with CSX
Transportation, Inc., requested e-mails on
the rail project from the DOT on Dec. 3.
She received 121 e-mails in response to
her request.
Dockery complained after she
noticed that correspondence she sent
to Kopelousos was not included in the
e-mails she received. A second search
revealed 8,205 e-mails that should have
been produced in response to Dockery's
request.
A DOT employee had mistakenly

Counties tackle
OSCEOLA COUNTY The Osceola
County Commission has passed a
resolution prohibiting text messaging by
elected officials and employees who use
county-issued phones.
The measure was passed in an effort
to comply with the Public Records Law,
according to the Orlando Sentinel. "We
haven't been challenged, but we are taking
a pre-emptive strike," Deputy County
Manager Beth Knight said, according to
the Sentinel.
Employees will still be able to receive
texts. Osceola is concerned about
preserving text messages but cites limited
financial ability to upgrade its server in
order to save the messages or pay extra to
its phone carrier. It is unclear whether the

PALM BEACH COUNTY A public
defender's request for a blanket ban on
the release of evidence in a murder trial
and a gag order on all participants will
be avoided after attorneys for the media
stepped in to encourage a compromise,
according to The Palm Beach Post.
The defendant in the trial is Paul
Merhige, who is accused of murdering
four family members and wounding two
others in a Thanksgiving Day shooting in
Jupiter. He could face the death penalty.
Merhige fled Jupiter and was not
arrested until Jan. 2, 2010. The search for
Merhige was featured on the television
show America Most Wanted. His arrest
was later broadcast on television.
The publicity surrounding the case was

searched the e-mails by the "to/from" field
instead of the "content" field in response
to Dockery's initial request, according to
the report.
Dockery received the e-mails on Dec.
9, the day after the lawmakers approved
the rail bill. "I wouldn't have expected
a different outcome," Dockery said of
the investigation's results. "If it was a
running gag, then I guess the joke's on the
taxpayers."
Kopelousos said the DOT has since
added additional safeguards to records
requests.
Source: The Miami Herald

texting issue
received messages, which would also be
subject to the Public Records Law, would
be preserved.
Neighboring Polk County is currently
working on a policy to cover text
messaging by county employees. Although
e-mails are archived by the Polk County
information technology (IT) department,
text messages go through its phone carrier.
"Our technology doesn't allow us
to capture texts; we have to go to the
provider," County Manager Mike Herr
said, according to The Ledger (Lakeland).
Of Polk's 727 county phones, texting
is blocked on 490. Ed Wolfe, Polk IT
director, plans to establish a system to
capture the text messages.
Source: Orlando Sentinel, The Ledger

the driving force behind Public Defender
Carey Haughwout's motion to prohibit
public disclosure of the evidence and
ban public commentary on the case by
attorneys, investigators and witnesses.
Evidence generally becomes open to the
public after it is provided to the opposing
attorney.
The compromise reached by
Haughwout and attorneys for The Post
and other news organizations will allow
for disclosure of evidence 10 days after
Haughwout reviews the evidence. She
would then have the opportunity to object
to its release.
Haughwout abandoned her initial
request for a gag order.
Source: The Palm Beach Post

Attorneys compromise on access

to evidence in capital murder trial

FREEDOM OF INFORMATION

FOIA suits still

strong despite

Obama order

WASHINGTON Despite
promises of increased transparency,
Freedom of Information Act lawsuits
have not decreased under the
Obama administration. In fact, The
Washington Post noted 319 lawsuits
filed in Obama's first year in office
compared to 298 suits filed during the
last year of the Bush administration.
The White House, however,
disputes the numbers from the court
docket, pointing to Department of
Justice figures showing 328 suits filed
in 2008 and 306 in 2009.
The White House also heralds the
release of White House visitor logs
and memos on interrogation methods
as indicative of its commitment to
transparency.
On his second day in office,
President Obama issued an executive
memorandum directing agencies to
presume openness of records, with
some exceptions.
Meredith Fuchs of the National
Security Archive said that while
the amount of material provided by
agencies has improved, the lawsuits
have been "more of a mixed bag."
Source: The Washington Post

THE
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The Brechner Report is published 12 times a
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Crist campaign in copyright snafu

TALLAHASSEE A Florida State
University-based television station is
accusing Gov. Charlie Crist of copyright
infringement after Crist used a video clip
in his U.S. Senate campaign. Crist used
the station's footage
of campaign rival
and former Florida COPY]
House Speaker
Marco Rubio in a series of Web site ads.
WFSU-TV, a state-funded public
television station, alleges that Crist's
campaign illegally used its video clip.
Crist removed the ads after WFSU
demanded the video be taken down.
"That material, in our view, belongs
to us, and they did not have permission
to use it," WFSU general manager
Patrick Keating said, according to the

RP

St. Petersburg Times. WFSU runs the
Florida Channel, which covers state
government. "I'm just trying to protect
our product and live up to the terms of
our agreement with the Legislature,"
Keating added.
IG T But Crist's
GHT attorney, Ben
Ginsberg of
Washington D.C., called WFSU's
actions censorship. "This is a nonprofit
political campaign engaging in political
speech the highest form of protected
speech under the First Amendment,"
Ginsberg said, according to the Times.
"The Florida Channel has censored the
exchange of information between two
political candidates."
Source: St. Petersburg Times

WASHINGTON The U.S. Supreme
Court has agreed to consider whether
petition signers have a First Amendment
right to keep their names secret.
The case comes out of Washington
state, where more than 130,000 signatures
were gathered in an effort to overturn
a domestic partnership law called the
"everything but marriage" act.
The signature collection resulted in
placement of the law on a referendum in
November 2009.
Prior to the referendum vote, several
groups requested the state release the
names of the petition signers under the
state public records law. But Protect
Marriage Washington, a group advocating
traditional marriage, sued to block

disclosure.
The U.S. Court of Appeals for the
9th Circuit eventually ruled in favor of
releasing the names of the petition signers
in light of the fact that the signatures were
gathered in public on sheets with room
for 20 signatures and with no promise of
confidentiality, according to The New York
Times.
The U.S. Supreme Court stayed the
9th Circuit's ruling and the referendum
vote proceeded, though the "everything
but marriage law" was not overturned.
Now, the Supreme Court will address the
merits of the case and whether the 9th
Circuit's decision infringed on the First
Amendment.
Source: The New York Times

Sunshine Week set for March 14-20

Sunshine Week, sponsored by the
Knight Foundation and the American
Society of Newspaper Editors, will occur
March 14-20, 2010.
This year the ASNE will recognize
"Local Heroes" in its contest to
honor individuals who fought to make
government more accessible.
Other events planned for the
week include the National FOI Day

Conference at the First Amendment
Center on March 15.
Sunshine Week "is a national
initiative to open a dialogue about the
importance of open government and
freedom of information," according
to the ASNE. It began as Sunshine
Sunday in Florida in 2002, launched
by the Florida Society of Newspaper
Editors.

The Brechner Report U March 2010 9

FIRST AMENDMENT

U.S. Supreme Court considers

secrecy rights of petition signers

THE
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March 2010

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Individual battles help ensure transparency for all
The media have typically been at the forefront of law.
litigating Florida open government issues, but private Compounding this problem was Walton County's
individuals and litigants also have pushed for open highly decentralized recordkeeping practices. Paper
government, contributing to the evolution of Florida's records were kept in various district offices by a variety
open records and meetings laws. This was particularly of people. Electronic records including e-mail during
true in 2009 when private individuals waged war on the entire period covered by Harris' requests were
secrecy in the City of Venice, Polk County, the City of essentially maintained as chosen by any end user who
Alachua and Walton County. In each case, the plaintiffs sent or received an e-mail. That was also true of other
were successful and attorneys' fees were recovered. electronic records such as Word documents or Excel
Our primary involvement centered on the access battle Carol LoCicero spreadsheets. Such records were often stored only on a
in Walton County. That case revealed a host of public single computer on one individual's hard drive. The fate
records problems there and resulted in an agreed final judgment of public records was left in the hands of many, many untrained
instituting far-reaching changes. users. During the course of the lawsuit, the clerk's office
The Walton County records saga began when a beach instituted archiving and back-up practices as the discovery process
condominium association sued Walton County for federal civil uncovered records retention deficiencies. For these and many
The rights violations involving an other reasons discovered in the lawsuit, the security of Walton
S P ordinance regulating beach County public records was in jeopardy.
Bl ack P ag e activities. During the litigation, Literally hours before trial was to commence, the parties
By Carol LoCicero, Matt the condominium association reached a settlement, and Judge David Green entered a final
president, Suzanne Harris, a judgment based on that settlement. The final judgment imposes
Gaetz and Marc Slager Walton County resident, sought court-ordered obligations intended to safeguard the security of the
from the county electronic records that might relate to the County's public records and improve compliance going forward,
lawsuit. Instead of seeking records broadly "relating to" the including: annual mandatory training for public officials and key
lawsuit, however, Harris asked the County to search its records staff; use of only official county e-mail accounts (not personal
electronically for certain key words. In a second request, Harris ones) to conduct county business; a requirement that the County
also sought paper records. County officials eventually responded respond to public records requests in good faith, without imposing
by inviting Harris to find the records herself and by asserting unlawful conditions upon requesters like those imposed upon Ms.
they trusted her to redact any exempt information the searches or Harris. Perhaps most importantly, the final judgment requires the
files retrieved. The county deemed this "come-find-it-yourself' county and the clerk to enter into a written agreement clarifying
response sufficient and washed its hands of the requests. the respective obligations of those entities so that public records
When the parties were unable to resolve this standoff, Harris are safely maintained and available for public inspection. Harris
sued. Initially, the lawsuit focused simply on obtaining access was awarded $155,000 in attorneys' fees.
to the requested records. During discovery, however, many There are many battles to be fought on many fronts if this state
problems with Walton County recordkeeping in both electronic is to remain at the vanguard of open government. This case serves
and paper form were revealed. The county's information as a reminder of what one determined individual can do to ensure
technology is outsourced to the Walton County Clerk of Court. transparency. Thank you to Suzanne Harris and to the others
The county blindly assumed the clerk was fulfilling all of its who battled relentlessly for open government in 2009.

records responsibilities. The clerk though acknowledging
her office provided the IT infrastructure for the county flatly
denied responsibility for the county's public records obligations.
Consequently, no one was in charge of complying with Florida

Carol LoCicero is an attorney with the media intellectual property
firm of Thomas & LoCicero PL. Matt Gaetz and Marc Slager are
attorneys with !, ii.. oa firm ofKeefe, Anchors, Gordon & Moyle.