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
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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

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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.

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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

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