THE BRECHNER REPORT Volume 38, Number 9 A monthly report of mass media law in Florida Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida September 2014 Judge upholds Florida’s ‘Docs vs. Glocks’ law TALLAHASSEE – A Florida law The Florida Legislature passed the stated. “Any burden the Act places on restricting doctors’ speech about guns Firearm Owners’ Privacy Act, which speech is thus incidental to its legitimate was upheld by a federal appeals court, prohibits doctors from asking patients regulation of the practice of medicine.” according to The Associated Press. about gun ownership or recording the The recent ruling overturned a previous The 11th Circuit Court of information in records, decision that the law was unconstitutional. Appeals found that the law, FIRST unless medically An injunction blocking the enforcement popularly known as “Docs necessary, the AP of the law is still in place, pending appeal, vs. Glocks,” legitimately AMENDMENT reported. according to the AP. regulated the doctors’ conduct and doesn’t “The Act as a whole ‘governs Source: The Associated Press, violate the doctors’ First Amendment free occupational conduct, and not a substantial Wollschlaeger v. Florida, Appeal, No. 12- speech rights, the AP reported. amount of protected speech,’” the opinion 14009 Expressway charge dropped ORLANDO – The state dropped one Although the charge against Hammond Media groups charge of violating Florida’s Sunshine has been dismissed, Hammond will still be Law against one of the individuals recently available to testify against Dorworth and file EDC brief indicted in the investigation, according to Scott Batterson, another board member BREVARD COUNTY – Several the Orlando Sentinel. facing Sunshine Law and bribery charges, media organizations filed a legal brief Rebekah Hammond, the girlfriend of the State Attorney’s Office told the paper. in the appeal of the Brevard County former state Rep. Chris A grand jury began Economic Development Commission Dorworth, had been investigating the expressway public records case, according to charged with acting as ACCESS agency in September, the paper Florida Today. a “conduit” and passing MEETINGS reported. The agency was A group of 14 media organizations, information between board disbanded last month and replaced including The Associated Press and members of the Orlando-Orange County by the regional Central Florida Expressway several other Florida-based groups, Expressway Authority, the paper reported. Authority, according to the paper. submitted the brief in support of Dorworth was accused of similar conduct. Source: Orlando Sentinel Brevard County Clerk of Courts Scott Ellis in his case that made the EDC’s Program draws records scrutiny records subject to Florida’s Public VOLUSIA COUNTY – Recent conflict private schools are not subject to Florida’s Records Law, the paper reported. has shed light on a statewide program that Public Records laws like public schools Circuit Judge John Moxley ruled allows students to attend private schools are, according to the paper. in March with state money, but does not require A teacher at Warner Christian Academy that EDC the same level of transparency as public in Volusia County was charged with documents ACCESS schools, according to The Daytona Beach possession of child pornography, but the relating to RECORDS News-Journal. school did not have to make his personnel its role as A child pornography investigation file public, the paper reported. Although the county’s economic development and a lawsuit Warner Christian Academy is a private agency were public records, according from one of school, it receives almost $1.1 million in to the paper. Florida’s largest ACCESS public money, according to the paper. The EDC is appealing Moxley’s teachers’ unions RECORDS Additionally, the Florida Department of ruling to the 5th Circuit Court of highlighted Education is not investigating the matter Appeal, the paper reported. discrepancies between public and private because the teacher is not certified, the The EDC receives $1.4 million schools, the paper reported. paper reported. Private school teachers in each year from Brevard County for The Florida Tax Credit Scholarship Florida are not required to have teaching economic development, according to program allows low-income students certificates, according to the paper. the paper. to attend participating private schools Source: The Daytona Beach News- Source: Florida Today across the state, the paper reported. These Journal ACCESS RECORDS Hospital faces records suit DAYTONA BEACH – An Orlando client work product, the paper reported. Chamber television station is suing a public hospital, Halifax Health has disclosed that it has claiming that the hospital violated Florida’s paid $24.3 million in legal fees since the creates new Public Records Law, according to The whistleblower lawsuit was filed in 2009 but Daytona Beach News-Journal. has not provided a breakdown of the bills, development In the lawsuit, WFTV argues that according to the paper. Halifax Health officials refused to release “This is a public hospital,” Rachel agency attorney billing documents from a 2009 Fugate, an attorney representing WFTV told PENSACOLA – The Greater whistleblower lawsuit the hospital was the paper. “This is public money being spent Pensacola Chamber of Commerce has involved in, the paper reported. WFTV is on this defense and litigation. I think the created a separate agency for economic demanding that Halifax Health release the public has a right to know how its money is development, according to WUWF documents. being spent.” Public Media. WFTV initially requested the documents The whistleblower lawsuit accused the The Chamber recently approved in May and asked Halifax Health to provide hospital of illegally contracting with several creating the independent Pensacola- their attorney bills, which included hourly doctors and overcharging Medicare for Escambia County Promotion and rates, according to the paper. Halifax Health brief hospital stays, the paper reported. The Economic Development Commission to refused to provide the itemized bills and hospital settled these claims. act as an economic promoter, WUWF argued that the documents were exempt Source: The Daytona Beach News- reported. from disclosure because they are attorney- Journal OPEN Media file redistricting motion GOVERNMENT TALLAHASSEE – A coalition of The media organizations’ motion media organizations asked permission to said the request to keep the documents “[It’s] A separate organization file a court brief on the voter redistricting sealed “raises important questions about entirely, with an entirely different board, case, according to The Gainesville Sun. the right of access to public records in a community board,” said Chamber The group, which includes the First Florida; whether documents introduced President Jerry Maygarden. “And allow Amendment Foundation, the Florida into evidence and relied upon by the it to function as the chamber has in Press Association, the Florida Society of trial court in a proceeding attacking the past, but be primarily a recipient News Editors and nine other newspaper as unconstitutional secrecy in the of public funds and responsible for the companies across the state, asked the redistricting process can be kept, well, open records laws.” Florida Supreme Court for permission secret.” The Chamber has been planning to argue for public access to documents The media organizations argued the to separate its functions since last used in the case, The Sun reported. Florida Supreme Court should reverse an year, according to WUWF. The plan Pat Bainter, of Data Targeting, Inc., earlier decision sealing the records and came after State Attorney Bill Eddins and a defendant in the case, asked the that the decision did not intend to seal the reminded Chamber officials that the Florida Supreme Court to permanently records permanently, the paper reported. Chamber was a private organization seal company records that were used by Source: The Gainesville Sun, Pat subject to Florida’s Sunshine Law. Circuit Judge Terry Lewis to determine Bainter et al. v. League of Women Voters “They’ve made the choice that they two of the newly drawn districts were of Florida et al., Motion for Leave to File were going to receive money from the unconstitutional, according to the paper. Amici Curiae Brief, Case No. SC14-1200 county,” State Attorney Bill Eddins told WUWF. “Anytime a private entity receives Money from a governmental Council cleared in investigation entity and does a governmental VOLUSIA COUNTY – The State The residents claimed the officials were function, they’re required to comply Attorney’s Office cleared eight officials of attempting to use the trail project to disguise with the Sunshine Law. The policy potential Sunshine Law violations following a future project to construct a four-lane road behind that is real clear – the public has an investigation, according to The Daytona on the property, according to the paper. a right to know where public money is Beach News-Journal. The State Attorney’s Office found that being spent.” Several residents the trail plans have been By moving out of the sunshine, filed complaints public knowledge for a long the Chamber will no longer receive against four Volusia OPEN time, the paper reported. The about $850,000 a year from the City County Council GOVERNMENT investigation, which lasted of Pensacola and Escambia County, members, two county 10 weeks, also concluded the WUWF reported. employees and two planning of the trail project Maygarden said the agency will be state Department of Transportation officials was properly noticed and forums had been doing many of the same things that the regarding a Volusia trail project that would held for a number of years. Chamber did in the past. have impacted the residents’ land, the paper Source: The Daytona Beach News- Source: WUWF.org reported. Journal 2 The Brechner Report  September 2014 ACCESS MEETINGS Officials trip Judge will not reconsider ruling JACKSONVILLE – A Jacksonville because they were not parties in the raises Sunshine judge will not reconsider his ruling lawsuit. that the Jacksonville Police and Fire Wallace declined to reconsider his Law questions pension fund violated the Sunshine Law, ruling because organizations were “not according to The Florida Times-Union. indispensable parties” to the lawsuit, PASCO COUNTY – A trip by Pasco Circuit Judge Waddell Wallace according to the order. He mentioned County School District officials may previously found that talks regarding affidavits from the leaders of each have violated Florida’s Open Meetings pension benefits were held in secret, organization admitting the organizations Law, according to the Tampa Bay Times. although public meetings were required, lacked authority to settle the lawsuit. The school district received an the paper reported. Wallace’s ruling is currently being invitation to attend an education The Fraternal Order of Police appealed to the 1st District Court of conference that began before the school and the Jacksonville Association of Appeal, according to the paper. board’s next meeting, the paper reported. Firefighters asked Wallace to reconsider Source: The Florida Times-Union, Assistant Superintendent Amelia Larson his findings, according to the paper. The Frank Denton v. Mayor Alvin Brown called the board members individually organizations argued they were part of et al., Order Denying Motion to Void to gain support to send a team to the the negotiations but their arguments Summary Judgment, No. 16-2013-CA- conference. were not initially heard by Wallace 5799 The official approval of the travel occurred after the team had left for the conference, according to the paper. At the school board meeting, some of the Former employee sues clerk board members expressed concern over OSCEOLA COUNTY – A former staff paper. The Public Records Law requires the cost of the trip and the number of attorney filed a lawsuit against Osceola public employees’ work correspondence people attending, but approved the travel County Clerk of Court Armando Ramirez, to be available for public review. anyway. according to the Orlando Sentinel. Alvarez also alleges that Chief Deputy Florida’s Open Meetings Law Adam Alvarez filed the lawsuit after Clerk Jennifer Soto destroyed the criminal requires a governmental body to discuss he was fired on March 4 after alerting records of a friend and employee of the all matters on which foreseeable action Ramirez about possible office, the paper reported. could be taken in an open meeting. A violations of Florida’s The Florida Department of 1975 Attorney General opinion indicates Public Records Law, the ACCESS Law Enforcement investigated that the staff of a government agency paper reported. Alvarez is RECORDS Ramirez earlier this year for should not call the members of a board seeking reinstatement, lost potential violations of the Public beforehand to ask for their positions on salary and benefits. Records Law, according to the paper. State a matter they will later vote on. Alvarez alleges that Ramirez asked Attorney Jeff Ashton cleared Ramirez Source: Tampa Bay Times, AGO employees to contact him on his personal following that investigation. Opinion 1975-59 cellphone and email, according to the Source: Orlando Sentinel Groups sue county over project MARION COUNTY – Several commission violated the Sunshine Law citizens and environmental by not designating the agreement as Brechner Center for Freedom of Information organizations filed a lawsuit against 3208 Weimer Hall, P.O. Box 118400 a separate topic at a hearing and not College of Journalism and Communications the Marion County Commission including the location of the property in University of Florida, Gainesville, FL 32611-8400 alleging the commission violated the public notice, according to the paper. http://www.brechner.org Florida’s Sunshine and Public Records The agreement at issue, between e-mail: [email protected] laws regarding a the county and Ocala Sandra F. Chance, J.D., Exec. Director/Exec. Editor development project, developer Scott Siemens, Sarah Papadelias, Editor Alana Kolifrath, Production Coordinator according to the OPEN describes what the Ocala Star Banner. developer can build, what The Brechner Report is published 12 times a GOVERNMENT year under the auspices of the University of Florida The groups claim the plans must include and Foundation. The Brechner Report is a joint effort the commission when building can occur at of The Brechner Center for Freedom of Information, violated the Public Records Law by the site, the paper reported. the University of Florida College of Journalism and Communications, the Florida Press Association, failing to produce a finalized copy of The lawsuit claims that there was no the Florida Association of Broadcasters, the Florida an agreement regarding a development advance notice that the agreement would Society of Newspaper Editors and the Joseph L. of a proposed technology park in be discussed at the May meeting, the paper Brechner Endowment. Marion County, the paper reported. reported. The groups also claim the Source: Ocala Star Banner

The Brechner Report  September 2014 3 SeptemberJanuary 2007 2014

Why FOIA’s loophole needs legislative suture The Tampa Tribune reporter Howard Altman submitted instructing all agencies “to adopt a presumption in the favor a Freedom of Information Act request to the Department of disclosure,” and Attorney General Holder’s guidance of Veterans Affairs earlier this year to learn the names of that documents should not be withheld “merely because hospitals where 19 veterans died due to medical screening [an agency] can demonstrate, as a technical matter, that the delays. records fall within the scope of a FOIA exemption,” we Despite nationwide reports citing the deaths and the should be seeing the application of the b(5) exemption a high public interest in information on the circumstances lot less – not more. Sadly, it is clear that the President and surrounding them, the VA denied Altman’s request, citing the Attorney General’s mandates have not motivated intransigent b(5) “deliberative process” exemption. The VA argued that Lauren agencies to embrace discretionary releases. the documents Altman was seeking were “preliminary,” and Harper Agencies’ continued misapplication and overuse of the that because “of potential variances in the preliminary data, b(5) exemption, despite President Obama’s and Attorney premature release of this information would inaccurately inform the General Holder’s clear directives to the contrary, has prompted a public concerning this matter.” longstanding push by the open government community for a legislative The b(5) exemption cited by the VA potentially covers any “inter- fix to end agencies’ practices of withholding too much information. agency or intra-agency memorandums or letters” and Congress These efforts to rein in the b(5) exemption recently culminated in intended its application to be narrow in scope. Agencies, however, the Senate when Sens. Leahy (D-VT) and Cornyn (R-TX) introduced are increasingly citing the b(5) legislation to fix the b(5) loophole: the FOIA Improvement Act The exemption to hide any “draft” of 2014, which would stipulate, among other improvements, that Back Page or “pre-decisional” document historical documents (documents created over 25 years ago) cannot be By Lauren Harper from the public, leading to withheld under b(5), and would require agencies to balance the benefit the nickname the “withhold it to the public interest against the benefit of government employee because you want to” exemption. confidentiality before withholding documents. In addition to hiding potentially embarrassing or illegal activities at The b(5) pre-decisional exemption was initially conceived to the VA, the b(5) exemption has also been used to withhold historically prevent government employees from “working in a fish bowl,” and significant documents on the 20-year-old Rwandan genocide; shield to allow employees to give each other –and their supervisors– candid a 30-year-old history of the 53-year-old Bay of Pigs invasion from advice. These protections should and will remain. public scrutiny on the spurious grounds that its release could “confuse President Obama has correctly stated, however, that the principles the public;” hide a report critical of the Department of Justice’s behind the Freedom of Information Act prohibit the government from workplace diversity initiatives; and deny access to the DOJ’s Office withholding information to prevent embarrassment, hide errors or of Legal Counsel opinions, which form a body of law that binds all failures, or because of speculative or abstract fears. Unfortunately, these federal agencies concerning highly controversial programs, including are precisely the things the b(5) “withhold it because you want to” enhanced detention and interrogation, targeted killing programs, and exemption is being increasingly used to hide, as evidenced so plainly by NSA dragnet surveillance. the obfuscation of strictly factual information surrounding the deaths of According to statistics compiled by The Associated Press earlier 19 veterans waiting for medical treatment. this year, the b(5) exemption was invoked a record-breaking 81,752 As Sens. Leahy and Cornyn have realized, the Freedom of times in 2013, and was applied to 12 percent of all FOIA denials Information Act’s b(5) loophole must be legislatively closed to prevent across the federal government. These numbers confirm that the b(5) agencies from abusing this exemption to “hide errors or failures,” and exemption is proving to be an increasingly attractive tool for agencies to ensure that the principles of open government are fulfilled. to deny information, despite the fact that this exemption has the Lauren Harper is a Research Assistant at the National Security highest possibility for discretionary release. Archive focusing on FOIA advocacy and open government, as well as If agencies followed President Obama’s 2009 FOIA memo on U.S.-Iraq relations.