THE BRECHNER REPORT Volume 32, Number 8 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 August 2008 Attorneys general support federal shield law WASHINGTON – Forty-one attorneys the same protection under federal law. that information, and this proposed general, including Florida Attorney “By exposing confidences protected legislation would protect journalists who General Bill McCollum, signed a letter under state law to discovery in federal are attempting to preserve that freedom,” urging U.S. senators to support the Free courts, the lack of a corresponding federal said McCollum in a statement obtained by Flow of Information Act, which creates a reporter’s privilege law frustrates the the St. Petersburg Times. qualified federal shield law. purposes The FFIA is currently stalled The FFIA gives journalists a qualified of the state in the Senate because it has not privilege from disclosing confidential recognized REPORTER’S been scheduled for a full vote. sources to federal prosecutors, defense privileges PRIVILEGE The legislation passed the Senate attorneys, and civil litigants. and undercuts the benefit to the public that Judiciary Committee by a 15-4 vote last The attorneys, led by Attorneys General the states have sought to bestow through fall. Some of the delay is due to objections Douglas Gansler from Maryland and Rob their shield laws,” according to the letter. by the U.S. Justice Department that the McKenna from Washington, explained in “It is essential for the public to have FFIA will interfere with law enforcement. the letter that 49 states and the District of access to information pertaining to their Sources: St. Petersburg Times and The Columbia recognized a qualified privilege government to hold it accountable. Often Reporters Committee for Freedom of the under state law. The FFIA would provide it is members of the media who provide Press County jail workers identified County settles ORLANDO – Four Orange County of the investigation. Corrections Department officers under McCollum ruled that the documents investigation for allegedly staging “inmate were public after Orange County Attorney records suit boxing matches” were identified to the Tom Drage requested a legal opinion. SEBRING – Highlands County media after Florida Attorney General “The courts and the attorney general commissioners settled a lawsuit filed Bill McCollum ruled that have a long history of by a watchdog claiming that the county interoffice memoranda on recognizing that documents failed to copy a grant application for the matter are public. ACCESS tangential to an investigation state funds to refurbish a high school The officers – Luis are not investigative records as a hurricane shelter. Escobales, Erick Mejia, RECORDS exempt from disclosure,” County Administrator Carl Cool Samuel Cruz, and said Sentinel attorney Deanna said the suit lacked merit but feared the Mark Caruso – were reassigned to Shullman, according to the Sentinel. “In county could lose at trial and pay tens administrative duty apart from inmates. this case, we were dealing simply with of thousands of dollars. Jail officials initially refused to release personnel records, and those are not Plaintiff Preston Colby received documents about the reassignment to the exempt from disclosure.” over $9,100 in the settlement. Orlando Sentinel, claiming they were part Source: Orlando Sentinel The grant at issue in the suit was never awarded because the county withdrew from the project. Colby Relatives left off Web arrest list claimed the document the county failed SARASOTA – Although the Sarasota He said the office could withhold the to copy “was a document that Carl County Sheriff’s Office publishes the arrest reports from the website legally Cool signed on behalf of the school names of all people arrested online, it because they are not the official record of board that he had no authority to sign,” leaves off the arrests of law enforcement the arrests. according to Highlands Today. officers and their relatives. “I could pull that whole Web site Cool said he signed the application Sheriff’s spokesman Chuck Lesaltato down tomorrow and still be within as a person with authority over Lake said the records were left off because the the guidelines of the law,” Lesaltato Placid High school and as the county’s office’s computer systems were unable said, according to the Sarasota Herald representative because in an emergency to redact protected information from Tribune. the school would be a public hurricane the reports, such as the addresses and The records are still available in hard shelter under county control. photographs of law enforcement officers copy at the sheriff’s headquarters. Source: Highlands Today and their spouses and children. Source: Sarasota Herald Tribune ACCESS MEETINGS Board membership raises Sunshine concerns WINTER SPRINGS – The Winter the Tuscawilla Homeowner’s Association resignation, saying “The THOA board Springs City Attorney ruled that Board. has the potential for being at odds with a commissioner could serve on a Garganese warned that there could be the City Commission at times, and they homeowner’s association board without Sunshine Law issues because Gilmore is a represent a large block of high tax-paying a conflict of interest, but cautioned that member of the Board, and Commissioner citizens. [Gilmore] may not always be association meetings should not be used to Rick Brown and Mayor John Bush are able to recuse himself out of the financial circumvent Florida’s Sunshine Law. THOA members who attend meetings. interests of the THOA and his obligations Anthony Garganese ruled there Garganese said the members should just to the city,” said Brown, according to the was nothing “per se” wrong with avoid conversations among each other. Seminole Chronicle. Commissioner Don Gilmore serving on Brown called for Gilmore’s Source: Seminole Chronicle Officials: No Sunshine violation MONROE COUNTY – Monroe Shillinger said the conversation was not Property info County officials said no Open Meetings an “exchange of information” in violation Law violation occurred when the mayor of the Open Meetings Law. “Sunshine withheld told the vice mayor of his plans to change violations can be a fine line. There has TAMPA – Officials used a public roles on the County Commission. to be an exchange of information and records exemption to block the release Former Mayor Sonny McCoy said there has to be dialogue,” said Shillinger, of information about 14 investment he told former Vice Mayor Mario Di according to the Key West Citizen. properties owned by a firefighter running Gennaro on a plane ride that he planned The Monroe County State Attorney’s for a seat on the County Commission. to relinquish his post, but indicated Di Office received no complaints about the Property Appraiser Mike Wells and Gennaro simply nodded in response. incident. Tax Collector Mike Olson withheld Assistant County Attorney Bob Source: Key West Citizen information about John Nicolette’s properties, including location and value, and the taxes he paid. Sheriff ’s Office settles lawsuit Florida law allows public officials to SARASOTA COUNTY – The Sarasota Civil Service Board failed to give the ask government agencies to withhold County Sheriff’s Office settled a lawsuit public notice of an April 11 hearing their home addresses, telephone alleging the office failed to give the public about Dan Tutko, who was demoted after numbers, and photographs. Investment enough notice of disciplinary hearings. investigators said he illegally searched a properties are public records. The settlement agreement requires woman’s home. “Addresses of properties that are the office to have training on open Tutko appealed the decision to the not used as homes … are public record government laws, amend its internal Board, who reversed the demotion and and not exempt from disclosure,” rules, and pay $15,613 in attorney fees to gave him a paid suspension instead. wrote James McAdams, the Director the plaintiff. In exchange, Scott Eliason Florida law requires public notice of of the Florida Property Tax Oversight dropped his suit. such hearings. Program, in a bulletin to property Eliason claimed the five-member Source: Sarasota Herald Tribune appraisers obtained by the St. Petersburg Times. After the Times approached Wells Law firm bills $160K for defense through its legal counsel, he provided LAKELAND – A Tampa law firm In February 2006, County Judge Anne the records only because Nicolette listed billed almost $163,000 to defend the Kaylor ruled that the board members them on his campaign disclosure form. Polk County Opportunity Council against violated the Open Meetings Law and But he refused to disclose the records claims it violated the Open Meetings Law levied the $2,780 fine. of officials requesting the exemption or – even though the violators were only Grob unsuccessfully attempted to redact any questionable information. fined $278 apiece. appeal the ruling three times, which “I don’t want to get into the redacting Attorney Bill Grob of Tampa-based constituted a significant portion of the business. That’s not what I do,” said Ford & Harrison billed the PCOC $240 fees. Wells, according to the Times. per hour for research, briefing, and other The fees seem “to be a lot of time The Times also approached Olson, routine legal work after The Ledger and expense for what was a minor civil who agreed to provide the records with (Lakeland) asserted that PCOC officials infraction,” said Rachel Fugate, a lawyer addresses removed in some cases. and lawyers met secretly in late 2005. The for Tampa-based Thomas & LoCicero, Nicolette agrees the records should State Attorney’s Office charged 10 PCOC according to The Ledger. be public. “I have absolutely no board members with civil violations for The Ledger obtained the bills from problem with anybody having any of the holding a closed-door meeting with then- Grob only after suing for the records in information, because I’m running for Executive Director Carolyn Speed and two late March and negotiating with him for office,” he said, according to the Times. lawyers during a break in a regular public months. Source: St. Petersburg Times meeting. Source: The Ledger (Lakeland)

2 The Brechner Report  August 2008 ACCESS RECORDS CONTINUED Officials Court rules White House e-mails delete records are not subject to FOIA requests SARASOTA COUNTY – Venice WASHINGTON – A U.S. district judge what happened to White House e-mails, public officials admitted to deleting ruled that the White House’s Office of the White House announced it would no e-mails due to a misunderstanding Administration does not have to comply longer comply with FOIA – though it had about Public Records Law with FOIA and make public internal done so for over 20 years. requirements. documents about the disappearance of But Justice Kollar-Kotelly said past Some council members deleted e-mails. compliance is “insufficient by itself” to e-mails after forwarding them to the District Judge Colleen Kollar-Kotelly subject it to FOIA requirements. clerk’s office. They assumed this said the Office of Administration “lacks “We are disappointed in the ruling satisfied their duty to retain documents the type of substantial independent and believe the judge reached the wrong under the Public Records Law. authority” that would bring it under FOIA, legal conclusion,” said CREW’s executive Under an agreement approved by and is exempt because it performs mostly director Melanie Sloan in a story by The the council two years ago, however, administrative functions. Washington Post. the sender – not the city clerk – is the Three months after public-interest Anne Weismann, chief counsel for record custodian. group Citizens for Responsibility and CREW, said CREW intends to appeal. “Remember that as an individual Ethics in Washington sued to find out Source: The Washington Post user, you are responsible for maintaining your e-mails in accordance with state laws, specifically retention IRS must disclose audit reports requirements. The e-mails are WASHINGTON – A federal judge ruled a consent order,’ and the IRS would do not backed up by the (Information that the IRS must produce unredacted nothing,” Long said, according to The Services) department, nor do they stay copies of audit reports to a Syracuse Reporters Committee for Freedom of the in the media account,” said City Clerk University professor who requested regular Press. Lori Stelzer in an e-mail to council reports over 30 years ago. The IRS claimed it was exempt from members obtained by the Venice Syracuse School of Management Long’s request under a FOIA exception Gondolier Sun. Professor Susan B. Long first requested for documents about the “deliberative The clerk’s inbox is expunged every IRS statistics in 1974. She obtained a process.” two weeks, and e-mails among council court order to enforce the request two Judge Marsha Pechman of the Western members on the publicly-available city years later. District of Washington said the IRS e-mail system expire every two months. In mid-2004, the IRS stopped waived that argument three decades ago Council members agreed to discuss complying. when it failed to raise it during Long’s the matter with the city attorney. Long obtained two more orders in first request. Source: Venice Gondolier Sun 2006, but the IRS ignored them. Source: The Reporters Committee for “We’d go in and say, ‘Hey, we’ve got Freedom of the Press Lawyer granted access to officials’ e-mails - for $300,000 DUVAL COUNTY – A circuit judge makes it virtually impossible to lift the Brechner Center for Freedom of Information ruled that a Fernandina Beach lawyer can curtain of Harry Shorstein’s political 3208 Weimer Hall, P.O. Box 118400 obtain one million to two million e-mails machine,” said White, according to the College of Journalism and Communications University of Florida, Gainesville, FL 32611-8400 allegedly revealing illegal campaigning Florida Times-Union. http://www.brechner.org – for $300,000 upfront. But the Plotkin, however, said White is on a e-mail: [email protected] burdensome cost likely means the State “fishing expedition,” according to the Sandra F. Chance, J.D., Exec. Director/Exec. Editor Attorney’s Office will not have to answer Times-Union. Kearston Wesner, Editor the open records request. Shorstein previously provided White Alana Kolifrath, Production Coordinator Circuit judge Brian Davis ruled thousands of pages of material from The Brechner Report is published 12 times a attorney Wesley White is entitled to the Plotkin’s and his computer for $4,400. year under the auspices of the University of Florida Foundation. The Brechner Report is a joint effort e-mails, which White claims may show Davis threw out White’s lawsuit of The Brechner Center for Freedom of Information, Assistant State Attorney Jay Plotkin against Plotkin, and said Shorstein is the University of Florida College of Journalism and and State Attorney Harry Shorstein responsible for providing the requested Communications, the Florida Press Association, used their positions in the Duval records. the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. County Courthouse to campaign or seek White intends now to seek the e-mails Brechner Endowment. contributions. of only two deputies, Kathy Weintraub “The potential cost involved in and Bill Hodges. dealing with the State Attorney’s Office Source: Florida Times-Union The Brechner Report  August 2008 3 JanuaryAugust 20072008

Knowing the psychology of access can yield results Public records requests involve more than just paper, appearance of openness, etc.) and the costs of secrecy data, laws and processes. They involve people. Real (public mistrust, lawsuit, or listing agencies that lost in humans with feelings, fears and motivations. court and the attorney fees and penalties involved). Record requesters can harness the power of psychology Social proof: to get information from government officials on deadline People respond to peer pressure. “Boy, all the other when agencies choose to ignore the law. Consider some towns in the county provide this information. I wonder of these techniques developed from persuasion research why it isn’t open here?” Compile a list of agencies in in psychology, marketing and advertising, particularly your state or in the country that provide the information. the work of Dr. Robert Cialdini, author of “Weapons of Dave Cuillier Write a story about it to tell the public, interviewing the Influence”: agencies that comply. Nobody wants to appear deviant. Likeability: Reciprocation: People are more likely to do what you want if they don’t hate When you give something to someone, they feel obliged your guts. So offer sincere compliments, smile, and dress well. to reciprocate, often beyond what you gave them. That’s why Related to this is outgroup businesses offer free samples. The bias, where people will be One reciprocation-based technique is the “bombard-then- more hostile toward those retreat” tactic. Ask, for a lot and then cut it in half. “Can I see Back Page they view as outgroups (e.g., all the e-mails sent by city employees over the past five years, By Dave Cuillier the media). Disassociate please?” After the clerk gasps and thinks of all the work involved yourself from yellow in fulfilling the request, say, “OK, how about just the city journalists, spammers and identity thieves. Find a well-respected manager’s e-mails for the past four months?” You are giving up person in the agency to introduce you to others to break the ice. something, so they feel compelled to reciprocate. Authority: Commitment: Being a nice person is always good, but being a nice person Once people commit to something, they have a difficult time with authority is even better. For example, in an experiment I saying “no.” Get the official to say “yes,” and then you’ll likely conducted earlier this year, I sent letters to all the police agencies get commitment for something bigger. This ratcheting or low- and school districts in Arizona requesting records some student balling strategy is the reverse of “bombard-then-retreat.” “Can journalists were analyzing for stories. A third of the agencies got I see what a blank police incident report form looks like? Great. an “aw, shucks” friendly letter, a third got a neutral letter (the Now can I see what a completed incident report looks like? Reporters Committee for Freedom of the Press letter, at http:// Super. What does it look like in your computer system? That’s www.rcfp.org/foi_letter/generate.php), and a third got a legalistic neat. How about copies of reports electronically for the past threatening letter (Student Press Law Center letter, at http://www. month? Thanks. While you’re at it, might as well just copy the splc.org/foiletter.asp). past two years!” The threatening letter resulted in 40 percent more compliance We shouldn’t have to use psychology to get a public record. If than the other two letters. It appears that clerks looked at the it’s public, it’s public. But if suing is not an option, and timeliness threatening letter and forwarded it to the agency attorneys, who is important, consider some of these techniques for getting what then responded as required by law. When they got the friendly you need when you need it. letter, they were more likely to blow it off. Other examples of using authority include having the request David Cuillier is an assistant professor of journalism letter co-signed by the publisher or attorney, teaming up with at the University of Arizona and chairman of the Society of other organizations, or getting the state’s attorney general to Professional Journalists’ Freedom of Information Committee. weigh in. Also, emphasize the benefits of disclosure (public good, The SPJ FOI FYI blog is at http://www.spj.org/blog/blogs/foifyi/.