THE BRECHNER REPORT Volume 37, 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 2013 Federal shield bill adopts stronger protection WASHINGTON, D.C. – A bipartisan The amendment to the legislation as many as 20 journalists from The AP. group of senators introduced an seeks to implement some of the Most of the journalists were connected amendment to a federal shield bill, known recommendations for guideline revisions to reporting about a CIA-thwarted as the Free Flow of Information Act made by Attorney General Eric. H. terrorist plot in Yemen that the Obama of 2013, being considered before U.S. Holder Jr. administration had previously denied, Congress, according to The Associated Holder’s suggestions include giving according to The Times. Press. the media advance The federal shield law was first In May, the Obama notice about subpoena introduced and passed in the House in administration called REPORTER’S requests for journalists’ 2009, but died in the Senate following on legislators to revive PRIVILEGE information unless the Wikileaks’ release of government the legislation, which would provide attorney general deems the notice “would archives, The Times reported. greater protection for reporters and the pose a clear and substantial threat” to an Sources: The Associated Press, The confidentiality of their sources in the wake investigation, according to The AP. New York Times, U.S. Department of of criticism over the government’s seizing The White House directed Holder Justice Report on Review of News Media of reporters’ records, The New York Times to review policies following news that Policies (http://www.justice.gov/ag/news- reported. DOJ officials collected the records of media.pdf ), Foxnews.com, RCPF.org Groups sue over ‘dragnet’ policy City changes NEW YORK – The American Civil The ACLU’s lawsuit has since been Liberties Union (ACLU) filed a federal joined by several others, including a comment policy lawsuit against the Obama administration lawsuit filed by the Electronic Frontier DAVENPORT – The Davenport City over the constitutionality of a government Foundation on behalf of a coalition of Commission agreed to change the public “dragnet” phone-tracking program, several other organizations, and another comment format at regular meetings, according to The New York Times. filed by the Electronic Privacy Information according to The Ledger (Lakeland). In the lawsuit, filed against the Center (EPIC), which says it has filed The change allows the public heads of national intelligence agencies, an emergency petition with the U.S. to comment via comment cards on including the National Supreme Court asking it to individual agenda items that are Security Agency (NSA) stop the domestic surveillance addressed by writing their names, and the Department of program, according to The AP. address, the Justice, the ACLU has PRIVACY EPIC said it was going agenda item, asked a judge to halt the directly to the nation’s high and their ACCESS illegal program and order the records court because it could not challenge the comments MEETINGS purged, The Associated Press reported. legality of the NSA program with the regarding the “The practice is akin to snatching Foreign Intelligence Surveillance Court agenda item, The Ledger reported. every American’s address book – with that approved it, and because lower federal The policy is unclear on whether annotations detailing whom we speak to, courts did not have authority to review the residents can address the commission when we talked, for how long, and from secret court’s orders., according to The themselves, or if Mayor Darlene Bradley where,” according to the complaint. “It Times. would read the comments aloud once she gives the government a comprehensive The government declassified the reviewed them, according to The Ledger. record of our associations and public existence of the program in June, after The new policy would not prohibit movements, revealing a wealth of detail former NSA contractor Edward J. residents five minutes at the beginning about our familial, political, professional, Snowden exposed its existence amid a of each regular meeting to comment on religious, and intimate associations.” larger disclosure of top-secret surveillance things not on the agenda without having “It is also likely to have a chilling information, according to the newspaper. to fill out a comment card, according to effect on whistleblowers and others who Sources: The Associated Press, The The Ledger. would otherwise contact the [ACLU] for New York Times, American Civil Liberties Source: The Ledger (Lakeland) legal assistance,” the complaint alleged. Union v. Clapper, Fox News FREEDOM OF INFORMATION U.S. releases names of indefinitely detained prisoners WASHINGTON, D.C. – The government expedited FOIA request with the Department the court documents. Until release of the released a list of several dozen Guantanamo of Defense, seeking a list of Guantanamo list, the Obama administration had declined Bay prisoners who are being held indefinitely detainees. The detainees’ status was listed to disclose which 46 of the original 240 because they have been designated on a 2012 government report as “continued detainees had been designated for indefinite too dangerous to release but cannot be detention” under the Authorized Use of detention, CNN.com reported. prosecuted, according to The Miami Herald. Military Force Act, according to the lawsuit. The 15-page list was released hours after The U.S. Department of Defense was The act was passed by Congress and signed a presiding judge for the U.S. District Court required to release the list in response by George W. Bush in 2001, The Associated for the District of Columbia set a deadline to a federal Freedom of Information Act Press reported. for the government to update the court on (FOIA) lawsuit filed by Carol Rosenberg, Rosenberg sued the agency after it how the agency was processing the request, a reporter for The Miami Herald, against refused to grant the expedited request, failed according to The Herald. the government in March, according to the to respond within the FOIA’s extended 20- Sources: The Miami Herald, The lawsuit. day statutory deadline, and failed to respond Associated Press, Carol Rosenberg v. U.S. In December 2012, Rosenberg filed an to an administrative appeal, according to Department of Defense, CNN.com Court classifies 4th Circuit says Risen must testify bin Laden photos WASHINGTON, D.C. – The could ask Risen about his sources, WASHINGTON, D.C. – A unanimous 4th U.S. Circuit Court of Appeals in according to The Times. three-judge panel ruled that “quite graphic” Virginia ruled that author and The New A coalition of more than a dozen and “gruesome” photographs and video York Times reporter James Risen must media organizations, including The taken as part of the U.S. military raid that testify in the criminal trial of the former New York Times, filed a friend-of- killed Osama bin Laden, including photos Central Intelligence Agency (CIA) the-court brief, arguing a qualified of military personnel burying bin Laden at official charged with providing him with reporter’s privilege allowing judges to sea, will remain classified, according toThe classified government information. protect reporters from testifying under Washington Post. In a 2-1 some circumstances Judicial Watch filed a federal Freedom opinion, Chief REPORTER’S – was crucial for the of Information Act (FOIA) request, seeking Judge William PRIVILEGE “dissemination of news the release of 52 photos of bin Laden after Byrd Traxler Jr. and information to the he was killed in the May 2011 raid on his wrote for the majority that “[t]here is no public.” compound in Pakistan, according to The First Amendment testimonial privilege, The majority based its decision on Post. absolute or qualified, that protects a the U.S. Supreme Court’s decision The organization sued after the Central reporter from being compelled to testify... in Brandzburg v. Hayes, in which the Intelligence Agency (CIA) said it intended in criminal proceedings about criminal Court rejected an effort by a reporter to withhold the records because they were conduct that the reporter personally to avoid testifying before a grand jury. “Top Secret,” according to the court’s witnessed or participated in, absent a Risen’s attorneys argued the ruling was opinion. showing of bad faith, harassment, or other ambiguous, The Times reported. The U.S. District Court of Appeals for such non-legitimate motive, even though Nearly two dozen journalists have the D.C. Circuit ruled that the CIA properly the reporter promised confidentiality to been jailed in the United States in the classified the images, and that the images his source.” last three decades for refusing to testify are exempt from disclosure under FOIA’s The 4th Circuit’s decisions apply or disclose sources or other types of national security exemption, the opinion in Maryland and Virginia where most reporting information, according to a list stated. national security agencies such as the CIA maintained by the Reporters Committee In its opinion, the court sided with the are headquartered, according to The New for Freedom of the Press. government, ruling that the release of the York Times. Judge Roger Gregory wrote a images taken of the al Qaeda leader after The case revolves around information dissenting opinion in which he said that, his death could cause “exceptionally grave Risen published in his 2006 book, “State “[t]he paramount importance of a free harm,” citing similar incidents inciting of War: The Secret History of the CIA press guaranteed by our constitution violence and riots against U.S. forces. and the Bush Administration,” describing compels me to conclude that the First “It is undisputed that the government a botched CIA plan against the Iranian Amendment encompasses a qualified is withholding the images not to shield government as reckless, The Times reporter’s privilege...Risen must be wrongdoing or avoid embarrassment, but reported. protected from disclosing the identity of rather to prevent the killing of Americans Former CIA officer Jeffrey Sterling his confidential sources.” and violence against American interests,” was indicted on Espionage Act charges He called his colleagues opinion the court’s order stated. after being accused of serving as Risen’s “sad” and a serious threat to investigative Source: The Washington Post, Judicial source, The Times reported. journalism, according to The Times. Watch, Inc. v. U.S. Department of The decision reversed a 2011 ruling Sources: United States v. Sterling, The Defense and Central Intelligence Agency, that provided Risen a limited reporter’s New York Times, The Washington Post, judicialwatch.org privilege, restricting what prosecutors RCFP.org, USA Today 2 The Brechner Report  September 2013 ACCESS RECORDS Judge: no problem in LPD probe County mulls LAKELAND – A retired appellate judge $8,148, according to The Ledger. found no problems with the Lakeland Some access experts have questioned blogs to foster Police Department’s (LPD) public records the LPD’s use of a form to record the request procedures during his initial review, names of people making public records transparency according to The Ledger (Lakeland). requests. When the newspaper asked GAINESVILLE – Alachua County The LPD hired Monterey Campbell last Campbell about the form, he said he Commissioner Robert Hutchinson has May, a retired 2nd District Court of Appeal planned to get a copy of it, The Ledger suggested the county create blogs for judge and lawyer with GrayRobinson in reported. each commissioner as a new platform to Lakeland, to examine its policies after The A grand jury investigating the LPD in post their views on complex issues and Ledger reported the LPD refused to provide the wake of the report of records problems links to related data, as well as answers records requested by the newspaper. filed no criminal charges against the to common questions about commission At the time, Lakeland Police Chief Lisa department, according to The Ledger. procedures and county services, Womack said LPD sometimes plays a “cat- The media requested release of the according to The Gainesville Sun. and-mouse” game with the media when it report detailing the jury’s findings, but comes to turning over records, but assured lawyers representing some of the city a Ledger reporter the agency had turned employees who testified before the grand OPEN over all records related to the newspaper’s jury challenged its release, The Ledger GOVERNMENT request, according to The Ledger. reported. So far, Lakeland has spent Hutchinson said the county already Campbell told The Ledger he examined $150,000 keeping the report, which has yet has a strong commitment to the Sunshine the policy itself, not any incidents or to be made public, under seal. The jury’s Law since it posts its emails, meeting applications of the policy, and found proper findings are usually temporarily sealed to agendas and related documents online for procedures in place for handling records allow for challenges. members of the public to view. requests. So far, he has charged the city Source: The Ledger (Lakeland) Commissioners would not be required to use the blog, but Hutchinson says that creating a blog is one more ACLU sues DOC over records SANTA ROSA COUNTY – The DOC staff members failed to provide the way the county and its officials can American Civil Liberties Union (ACLU) responsive documents, stating they were promote transparency when it comes to of Florida filed suit against the Florida working with “antiquated” technology, technology, The Sun reported. Department of Corrections (DOC), alleging NorthEscambia.com reported. Although commissioners questioned the DOC violated the state’s Public Records The state department refused to provide whether people would construe blogging Law by failing to hand over records. the records because the information as an attempt to circumvent Sunshine The Florida ACLU filed a public requested was not in any exisitng record. Law requirements, Assistant City records request in November and May for The ACLU says inmate housing Attorney David Schwartz said that computerized information about housing assignments, along with cell or bunk potential sunshine law issues may arise if assignments and cell or bunk assignments assignments, are public records regardless commissioners responded to one another at the Santa Rosa Correctional Institution, of how they are stored, according to online, according to The Sun. according to NorthEscambia.com. NorthEscambia.com. Source: The Gainesville Sun Following each of those requests, Source: NorthEscambia.com Fox News fights Holmes subpoena NEW YORK – Lawyers for Jana Winter, and their confidential sources” when it the Fox News reporter ordered to reveal her granted the Colorado subpoena compelling sources for a story published last year in the Winter to testify regarding her confidential Brechner Center for Freedom of Information 3208 Weimer Hall, P.O. Box 118400 wake of the Aurora, Colo., theater shooting sources, according to the amicus brief. College of Journalism and Communications asked the New York Court of Appeals to Winter was subpoenaed to appear at University of Florida, Gainesville, FL 32611-8400 quash a subpoena upheld by lower New a Colorado hearing, following a leak that http://www.brechner.org e-mail: [email protected] York courts, according to The Denver Post. James Holmes, accused of murdering 12 Winter’s people and Sandra F. Chance, J.D., Exec. Director/Exec. Editor Kara Carnley, Co-Editor lawyers injuring Sarah Papadelias, Co-Editor argued the NEWSGATHERING 70 others Alana Kolifrath, Production Coordinator subpoena in the The Brechner Report is published 12 times a should be overturned because it would shooting, mailed a notebook to a psychiatrist year under the auspices of the University of Florida violate the state’s shield laws protecting before the attack containing violent Foundation. The Brechner Report is a joint effort of The Brechner Center for Freedom of Information, journalists’ sources, Fox News reported. drawings, according to Fox News. the University of Florida College of Journalism and Her attorneys were joined by 43 news Sources: FoxNews.com, Brief Amici Communications, the Florida Press Association, organizations that argued in a friend-of-the- Curiae of the Reporters Committee for the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. court brief that that the lower court “erred in Freedom of the Press Plus 42 News Brechner Endowment. failing to adequately consider New York’s Organizations in Support of Respondent- strong public policy protecting journalists Appellant Jana Winter, The Denver Post The Brechner Report  September 20133 SeptemberJanuary 2007 2013

“News delayed is news denied:” prompt access to criminal affidavits It’s an everyday occurrence in Florida – a LPD’s counsel responded by saying that person is arrested for committing a crime. The “[n]either, however, the law, nor our agency unfortunate part is that as a surrogate for the ‘rules’ require that we give any document to the public, the media is frequently denied access to arrestee we have not already provided to you.” public records regarding the arrest. Counsel for LPD further explained that the While Florida has one of the broadest and criminal rules of procedure on first appearances most storied public records laws in the United were vague and that while the documents may States, when reporting on arrests and other have been provided at Sanders’ first appearance criminal matters, the media often has its access Gregg Paul before a judge, he had no knowledge of “when frustrated by the assertion of the active criminal Thomas McAdoo the arrestee in this case appeared.” investigative information exemption found in Fortunately, the criminal rules of procedure Section 119.071 (2)(c)1 and defined in Section 119.011(3) of the are perfectly clear. Florida Rule of Criminal Procedure 3.130(b) Florida Statutes. Such assertions are sometimes justified, but not states that “[a]t the defendant’s first appearance the judge shall always. immediately inform the defendant of the charge, including an A recent example of the assertion of the active criminal alleged violation of probation or community control and provide investigative information exemption revolved around the May 18, the defendant with a copy of the complaint.” The arrest affidavit The 2013, arrest of Tyren Malik is part of the complaint. Defendants almost always have their Sanders by the Lakeland first appearance within 24 hours of their arrest. In Sanders’ case, Back Page Police Department (LPD) he had his first appearance on the same day the records were By Gregg Thomas for robbery with a firearm, requested, May 20, 2013. and Paul McAdoo carjacking and grand theft. LPD eventually released the narrative, but only after several On May 20, 2013, The emails from the reporter and additional calls from The Ledger’s Ledger (Lakeland) reporter Matthew Pleasant requested the arrest attorneys. Moreover, the narrative was not provided until after affidavit for Sanders, which is sometimes also referred to as the The Ledger’s lawyers provided a web link to the Polk County arrest report. The initial written response the reporter received Clerk of Court’s website that showed the first appearance had was that the report was not being released because the case was already occurred. ongoing and there were hopes of other arrests related to the case. As the Florida Supreme Court has said, “News delayed is Later on May 20, 2013, Pleasant received the arrest affidavit news denied.” While the arrest records might have been available cover sheet, but was not given the accompanying narrative. from the clerk of court or even the state attorney’s office, access The LPD officer who was handling his public records request through those agencies likely would have taken more time than claimed that the narrative was exempt under the active criminal getting the document from the agency that created it, in this case investigative information exemption. Pleasant was then referred LPD. to LPD’s counsel for any further discussion on the issue. Reporters seeking records on people who have been arrested Not to be denied, Pleasant responded that the “exemption can use this simple work-around to get quicker access to criminal doesn’t apply because this record is required to be given to arrest affidavits if they encounter recalcitrant law enforcement the person arrested, rendering it public.” The exception to the agencies. active criminal investigative information definition Pleasant was referring to states that information is not criminal investigative Gregg D. Thomas is a partner at Thomas & LoCicero PL in information where the documents were “given or required by law Tampa, and Paul R. McAdoo is a former associate of Thomas & or agency rule to be given to the person arrested.” LoCicero PL who recently relocated to Michigan.