THE BRECHNER REPORT

Volume 25, Number 9 A monthly report of mass media law in Published by The Brechner Center for Freedom of Information College of Journalism and Communications September 2001 Experts examine Paper to appeal autopsy ruling Harris’ computers DAYTONA BEACH – A student-run autopsy photos is constitutional. newspaper plans to appeal a judge’s (Brechner Report, July 2001) TALLAHASSEE – Computer experts ruling that bars release of NASCAR The newspaper asked for a new trial, hired by the media found that files had driver Dale Earnhardt’s autopsy saying that 77 pieces of evidence were been erased from four computer drives photographs. wrongly excluded from the first hearing. released by Secretary of State Katherine Judge Joseph Will, 7th Judicial The request for a new trial was denied, Harris but said there was no evidence of Circuit, denied requests from The and Tom Julin, the newspaper’s attorney, wholesale, intentional deletions. Independent Florida Alligator and a said the Alligator plans to appeal the Harris turned over four computer DeLand-based Web site to access the decision to the 5th Circuit Court of hard drives, first to her own expert and autopsy photos. He also ruled that a new Appeal. Julin said the appeal should be then to the media, which wanted to state law that restricts access to all ready in October. (7/24/01 – 8/1/01) examine the drives to see if records from the 2000 election had been erased. Judge jails journalist for contempt Harris first refused media requests to access the computers, but then HOUSTON – The 5th U.S. Circuit material to the Justice Department, she relented. The Court of Appeals upheld the jailing of a could face up to 18 months in jail. media request journalist on a contempt citation, saying According to the Associated Press, ACCESS also sparked a that the qualified privilege does not the 5th Circuit upheld the decision, RECORDS disagreement protect journalists from grand jury saying “this court takes a narrow view of between subpoenas unless the the journalist’s Harris and Attorney General Bob journalists can show privilege in criminal Butterworth about what is public record government harassment. REPORTER’S cases, particularly in under the state’s Sunshine Law. At the Justice PRIVILEGE grand jury The computer drives became an issue Department’s request, proceedings.” after The New York Times wrote an U.S. District Judge Melinda Harmon The Justice Department last had a article that suggested Republican found Vanessa Leggett, a crime writer journalist jailed in 1991. U.S. Rep. political consultants, who used the and a lecturer at the University of Sheila Jackson Lee, D-Houston, said she computers to write public statements, Houston, in contempt for refusing to wants Attorney General John Ashcroft helped shape how ballots were counted. turn over taped interviews and to look into the case because she feels Harris hired expert William G. investigative materials. the department has not followed its Morgan of Bradenton to check the hard Leggett was ordered jailed without internal procedures for having drives. Ontrack Data International Inc. bond. If Leggett does not turn over the journalists jailed. (7/25/01 – 8/18/01) examined the computers on behalf of 13 media organizations. Neither expert Court rules for freelancers in copyright case found evidence of wholesale file WASHINGTON – The U.S. Supreme electronic database was a new work, erasure. Harris said that all the public Court ruled that newspaper and magazine which would mean the freelancers records have been preserved and publishers violated the copyrights of controlled the rights, or was a released. But Harris’ said that freelance writers when they made their reproduction of a collected work, which personal e-mails stored on the state works available through would mean the computers were not released. electronic databases publishers controlled the Butterworth, however, advised Harris without the freelancers’ COPYRIGHT rights. The Court, in a 7-2 that the material on the computers was permission. decision, sided with the freelancers, considered public record. “It remains the The case involved work freelance saying stories published in databases position of this office that material on writers did for the print editions of were “disconnected from their original state-owned computers is public record newspapers and magazines that was then context” and therefore were not unless it falls under specific legislative reproduced in an electronic format in reproductions of a collected work. The exemption,” Butterworth wrote in a databases such as LEXIS-NEXIS. The case was sent back to the U.S. District letter to Harris. (7/17/01 – 8/8/01) question for the Court was whether the Court in Manhattan. (6/25/01 – 7/16/01) ACCESS RECORDS CONTINUED Opinion: Autopsy photos can be used during training TAMPA – Medical examiners can examiners do not need a judge’s order to also “make a reasonable effort” to find show autopsy photographs as part of show autopsy photographs to the next of kin, he said. training for public agencies but not for governmental agencies as part of a Crime scene photographs are not private agencies, according to an opinion training program. The same records considered autopsy photographs or by Attorney General Bob Butterworth. could not be shown to a private entity, recordings and are not subject to the Butterworth responded to six such as a private university, without a exemption, according to the opinion. questions from Hillsborough County court order, according to the opinion. When using autopsy photographs in Attorney Emeline C. Acton about the While autopsy photographs can be an official capacity, Butterworth wrote state’s new law exempting autopsy shown during criminal and that medical examiners must take steps photographs and recordings from the administrative proceedings, anyone to protect the identity of the deceased, Public Records Law. Medical examiners wanting to submit autopsy photos as part including keeping the names face a third-degree felony charge if they of a civil trial would have to first get a confidential and placing a black strip violate the law. court order, Butterworth wrote. Anyone over the eyes of the deceased. Butterworth wrote that medical seeking a court-ordered release must (7/11/01 – 7/14/01; AGO 2001-47) Paper copies records for Palm Beach WEST PALM BEACH – Instead of members requested the files as a way to County wants requesting a record from the Palm study ballot trends without looking at the fees up front Beach County Elections Office, The more than 400,000 punch-card ballots. POLK COUNTY – People Herald gave the office a copy of When the Chicago Tribune an election record. requested a copy of the files recently, requesting copies of public records in Polk County will now Palm Beach officials wrote over the elections office discovered the files have to pay for them before the computer files that capture images of had been overwritten during the county’s records are released. every punch-card ballot during an municipal elections in March. The The county developed the election. The files serve as a backup on Herald, however, still had a copy it had policy after a union requested and election night. requested before March and gave a copy Although election rules do not to the elections office. Theresa LePore, then failed to pay for or pick up more than $4,000 worth of copies. require officials to save the file, many the county’s supervisor of elections, Copying charges will be counties kept copies of the file because said she copied the files for the Tribune collected before records are of media requests. After the 2000 and is keeping another copy in case of released. If the estimated copying presidential election, many media more requests. (8/1/01 – 8/7/01) costs are more than $100, then the requester will be required to pay Judge seals discovery material in murder trial before the copies are made. ST. AUGUSTINE – A circuit court deciding whether or not to release the The county will give requesters judge has sealed pre-trial discovery documents. a form, which contains the materials in the case of a Ponte Vedra Attorneys representing Leslie estimated cost of the copies and Beach woman charged with killing her Ormandy Demeniuk asked the judge to the date the copies will be two sons. bar the public release of documents such prepared. People requesting Judge Robert Mathis, 7th Judicial as police reports and interviews because records will also be permitted to Circuit, ruled that he would examine the they felt publicity from the release of examine the records before copies materials offered during the discovery the evidence could damage Demeniuk’s are made. (7/3/01) phase of the murder trial before right to a fair trial. (7/6/01 – 7/11/01) AGO: Some foster home abuse records are open DECISIONS TALLAHASSEE – According to an child abuse, neglect or abandonment are opinion from Attorney General Bob closed under state law. ON FILE Butterworth, some state records of child Butterworth said that the incident Copies of case opinions, Florida abuse, neglect and abandonment in reports are open to public scrutiny Attorney General opinions, or foster homes are public while because they are used for quality legislation reported in any issue as information that identifies a victim assurance purposes and for licensing “on file” may be obtained upon remains exempt. foster homes and are “separate and request from the Brechner Center for The Florida Department of Children distinct” from investigative records. Freedom of Information, College of and Families requested the opinion to Information, however, that reveals Journalism and Communications, settle issues regarding its incident the identity of the victim should be 3208 Weimer Hall, P.O. Box 118400, reports, which summarize, among other redacted from released reports, University of Florida, Gainesville, things, investigations of abuse claims in according to the opinion. FL 32611-8400, (352) 392-2273. foster homes. Investigation records of (7/23/01 – 7/25/01; AGO 2001-54) 2 The Brechner Report n September 2001 PRIVACY Ybor City face-scanning system draws privacy protests TAMPA – Tampa will keep a face- software for free on a one-year trial ACLU said in a joint statement. scanning surveillance system in place in basis. Mayor Dick Greco, who is the only Ybor City despite protests and The camera system has drawn one with the power to cancel the opposition from the American Civil protestors, who marched in Ybor City contract with the system’s supplier, Liberties Union, U.S. House Majority wearing masks. Armey called for supports the system. In a mostly Leader Dick Armey, R-Texas, and other congressional hearing on the system. symbolic vote in early August, the privacy advocates. “These surveillance systems are Tampa City Council decided 4-3 to keep The system allows police to take ineffective and will lead the police to the cameras. images from crowds in Tampa’s Ybor stop people who have done nothing “There is not reasonable expectation City section and compare those images wrong. We believe the privacy risk of privacy on a public street,” said to a computer database of criminals and outweighs any benefits that these Councilman Charlie Miranda. missing people. The city is getting the devices may offer,” Armey and the (6/30/01 – 8/3/01) Commissioner issues emergency rule Driver’s family sues TALLAHASSEE – Florida Treasurer financial information. and Insurance Commissioner Tom The emergency rule is valid through Web site over photos Gallagher issued an emergency rule in the end of September. BUNNELL – The family of NASCAR July to protect information about a The agency is working on a rule that driver Rodney Orr is suing a DeLand- citizen’s income, credit history and will be enacted permanently as based Web site for posting autopsy mental health status. authorized by legislation passed during photos of Orr. The rule prevents insurance the 2001 session. Websitecity.com posted 38 autopsy companies from releasing personal “My goal is to ensure that the final photos of Orr either naked or in health data without first seeking a rule implemented is simple, unobtrusive bloodied racing gear and 48 autopsy consumer’s permission. Insurers are and fairly protects the privacy of health photographs of driver Neil Bonnett. The also required to inform consumers and financial information,” Gallagher two men were killed in 1994 during before using or sharing their personal said in a statement. (7/2/01 – 7/19/01) practice sessions for the Daytona 500. The family filed a lawsuit in Flagler County to get the site to remove the ACCESS RECORDS CONTINUED photos. The Orr family also may ask for punitive damages. The Web site also is Pawnbroker database to remain exempt trying to access Dale Earnhardt’s TALLAHASSEE – Records of centralized database of local pawnbroker autopsy photos. Orr family members pawnbroker transactions that are transactions. Funded during the 2000 testified for the Earnhardts, saying the included in a statewide database remain legislative session, the database allows Web site’s display of the photos caused confidential and exempt from the state’s investigators to find stolen property them anguish. (5/25/01 – 5/26/01) Public Records Law, according to an pawned elsewhere in Florida. opinion from the attorney general. Pawnbroker records collected by James T. “Tim” Moore, local law enforcement are exempt from commissioner of the Florida Public Records Law. Butterworth said Department of Law Enforcement, the records will remain exempt when requested the opinion from Attorney they are entered into a new statewide General Bob Butterworth because the database for law enforcement officials. Brechner Center for Freedom of Information state is about to bring online a (AGO 2001-51) 3208 Weimer Hall, P.O. Box 118400 College of Journalism and Communications University of Florida, Gainesville, FL 32611-8400 AGO: Ballots should be sorted by machine http://www.jou.ufl.edu/brechner/ TALLAHASSEE – An opinion from but the New York Times Co. then asked e-mail: [email protected] Attorney General Bob Butterworth said for the ballots to be separated by the Sandra F. Chance, J.D., Director/Executive Editor election officials must use optical optical scanning machines because the S. Camille Broadway, Editor scanning equipment to separate ballots hand count produced 17 percent fewer Jackie Thomas, Production Coordinator as part of a public records request even overvotes and 22 percent fewer Meghan Morris, Production Assistant if the ballots have already been separated undervotes than on election day. The Brechner Report is published 12 times a year by hand. Butterworth said that election under the auspices of the University of Florida Foundation. The Brechner Report is a joint effort of Thomas V. Dannheisser, the Santa officials should honor requests for a The Brechner Center for Freedom of Information, the Rosa county attorney, requested the machine count as long as the requestor University of Florida College of Journalism and opinion after the county’s supervisor of pays the sorting costs. Unlike punch Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Society elections was asked to separate the cards ballots that might lose chads, of Newspaper Editors and the Joseph L. Brechner overvotes and the undervotes from the optical scanner ballots are unlikely to be Endowment. The Brechner Report thanks Holland & 2000 presidential ballots. changed by the sorting process, he said. Knight and Colleen Ahern for their contributions to this The ballots were separated by hand, (5/22/01, AGO 2001-37) issue. The Brechner Report n September 2001 3 Definition of journalist needs to be broadened For a host of good reasons, American journalists Florida’s shield law defines a professional journalist have always resisted suggestions of a licensing system. as someone who is regularly engaged in collecting or Licensing journalists smacks suspiciously of reporting news while working as a “salaried employee bureaucracy, red tape and governmental intrusion and of, or independent contractor for, a newspaper, news works against the essential independence of the press. journal, news agency, press association, wire service, However, a lack of a licensing system means that radio or television station, network, or news magazine.” defining who is and who is not a journalist is sometimes The statute specifically excludes book authors from the The a tricky definition of professional journalist and makes no proposition. But S. Camille mention of the Internet as a medium. Back Page defining who is a Broadway A new state law that governs access to accident journalist is reports takes an even more narrow view of who is a By S. Camille Broadway central in deciding who journalist. The journalists who can access accident reports qualifies for First Amendment and state-mandated protections within 60 days of filing are defined as being from radio and for the press. In the case of Vanessa Leggett, a Texas journalist television stations licensed by the Federal Communications jailed for contempt for refusing to turn over notes and Commission, newspapers qualified to publish legal notices, and interviews, it was argued that she was not eligible for the free newspapers with a general circulation that publish once a qualified journalistic privilege of protecting her sources week or more often. Wire services, news magazines, news because she was a freelance writer and not a member of the journals, networks and, of course, Web sites are not mentioned. institutional press (See story, page 1). First Amendment scholar Clay Calvert has examined a series According to the Associated Press, the 5th U.S. Circuit of appellate court decisions that attempted to define Court of Appeals noted in an opinion upholding Leggett’s “journalist” for the purpose of qualified privilege. He notes that jailing that she was “a virtually unpublished freelance writer, some federal courts seem to be moving away from defining operating without an employer or contract for publication.” In journalists based on the organizations for which they work or the end, however, the appeals court’s decision did not hinge on the medium in which their information is published. Instead, the whether Leggett was a journalist but on whether journalists have courts are ruling that non-traditional journalists seeking any qualified privilege against answering grand jury subpoenas. protections must prove that they were, from the beginning of The 5th Circuit ruled that journalists do not. the investigative process, actively seeking information for the While the appeals court failed to rule definitively on whether purpose of producing some type of news. it considered Leggett and others like her to be journalists, the Indeed, the 5th Circuit said that if it had taken up the issue of case still reminds us how difficult defining “card-carrying” whether Leggett was a journalist, it would have examined journalist can be. The increased development of the Internet as a whether she intended to release information to the public at the news outlet will only continue to blur the distinctions. time she collected the materials and conducted the interviews. Traditional news media have staked a claim in cyberspace In considering future protections for journalists, Florida also with ever increasing numbers of Web sites, but they are far may need to focus on safeguarding newsgathering as a function from the only online news sources. Web sites like Salon.com, rather than on the press as a medium or an institution. As the TheStreet.com, stateline.org, and CNET.com report news, ranks of journalists grow, it becomes important to broaden our provide information and offer commentary but exist only in the descriptions and to argue for protections for those that do not bits and bytes of cyberspace. They act like media organizations. seem to fit existing definitions. They look like media organizations. But the people who work for them may not have the same protections as other media S. Camille Broadway is a former newspaper reporter organizations because Web sites often do not fall into the and editor, and is currently a graduate student at the traditional definitions for media. University of Florida and editor of The Brechner Report.