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B R E C H N E R Report THE BRECHNER REPORT Volume 25, 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 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’ lawyer 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 Miami 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.
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