THE BRECHNER REPORT

Volume 31, Number 4 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 April 2007 Chief Justice: Secret cases are not widespread TALLAHASSEE – Secret court Bar to recommend changes to the rules for to do intentionally horrible things to records at the center of several news sealing cases. everybody in the world,” Lewis said. reports last year are not widespread, The investigation found that most The Miami Herald broke the story of according to Florida secret files were the result of secret court dockets in Florida, reporting Supreme Court Chief failure to follow the rules, on the problem in Broward County. Justice R. Fred Lewis. COURTS misinterpretation of the rules After public comment and a hearing on Lewis ordered an inquiry and miscommunication. the matter, the Florida Supreme Court will into the practice of secret dockets and “There weren’t really malicious, nasty, consider adopting new rules for sealing super-sealed cases and asked the Florida horrible people running around trying cases. Two commissioners charged Pilot program with violating Sunshine Law could be ready MONROE COUNTY – Two Monroe The next day, McCoy participated County commissioners have been in a radio interview and mentioned his starting May 1 charged with violating the Sunshine talk with Di Gennaro after the meeting. MANATEE COUNTY – The pilot Law. Mayor Mario Di Gennaro and When the show moderator asked if that program to restore electronic access to Commissioner Sonny McCoy each face was a Sunshine violation, McCoy said, court records in Florida could begin as a civil infraction carrying a “No, no. I doubt it. If it is, soon as May 1. Manatee County Clerk fine of up to $500. go ahead and bring charges.” of Circuit Court R.B. “Chips” Shore The charges stem from ACCESS State Attorney Mark Kohl volunteered to conduct the pilot program a September post-meeting wants the charges to send a and has been working on the details for the discussion regarding an MEETINGS message to other officials. “I past several months. upcoming mayoral election. hope every elected official in The Florida Supreme Court currently Di Gennaro and then-Mayor McCoy Monroe County clearly understands that has a moratorium on Internet access to allegedly had a brief conversation about I intend to enforce Florida’s Sunshine most court records until adequate privacy Di Gennaro’s plans to run for mayor. statutes,” Kohl said. safeguards are in place. Safeguards proposed by Shore include software to redact confidential information such as Social Security numbers and limiting access based on the type of user, FDLE concludes Cooper City from judges to public subscribers. If Shore’s plan is approved by the Florida Trial Court Technology commission dinners not illegal Commission and the Supreme Court, COOPER CITY – City commissioners violations of the Sunshine Law. Manatee County court records will be have been cleared of any criminal Commissioners had maintained they available for online viewing. The pilot wrongdoing in connection with their pre- broke no laws. Cooper City officials program is expected to last for one year. If meeting dinners and drinks paid for by ended their 15-year practice of dining successful, the program could be a model taxpayers. together before meetings after a South for other clerks of court. The Florida Department of Law Florida news station reported on the “If [the public] can access it from home Enforcement, citing lack of evidence, gatherings. as opposed to coming in here, it saves ended its three-month investigation of the A South Florida Sun-Sentinel resources,” Shore said. “For example, if Cooper City Commission. investigation found that commissioners you need something here on paper you Then-Gov. Jeb Bush ordered the FDLE spent more than $5,000 on the dinners in have to have a clerk get it. This program investigation of potential misspending and the past two years. will save money.” NEWSGATHERING Charges dropped against freelance photographer WEST PALM BEACH – Criminal camera from him outside the main The disorderly conduct charge was charges have been dropped against a elections office in West Palm Beach. dismissed in 2005. In exchange for the freelance journalist arrested in 2004 for Henry reportedly ran about 100 feet, fell dismissal of the remaining two charges, photographing voters waiting in line at and then was arrested. Henry waived his right to sue and will the polls. In effect at the time was a rule complete 15 hours of community service. James S. Henry, 56, was arrested on preventing journalists from coming “I would have liked to have seen an charges of disorderly conduct, unlawful within 50 feet of voters outside polling outcome more supportive of the First solicitation of voters and resisting arrest sites. Amendment as I understand it,” Henry told without violence. Henry said he was about 125 feet The Palm Beach Post. “But I’m delighted A sheriff’s deputy tried to take Henry’s away from voters at the time of his arrest. the case has been resolved.” COURTS CONTINUED Sheriffs, prosecutor clash over grand jury report FLAGLER COUNTY – Sheriffs in investigation. The grand jury did not relied too much on “emotionally charged four counties spoke out to the media, indict Tanner on any charges. The grand characterizations of lawful acts” and calling for the opening of a secret grand jury’s report has been sealed because opinions. jury report on a prosecutor’s inquiry into Tanner, based in Volusia County, argued Tanner argues that the grand jury did not the Flagler County Jail. that the report is improper and unlawful. have the authority to investigate him and State Attorney John Tanner began After the sheriffs’ call for unsealing that it received the investigation after its an investigation of abuse at the jail, but the report, Tanner requested parts of the term had expired. stepped down after some questioned his report containing some of his objections State Attorney Harry Shorstein, of Duval motive for the probe. Tanner’s daughter be released. County, began the investigation of Tanner alleged she had been mistreated at the jail These court documents suggest the and argues it was always part of the larger after an arrest. grand jury reprimanded Tanner for his investigation. The result was a grand jury review behavior. The documents also include The report will remain sealed unless a of Tanner’s conduct during the Tanner’s argument that the grand jury judge rules it should be released. DOJ wants plea deals offline Consent agenda MIAMI – The Department of Justice to identify government informants, wants to halt online access to federal plea according to The Miami Herald. draws criticism agreements, a move already taken by Who’s A Rat (whosarat.com) is a ALACHUA – The practice of federal courts in South Florida. Though subscription site that claims to be the placing items on a “consent agenda” the plea agreements in South Florida are “largest online database of informants – allowing Alachua city commissioners not available on the Internet, they are still and agents.” to automatically approve items without available at courthouses. The DOJ recommended the ban public discussion – is the target of a Judges and attorneys have expressed on electronic access to federal plea lawsuit alleging Sunshine Law violations. concern about a Web site that uses agreements in a December letter to the Residents who attempt to speak on court records such as plea agreements U.S. Judicial Conference. consent agenda subjects are ruled “out of order” at commission meetings. But residents do have the option of requesting Hall of Fame nominees sought consent agenda items be transferred to th the regular agenda for public comment. In celebration of its 30 anniversary, freedom of information and government The city commission voted to deny the the Brechner Center is currently seeking in the sunshine. To obtain a nomination requests of two people who asked for a nominations for the Florida Freedom form, visit www.brechner.org. consent agenda item – the minutes of the of Information Hall of Fame. The Hall The Brechner Center inducted an 2006 election Canvassing Board – to be of Fame honors individuals who have 11-member inaugural class to the Hall of placed on the regular agenda. helped develop and defend Florida’s Fame in 1997. The inductees included the As a result of the denial, the pair Public Records Law, Open Meetings late Florida Gov. Lawton Chiles, Ralph has filed suit against the commission, Law, or the public access constitutional Lowenstein, Pete Weitzel and Joseph L. requesting the judge to stop the city amendment. Brechner, for whom the Center is named. from placing “matters of substance” on The deadline for nominations is July The second class of inductees will be th the consent agenda. The suit also seeks 1, 2007. Nominators must submit a honored at the Center’s 30 anniversary invalidation of the commission’s approval nomination form and a letter of support conference in the fall at the University of of the Canvassing Board minutes. describing the nominee’s contribution to Florida.

2 The Brechner Report  April 2007 ACCESS RECORDS Charlotte inquiry shows bid woes Town passes CHARLOTTE COUNTY – Florida’s was budgeted at $2.725 million; the bid Public Records Law requires local was $2.699 million. A contract to dredge disclosure law governments to publish budget a creek was budgeted at $180,000; the bid information, but the practice may be was $179,462.06. The replacement of for developers costing taxpayers, according to a report stormwater pipes was budgeted at $1.39 by the Charlotte Sun. million; the bid was $1.382 million. CUTLER BAY – A South Florida Though some state agencies are Because contractors are able to access town has passed a disclosure law exempt from the disclosure requirement, the budget information, the bids can be less aimed at exposing deals between local governments must make the competitive. developers and community groups. information public. This often results In addition, the narrow margin between The Cutler Bay Town Council in bids coming in just under the allotted the posted budget and the bid doesn’t allow unanimously approved the law amount for the project. much room for error, resulting in frequent requiring public disclosure of In Charlotte County, for example, requests for additional funding, according payments made to community three public works contracts illustrated to Charlotte County Public Works Director groups in exchange for not opposing the problem. A road repaving project Tom O’Kane. developments and rezonings. Details of developer payments to community groups are not subject to Center, AG launch access project the Public Records Law. “This law is about doing things TALLAHASSEE – The office of records. The project Web site is accessible right and in the open,” said Mayor Attorney General Bill McCollum is at myfloridalegal.com. Paul Vrooman. partnering with the Brechner Center “The GAP project and partnership with “It’s an anti-extortion ordinance. to encourage government entities to the University of Florida’s Brechner Center I don’t know if you can call it that provide more information to citizens. aim to further advance accountability for legally, but that’s what it is to me. It’s The first phase of the Government Florida citizens,” McCollum said. about preventing people from strong- Accountability Project (GAP) will Gov. Charlie Crist has also made open arming developers,” Vrooman said. identify records that are difficult for government a priority for his new office. Defenders of the payments say the citizens to obtain. In the second phase, Crist established the Office of Open funds can be used to make community GAP will work with state and local Government and proclaimed March 11-17 improvements. governments to increase access to “Sunshine Week” in the state of Florida. For example, in a previous settlement between developers and residents, the developers contributed Judge denies ban after photo leak $45,000 to youth soccer and swim SARASOTA – Photos related to the parents’ care. clubs. homicide of a 6-year-old girl were leaked Law enforcement officials made four to a Sarasota news station, resulting in a copies of the disc containing the photos, criminal investigation of the leak and a intended only for use by lawyers in the judicial ruling against a ban on case. publishing the photos. Attorneys for the girl’s In September, Coralrose PRIOR parents, Dale and Ellen-Beth Fullwood was found dead in a Fullwood, asked a judge to wooded area near her home. RESTRAINT prevent WWSB ABC-7 from Brechner Center for Freedom of Information The leaked photos are of the showing the photos. 3208 Weimer Hall, P.O. Box 118400 College of Journalism and Communications girl’s home and were used to justify the The judge declined to impose a prior University of Florida, Gainesville, FL 32611-8400 removal of Coralrose’s siblings from her restraint on the news station. http://www.brechner.org e-mail: [email protected] Days later, station gets to air story Sandra F. Chance, J.D., Exec. Director/Exec. Editor Christina Locke, Editor ORLANDO – A judge ordered appellate court. The station’s initial Alana Kolifrath, Production Coordinator an Orlando television news station expedited appeal was denied. Kimberly Lopez, Production Assistant not to air the contents of documents Political consultant Doug Guetzloe The Brechner Report is published 12 times a that once belonged to a controversial sought the injunction against reporting on year under the auspices of the University of Florida Foundation. The Brechner Report is a joint effort political consultant. Several days later, his files after he discovered they had been of The Brechner Center for Freedom of Information, Judge Rom Powell modified his prior given to the station following a public the University of Florida College of Journalism and restraint order to allow publication of storage facility auction. After the judge Communications, the Florida Press Association, the Florida Association of Broadcasters, the Florida Soci- the information, except for medical and modified his initial ban, the station aired ety of Newspaper Editors and the Joseph L. Brechner attorney-client details. a story reporting that Guetzloe may have Endowment. WKMG-TV Channel 6 is appealing falsely testified about who offered financial the judge’s modified order to a state support for some of his political operations.

The Brechner Report  April 2007 3 Series sheds light on impact of “secret weapons” For nearly 19 years, records of who had a license lobby pushed through a law locking up this information to carry a gun in Florida were open to the public. and making it impossible to get in the future.” Abruptly last spring, that changed. State lawmakers Not surprisingly, lawmakers have shown little overwhelmingly passed an exemption protecting the interest in re-opening the records to enable greater identities of everyone who has a concealed weapon scrutiny of the licensing process. After all, Florida permit. Gov. Jeb Bush signed it into law. has long been known as the Gunshine State, for its Now, if someone wants to know if their neighbor, ex- lenient gun rules. And the National Rifle Association spouse, nanny, coworker, or child’s school bus driver has holds considerable sway in Tallahassee, working to a license to carry a gun in public, they won’t be able to defeat lawmakers who oppose the group’s proposals. Megan O’Matz find out without the person’s permission or a court order. Legislators sealed the concealed weapon records at the Before the law took effect, the South Florida Sun- prodding of the NRA after an Orlando television station Sentinel obtained the database of licensees, providing a last look published a list of local licensees on its Web site. at who is legally allowed to pack heat on Florida’s streets. We At public hearings, the NRA and its supporters argued that found that not all of them are law-abiding. the publication of the names embarrassed the individuals and My colleague, John Maines, subjected them to potential danger. Burglars could use the list to The and I matched the names, find homes with guns to rob! Sex offenders could see who has a addresses and dates of birth of gun and target someone else instead! Thieves could steal people’s Back Page concealed weapon licensees identities! Stalkers could unearth their victims! By Megan O’Matz against other databases of Yet none of this had been a crying problem in the 19 years felons, domestic violence injunctions, warrants, jail bookings and the records were open. The records were never posted on the registered sex offenders. We found that more than 1,400 people Internet by the government but were available only through a had valid licenses despite having pleaded guilty or no contest to public records request. felonies as serious as assault, burglary, drug possession, child The question now is: If lawmakers won’t reverse the law, molestation and, even, manslaughter. Six were registered sex will the courts? Open government advocates argue that the offenders. Hundreds of others continued to legally carry weapons secrecy law is ripe for a legal challenge on grounds that it is despite active warrants for their arrest or convictions for behaving unconstitutional. In Florida, records must be open unless the recklessly with firearms, such as firing into the air on the Fourth Legislature passes an exemption that narrowly addresses a of July. Still more had their licenses repeatedly suspended or specific need. By exempting every bit of personal information in revoked. the concealed weapon database, critics say, lawmakers passed an Clearly, the state was not living up to its promise, made in exemption that is overly broad. 1987, to license only “law-abiding” people. Instead, loopholes But other states also will not release the names. In in the law, miscommunication with cops and courts, and simple Pennsylvania, in fact, the restriction applies even to dead people. bureaucratic errors enabled people with criminal histories to Did Charles C. Roberts IV, the man who killed himself after legally carry guns. shooting five Amish school children to death last October, have The Sun-Sentinel’s four-part series, published in late January, a concealed weapon license? Pennsylvania officials won’t say. received intense reaction from readers, interest groups and state Said a State Police spokesman: “Under our law I can’t release officials. The Brady Campaign to Prevent Gun Violence, the that.” country’s leading gun control organization, released a statement Megan O’Matz is an investigative reporter at the South Florida saying: “The Sun-Sentinel has published information the gun Sun-Sentinel. She and her colleagues were Pulitzer Prize finalists pushers do not want the public to have, which is why the gun last year for uncovering massive fraud in FEMA aid.