THE BRECHNER REPORT

Volume 31, Number 3 A monthly report of mass media law in Published by The Brechner Center for Freedom of Information College of Journalism and Communications University of Florida March 2007 Sunshine Week spurs dialogue on Superintendent open government, access issues sued by school WASHINGTON D.C. – The third on March 16 at the National Press Club annual Sunshine Week is set for March in Washington D.C. and a “Closed Doors; board member 11-17, with Ben Bradlee, Tom Open Democracies?” teleconference – A school board member Brokaw and Judy Woodruff named as broadcast by Open the Government.org. dissatisfied with the response to her honorary chairs. Sunshine Week is an expansion of public records requests has filed suit The goal of Sunshine Week is to Sunshine Sunday, a Florida event where against the superintendent. raise awareness about open publish Miami-Dade school board member government and freedom of editorials, cartoons Marta Perez filed the public records information. OPEN and news stories lawsuit against Superintendent Rudy The American Society of GOVERNMENT highlighting open Crew. Editors, through government issues. Perez alleges that Crew misused his a grant from the John S. and James L. This year’s sixth annual Sunshine power and ignored her records requests. , sponsors Sunshine Sunday is scheduled for March 11. The requests are related to renovation Week. For more information about Sunshine costs for board members’ offices, Proposed events include the National Week or Sunshine Sunday, visit www. employee Freedom of Information Day conference sunshineweek.org or www.fsne.org. salaries, and ACCESS other issues. RECORDS “I do not Prosecutors dismiss Sunshine, believe that the effort required of my staff to gather records charges against hospital and organize the information regarding OCALA – A hospital indicted on owned facilities, did not concede guilt but job descriptions and cost of all board misdemeanor charges for violating will pay $2,000 for investigative costs. office renovations…is an effective use of Florida’s open government laws during “’s a fairly standard disposition their time,” Crew wrote in a March 2005 a CEO search has reached of a county court first-time memo, according to The Miami Herald. an agreement with offense,” said State Attorney Prior to filing the suit, Perez motioned Attorney’s Office. ACCESS Brad King. that the school board ask Crew to In exchange for amending A grand jury indicted the provide the information. The board its lease to reflect principles LAWS hospital in September for voted against Perez’s proposal. of “operating in the spirit of failing to provide the Ocala Perez wants a judge to order Crew open government,” the State Attorney’s Star-Banner with a list of CEO candidates to fulfill the records requests and define Office dismissed the charges. and holding at least one closed meeting Crew’s powers to set the school board’s The hospital, which leases publicly during a two-month period last summer. agenda. Charges dropped against outspoken resident RIVIERA BEACH – A local activist Lozman was commenting on the project. In his lawsuit, Lozman alleged arrested at a November city council arrests of area officials at the time of council members violated Florida’s meeting will not face charges in his own arrest. Lozman was charged Open Meetings Law by holding a special connection with the incident. with disorderly conduct meeting to sign an agreement with Riviera Beach City and resisting arrest without developers. The council has since changed Councilwoman Liz Wade had ACCESS violence. its position on using eminent domain. police remove Fane Lozman MEETINGS Lozman also is involved The State Attorney’s Office dropped from the meeting during the in litigation against the city the charges because prosecutors were public comment portion of related to its decision to use not convinced a conviction was possible, the meeting. eminent domain in a redevelopment according to The Palm Beach Post. FIRST AMENDMENT Newspaper wins retaliation suit against college – Florida Keys college’s president wrote in a letter to the alleging its constitutional right to publish Community College will pay the legal company that he was ending any business without retribution from a government fees of a newspaper company after the with the company. College President agency was violated. Seeker then sent two parties reached a settlement in a First Bill Seeker said the move was a result another letter agreeing to resume business Amendment retaliation lawsuit. of Citizen articles that he alleged were with the company. Cooke Communications, owner of The unbalanced and unfair to the college. The college did not admit wrongdoing Key West Citizen, filed the suit after the Cooke Communications filed suit, but did agree to pay $9,000 in attorney fees. Trump sues to keep oversized American flag PALM BEACH – is Town officials cited Trump because Trump’s multi-million dollar lawsuit says suing town officials who cited him for his 15-by-25-foot flag atop an 80-foot a smaller flag would “look silly” in light flying an oversized American flag at his pole violated zoning codes. Codes do of the property’s “massive size.” If Trump Palm Beach property. Trump contends not permit flagpoles taller than 42 feet. wins the lawsuit, money damages will be that he has a First Amendment right to Trump says the ordinances are selectively donated to Iraq war veterans, according to fly the flag over his Mar-a-Lago Club. enforced. the suit. Police erase ACCESS MEETINGS CONTINUED security video Judge denies PCOC appeal BARTOW – A circuit judge denied The members have the option of the appeal of Polk County Opportunity appealing to the 2nd District Court of Appeal after request Council board members who challenged in Lakeland. MIAMI – Miami-Dade police their non-criminal infraction convictions PCOC board members contended that erased its copy of a security video for violating the Sunshine Law. they were not subject to the Open Meetings showing Atlanta Falcons quarterback Chief Circuit Judge Ron Herring Law when they took a break from a public Michael Vick at the airport, after upheld the convictions handed down by meeting to discuss a personnel matter in The Atlanta Journal-Constitution County Judge Anne Kaylor. private. requested the video under Florida’s The board members had been ordered But Herring disagreed. “Where a Public Records Law. to each pay a $250 fine and $28.60 in private company steps into the shoes Vick was suspected of hiding court costs. Board member Dennis of a government agency and assumes marijuana in a water bottle during Goosby paid the cost for all the members. government functions, it is subject to the a Jan. 17 visit to the Miami “I’m of the opinion that I wish to Sunshine Law,” Herring wrote in his order. International Airport. appeal it all the way up,” Goosby said, The PCOC assists poor residents through The Journal-Constitution requested according to The Ledger (Lakeland). federal and state programs. a copy of the video on Jan. 18. Police refused Crist’s first orders of business: to release ACCESS the video RECORDS because it open government, easy reading was part of TALLAHASSEE – Florida Gov. The functions of Crist’s newly created an ongoing investigation. ’s first executive order Office of Open Government will be “to After prosecutors announced Jan. established the Office of Open assure full and expeditious compliance 23 there would be no criminal charges Government and a “Plain Language with” the state’s open government laws against Vick, the investigating officer Initiative” aimed at making government and to provide training on government erased the video from a flash drive. publications and announcements easier to transparency. A police spokesman said understand. The “Plain Language Initiative” will the newspaper would have to The order includes a provision to begin with each state agency submitting request a copy of the video from implement a code of ethics for the an implementation plan. Requirements for the Transportation Security governor’s office and heads of state future publications include clear language Administration (TSA). executive agencies. This same provision for a broad audience; logically presented, The copy of the video erased by also calls for the training of agency relevant information; “short sentences the police was obtained from a TSA employees on topics including ethics, written in the active voice;” and reader- camera. public records, open meetings and friendly design elements, such as the use of records retention. bulleted lists.

2 The Brechner Report  March 2007 FREEDOM OF INFORMATION Anderson files Washington Post drops request avoid seizure WASHINGTON D.C. – The Federal for Secret Service visitor logs Bureau of Investigation has ended WASHINGTON D.C. – The official residence were private because its effort to access the files of late Washington Post has withdrawn its to release them would interfere with his investigative reporter Jack Anderson. lawsuit to obtain Secret Service visitor ability to effectively do his job. Anderson’s family fought the FBI’s push logs. The newspaper demanded the A May 2006 memorandum declaring to examine his confidential papers. logs just prior to the November election, that logs of visitors to the White House The FBI sought information related seeking information about visitors to complex are exempt from disclosure to a case involving the American Vice President Dick Cheney and his was signed by the White House and the Israel Public Affairs Committee. Two senior staff over the previous two years. Secret Service. The memo designated former lobbyists have been charged A district court judge, Ricardo these logs as presidential records, not with receiving classified documents in Urbina, ordered the Secret Service to subject to disclosure under the Freedom violation of the Espionage Act. immediately comply with The Post’s of Information Act. The FBI thought some of Anderson’s request. But days before the Nov. 7 The Post cited its failure to obtain papers may contain classified election, the D.C. Circuit Court of the information prior to the election government information. Appeals blocked Urbina’s order. and the existence of similar lawsuits as The documents are housed at George Cheney maintained the records of reasons for withdrawing its legal action, Washington University. Biographer visitors to the White House and his according to The New York Sun. and GWU journalism professor Mark Feldstein told the FBI there were no classified documents in the hundreds of boxes of Anderson’s files. Horse clinic sues state for libel The FBI has indicated it has dropped WELLINGTON – An equine located adjacent to the Palm Beach Equine its request to review the files. veterinary clinic has filed a defamation Sports Complex, which was under state- suit against the Florida Department of ordered quarantine. The clinic and sports Agriculture. The suit stems from an complex operate independently. outbreak of equine herpes virus that is A Department of Agriculture spokesman blamed for the death of six horses. blamed the incident on faulty reporting by The Palm Beach Equine members of the press. Mark Clinic alleges the state Fagan said his office told the wrongfully reported that the LIBEL media to contact individual clinic’s facilities were under facilities in the area because the quarantine and had the contagious virus, entire site may not be under quarantine. resulting in inaccurate press coverage. “Reporters have the responsibility to dig The clinic says its revenues have dropped deeper, and if that means contacting each of since the reports. the 10 facilities, that means contacting each The Palm Beach Equine Clinic is of the 10 facilities,” Fagan said. Judge throws out anthrax suit Brechner Center for Freedom of Information ALEXANDRIA, Va. – A former Attorneys for the newspaper argued that 3208 Weimer Hall, P.O. Box 118400 Army scientist’s libel suit against The years before the attacks, Hatfill had injected College of Journalism and Communications New York Times has been dismissed himself into the national discussion of University of Florida, Gainesville, FL 32611-8400 bioterrorism. The attorneys said that Hatfill http://www.brechner.org by a federal judge. Times e-mail: [email protected] Nicholas D. Kristof did not act with had been quoted as an expert by the media and posed for a magazine photo. Sandra F. Chance, J.D., Exec. Director/Exec. Editor malice, reminding readers to assume Christina Locke, Editor scientist Steven Hatfill’s innocence Hatfill’s attorneys contended that they Alana Kolifrath, Production Coordinator and presenting the favorable views of could overcome a public figure designation Kimberly Lopez, Production Assistant Hatfill’s loved ones, U.S. District Judge because of major flaws in reporting. The Brechner Report is published 12 times a Claude Hilton wrote in his opinion. This is the second time Hilton has year under the auspices of the University of Florida dismissed the case. In 2004, he dismissed Foundation. The Brechner Report is a joint effort The dismissal occurred a week after of The Brechner Center for Freedom of Information, Times lawyers argued that Hatfill was Hatfill’s suit after ruling that the columns the University of Florida College of Journalism and a public figure for the purposes of his accurately reported that the FBI considered Communications, the Florida Press Association, the libel suit. Hatfill alleged that a series of Hatfill a “person of interest” in the case. Florida Association of Broadcasters, the Florida Soci- th ety of Newspaper Editors and the Joseph L. Brechner columns in The Times falsely implied Hatfill appealed the first dismissal to the 4 Endowment. that he was involved in the 2001 anthrax U.S. Circuit Court of Appeals in Richmond, attacks. which sided in his favor.

The Brechner Report  March 2007 3 Transparency advocates must resort to secrecy The degree of government transparency in , the and Time United States is due in no small part to the efforts Inc. discussed the realities of reporting in an era of of the American press. The media lobbied for open increased scrutiny from prosecutors. government laws and advocated for the public’s “right to Barstow has witnessed firsthand the dangers of know.” protecting confidential sources. His former colleague, The press uses open government laws to hold public Judith Miller, spent 85 days in jail after she refused officials accountable and uncover stories of corruption. to testify before a grand jury investigating the leak of Government transparency is an essential tool for the Valerie Plame’s identity as a covert CIA agent. press to serve in its “watchdog” capacity. Miller eventually received permission from her Christina Locke In order to comply with open government laws, source, vice presidential aide I. Lewis “Scooter” Libby, officials must retain documents, record meetings, and to testify before the grand jury. Libby was indicted on take a variety of other measures so as not to sidestep these laws. charges of perjury and obstruction of justice related to the leak of The failure to do so could result in criminal charges, removal Plame’s identity. from office or other penalties. Ten journalists testified at Libby’s trial, including Miller, For the modern reporter, Time reporter Matthew Cooper, NBC’s Tim Russert and The The imitating the work habits of Washington Post Assistant Managing Editor Bob Woodward. government officials could The impact of the leak investigation on the willingness of Back Page have disastrous consequences. sources to come forward may never be known. Some fear that By Christina Locke As a result of recent high the investigation and Libby trial could encourage prosecutors profile prosecutions of journalists who refuse to reveal elsewhere to subpoena reporters in criminal investigations. In confidential sources, today’s journalists have resorted to a addition to potential criminal contempt liability for journalists, variety of covert tactics in order to avoid being hauled in front news organizations can also be subject to substantial fines each of a grand jury. day information continues to be withheld. Journalists working with confidential sources are careful In the meantime, journalists have resorted to tactics that to avoid e-mails, leaving phone messages or using credit would be criminal if employed by government officials. cards. They are apt to purchase a disposable cell phone for The result is an obvious contradiction between the media’s communication with confidential sources and then discard the expectations of government transparency and press opacity. phone. To avoid phone records, switchboard systems can be With subpoenas and jail time a real possibility, reporters used instead of direct calls. Pages of notes can be too much of a must balance the interests of confidential sources, corporate liability and are quickly discarded. employers, editors, and their own self-protection. Despite the During a reporter’s initial meeting with a confidential demands, journalists are still committed to getting the next big source, a carefully worded “Miranda warning” of sorts - “Your story. name won’t appear in the paper” - is sometimes used to soothe “It’s always a cat and mouse game, but you have to keep concerns but doesn’t necessarily offer complete confidentiality. playing it,” Barstow said. “It doesn’t feel right. It doesn’t feel good to have to act like a drug dealer,” said , a reporter for The New York Times. Christina Locke is editor of The Brechner Report. Locke Barstow made the remark during a panel on protection is a J.D./M.A. student at the University of Florida. She has from subpoenas at an American Bar Association media law previously worked as a reporter at the Okeechobee News and as conference in Key Largo. Reporters and attorneys from The a copy editor at The Gainesville Sun.