THE BRECHNER REPORT Volume 35, Number 6 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 June 2011 Audit: Fla. leads nation in website transparency ALEXANDRIA, Va. – Non-profit other public information. School District, Lake County, Marion watchdog group Sunshine Review State and local governments who County Public Schools, Miami, Orange announced the results of a national audit received perfect scores were given County Public Schools, Osceola County of government websites, “Sunny Awards” for their School District, Palm Beach County, showing Florida as the transparency. Twenty-one Palm Beach County School District, national leader in website ACCESS winners were from Florida, Pinellas County, Polk County School transparency. RECORDS followed by Texas with 12. District, Putnam County, Seminole Using a 10-point Top-rated Florida County Public Schools, St. Johns County checklist, the Sunshine Review ranked government entities were: Brevard School District, St. Lucie County School more than 6,000 websites. The checklist County, Charlotte County Public Board, Sumter County and Volusia considered the ease of use of websites Schools, Duval County, Escambia County. and the availability of information on County School District, Hillsborough Source: Daily Commercial (Sumter budgets, contracts, open meetings and County Public Schools, Indian River County), Sunshine Review Court: Shield law protects reporter from deposition HOMESTEAD – The 3rd District Court whether through a public records request other sources, such as the city’s public of Appeal struck down a trial court’s order or a leak at the city. records custodian or other recipients compelling a television reporter to testify The appellate court, using the three- of the diskette. Also, Shehadeh didn’t in a deposition, citing Florida’s shield law. part test established by Florida’s reporter’s show that a compelling interest existed The deposition was related to a suit privilege law, ruled that Shehadeh could in questioning a reporter rather than between former Homestead City Manager not depose Burnside. seeking the information Mike Shehadeh and the city for breach The court found that from people who are not of an employment contract. Shehadeh while the first element SHIELD professional journalists. wanted to depose WTVJ-NBC 6 reporter of the test to overcome LAW “The record presented Jeff Burnside. the privilege was met—the here is precisely the kind Burnside had reported on a diskette he information was relevant to the case— of scenario in which the assertion of the received with Shehadeh’s personal text Shehadeh failed to meet the other two privilege should be upheld,” the court’s messages. elements. opinion stated. Shehadeh contended that he wanted Specifically, he did not show that the Source: WTVJ-NBC 6 v. Shehadeh to know how Burnside got the diskette, information couldn’t be obtained from (Case no. 3D10-3438) Teen’s attorneys want to keep cameras out of court FORT MYERS – Lawyers for a could negatively impact his right to a effect of having cameras in the courtroom 14-year-old boy accused of killing fair trial. “We believe the presence of with a 14-year-old child,” longtime his parents are asking a judge to keep television cameras will indeed prejudice criminal defense attorney Michael cameras out of the courtroom. the jury pool in the event this case goes Hornung, who is not associated with the Alexander Crain has pleaded to trial,” Brian Bieber, case, said. not guilty to two manslaughter an attorney for Crain, Florida’s laws on cameras in the charges for the December 2010 COURTS said. courtroom are some of the most access- shooting deaths of his parents. Some attorneys in Southwest Florida friendly in the nation. Crain could face up to 30 years in prison questioned whether a ban on cameras The party requesting cameras for each charge. Prosecutors are trying would be instituted by the judge, be excluded must prove the camera him as an adult. according to The News-Press (Fort coverage would have a substantial effect The case is still in the early stages of Myers). that is qualitatively different than other prosecution, but Crain’s attorneys fear “The judge has to weigh the public’s types of media. that allowing cameras at pre-trial hearings right to know against the detrimental Source: The News-Press (Fort Myers) ACCESS RECORDS CONTINUED Judge: Irions doesn’t have to turn over hard drive ST. PETERSBURG – After hearing to turn over his hard drives and the user records from the five years Irions also from both sides of a public records name and password for his Yahoo e-mail served as head of the county agency. The dispute, a circuit judge has declined to account or explain why he should not county authority hired a forensic audit force the former director of the Pinellas have to. Circuit Judge W. Douglas Baird company which last year reported that County Housing Authority to turn over later decided to allow the parties to Irions forwarded public e-mails to his his personal hard drives. continue discovery but not to force Irions private e-mail address and deleted e-mail Darrell Irions, chief executive officer to turn over his personal computer. from the government server. of the city housing authority and former The decision is part of a public records Irions denies deleting records and head of the Pinellas County Housing lawsuit filed by the county housing contends that he fulfilled records requests. Authority, was initially given 20 days authority against the city authority over Source: St. Petersburg Times Man sues Zephyrhills, claims book is public record ZEPHYRHILLS – A man is suing in purchasing the book for his mother, a sales tax.” Chandler calculated the city’s the city over the book Zephyrhills A to Z, longtime resident of Zephyrhills, thinks cost at $23.74 per book. claiming the city is overcharging for what that $29.95 plus tax is an illegal charge for City Manager Steve Spina he considers a public record. The book, a public records. The Public Records Law acknowledged that the printing cost was collection of microfilm, family histories, allows reasonable charges for records. $17.89 per book. “I don’t even mind interviews and newspaper clippings “The taxpayers have already paid for lowering the price,” Spina, who said he complied over a decade by city workers, is this book,” Chandler said. “The book’s considered the book more of a public available for $29.95 plus tax. just the format. They’re profiting from the service than a public record, said. Robert Chandler, who was interested production of a public record and charging Source: St. Petersburg Times Official faces records charges ACLU sues for DEERFIELD BEACH – A Deerfield nonprofit, allegedly solicited her brother Beach commissioner is facing five counts for a loan to purchase tax certificates school records of falsifying public records for failing to on delinquent properties owned by the COLLIER COUNTY – The properly disclose a conflict of interest. nonprofit. Her brother was reportedly American Civil Liberties Union Sylvia Poitier is accused of failing to to receive 10 percent interest from the (ACLU) is suing the Collier County properly reveal a financial relationship nonprofit for the loan. School Board for records related to a between herself, her brother and a The charges are first-degree 2009 “Kick-a-Jew-Day” incident at a nonprofit association that handles low- misdemeanors, each punishable by up to a middle school. income housing funds for the city. year in jail and a $1,000 fine. The ACLU alleges the school Poitier, on behalf of the housing Source: South Florida Business Journal board failed to comply with repeated requests for public records related to the incident involving 10 middle school Hillsborough County seeks students who imitated an episode of the television show “South Park.” The more uniform records policy “South Park” episode featured a satire TAMPA – Hoping to make public some tracked some things, other things on bigotry where elementary school records practices more uniform across not. There were also different ideas students held a “Kick a Ginger Day” the county, Hillsborough County about what were public records.” and kicked red-haired students. The commissioners unanimously approved After nearly a year of research, the Collier students were punished with one recommendations by a public records team issued recommendations for more day of in-school suspension. design team. consistent practices, including training Documents were provided in The team was led by county Tax a records custodian and alternate for response to the ACLU’s request for Collector Doug Belden and its goal is to each department, adopting a single fee records related to the incident, but they develop a “systematic, legally compliant, structure, spelling out when an attorney didn’t contain a description of what transparent and consistent process” for has to review a request and mandating occurred. The ACLU then requested responding to records requests. that nearly all requests be logged into a that the students’ disciplinary records be The problems that prompted the countywide computer system. produced with identifying information recommendations were based in part on Belden said the recommendations removed. The school district declined a countywide survey of agencies about should be implemented in six months. to produce the redacted disciplinary their processes for records requests. If the system is successful, Belden records, citing the federal student “Fees varied widely,” Jennifer Castro, said it could be a basis for statewide privacy law, the Family Educational Belden’s executive administrator, said. policy. Rights and Privacy Act (FERPA). “Some agencies had manual logging, Source: The Tampa Tribune Source: Naples News 2 The Brechner Report  June 2011 FREEDOM OF INFORMATION New site tracks FOIA lawsuits Officials balk at SYRACUSE, N.Y. – A new website features of the site include a geographic will track the status of Freedom of view of FOIA suits with links to filings in private meetings Information Act (FOIA) lawsuits the cases. The court filings are updated BROOKSVILLE – Meetings nationwide. The site, FOIAproject.org, daily. between individual Hernando County was launched by the Transactional Records Future tools might allow visitors to see Commissioners and constitutional Access Clearinghouse (TRAC) at Syracuse trends in suits, agency-specific breakdowns officers to discuss next year’s budget University. and possibly a forum for users to add were canceled after the commissioners The website was prompted by TRAC’s personal experiences with FOIA denials. balked at the idea of conducting public own problems with FOIA lawsuits. Some Source: RCFP.org business in private. The meetings were to take place at an attorney’s office. While PETA sues for circus records ACCESS a meeting WASHINGTON – People for the Bailey Circus. MEETINGS of one Ethical Treatment of Animals (PETA) is The USDA investigated the cases, commissioner suing the U.S. Department of Agriculture which included the deaths of a lion and an and five elected constitutional officers (USDA) over records related to the deaths elephant and the beating of another young would not technically be a violation of two circus animals and the beating of elephant, but did not take any enforcement of the Sunshine Law, there could be a another. action. The USDA is responsible for problem if the constitutional officers PETA alleges that the USDA is enforcing the Animal Welfare Act. passed a commissioner’s comments improperly withholding records related PETA wants the USDA to hand over to another, Florida First Amendment to the government’s investigation of the records it contends are not covered by the Foundation Director Jim Rhea said. incidents. In the Freedom of Information exemptions cited by the USDA, including The meetings were requested by the Act lawsuit, PETA describes three cases the personal privacy exemption. constitutional officers after the county involving Ringling Bros. and Barnum & Source: Courthouse News Service administrator sent a memo stating that a $5 million budget shortage would need to be split among constitutional iPhone privacy case filed in Tampa officers and county departments. TAMPA – The controversy over Apple to use location-based maps and restaurant “There is nothing that we would iPhones tracking users’ locations could be recommendations. discuss in private that would not be decided in Tampa. A lawsuit was filed in However, some security consultants appropriate to discuss in a public federal court in seeking to create a class- contend that Apple iPhones and iPads keep setting,” Commissioner Dave Russell action suit and names logs of customer locations said. “In the spirit of openness and two Apple customers— even if the tracking transparency, the public should be Vikram Ajjampur of PRIVACY function is turned off. The involved in these talks.” Tampa and William suit alleges that Apple is Source: St. Petersburg Times Devito of New York. collecting highly personal data without The suit alleges violation of privacy customer consent and benefitting from the and violation of state and federal laws. value of the information. Apple iPhones track customer locations The suit is pending in the U.S. District for reasons such as helping customers Court for the Middle District of Florida. find lost phones and allowing customers Source: The Tampa Tribune

Brechner Center for Freedom of Information 3208 Weimer Hall, P.O. Box 118400 College of Journalism and Communications Newspaper blocks commenter University of Florida, Gainesville, FL 32611-8400 CRYSTAL RIVER –The Citrus remove the posts and prohibit her from http://www.brechner.org e-mail: [email protected] County Chronicle temporarily suspended posting for one week, according to the a candidate for county commission from Citrus County Chronicle. Sandra F. Chance, J.D., Exec. Director/Exec. Editor Christina M. Locke, J.D., Editor commenting on its website due to remarks Christopher-McPheeters apologized for Alana Kolifrath, Production Coordinator she posted. the comments but stood by her beliefs. The Brechner Report is published 12 times a Renee Christopher-McPheeters, Other Sound Off users posted year under the auspices of the University of Florida a frequent user of the “Sound Off” comments asking for removal of the posts Foundation. The Brechner Report is a joint effort feature of the Chronicle’s website, is a from the site and to ban Christopher- of The Brechner Center for Freedom of Information, the University of Florida College of Journalism and Republican in the 2012 race for county McPheeters from making posts. Communications, the Florida Press Association, commission. Chronicle Online Managing Editor the Florida Association of Broadcasters, the Florida Her remarks questioning a public John Murphy said a complete ban on posts Society of Newspaper Editors and the Joseph L. Brechner Endowment. official’s sexual preference and about from Christopher-McPheeters could be homosexuals in general prompted the possible if similar comments continue. Chronicle Online managing editor to Source: Citrus County Chronicle

The Brechner Report  June 2011 3 JanuaryJune 2011 2007

Media fights back against privatization of records New Jersey’s public access law emerged from the Many towns have turned their most public records, such Stone Age in 2002 after the Asbury Park Press and our as the payroll, over to private vendors for processing. Gannett newspaper group waged a five-year battle against The vendors, who are not covered by OPRA, can charge the dark lords of government secrecy. It wasn’t easy and any price they want to a requestor. it wouldn’t have been possible without the support and This is just plain bad for the public and bad for encouragement from the Brechner Center and its staff. freedom of information. This is also a new wrinkle in the My first foray into fighting government concealment of law, one that, I am sorry to say, has won some protection public documents was in 1997 with a series called “The in court. The Press filed suit against one town claiming Right to Know Nothing.” It won the Brechner Freedom of that letting a private company control access to public Information Award that year and gave us the boost to take Paul documents is tantamount to denying access to the public. the effort to the next level. D’Ambrosio A trial judge dismissed the case out of hand, saying In 1999, we surveyed more than 600 public bodies there was no basis to compel the town to give us the records for to prove how dismal our antiquated open records law was. The a nominal cost. We appealed. We won – sort of. The higher court “Public Access: Denied” series won a second Brechner award, but sent the case back to the judge and ordered him to hold a trial. we didn’t stop there. We spent the next three years writing almost I am certain that we will have to appeal and ultimately have the daily stories and editorials on why lawmakers won’t change the state Supreme Court issue a final ruling. law. The pressure worked. In 2002, our new Open Public Records This privatization of government documents is a growing Act, or OPRA, was passed. It was like a bucket of water had been concern not only for us, but across the country. I have run into tipped on the head of the wicked increasing resistance from government bodies for electronic The witch in Oz. Nearly every piece copies of payrolls. The honest ones tell me they don’t want to Back Page of paper, computer database see us post them on the web. Others dared us to sue, saying, “we By Paul D’Ambrosio and payroll was open to the have no canned report for what you are seeking.” Another said it public. Moreover, officials had would cost $910 to have its private vendor produce a spreadsheet to turn over documents within seven days of the request or face of 750 employees – about $1.21 per employee. One begrudgingly the prospect of a lawsuit. If the plaintiff won in court, all legal fees turned over a disk after two months and many letters from our would be paid by the offending government body. lawyers, but refused to give us the code sheet so we can translate Happy ending, right? Nope. In 2009, we published an expose the job and department codes into English. about New Jersey’s destructive property tax system called “The All this is a cautionary tale in vigilance. There are many ways Tax Crush,” the winner of this year’s Brechner FOI Award – our to obfuscate the intent of the law, which the dark lords of no- third. My staff and I filed about 100 Open Records requests for information skillfully use. Yet there are few citizens who have the all the salary and overtime reports in the towns that we cover. means to hire a lawyer in the hopes of winning a suit two or three Many towns complied. We found outrageous examples of police years down the road. chiefs in towns with fewer than 10,000 people making more than While New Jersey’s public access law is better today than it the head of the Philadelphia police department. We found huge was in 1997, it can always be better tomorrow. Whenever public payouts for public employees that topped $200,000. officials seek to hide their dealings from the public, we, as the But in some cases, we found nothing. We couldn’t. A number of media, must be there to fight for their right to know. towns told us we could have the information, but for a price. A big price. One small town said their payroll would cost us $1,100. Paul D’Ambrosio is the Regional Editor, Investigations and This is the new bureaucratic game of “keep away.” Interactive Media, for the Asbury Park Press. “Tax Crush” won the They can no longer deny requests for public information, but 2010 Brechner FOI Award and was a finalist for the 2010 Pulitzer they can assess citizens a “programming” or “special service” fee. Prize in Public Service. Read it online at www.app.com/TaxCrush.