THE BRECHNER REPORT Volume 37, Number 6 A monthly report of mass media law in Florida Published by The Brechner Center for College of Journalism and Communications University of Florida June 2013 U.S. Supreme Court upholds Virginia FOI law WASHINGTON, D.C. – A of California and Rhode Island cumbersome state FOIA process cannot unanimous U.S. Supreme Court ruled challenged a Virginia law granting be said to impose any significant that states are free to let only their “citizens of the Commonwealth” but burden,” adding that most of the own citizens make requests under no one else the right to inspect and information is available in other ways, their freedom of information laws, copy “all public records,” The Wall the opinion stated. according to The New York Times. Street Journal reported. In an amicus brief, the Reporters In McBurney v. Young, the justices The residents claimed the law Committee for Freedom of the Press upheld a Virginia law limiting out- violated portions of the Constitution argued that the Virginia Freedom of of-state residents’ meant to put Information Act (VFOIA) hurt the access to public residents of states media’s ability to do its job. records, according FREEDOM on equal footing “By largely limiting public records to The Washington OF INFORMATION within the context of access in Virginia to commonwealth Post. In doing fundamental rights, citizens, VFOIA inhibits the media so, the Court dismissed arguments according to The Post. from acquiring newsworthy records and that the public and the press hold In the opinion written by Justice stymies efforts to provide state-by-state broad rights of access to government Samuel Alito, the Court found that comparisons on important topics such information across state lines, holding access to state government information as public education, healthcare, and law that the states do not violate the U.S. wasn’t among the “fundamental” enforcement activities,” the brief stated. Constitution when their public records privileges and immunities that needed More than half a dozen other states laws prevent out-of-state residents to be honored across state lines, have similar laws, according to The from accessing government records, according to the opinion. According Journal. according to the Reporters Committee to Alito, “requiring noncitizens to Sources: The New York Times, The for Freedom of the Press. conduct a few minutes of Internet Wall Street Journal, The Washington The case arose when residents research in lieu of using a relatively Post, RCFP.org AEJMC takes stance against leak prosecutions WASHINGTON, D.C. – In a recent and covert actions,” according to the requisite freedom of speech and the statement, the Association for Education statement. press.” in Journalism and Mass Communication The statement noted the six charges The prosecution also “sends a message (AEJMC) took a stance against the brought by the current administration to the rest of the world that the United current administration’s prosecution under the Espionage Act illustrate States’ actions are not fully aligned with of those who have leaked secret the “current administration’s zeal in its stated ‘exceptional’ commitment to information. prosecuting those in government who freedom of speech and the press as a In a statement, AEJMC wrote that leak secret information.” human right,” according to “[t]he Pentagon Papers, Watergate, the In its first 92 years, the statement. Iran-Contra affair and the existence of the Act was used only FIRST The statement said the clandestine CIA prisons are examples three times to prosecute AMENDMENT organization is “committed in which secret government information government officials for to freedom of speech and was leaked to and publicized in the news leaking information, according to the the press in the United States and abroad” media. statement. and “believes that this commitment must “In these and in many other cases, The statement said the prosecution include a free exchange of information the dissemination of secret information of U.S. Pfc. Bradley Manning, who is and ideas, even some information that the served a greater good to American charged with leaking secret government U.S. government considers or wishes to be society by informing the public and by documents to the WikiLeaks website, ‘secret.’” allowing for a needed debate on the appears to be “excessively punitive, Source: Association for Education in ethics of secret government policies with a chilling effect on a democracy’s Journalism and Mass Communication FREEDOM OF INFORMATION CONTINUED Appeals court says requesters can immediately sue WASHINGTON, D.C. – A federal working days – or up to 30 days in Federal Elections Commission (FEC) appeals court ruled that individuals seeking “unusual circumstances” – and that the in February 2011. A day later, the FEC records under the federal Freedom of agency was not required to detail what acknowledged CREW’s request and Information Act (FOIA) can immediately documents it would produce and why, agreed to hand over all non-exempt sue agencies that do not respond to their according to the Reporters Committee for documents, but never specified what requests in a timely manner. Freedom of the Press. A requester had to documents would be sent over or the A three-judge panel for the U.S. exhaust an appeals process before filing exemptions that applied. Court of Appeals for the D.C. Circuit suit, which would ultimately delay the CREW filed suit in May after failing unanimously ruled that requesters may requester’s ability to access a record. to receive any documents, according to immediately sue a government agency if Writing for the panel, U.S. Circuit the Reporters Committee for Freedom of the agency does not adequately respond to Judge Brett M. Kavanaugh ruled the Press. The FEC argued CREW should the request within 20 days without filing requesters could immediately file a lawsuit have filed an administrative appeal before an administrative appeal, according to the against the agency if it failed to provide its suing since they technically responded opinion. “determination” within the 20 days. to the request within 20 working days, Previously, federal agencies interpreted The issue arose when Citizens for according to RCFP.org. FOIA as requiring only that the agency Responsibility and Ethics in Washington Sources: RCFP.org, Citizens for acknowledge the request within 20 (CREW) filed a FOIA request with the Responsibility and Ethics in Washington Computer system blamed for LPD records lapse LAKELAND – The Lakeland Police wife, the newspaper had the copies of The State Attorney’s Office provided Department (LPD) blames its “antiquated” the records in hand. But Tom Trulson, the records in each case requested by The computer system for its inability to find the police department’s public records Ledger when LPD could not, according to records related to a newspaper’s request response coordinator, said he was unable The Ledger. for records, according to a statement by to find any case dealing with Enzor in “To me it shows that they aren’t the department. 2010, The Ledger reported. necessarily withholding records, but are Twice in two months, In another instance, LPD unable to produce records they should LPD was unable to produce could not find files related to clearly have,” Assistant State Attorney records requested by The ACCESS Bernando Copeland, who was Brian Haas of the Bartow State Attorney’s Ledger, stating that files RECORDS a suspect in a battery case Office told the paper. related to criminal cases on which it involving a shooting two months before Cap. John Thomason of LPD told The worked did not exist. In each case, the he was accused in another, The Ledger Ledger in an email that although LPD is newspaper was able to obtain the records reported. A review of the case file showed able to search and find thousands of cases from other sources, according to The “significant gaps in the department’s and information on these cases each year, Ledger (Lakeland). response” to the battery case against LPD’s computer search system is being When The Ledger made its request Copeland, according to the newspaper. replaced with a “state-of-the-art records to LPD for records related to Reginald In both cases, the individuals were not and communication system,” according to “Snooky” Enzor, a 35-year-old man arrested quickly and were later accused of the paper. serving a life sentence for killing his more serious crimes. Source: The Ledger (Lakeland) Judge defers ruling on Fox News confidential sources COLORADO – A Colorado district of her sources told her that prior to the of the Colorado Press Shield Law judge refused to rule on whether a Fox shooting, Holmes sent a notebook to a will ensure that journalists maintain News reporter must release the names of University of Colorado psychiatrist. At the independence they need from the her confidential sources, stating the issue the time Winter’s story went to press, the judicial process to report the news,” said was not “ripe” for a decision. notebook was considered sealed evidence, Reporters Committee for Freedom of the In his order, Colorado District Judge according to Foxnews.com. Press Executive Director Bruce D. Brown Carlos Samour Jr. also stated he will not Colorado shield law in an affidavit submitted to rule on requiring Jana Winter’s testimony offers qualified protection the court. “A court order until he decides whether a notebook for journalists’ sources if COURTS compelling Ms. Winter to mailed by James Holmes, accused of the information sought is divulge her confidential murdering 12 people and injuring 58 integral to the case and is not available sources would frustrate the ability of others in the shooting rampage in Aurora, from another source, and if the need reporters across the state to gather the Colo., is admissible evidence in his for that information outweighs the First information necessary to keep the public murder trial, according to Foxnews.com. Amendment interests of the reporter and informed about the criminal justice Winter broke an exclusive story on the public. system.” Foxnews.com in which she revealed one “Careful application of all the elements Sources: Foxnews.com, RCFP.org

2 The Brechner Report  June 2013 ACCESS RECORDS CONTINUED Activist sues over access to gay marriage study ORLANDO – LGBT activist, writer because many of the records are housed point,” Becker told Knightnews.com. and blogger John Becker filed a public on UCF servers and UCF “resources and “Our policy is to comply with Florida’s records lawsuit against the University of materials” were used to review and select important open records laws,” said Grant Central Florida (UCF) Board of Trustees the paper for publication. Becker filed Heston, UCF Associate Vice President and President Dr. John C. Hitt. suit after the university denied his public of Communications & Public Affairs, The lawsuit seeks a copy of research records request relating to the publication according to the paper. “In this instance, by Mark Regnerus, a University of Texas of the research, according to Knightnews. these emails are not related to university professor, cited in briefs and at oral com, an independent student news outlet business and therefore are not public arguments before the U.S. Supreme Court, at UCF. documents subject to disclosure. At this suggesting gay marriage could have “My interest in filing this Sunshine time, UCF has not been served with a negative effects on children. It alleges Law request is to discover the truth about lawsuit.” that UCF should be forced to turn over the peer review and publishing of the Sources: Knightnews.com, Becker v. records relating to the research paper Regnerus paper, which is unknown at this UCF Board of Trustees Brothers file lawsuits in Palm Beach County PALM BEACH COUNTY – Joel and transportation in Palm Beach County, and The Chandlers say that “Florida Robert Chandler, brothers who pursue asked to see the visitor log but was told he Sunshine law assures immediate access to open government and operate an open would have to file a public records request most public records and doesn’t require government blog called fogwatch.com, downtown, according to The Palm Beach people to identify themselves or complete filed four lawsuits in Palm Beach County, Post. a form beforehand,” according to The Post. alleging violations of the state’s Public In another, Joel Chandler said he The Chandlers have already filed Records Law. requested the police duty roster for the city similar lawsuits against Boynton Beach, In one of the lawsuits, Joel Chandler of Atlantis and was told by a detective that the Palm Beach Sherriff’s Office and said he visited the headquarters of he would have to come back the next day, Greenacres, according to the paper. PalmTran, a company providing public The Post reported. Source: The Palm Beach Post Judge grants injunction against Sarasota task force SARASOTA – A judge granted a meetings on homelessness in Sarasota are cancelled its sixth meeting and stopped temporary injunction in response to subject to Florida’s Open Meetings Law “any action or recommendation” of the a complaint filed by the because they include appointed task force, “including the expenditure government-watchdog public officials, meet regularly of any public funds that occurred as organization, Citizens for ACCESS and make recommendations to a result of any prior meeting” that Sunshine. MEETINGS local governments, according to was not properly noticed, the Herald- The organization filed the Sarasota Herald-Tribune. Tribune reported. the complaint, claiming the task force Following the injunction, the group Source: Sarasota Herald-Tribune AP wins copyright lawsuit against news clipping service Brechner Center for Freedom of Information NEW YORK – A federal judge ruled harmed the creator of expressive content 3208 Weimer Hall, P.O. Box 118400 that an Internet news clipping service protected by the Copyright Act,” Cote College of Journalism and Communications University of Florida, Gainesville, FL 32611-8400 violated The ’ copyright wrote in her opinion. http://www.brechner.org when it redistributed The AP’s news Though Meltwater performs an e-mail: [email protected] stories. important function for its clients in Sandra F. Chance, J.D., Exec. Director/Exec. Editor U.S. District Judge Denise Cote monitoring how they are covered in the Kara Carnley, Editor rejected defendant Meltwater News press, that “does not outweigh the strong Alana Kolifrath, Production Coordinator Service’s claim that its public interest in The Brechner Report is published 12 times a use of stories drawn the enforcement of year under the auspices of the University of Florida from a scan of 162,000 COPYRIGHT the copyright laws Foundation. The Brechner Report is a joint effort of The Brechner Center for Freedom of Information, news websites was a or justify allowing the University of Florida College of Journalism and fair use of copyright-protected material. Meltwater to free ride on the costly news Communications, the Florida Press Association, “Through its use of AP content and gathering and coverage work performed the Florida Association of Broadcasters, the Florida Society of Newspaper Editors and the Joseph L. refusal to pay a licensing fee, Meltwater by other organizations,” according to the Brechner Endowment. has obtained an unfair commercial order. advantage in the marketplace and directly Source: The Associated Press

The Brechner Report  June 2013 3 JuneJanuary 2013 2007

A Global Freedom of Information Request The pitch to my editors was simple: Can we file During the last week of January 2011, AP reporters a Freedom of Information request in every country around the world requested answers to the same six that has a law or constitutional provisions promising questions in 105 countries and the . government transparency? We hand delivered letters in Liberia, logged into a They went for it. website in Mexico, picked up the phone in Portugal, A quick count found 105 countries that fit the and sent a certified letter to Japan. bill, mostly introduced in the past five or six years. With our FOI requests filed, we began looking for Transparency is now being tied to foreign aid, and people behind the numbers. But the data from the there are strong grassroots movements, boosted by Martha Mendoza FOI responses was arriving in more like a trickle. WikiLeaks revelations, pressing for it as well. By the Surprisingly, the quickest and most responsive end of 2010, governments had made access to information a legal governments tended to be smaller, less developed countries like right to 85 percent of people in the world. The execution was not Guatemala and Georgia. going to be so simple. This would be the first worldwide test of On Sept. 4, 2011, we published the first part of a two part FOI. Nonetheless, The Associated Press was a strong advocate series, Convicted for Terror. After the horror of Sept. 11, 2001, for freedom of information, and its reporters in the U.S. routinely more than 170 countries passed or revised anti-terror laws, at use right-to-know laws. With professional journalists all around the urging and often with the funding of the U.S. and the United the world, we were perfectly positioned to pull this off. Nations. Now, in the first tally of global terror prosecutions,The The AP’s international editor John AP found at least 35,000 people have been convicted and almost Daniszewski was enthusiastic, 120,000 had been arrested as terrorists over the past decade. Back Page with consummately cheerful And while some bombed hotels or blew up buses, others were By Martha Mendoza international enterprise editor thrown into jail for waving a sign or blogging about a protest. Mary Rajkumar taking on the Two months later we published Access Denied, in which heavy lifting. We had no clue how much work this was going to we reported that more than 5.3 billion people in more than 100 be, hundreds upon hundreds of FOI requests in at least a dozen countries now have the right – on paper – to know what their different languages, predawn conferences, country-by-country government is doing behind closed doors. However, in the first reports, reporting from remote Turkey to bustling Chinese cities. worldwide test of freedom of information, The AP found that The question to query came to us quickly. The 9-11 more than half the countries with freedom of information laws anniversary was approaching. Why not take a first-ever look at do not follow them. the impact of the global war on terror? Until now, no one had The projects ran on dozens of front pages, and each tracked how many people had been arrested and how many had showcased in Yahoo News’ top stories for more than a day and been convicted as terrorists in the past decade, when almost reaching the top ten of the most popular stories for hours. We every country had adopted legislation. We framed our had thousands of responses to the stories online. In response questions, consulting with FOI experts and researchers who had to our efforts, the British House of Commons Library made written extensively on government transparency. Our greatest an urgent request for the entire terrorism package, saying AP’s asset was AP’s own FOI lawyer Karen Kaiser, with whom we decision to post all its data “has been very helpful.” The State narrowed down exactly what to ask for, troubleshooting for Department and the U.N. also requested all of the material. possible pitfalls that could result in rejections or stonewalling. The AP is humbled and grateful this work was recognized We settled on six questions aimed at finding out how many by University of Florida’s Brechner Center for Freedom of people had been arrested, and how many convicted, on anti-terror Information. charges in the past ten years. Who were these people, and what were their alleged acts of terror, we asked. What happened to Martha Mendoza is a writer for The Associated Press and the them? winner of the 27th Annual Brechner FOI award.