Welcome,

Sunshine Symposium

• Friday, September 24, 2010
• 9 a.m. - 4 p.m.
• St. Petersburg Times, St. Petersburg, FL

An all day session geared towards reporters, bloggers, citizen activists on open government, how to obtain public records, and media law issues. Presenters will include Barbara Petersen, President of the First Amendment Foundation; Joe Adams, author of the Florida Public Records Handbook; and members of the Florida Bar Media Law Committee.

Litigation Seminar

• Saturday, September 25, 2010
• 9 a.m. - 5:30 p.m.
• Tampa Marriott Waterside Hotel and Marina, Tampa, FL

All day session for attorneys interested in learning more, including practical tips, on litigating open government issues. This course has been approved by The Florida Bar for 7.5 CLE hours.

Keynote Speaker: Lucy Dalglish, Executive Director, Reporter's Committee for Freedom of the Press
Moderator: Jon Kaney, Attorney at Law
Attorney Presenters: Pat Gleason; Gregg Thomas; Michael Barfield; Matthew Leish; Andrea Mogensen

The Silver Anniversary Dinner with P.J. O'Rourke

• Saturday, September 25, 2010
• 6 p.m. - 9 p.m.
• Tampa Marriott Waterside Hotel and Marina, Tampa, FL

Charles Dickens described March as a month when the sun shines hot and the wind blows cold; when it is summer in the light and winter in the shade. The past month was a lot like that for open government in Florida. During March, the First District Court of Appeal issued a ruling on sunshine that was definitely chilling. The month also brought our state legislators back to Tallahassee for the 2010 legislative session and, with them, a lot of work for the First Amendment Foundation. As of the end of the month, we’re following 117 bills that could impact open government in Florida. A few of these bills would lead to more sunshine but, unfortunately, a lot of the bills would cloud the atmosphere in the state.

Recommendations of the Commission on Open Government

One of the very important bills of the 2010 legislative session that would improve open government is the result of Governor Charlie Crist’s Commission on Open Government, which was chaired by the Foundation’s President, Barbara Petersen. After touring the state and taking testimony from Floridians about the problems they have getting public records and accessing public meetings, the commission issued a final report making numerous recommendations to rectify problems in current law. Commission member Senator Paula Dockery, R-Lakeland, filed Senate Bill 1598 and Representative Clay Ford, R-Pensacola, filed the House companion, HB 1211, which contain many of the Commission’s recommendations. While SB 1598 received 4 committees of reference in the Senate, as of this date, the bill has passed out of two committees and is now in its last substantive committee, Governmental Oversight and Productivity. It is hoped that the bill will be heard in that committee before session ends and get to the Senate floor for a vote.

Unfortunately, HB 1211 has yet to have its first hearing in a committee in the House of Representatives. The bill has been stuck in the Governmental Affairs Policy Committee, which is chaired by Representative Robert Schenck, R-Spring Hill. It isn’t clear why Representative Schenck has not scheduled the bill for a hearing but getting the bill heard in at least one committee of reference in the House is imperative to save the bill. Given that regular committee meetings in the House have concluded, the committee will have to get approval for any additional meetings. That isn’t impossible but it definitely is another obstacle to overcome.

Access Preserved (at least for now…)

In contrast to the snail’s pace at which HB 1211 has moved in the House, a bill that would close access to 911 recordings was fast-tracked, getting a hearing in the Governmental Affairs Policy Committee early in process. PCB GAP 10-03, dubbed “The Tiger Woods Relief Act,” would have dramatically expanded an existing exemption for identifying information by exempting the entire 911 tape and would have extended the scope of the exemption to all public agencies. Adding insult to injury, the bill would have allowed access to a transcript of the 911 tape but not until 60 days after the emergency call. The person requesting the transcript would have been required to pay BOTH the cost of transcription AND the fees allowed under ch. 119, which could have been hundreds, if not thousands, of dollars. Oh, and did we mention that we discovered that these tapes are only retained under the retention schedule for 30 days so it might not have been possible even to get a transcript?

Preserving access to 911 recordings is very important if the public is to assert any sort of oversight of our emergency services departments. We need to know whether the police responded to an emergency call in a timely manner or if they gave preference to a good neighborhood over a less desirable one. Given the lack of training in Florida for 911 operators, we need to know if they respond properly or inappropriately. One Florida editor estimates that less that public record requests are made for less than 2% of all 911 calls. But, certainly, the fear that they could be made public is the one way our vitally-important emergency management agencies are being held accountable.

Some examples of problems with emergency services uncovered through access to the 911 recording:

• In Miami Beach, police officers yelled epithets at a tourist and falsely accused him of trying to break into cars after the tourist witnessed the officers kicking a handcuffed man at a local park. The officers didn’t realize the tourist was on his cell phone reporting the beating to a 911 dispatcher.
• In Tampa, a 911 dispatcher didn’t follow procedure and as a result, the caller died.
• In Detroit, a 911 dispatcher chastised a small boy for “playing on the phone” while his mother was unconscious. When the police arrived, the mother was dead.
• In Memphis, a 911 dispatcher fell asleep after asking, “What’s your emergency?”

Fortunately, after receiving much media coverage, it appears that PCB GAP 10-03 was derailed during “Sunshine Week,” when the Florida House Speaker withdrew his support for it. Whether the PCB remains permanently derailed remains to be seen. We’ll be watching.

Hurricane Season Comes Early

One of the biggest disappointments so far in 2010 was the March ruling by the First District Court of Appeal in the case Keesler and Boyd v. Community Maritime Park Associates, Inc. The Community Maritime Park Associates, Inc. (CMPA) a not-for-profit corporation charged by the City of Pensacola with overseeing the development of a parcel of public waterfront property, and an entity subject to the sunshine, conducted public meetings but did not permit the public the right to speak at those meetings. Keesler and Boyd sued over the refusal of the CMPA to let citizens speak at these meetings. The lower court found in favor of the CMPA and Keesler and Boyd appealed.

In the opinion, the district court reviewed language in two Florida Supreme Court cases that dealt with public participation in public meetings. In Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969), the Florida Supreme Court stated that

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country…

After the Doran case, however, the Florida Supreme Court again discussed the rights of members of the public to participate in public meetings in the case Wood v. Marston, 442 So. 2d 934 (Fla. 1983). In that case, the court reviewed the applicability of the sunshine law to a committee delegated by a university president to solicit and screen applicants for the deanship of a college. The Florida Supreme Court determined that the committee’s meetings were improperly closed but went on to state that “nothing in this decision gives the public the right to be more than spectators. The public has no authority to participate in or to interfere with the decision-making process.”

The district court noted that the appellants had failed to point to any case construing the phrase “open to the public” to grant the public the right to speak, and in light of the Marston case, which it noted was dicta, stated that “we are not inclined to broadly construe the phrase as granting such right here.”

The First DCA ruling in the Maritime case is obviously very chilling. As the Florida Supreme Court noted in the Doran case

Regardless of their good intentions, these specified boards and commission, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

According to Sharon Barnett, attorney for Keesler and Boyd, a number of post-decision motions were filed with the court on March 25^th and that are awaiting action. Given the significance of the holding, the Foundation will definitely continue to follow this very important case.

Follow the legislative bills we will be tracking throughout the 2010 Legislative Session. As usual, we have selected those bills with open government and first amendment implications we think will be of interest to our members. During session, we will report any activity on these bills, as well as any new legislation that may be filed, on a weekly basis.

The First Amendment Foundation has many members of all types and it isn’t easy to decide each month which one to highlight. Since Tallahassee is a hotbed of issues this time of year that impact open government and since the capital’s newspaper has helped to focus attention on the importance of open government, the Foundation would like to highlight the Tallahassee Democrat and its Executive Editor Bob Gabordi as our “Member of the Month.”

The Tallahassee Democrat was founded as a weekly newspaper in 1905 by John G. Collins, who promised the newspaper would be dedicated to the “true and tried principles of Old Time Democracy.” The Democrat became a daily newspaper in 1915 and began publishing online in 1996. The newspaper was privately owned until 1965, when it was bought by Knight Newspapers, which merged in 1974 with Ridder Publications to become Knight-Ridder Inc. The newspaper was purchased in 2005 by Gannett Corp., the nation’s largest newspaper chain. The Democrat has also been one of the Foundation’s earliest supporters.

Bob Gabordi, 53, has been executive editor of the Democrat and Tallahassee.com since Aug. 30, 2005, when Gannett Co. Inc. acquired the newspaper. He has spent most of his 31-plus year career as a journalist with Gannett in various reporting and editing roles, including top editor roles in Marietta, Ohio, Huntington, WV, Asheville, NC, and now Tallahassee. Under his leadership, the Tallahassee Democrat and the Gannett Florida Capital Bureau have tackled important public service projects, twice winning Gannett’s top awards for public service journalism. He is a three-time winner of Gannett’s President’s Ring given to the company’s finalists for editor of the year. His blog has won the top award from the Florida Society News Editors two years in a row. During the 2010 legislative session, Gabordi has used his blog to keep the heat on the Legislature to pass SB 1598 and HB 1211, companion bills that contain many of the recommendations of the Governor’s Commission on Open Government. Hopefully, Gabordi’s persistence will ensure final passage of this important open government legislation.