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JUNE 2019
SPOTLIGHT STORY

Supreme Court puts journalists at greater risk when covering crime scenes, protests

It’s an oddball set of facts: At a yearly booze-soaked festival in a remote mountain village about 250 miles northeast of Anchorage, police officers arrest a man who interjected himself into their interrogation of a partygoer suspected of underage drinking. Russell Bartlett claims his arrest was retaliatory for, earlier in the evening, having told one of the officers that he wasn’t interested in answering questions.

Bartlett’s First Amendment challenge to the charges of disorderly conduct and resisting arrest became the vehicle for a May 28 U.S. Supreme Court ruling, Nieves v. Bartlett, that portends danger for journalists working in high-security areas where confrontations with police are common.

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BRECHNER BREAKTHROUGH 

Opening university finances to public scrutiny


As part of the Brechner Center's "Shadow Governments" project to shed greater light on the workings of secretive "quasi-governmental" organizations, the Center teamed with media lawyers from Virginia's LeClairRyan, PLLC, to file a brief in support of requesters seeking access to public records from the private fundraising arm of George Mason University in Fairfax. 
George Mason is the largest public university in Virginia, but -- as with many state universities -- its fundraising foundation is set up as a nonprofit corporation. As a nominally private business, the foundation claims to be exempt from Virginia's Public Records Act.
The amicus brief to the Virginia Supreme Court was joined by the Student Press Law Center, National Freedom of Information Coalition, Society of Professional Journalists, Reporters Committee for Freedom of the Press, and the GMU chapter of the American Association of University Professors.
It argues that, contrary to the claim that the GMU foundation is an independent entity not controlled by the university, it is completely intertwined with the state, using a state email address and website, the services of state employees, and other such benefits, making its records every bit as "public" as those of the university itself.

Read the brief here.
FLORIDA FOCUS

Unprecedented overseas "Cabinet meeting" goes on, as Florida judge refuses to enjoin state officials from doing official business abroad

It was largely a ceremonial meeting with little state business done, but open-government advocates say Florida's governor and independently elected Cabinet violated the Sunshine Law by convening 6,500 miles from their Tallahassee meeting room during a trade mission to Israel.
The meeting was beamed from Jerusalem into the state Capitol conference room that normally hosts the monthly sessions, where Gov. Ron DeSantis meets with the state's attorney general, chief financial officer and agriculture commissioner to vote on executive business. But almost no one attended the May 29 telecast, which was plagued by technical glitches.
A circuit judge in Leon County refused to grant an emergency motion by the nonprofit First Amendment Foundation and four news organizations to enjoin the meeting from going forward. The challengers argued that, under Florida's rigorous open-meetings law, government business must take place in a location where Floridians can realistically attend. 

Read the judge's opinion here.
 

New FOI exemptions conceal records of voter-rights restoration, mass-killing victims


With Gov. Ron DeSantis' signature, the prodigious list of categories of records that Florida agencies can withhold from the public -- 1,122 exemptions and still counting -- continued to expand. 
House Bill 281 creates a new Open Records Act exemption for voter-registration records of minors or of released felons who apply to have their voting rights restored. Journalists have used access to those records to raise questions about favoritism in granting ex-offenders' petitions. Such stories will be harder, if not impossible, for journalists to pursue in the future as a result of the exemption.
Under Senate Bill 186, law enforcement agencies can withhold access to video footage depicting the bodies of victims in mass killings (defined as the killing of three or more people). The bill was described as an effort to spare victims' families from trauma, but skeptics saw the involvement of gun-industry lobbyists concerned that publicizing mass shootings would fuel gun-control legislation. (The bill originally would have closed access to all videos that "relate to" a mass killing, but was diluted to apply only to footage that shows bodies of victims.)

Full story: Tallahassee Democrat 

 

Appeal slated in Sarasota hospital records case involving privatized E.R. services


Open-government advocates are urging Florida's Second District Court of Appeals to reverse a ruling that narrowly construed the state's open-records law to deny a requester access to business records of a Sarasota hospital that are held by three companies providing emergency medical services within the public hospital  as contractors.
The Brechner Center joined the First Amendment Foundation and Florida Press Association in signing a friend-of-the-court brief filed June 3 that urges the appeals court to look beyond the corporate status of the contractors to their function and relationship with the public hospital. As the brief explains, these  "businesses" exist for no purpose other than to provide core medical services at Sarasota Memorial Hospital that the hospital would be required to provide itself. Under Florida's public-records law, records of how those services are provided should be public, even if held by private entities.
The brief was filed by two former Brechner Center lawyers, Mark Caramanica and Linda Riedemann Norbut, with the Tampa office of Thomas & LoCicero PL.

Read the amicus brief.
 

 

STATEHOUSE SWEEP

Western lawmakers advance journalists' access rights


Spring brings the conclusion of most state legislative sessions, and highly anticipated reforms survived some 11th-hour drama to pass in several western states.

With Gov. Jared Polis' signature, Colorado became the 31st state with an "anti-SLAPP" statute that protects speakers against frivolous harassment lawsuits meant to deter them from addressing issues of public concern. The law provides an expedited process for getting Strategic Lawsuits Against Public Participation dismissed. 

Texas media organizations fended off an attempt by business lobbyists to gut that state's anti-SLAPP law, passing a much more limited clarifying measure (HB 2730) that Gov. Greg Abbott signed into law.

 



In Nevada, an overhaul of the state's Public Records Law passed on the session's final evening. Senate Bill 287 will limit charges for public records to just the minimal paper-and-ink expenses of making copies, clarifies that agencies must provide responsive records within five days of a request unless they provide a valid legal excuse to the requester, and puts teeth into the law with financial penalties for "willful" noncompliance. 
 
In a long-awaited ruling clarifying what qualifies as a confidential "education record" that can be withheld from public disclosure, a Kentucky appeals court ordered the University of Kentucky to produce records requested by journalists that reflect how the university responded to sexual harassment complaints filed by students against employees. The case involves a public-records request by the Kentucky Kernel student newspaper, which sought the outcomes of investigations where faculty members were accused of sexually harassing students. The university claimed that the records were so secret under the Family Educational Rights and Privacy Act that they couldn't even be shown to the state's own attorney general for an indepdendent legal ruling -- but the Kentucky Court of Appeals disagreed and ordered the documents produced with only minimal redactions to protect the identities of the student complainants. 
Read the Court of Appeals opinion here...
ACCESS ALL-STARS
The American Bar Association will present its highest journalism award in July to two teams of reporters whose investigative work helped deepen the public's understanding of the American legal system and its shortcomings:

Sign Here to Lose Everything, a Bloomberg investigation that exposes how poorly regulated lending companies, relying on an obscure legal document known as a “confession of judgment,” exploited the New York courts to obtain more than 25,000 judgments worth $1.5 billion against borrowers who had unwittingly signed away their appeal rights.
 

Silver Gavel Salute




Protecting the Shield,” a 19-part newspaper series by the Asbury Park Press that exhaustively documents how New Jersey’s fragmented police oversight system regularly allowed known violent cops to remain on the job, putting the public's safety at risk and resulting in multiple court judgments against municipalities across the state. 
 
EXPERT COMMENTARY

“Denied Justice”: Change-making investigative reporting, made possible by access to law enforcement records

By MaryJo Webster
Minneapolis Star-Tribune

In a series of stories published in 2018, the Star Tribune revealed systemic flaws in how Minnesota’s criminal justice system handles sexual assault cases. This series, called “Denied Justice,” laid bare problems that had never before been brought to public attention, and as a result, led to significant reforms throughout the state.

This project would have been impossible without public access to law enforcement investigative reports. Unlike in some other states, these crucial documents are available in Minnesota once a case is closed or becomes inactive.

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WELCOME ABOARD

Welcome, Rachael Jones

The Brechner Center is delighted to welcome attorney Rachael Jones aboard, effective June 17, as our Legal Fellow for 2019-20.
Rachael, who graduated from the University of Florida with a B.A. of Fine Arts in Theater and received her J.D. from the Levin College of Law, is currently senior law clerk to Judge Scott D. Makar of Florida's First District Court of Appeal. She has worked as a fellow at the Center for Media Law and Policy at UNC-Chapel Hill and the Reporters Committee for Freedom of the Press. In fall 2020, she will become the law clerk for Judge W. Louis Sands of the U.S. District Court for the Middle District of Georgia.
WHAT WE'RE READING
On their way out of a city council meeting, two council members use Facebook's Messenger to exchange remarks about the testimony they've just heard in a zoning hearing. Are those messages discoverable as a matter of public record? 
In an article for the Stetson Journal of Advocacy and the Law, the journal's recently graduated editor, Kasey A. Feltner, answers "yes," and explains why public officials have no defensible right of personal privacy in messages that concern their governmental duties, regardless of the medium.
 


The article focuses on how citizens involved in land-use disputes may be able to use messages exchanged by elected officials outside of public meetings as ammunition in legal challenges to those decisions, citing a Martin County, Fla., case. 
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