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MARCH 2019

Making campus cops see the sunlight

They carry guns, make arrests, wear badges, and drive cars that say "police" across the side. Officers on the campuses of dozens of private universities are indistinguishable from state, county or city police in every way but one: Accountability.
Only a handful of states explicitly require officers employed by private colleges and universities to abide by the same open-records standards as all other police forces -- even though the officers are deputized by the state to perform state duties.
The opaqueness of private-college police is in the spotlight as a result of an unfolding scandal at Brigham Young University, which is the subject of both an ongoing open-records lawsuit and a pending Senate bill that would extend Utah's open-records law to BYU police. But Utah is far from alone. The issue is playing out in courts and legislatures everywhere.

A coalition of First Amendment organizations led by the Brechner Center is asking a federal appeals court to recognize the rights of college students to use social media freely to speak about divisive social and political issues without fear of discipline.

In a brief filed with the Tenth Circuit U.S. Court of Appeals, the Center supports the appeal of a New Mexico medical student who was disciplined for a profane rant on a personal Facebook page that strongly condemned the abortion-rights movement, equating pro-choice advocates to Nazis. 
In the Feb. 7 brief, the Brechner Center and four other free-speech organizations argue that, contrary to the trial court's ruling, there is no "professionalism" exception to the First Amendment that permits a public university to enforce a "civility" policy penalizing political speech on social media on the grounds that it is disrespectful.

The brief points out that the issue of college punitive authority over off-campus, online speech is one of the most pressing contemporary First Amendment issues, badly in need of judicial clarification.

Read the brief here

After Parkland, Florida lawmakers consider shrouding crime-scene videos from public scrutiny

Access to surveillance videos from Marjorie Stoneman Douglas High School enabled journalists from the South Florida Sun-Sentinel to piece together a painstaking account of how emergency responders missed multiple chances to cut short a tragic February 2018 shooting rampage. Now, Florida lawmakers are working to make sure similar stories can't come to light in the future.
Senate Bill 186 by Sen. Tom Lee, R-Brandon, would exempt video of acts that "relate to" the killing of three or more people from Florida's open-records act. Although the bill has been promoted as an attempt to spare families from seeing gruesome photos of their loved ones' remains, the legislation is not limited to images of bodies and could be interpreted to include any footage captured in and around a crime scene.
Lee's measure has already cleared two Senate committees, despite opposition from open-government organizations, and appears destined to pass the Senate early in the just-convened 2019 session.

Read the full story...

"Marsy's Law" creating confusion in public access to crime information

Police and prosecutors are uncertain how to respond to a newly enacted Florida state constitutional amendment, known informally as "Marsy's Law," that strengthens crime victims' rights. Although Amendment 6 provides that victims may ask to have their names withheld, some agencies are taking names out of police records even without waiting for a request.

Full story: The Ledger

Advisory boards can still be subject to open-meetings statutes, AG advises

In a recent informal opinion letter, the Florida Attorney General's Office says that a citizen advisory board providing input to a mayor can be a "public body" subject to the state open-meetings law. The opinion says even meetings of advisory bodies can be subject to Florida's Sunshine Law if they go beyond mere fact-finding and are "part of a greater decision-making process."  

Read the advisory letter

USF plays hide-the-candidates as presidential search proceeds in secrecy

Florida is one of a handful of states that guarantee the public the right to have input into the selection of public university presidents, but universities and their hired executive-search consultants often balk at having to do business in the sunshine. At the University of South Florida in Tampa, campus stakeholders are frustrated that the search for a replacement to long-serving President Judy Genschaft, who is retiring after 18 years in office, is proceeding behind closed doors. Participants in USF's ongoing search process admit they're talking to potential candidates, but they insist that the names are not releasable to the public until the prospective candidates actually agree to have their names placed in nomination. There's no telling when the public will see a list of contenders, or how many names will be on it. In other states, it has become common for public university trustees to make the hire in total secrecy, releasing only a "finalist list of one."

Full story: Tampa Bay Times



The good, the bad, and the ugly on display in state FOI policy

Across the country, new governors are taking office and legislatures are opening their 2019 sessions, and with those developments comes progress, and retrenchment, in access to information.
The good: Making good on a campaign promise, Michigan's new governor, Gretchen Whitmer, banned state agencies under her control from using personal email accounts to conduct government business, and instructed agencies to minimize the routine practice of granting themselves extensions to fulfill public-records requests.
The bad: A state appeals court struck down a provision in the Texas open-meetings act making it a crime to conspire to hold "serial meetings" among less than a quorum of a public body, finding the restriction to be unconstitutionally vague. The only judicial recourse would be a long-shot petition for review by the U.S. Supreme Court, so lawmakers are instead discussing a legislative fix.
The ugly: One of the most universally reviled pieces of closed-government legislation in recent memory is oozing its way through the Kentucky legislature. HB 387 would excuse government agencies from responding to freedom-of-information requests from out-of-state residents, limit a requester's ability to appeal a public-records denial from the legislative branch, and more. The bill has cleared committee in the House and is ripe for a floor vote, then must go to the Senate.

Who guards the guardians?  

Tampa Bay's WFTS-TV used public records to raise troubling questions about how Florida polices the behavior of court-appointed guardians. Although the state supposedly began regulating these judicially appointed custodians in 2016, WFTS reported that no guardianship has been revoked and even serious accusations of wrongdoing result in nothing more than a warning letter. 

Open data from state and city governments is helping citizen watchdogs keep an eye on government agencies, especially law enforcement. The nonprofit Invisible Institute uses a combination of data released by Chicago police and records gathered through freedom-of-information requests to map the "hotspots" where police are most likely to face citizen complaints of misconduct. Check out the Citizens Police Data Project here, and learn the back-story about the litigation that compelled the city to release the data here.
Sort of a tossup this month for the most forehead-slappable moment, so why stop at one?
In Louisiana, a 32-year-old mother was arrested and charged with the "crime" of uploading a cellphone video of a school fight to social media, under a state statute that applies only to actual participants in the crime being filmed -- which she was not. (After a public outcry, prosecutors announced they'd withdraw the charge.)
Meanwhile, California Attorney General Xavier Becerra threatened two graduate-student journalism researchers at the University of California-Berkeley with legal action for the "crime" of possessing a public record that was freely given to them under California's Public Records Act: A database of applicants for police jobs who had criminal records. 
And at the University of Minnesota, officials tried to defend a bizarre campus policy that requires students making films for class (but not other journalists) to get university permission before shooting in any open area of the public university's campus and to refrain from capturing any university logos in their footage. 
Folks, this stuff isn't hard. Here's where to order a copy of the Constitution. It'll be the best $1.00 you ever spent.

Transparency and Privacy in Criminal Justice: Join the Conversation 

On April 4 and 5, experts from across the fields of law, journalism and technology will gather at UF's Levin School of Law to brainstorm about the most pressing issues in the field of access law, focusing on transparency in the criminal justice system. Among the topics will be: Accessibility of footage from police body-cams and drone-cams; the transparency of predictive policing algorithms; the nationwide "fresh start" campaign to seal criminal records; and Florida's pilot project to create a statewide sentencing database under the FDLE. The Brechner Center is a presenting sponsor of the event, "Technology, Media & Privacy Law."
Get your free ticket here
With the Florida legislature now in session, remember to follow and its "Fresh Take Florida" team, bringing you the latest updates on all the statehouse news. Fresh Take Florida is a partnership with the Miami Herald, the Tampa Bay Times, and the Associated Press, and you can find the team on Twitter at @WUFTcapitol and send story tips to
Copyright © 2019 Brechner Center for Freedom of Information, All rights reserved.
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