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JULY 2019
"Trade Secrets" and the public's oversight of industry: One legal step forward, two steps back

When businesses share records with government regulators, it’s assumed those records become accessible for the public to look at — whether the businesses like it or not. But that access can no longer be taken for granted, as industries are getting increasingly aggressive about claiming that just about anything shedding light on how they do business is a confidential “trade secret.” In Florida, a high-ranking state legislator had to file a lawsuit to find out that a state-funded tourism agency paid Miami rapper Pitbull $1 million to appear in a promotional campaign.

The Supreme Court isn’t helping. This term, the Court gave a breathtakingly broad interpretation to Exemption 4 of the federal Freedom of Information Act, which deals with trade secrets that fall into the hands of government agencies. But the federal setback was, at least partly, offset by a pro-disclosure bill in Texas that patches a giant "trade secrets" loophole created by the state Supreme Court.

More such battles are unavoidable, as private industry seeks to expand the notion of what qualifies as confidential information that justifies denying a public-records request.


Pulitzer Prize-winning reporter Sara Ganim joins Brechner Center as Hearst Journalism Fellow




Former CNN correspondent Sara Ganim, winner of the 2012 Pulitzer Prize for Local Reporting for her work on the Penn State sex-abuse scandal, joined the Brechner Center July 1 as the Center's first Hearst Journalism Fellow, a position made possible by a grant from the Hearst Foundations. She will be working with UF journalism and law students on in-depth research projects about secrecy in government, as part of the Brechner Center's "Data Deserts" initiative


South Florida appeals court rejects environmentalist's free-speech case, raising fears that citizens will be intimidated from speaking to elected officials

On June 19, 2019, Florida's Fourth District Court of Appeal ruled against environmental activist Maggy Hurchalla in a closely watched free-speech case, affirming a $4.4 million judgment in favor of a developer whose project Hurchalla spoke out against. The court’s analysis turned on whether Hurchalla’s communications with Martin County officials were protected under the First Amendment.

The case centered emails Hurchalla sent to Martin County Commission members in 2012 that expressed her concern with a mining project to be developed by Lake Point. Hurchalla, who'd served 20 years on the county commission, sent several emails to acquaintances on the board explaining her opposition and encouraging the county to withhold its approval. In her emails, Hurchalla included suggested talking points for her allies to use in persuading other commissioners. Martin County eventually delayed the development, and Lake Point sued both government regulators and Hurchalla. A jury awarded Lake Point $4.4 million in damages, and Hurchalla appealed.  

On appeal, Hurchalla argued that the trial court erred in failing to instruct the jury properly on a speaker's privilege to speak to elected government officials, under both the First Amendment and Florida common law. But the Fourth DCA rejected those arguments.

The court held that at least two of Hurchalla’s emails provided evidence that allowed the jury to conclude that she intentionally or recklessly made “purportedly factual statements” to encourage the Board to back out of the project. There was enough evidence, the court decided, for a jury to find that Hurchalla spoke with "malice," forfeiting her privilege under both state and federal law.

The opinion raises concerns for First Amendment and government access proponents, because it may inhibit people from speaking candidly to their elected leaders. Hurchalla plans to appeal.

Fourth DCA: Opinion.    Full Story: TC Palm.

Open-government advocates throw penalty flag on FSU's decision to "privatize" oversight of sports

Florida State University is turning over supervision of athletics to a newly created nonprofit "athletic association," which will entitle the university to take advantage of a loophole in Florida open-government laws that enables "direct support organizations" affiliated with state universitites to do their business behind closed doors. FSU denies that secrecy is the motive for the change.

Full story: The Washington Post


EDITORIAL: "Marsy's Law" denies the public access to essential information about public safety

A confusing new amendment to Florida's Constitution is causing police and prosecutors to withhold essential information that the public needs to help avoid and solve crimes, the Orlando Sentinel editorial board writes. "Marsy's Law" was intended to give crime victims a right of access to more information about the handling of their cases, but privacy wording in the referendum has led some law-enforcement agencies to conceal once-public information about crimes, including sketches of perpetrators.

Read more: The Orlando Sentinel

"Do-over" of secret-ballot vote remedies open-meetings lapse at development authority

After a city ethics officer said board members of the Jacksonville Downtown Investment Authority couldn't hire the agency's director by anonymous written ballots, the board re-voted with the members' signatures attached. No surprise, the outcome was the same.

Full story: Florida Times-Union

Open-government champion Barbara Petersen stepping down after 25 years of defending Florida FOI laws

Florida is losing its fiercest open-government advocate with the news that attorney Barbara Petersen will retire from the helm of the First Amendment Foundation at the end of 2019. Petersen took over leadership of the Foundation 25 years ago, after working as a legislative committee staff attorney. She elevated the prominence of the Tallahassee-based nonprofit and worked relentlessly to hold the line on efforts to roll back citizens' right of access to public meetings and records, often outgunned by monied special interests. The Foundation's board is launching a nationwide search for Petersen's successor.

Full story: Tampa Bay Times



Documenting tragic lapses in childcare safety

A year-long investigation by the Austin newspaper lit a fire under Texas legislators and the state Department of Family and Protective Services to strengthen state oversight of safety conditions in the daycare industry. The Austin American-Statesman was forced to sue for records of inspections of daycare centers, and its win produced revelations that led the state to reopen three cases in which childcare providers were initially cleared of wrongdoing after children died in their care. 

Read the series here.


Hiding in the Shadows of Privatization:
How Access to Public Records Suffers When Governmental Duties Are Contracted to Private Providers

By Linda Riedemann Norbut

It's become the all-too-common phenomenon in the arena of government transparency: Public agencies that are subject to Florida's "sunshine" laws are increasingly contracting out their core duties to private entities that are not subject to those same laws, shutting out the public's access to records that would otherwise be open. 

For the past several decades, we've seen the rise in privatization of government agency functions in our prison, school, and hospital systems, among others. It is the latter that now provides a test case in Florida's Second District Court of Appeal to determine how much governmental oversight of its privatized duties is required to hold those private companies subject to the state's Sunshine Laws. 

A pending case, Torres v. Sarasota Emergency Associates, involves Sarasota Memorial Hospital and its longstanding and exclusive relationship with a private entity that handles the public hospital's emergency-room services, including the integral responsibility of staffing and managing all of the hospital's ER medical team and support staff. News organizations argue that the company's records are subject to inspection because they are, for all intents and purposes, records of the public hospital.
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Fighting back against "secret police" on college campuses

How police use their authority is the public's business, even if their employer is a private corporation. That's the bottom line of a brief filed June 28 in the Utah Supreme Court on behalf of the Brechner Center and nine other media and open-government organizations, urging the court to uphold a 2008 ruling that opens up police reports at Brigham Young University for public inspection. The brief is part of the Brechner Center's "Shadow Governments" project, working to make sure open-government laws extend to all essential government functions, even those performed by private entities.
Copyright © 2019 Brechner Center for Freedom of Information, All rights reserved.
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