Sunshine for Some

State Attorney Angela Corey has made public a mountain of evidence in the case against George Zimmerman for killing Trayvon Martin. As the special prosecutor assigned to the case, Corey has released hundreds of pages of documents, 911 recordings, crime scene photographs, surveillance video and other evidence. In Florida, such evidence becomes public under Florida’s public records laws when it is given to the defense through the rules of discovery.

For the media clamoring for information and competing to get the story out first, Corey set up Egnyte, an online site that provides instant access to the records. For a high-profile case like the Trayvon Martin killing, which is being followed by media nationally and internationally, she’s giving the same access to outlets such as The New York Times, The Florida Times-Union or The Guardian in England.

But in practice, Corey’s online access may violate the state Government in the Sunshine Act. The law says all public records in Florida are open to public inspection, and a public agency cannot impose rules and conditions that limit public access unless allowed under the law. The Egnyte site that the State Attorney’s Office created to view records in the case has only a limited number of spots, and they are all taken. When Folio Weekly asked for access to the online files, communications director Jackelyn Barnard said the system had reached its allotment of users. She offered a CD copy of the records, which the State Attorney’s Office would send by mail. She also sent an email to the current Egnyte users on July 16 requiring payment of $67.75 by a July 18 deadline for access to 145 of Zimmerman’s phone calls made from jail. When the deadline passed, Barnard sent an email stating eight news organizations — including The New York Times, CNN and Talking Points Memo — would be blocked from instant online access in the future because they had missed the deadline.

Barbara Petersen, president of the First Amendment Foundation, said Corey has placed artificial barriers to the public’s right to access. If it’s online for some people, she said, it should be online for everyone.

“This is baloney,” Petersen said. “This case is not just getting state attention, but national and international attention. It’s of huge public interest and they are throwing all these ridiculous barriers in front of getting critical information to the public.”

To those who pay late, or who ask for access now, she says, “They are saying, ‘sorry, you get second-rate access.’ ”

Asked for a list of Egnyte account holders, if the eight errant news organizations were blocked, and a request for comment on whether Egnyte violates public records laws, Barnard scheduled an 11 a.m. Aug. 9 interview with Assistant State Attorney Lisa DiFranza of the SAO’s Public Records Division.

But at 10:51 a.m., just before the interview, DiFranza cancelled. She said the State Attorney’s Office complies with Florida Statute, Chapter 119. “I believe our emails and a review of the Public Records Act will provide you with the answers you seek,” she said in an email, “therefore the 11 a.m. phone call will not be necessary.”

Folio Weekly’s review of the law prompted the questions, and Petersen reiterated her stance. “I believe the two-tiered right of access violates the spirit and intent of the Public Records Law,” said Petersen, “because it creates an artificial barrier to the public’s constitutional right of access to government records, and it may well constitute a violation of the law.”

Miami media law attorney Scott D. Ponce, who is representing a consortium of 13 media outlets including The New York Times in the George Zimmerman case, said that none of those organizations had raised the issue of access to information. He said, in general, anyone who pays the required fees should get equal access, but he said he didn’t have specific information about Zimmerman and access to discovery. Talking Points Memo reporter Nick Martin, who is covering the case, said his news organization had received the July 18 email, but he had no interest in talking about it.

Pat Gleason, who is the special counsel on open government for the State Attorney General, said that CNN and other banned outlets may have worked out payment with Corey, and she suggested Folio Weekly might be able to work out access for itself to an Egnyte account. Gleason said that Florida records law relating to public records on electronic files and databases is still being worked out. She couldn’t recall another situation where providing records electronically may have created an obstacle to public records.

Petersen said Corey could provide other means of instant access, like a drop box, that wouldn’t impose time and physical limitations. But Petersen admitted she, too, had never run across the issue before.

“I have never, never heard of anything like this,” she said, “because I think it is illegal under the law.”

Susan Cooper E

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