HomeMy Public PortalAboutPRR 16-2356Renee Basel
From: Chris O'Hare <chrisoharegulfstream@gmail.com>
Sent: Thursday, October 20, 2016 8:13 PM
To: Bill Thrasher; Rita Taylor; Renee Basel; Trey Nazzaro
Subject: Public Record Request - spoliation letter 6-21-12
Dear Custodian of Records,
I request to inspect certain public records* in the custody of the Town of Gulf Stream
Florida.** The records I want to inspect is any letter that was delivered by Federal Express to
the Town dated June 21, 2012; the subject of which is regarding: O'Hare adv. Town of Gulf
Stream et al/ Demand for Preservation of Information.
While I am not statutorily obligated to explain why I want to inspect these records, I tell you it is for the
purpose of informing myself of the historic and current workings of the Town of Gulf Stream and its
associated entities, vendors, consultants, advisers, contractors and agents. The records I wish to
inspect may also be material to current, anticipated or presently unforeseen legal action. The
production of any and all responsive records is therefore urgent and must be acted upon in
compliance with Florida Statutes and established case law as soon as possible.
Before making this public record request, I first searched online and in the public records portion of
your agency's website hoping I could locate the public records I seek without having to write you
directly. Unfortunately I cannot find the records I wish to inspect. Therefore I am writing you now and
requesting you make every effort as required by law to produce these public records without delay.
I make this request pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of
the Florida Statutes. I hereby reserve all rights granted to me under the Florida
Constitution and Florida Statutes.
I ask that you take the following action:
Read this entire request carefully and respond accordingly.
If you are not the custodian of the public records described herein please determine
who that person is and notify me immediately in order that I may make this request to
the appropriate person without delay.
• Reference Florida Statutes and appropriate case law when responding to this record
request.
• Do NOT produce any records other than records responsive to this request.
" I d e n t i f y b y n a m e t h e p e r s o n o r p e r s o n s r e s p o n d i n g t o t h i s r e q u e s t i f t h a t p e r s o n i s n o t
t h e C u s t o d i a n o f R e c o r d s f o r y o u r a g e n c y a s r e q u i r e d b y 1 1 9 . 0 7 ( 1 ) ( b ) .
" R e s p o n d t o t h i s p u b l i c r e c o r d r e q u e s t i n a s i n g u l a r m a n n e r a n d d o n o t c o m b i n e t h i s
r e q u e s t w i t h a n y o t h e r p u b l i c r e c o r d r e q u e s t s w h e n r e s p o n d i n g t o t h i s r e q u e s t .
" O n c e y o u h a v e d e t e r m i n e d t h a t y o u d o o r d o n ' t h a v e a n y r e c o r d s i n y o u r
c u s t o d y r e s p o n s i v e t o t h i s r e q u e s t , i m m e d i a t e l y a c t t o o b t a i n a n y r e s p o n s i v e r e c o r d s
t h a t m a y b e i n t h e c u s t o d y o f y o u r c o n t r a c t o r ( s ) o r o t h e r p a r t i e s .
" P r o v i d e o n l y t h o s e r e c o r d s f o r i n s p e c t i o n t h a t d o n o t r e q u i r e e x t e n s i v e u s e o f
i n f o r m a t i o n t e c h n o l o g i e s o r e x t e n s i v e s t a f f t i m e o r b o t h i n e x c e s s o f 1 5 m i n u t e s .
" I f r e c o r d s r e s p o n s i v e t o t h i s r e q u e s t a r e n o t p r e s e n t l y a v a i l a b l e b u t y o u e x p e c t t h a t
t h e y w i l l s o o n b e a v a i l a b l e I r e q u e s t t h a t y o u p r o d u c e t h e r e c o r d s a s s o o n a s t h e y a r e
a v a i l a b l e .
I a s k y o u t o t a k e n o t e o f � 1 1 9 . 0 7 ( 1 ) ( c ) F l o r i d a S t a t u e s a n d y o u r a f f i r m a t i v e o b l i g a t i o n t o ( 1 )
p r o m p t l y a c k n o w l e d g e r e c e i p t o f t h i s p u b l i c r e c o r d s r e q u e s t a n d ( 2 ) m a k e a g o o d f a i t h e f f o r t w h i c h
" i n c l u d e s m a k i n g r e a s o n a b l e e f f o r t s t o d e t e r m i n e f r o m o t h e r o f f i c e r s o r e m p l o y e e s w i t h i n t h e a g e n c y
w h e t h e r s u c h a r e c o r d e x i s t s a n d , i f s o , t h e l o c a t i o n a t w h i c h t h e r e c o r d c a n b e a c c e s s e d . " I a m ,
t h e r e f o r e , r e q u e s t i n g t h a t y o u n o t i f y e v e r y i n d i v i d u a l a n d e n t i t y i n p o s s e s s i o n o f r e c o r d s t h a t m a y b e
r e s p o n s i v e t o t h i s p u b l i c r e c o r d s r e q u e s t , i n c l u d i n g i n d i v i d u a l s a n d e n t i t i e s u n d e r c o n t r a c t w i t h y o u r
a g e n c y , t o p r e s e r v e a n d p r o d u c e a l l r e s p o n s i v e r e c o r d s o n a n i m m e d i a t e b a s i s .
I f y o u c o n t e n d t h a t a n y o f t h e r e c o r d s I a m s e e k i n g , o r a n y p o r t i o n t h e r e o f , a r e e x e m p t f r o m
i n s p e c t i o n o r d i s c l o s u r e p l e a s e c i t e t h e s p e c i f i c e x e m p t i o n a s r e q u i r e d b y � 1 1 9 . 0 7 ( 1 ) ( e ) o f t h e F l o r i d a
S t a t u t e s a n d s t a t e i n w r i t i n g a n d w i t h p a r t i c u l a r i t y t h e b a s i s f o r y o u r c o n c l u s i o n s a s r e q u i r e d
b y � 1 1 9 . 0 7 ( 1 ) ( f ) o f t h e F l o r i d a S t a t u t e s . P r o d u c e f o r m y i n s p e c t i o n a l l r e s p o n s i v e r e c o r d s a n d O N L Y
r e d a c t t h a t p o r t i o n o f t h e r e c o r d t h a t y o u c o n s i d e r e x e m p t . T o b e c l e a r , i f y o u c o n s i d e r a n e n t i r e
r e c o r d t o b e e x e m p t , p r o d u c e t h a t r e c o r d i n i t s e n t i r e t y w i t h a l l p o r t i o n s r e d a c t e d t h a t y o u c o n s i d e r
e x e m p t . I s p e c i f i c a l l y a s k y o u t o d o t h i s i n o r d e r t h a t I m a y i n s p e c t f u l l y r e d a c t e d r e c o r d s f o r t h e
p u r p o s e o f c h a l l e n g i n g a p a r t i c u l a r r e d a c t i o n o r e s t a b l i s h i n g a r e f e r e n c e f o r a f u t u r e r e q u e s t o f a
r e c o r d t h a t i s o n l y t e m p o r a r i l y e x e m p t , a s i n t h e c a s e o f a p u b l i c r e c o r d t h a t w a s p r e p a r e d b y a n
a g e n c y a t t o r n e y e x c l u s i v e l y f o r l i t i g a t i o n a n d i s o n l y e x e m p t f r o m d i s c l o s u r e u n t i l t h e c o n c l u s i o n o f t h e
l i t i g a t i o n .
I f t h e p u b l i c r e c o r d s b e i n g s o u g h t a r e m a i n t a i n e d b y y o u r a g e n c y o r c o n t a c t o r s f o r y o u r a g e n c y , i n a n
e l e c t r o n i c f o r m a t p l e a s e p r o d u c e t h e r e c o r d s i n t h e o r i g i n a l e l e c t r o n i c f o r m a t i n w h i c h t h e y w e r e
c r e a t e d o r r e c e i v e d . S e e � 1 1 9 . 0 1 ( 2 ) ( f ) , F l o r i d a S t a t u t e s .
A g a i n I a s k t h a t y o u p r o v i d e o n l y t h o s e r e c o r d s f o r i n s p e c t i o n t h a t d o n o t r e q u i r e e x t e n s i v e u s e o f
i n f o r m a t i o n t e c h n o l o g i e s o r e x t e n s i v e s t a f f t i m e o r b o t h i n e x c e s s o f 1 5 m i n u t e s . T a k e n o t e
o f � 1 1 9 . 0 7 ( 4 ) ( a ) 3 . ( d ) F l o r i d a S t a t u e s a n d i f y o u a n t i c i p a t e t h a t a n y r e c o r d s e x i s t , t h e p r o d u c t i o n f o r
i n s p e c t i o n o f w h i c h w i l l r e q u i r e e x t e n s i v e u s e o f i n f o r m a t i o n t e c h n o l o g i e s o r e x t e n s i v e s t a f f t i m e o r
b o t h i n e x c e s s o f 1 5 m i n u t e s , t h e n p l e a s e p r o v i d e t h o s e r e c o r d s t h a t c a n b e p r o d u c e d w i t h i n t h e f i r s t
1 5 m i n u t e s a n d a d v i s e m e o f t h e c o s t y o u a n t i c i p a t e t o b e i n c u r r e d b y y o u r a g e n c y f o r t h e r e m a i n i n g
r e c o r d s p r i o r t o i n c u r r i n g t h i s c o s t . P l e a s e d o n o t i n c u r a n y c o s t s o n m y b e h a l f w i t h o u t f i r s t o b t a i n i n g
m y w r i t t e n a u t h o r i z a t i o n t o p r o c e e d . I f y o u p r o d u c e o n l y a p o r t i o n o f a l l e x i s t i n g r e s p o n s i v e r e c o r d s ,
please tell me that your response includes only a portion of all existing records responsive to this
request.
If you anticipate the need to incur any costs that I would be statutorily required to pay in order to
inspect these public records which would exceed $1.00 please notify me in advance of your incurring
that cost with a written estimate of the total cost. Please be sure to itemize any estimates so as to
indicate the total number of pages and/or records, as well as to distinguish the cost of labor and
materials. Again, please do not incur any costs on my behalf without first obtaining my written
authorization to proceed.
A record that does not exist because of its disposition requires the creation of a disposition record. In
all instances where you determine a record does not exist please determine if the record once existed
and in its replacement provide the disposition record for my inspection.
*The term public records, as used herein, has the same meaning and scope as the definition of Public
records adopted by the Florida Legislature as Statutes Chapter 119.
**The phrase Town of Gulf Stream when used herein refers to the Town in its entirety and all entities
of the Town including all employees, appointees, officials, assignees, counsel and consultants
including Town Manager, Town Clerk, Town Police Chief, Town Commissioners, Town Mayor, Town
Departments, Town Police Officers, Town Employees, Town Staff Attorney, Town Engineer, the law
firm (Jones Foster Johnston & Stubbs P.A.) that claims to be the Town Attorney including all attorney,
partner and employee members of that firm; the Town Counsel of Sweetapple, Broeker &
Varkus including all attorney, partner and employee members of that firm, the Town Counsel
of Richman Greer, P.A. including all attorney, partner and employee members of that firm and any
other entity associated with the Town and subject to public records law.
If you do not understand any part of this request or if you need clarification about this request, notify
me as soon as possible so I may further describe or clarify this request.
All responses to this public records request should be made in writing to the following email address:
chrisoharegulfstream@gmail.com
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
October 24, 2016
Chris O'Hare [mail to: chrisoharegulfstreamna gmail.com]
Re: GS #2356 (spoliation letter 6-21-12)
I request to inspect certain public records* in the custody of the Town of Gulf Stream Florida.**
The records I want to inspect is any letter that was delivered by Federal Express to the Town dated
June 21, 2012; the subject of which is regarding: O'Hare adv. Town of Gulf Stream et al/Demand
for preservation of Information.
Dear Chris O'Hare [mail to: chrisoharegulfstream(a)gmail.coml:
The Town of Gulf Stream has received your public records requests dated October 20, 2016. The
original public records requests can be found at the following links:
h"://www2.gulf-stream.org/weblink/O/doc/I 03206/Pagel.asnx
Please be advised that the Town of Gulf Stream is currently working on a large number of
incoming public records requests. The Town will use its very best efforts to respond to you in a
reasonable amount of time with the appropriate response or an estimated cost to respond.
Sincerely,
R%ld Jz"441 $true
As requested by Rita Taylor
Town Clerk, Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
November 15, 2016
Chris O'Hare [mail to: chrisoharegulfstreamegmail.coml
Re: GS #2356 (spoliation letter 6-21-12)
1 request to inspect certain public records* in the custody of the Town of Gulf Stream Florida. **
The records I want to inspect is any letter that was delivered by Federal Express to the Town
dated June 21, 2012; the subject of which is regarding: O'Hare adv. Town of Gulf Stream et al/
Demand for preservation oflnformation.
Dear Chris O'Hare [mail to: chrisoharegulfstreamaa,gmail.coml:
The Town of Gulf Stream has received your public records request dated October 20, 2016. Your
original public records request and response can be found at the following link:
httv://www2.gulf-stream.org/weblink/O/doe/I 03197/Pagel.aspxx
We have also attached the response for your convenience. We consider this request closed.
Sincerely,
1zSiD" R4 -W" $wizl'
As requested by Rita Taylor
Town Clerk, Custodian of the Records
102 NE SNvnd Street, Suite 179
tkwa Raton, Florida 33432
tel 561.3639900 fat 561.368&199
June 21. 2012
Garret Ward. Chief of Police
Town of Gulfstream
100 Sea Road
Gulfstream, FL 33483
Via Federal Express
w•ww•.ca rtcrla wfi nn. u%
405 Overbnook
Rozentan, Montana 59715
tel 4W-582.7552 fax •[M W22-0190
Re: O'Hare adv. Town of Gulf Stream et al/ Demand for Preservation of Information
Dear Sirs:
Please be advised that I represent Mr. and Mrs. Christopher O'Hare with regard to their claims
arising from the unlawful conduct of Officer Ginsberg that occurred at 2520 Avenue Au Solcil
on: 10/28/11: 12/27/11; 12/28/11; 3/5/12: and 3/20/12 ("Incidents").
Demand is hereby made for you to take all reasonable and necessary action to preserve all
documents, tangible things or electronically stored information that has any reference or
connection in any way to the above Incidents. For purposes of this request, the term "you" and
"vouf' refers to Mr. Thrasher. Officer Ginsburg, Chief Ward and the Town of Gulf Stream
generally. It is expected that much of the information within the scope of the demand may be
stored on your current and former computer systems and other media and devices. As to
electronically stored information ("ESI") this should be afforded die broadest possible definition.
Accordingly. ESI includes (by way of example and not as an exclusive list) any potentially
relevant information that is electronically, magnetically or optically stored as:
• Digital communications (e.g.. e-mail. voice mail, instant messaging);
• Word processed documents (e.g.. Word or WordPerfect documents and drafts):
• Image and Facsimile Files (e.g...PDF..TIFF. .JPG. .GIF images):
• Sound Recordings (e.g., . WAV and .MP3 files):
• Video Recordings (e.g., .AVI and .MOV files):
• Databases (e.g.. Access, Oracle. SQL Server data. SAP);
• Contact and Relationship Management Data (e.g., Outlook. ACT!);
• Calendar and Diary Application Data (e.g., Outlook PST. Yahoo, blog tools):
• Online Access Data (e.g.. Temporary Internet Files. History, Cookies):
Demand for Preservation of Evidence
Page 2 of 5
• Network Access and Server Activity Logs; and
• Back Up and Archival Files (e.g.. Zip, .GHO)
Preservation Requires Immediate Intervention
It is essential that you understand that adequate preservation of information requires more than
simply refraining from efforts to destroy or dispose of potentially relevant evidence. You must
immediately act to intervene in preventing loss due to routine operations and employ proper
techniques and protocols suited for the protection of any information that is within the scope of
this demand.
Be advised dial sources of ESI arc commonly altered and erased by continued use of computers
and other electronic devices that contain ESI. Booting a drive, examining its contents or running
any application may irretrievably alter the information it contains and may constitute unlawful
spoliation of evidence. Consequently, alteration and erasure may result from your failure to act
diligently and responsibly to prevent loss or corruption of ESI. This specific reference to ESI
should be understood to diminish your concurrent obligation to preserve documents and other
tangible things that potentially contain relevant evidence.
Suspension of Routine Destruction
You are further directed to immediately initiate a litigation "hold" procedure for potentially
relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and
audit compliance with such litigation "hold" procedure. You are further directed to immediately
identify and modify or suspend features of your information systems and devices that, in routine
operation, operate to cause the loss of potentially relevant ESI. Examples of such features and
operations include:
• Purging the contents of e-mail repositories by age. capacity or other criteria;
• Using data or media wiping, disposal, erasure or encryption utilities or devices;
• Overwriting, erasing, destroying or discarding back up media;
• Re -assigning, rc-imaging or disposing of systems, servers, devices or media;
• Running antivirus or other programs affecting wholesale metadata alteration;
• Releasing or purging online storage repositories;
• Using metadata stripper utilities:
• Disabling server or IM logging:
• Executing drive or file defragmentation or compression programs.
Guard Against Deletion
You should anticipate that your individuals with access to ESI and other information may seek to
hide, destroy or alter it. You are directed to take action to prevent or guard against such actions.
Especially where government machines have been used for Internet access or personal
communications, you should anticipate that users may seek to delete or destroy information they
regard as personal, confidential or embarrassing and, in so doing, may also delete or destroy
Demand for Preservation of Evidence
Page 3 of 5
potentially relevant ESI. This concern is not one unique to die Town of Gulf Stream or its
employees and officers. It's simply an event that occurs with such regularity in electronic
discovery efforts that any custodian of ESI and their counsel are obliged to anticipate and guard
against its occurrence.
Preservation by Imaging
You arc also directed to take affirmative steps to prevent anyone with access to data, systems and
archives from seeking to modify, destroy or hide electronic evidence on network or local hard
drives (such as by deleting or overwriting Files, using data shredding and overwriting
applications, defmgmentation. re-imaging or replacing drives, encryption, compression,
steganography or the like). With respect to local hard drives, one way to protect existing data on
local hard drives is by the creation and authentication of a forensically qualified image of all
sectors of die drive. Such a forensically qualified duplicate may also be called a bit stream image
or clone of the drive. Be advised that a conventional back up of a hard drive is not a forensically
qualified image because it only captures active, unlocked data files and fails to preserve
forensically significant data that may exist in such areas as unallocated space, slack space and the
swap file.
With respect to the hard drives and storage devices of the individuals named herein as well as
any other person likely to have information pertaining to any of the above instances, demand is
made for you to immediately obtain. authenticate and preserve forensically qualified images of
the hard drives in any such computer system (including portable and home computers) used by
that person from August 29. 2011 through the date of this demand. Demand is further made for
you to record and preserve the system time and date of each such computer. Once obtained, each
such forensically qualified image should be labeled to identify the date of acquisition, the person
or entity acquiring the image and the system and medium from which it was obtained. Each such
image should be preserved without alteration.
Preservation in Native Form
You should anticipate that certain ESI will be sought in die form or Forms in which it is
ordinarily maintained. Accordingly, you should preserve ESI in such native forms, and you
should not select methods to preserve ESI that remove or degrade the ability to search your ESI
by electronic meats or make it difficult or burdensome to access or use the information
efficiently in the litigation. You should additionally refrain from actions that shift ESI from
reasonably accessible media and forms to less accessible media and forms if the effect of such
actions is to make such ESI not reasonably accessible.
Metadata
You should further anticipate the need to disclose and produce system and application metadata
and act to preserve it. System meladata is information describing the history and characteristics
of other ESL This information is typically associated with tracking or managing an electronic file
and often includes data reflecting a file's name, size, custodian, location and dates of creation
and last modification or access. Application metadata is information automatically included or
embedded in electronic files but which may not be apparent to a user, including deleted content,
Demand for Preservation of Evidence
Page 4 of 5
draft language, commentary, collaboration and distribution data and dates of creation and
printing. Be advised that metadata may be overwritten or corrupted by careless handling or
improper steps to preserve ESL For electronic mail, metadata includes all header routing data
and Base 64 encoded attachment data. in addition to the: To, From. Subject, Received Date, CC
and BCC Gelds.
Servers
With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange,
Lotus Domino) or network storage (often called a user's "network share"), die complete contents
of each user's network share and e-mail account should be preserved. There are several ways to
preserve the contents of a server depending upon. e.g., its RAID configuration and whether it can
be downed or must be online 34/7.
Home Systems, Laptops, Online Accounts and Other ESI Venues
It is expected that you will act swiftly to preserve data on office workstations and servers and
immediately determine if any home or portable systems contain potentially relevant data. To the
extent that persons may have sent or received potentially relevant e-mails or created or reviewed
potentially relevant documents away from the office, you must preserve the contents of systems,
devices and media used for these purposes (including not only potentially relevant data from
portable and home computers. but also from portable thumb drives. CD -R disks and the user's
PDA, smart phone, voice mailbox or other forms of ESI storage). Similarly, the contents of
browser -based email accounts or services (such as AOL, Gmail, Yahoo Mail or the like) used to
send or receive potentially relevant messages and attachments, should be preserved.
Ancillary Preservation
You must preserve documents and other tangible items that may be required to access, interpret
or search potentially relevant ESI, such as logs. naming protocols, file lists, data entry forms,
abbreviation keys, user ID and passwords. You must also preserve any cabling, drivers and
hardware that may be needed to access or interpret media on which ESI is stored. This includes
tape drives, bar code readers, Zip drives and other legacy or proprietary devices.
Paper Preservation of ESI is Inadequate
As hard copies do not preserve electronic searchability or metadata. they are not an adequate
substitute for, or cumulative of, electronically stored versions. If information exists in both
electronic and paper forms. you should preserve both forms.
Third Parties
Your preservation obligation extends beyond ESI in your care, possession or custody and
includes ESI in the custody of others that are subject to your direction or control. Accordingly.
you must notify any current or former employee, custodian or contractor in possession of
potentially relevant ESI to preserve such ESI to the full extent of your obligation to do so, and
Demand for Preservation of Evidence
Page 5 of 5
you must take reasonable steps to secure their compliance.
System Sequestration
It is strongly suggested that all ESI systems and hardware used by the above named individuals
be removed from service and sequestered. In the event you deem it impractical to sequester
systems and devices you should consider creating forensically sound imaging of the systems and
devices. As it is reasonable to expect the future aced for forensic examination of one or more of
the systems and devices, you should employ forensically sound ESI preservation methods.
Failure to use such methods poses a significant threat of spoliation and data loss. "Forensically
sound preservation" requires that any duplication of ESI be done only while using tools and
methods that make no changes to the evidence and support authentication of die duplicate as a
true and complete bit -for -bit image of die original. A forensically sound preservation method
guards against changes to mctadata evidence and preserves all parts of die electronic evidence,
including in the so-called "unallocated clusters," holding deleted files.
Preservation Protocols
I am amenable to working with you to agree upon an acceptable protocol for forensically sound
preservation of media to be preserved. It should be understood that a successful and compliant
ESI preservation effort will require technical expertise. You are urged to engage the services of
an expert in electronic evidence and computer forensics.
Do Not Delay Preservation
It is essential that you immediately under take preservation efforts. Should you fail to preserve
potentially relevant evidence and this results in the corruption, loss or delay in production of
evidence to which we will be entitled in a future lawsuit, such failure will be deemed to
constitute Spoliation of Evidence.
Confirmalion of Compliance
Please confirm by July 3. 201.2 that you have taken the steps outlined in this demand to preserve
all information in your possession, custody or control that exists in connection with the Incidents.
If you have do not undertake the steps outlined above please describe what you have done to
ensure dint adequate preservation takes place.
Thank you very much.
R c[Fully,
John E. Carter, Ecq.
Cc: John Randolph. Esq.