HomeMy Public PortalAboutPRR 16-2377Renee Basel
From: Chris O'Hare<chrisoharegulfstream@gmail.com>
Sent: Tuesday, November 1, 2016 12:41 PM
To: Bill Thrasher; Rita Taylor; Renee Basel; JOConnor@jonesfoster.com;
rsweetapple@sweetapplelaw.com; GRichman@richmangreer.com
Subject: Public Records Request - Comm. - CA 502013CA018102XXXXMB
Dear Custodian of Records,
I request to inspect certain public records" in the custody of the Town of Gulf Stream' or in the custody of its agents or
associated entities.
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. In addition,
inspection of these records may be essential to my ability to make informed comments in an
upcoming public hearing. 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.
The public records I request to inspect may be in the custody of an entity currently or previously
associated with, or under contract with, your agency. As a courtesy to you and that entity, and to
assist in expediting my access to inspect records responsive to this request I am notifying this
entity of this request by copy of this email. I am NOT requesting this entity produce responsive
records directly to me. Rather I am alerting them to my request to you so that they may prepare to
assist you, if they choose to, in producing responsive records. Do not assume my act of copying this
entity with this request relieves you of any of your duties under Florida Statute. I ask that you contact
this entity yourself in order to obtain all Public records responsive to this request if those records are
not all in your custody.
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.
• Identify by name the person or persons responding to this request if that person is not the Custodian of
Records for your agency as required by 119.070)(b).
• Respond to this public record request in a singular manner and do not combine this
request with any other public record requests when responding to this request.
• Once you have determined that you do or don't have any records in your
custody responsive to this request, immediately act to obtain any responsive records
that may be in the custody of your contractor(s) or other parties.
• Provide only those records for inspection that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes.
• If records responsive to this request are not presently available but you expect that
they will soon be available I request that you produce the records as soon as they are
available.
I ask you to take note of §119.07(1)(c) Florida Statues and your affirmative obligation to (1)
promptly acknowledge receipt of this public records request and (2) make a good faith effort which
"includes making reasonable efforts to determine from other officers or employees within the agency
whether such a record exists and, if so, the location at which the record can be accessed." I am,
therefore, requesting that you notify every individual and entity in possession of records that may be
responsive to this public records request, including individuals and entities under contract with your
agency, to preserve and produce all responsive records on an immediate basis.
If you contend that any of the records I am seeking, or any portion thereof, are exempt from
inspection or disclosure please cite the specific exemption as required by §119.07(1)(e) of the Florida
Statutes and state in writing and with particularity the basis for your conclusions as required
by §119.07(1)(f) of the Florida Statutes. Produce for my inspection all responsive records and ONLY
redact that portion of the record that you consider exempt. To be clear, if you consider an entire
record to be exempt, produce that record in its entirety with all portions redacted that you consider
exempt. I specifically ask you to do this in order that I may inspect fully redacted records for the
purpose of challenging a particular redaction or establishing a reference for a future request of a
record that is only temporarily exempt, as in the case of a public record that was prepared by an
agency attorney exclusively for litigation and is only exempt from disclosure until the conclusion of the
litigation.
If the public records being sought are maintained by your agency or contactors for your agency, in an
electronic format please produce the records in the original electronic format in which they were
created or received. See §119.01(2)(f), Florida Statutes.
Again I ask that you provide only those records for inspection that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes. Take note
of §119.07(4)(a)3.(d) Florida Statues and if you anticipate that any records exist, the production for
inspection of which will require extensive use of information technologies or extensive staff time or
both in excess of 15 minutes, then please provide those records that can be produced within the first
15 minutes and advise me of the cost you anticipate to be incurred by your agency for the remaining
records prior to incurring this cost. Please do not incur any costs on my behalf without first obtaining
my written authorization to proceed. If you produce only a portion of all existing responsive records,
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.
I request to inspect any public records* of communications between any of those entities
identified herein as the Town of Gulf Stream** that is solely regarding case
number 502013CA018102XXXXMB.
*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. Due to issues of delivery failure and occasional
rejection by your server this email is being sent to multiple recipients to insure prompt delivery.
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
November 2, 2016
Chris O'Hare [mail to: chrisoharegulfstream6E�gmail.coml
Re: GS #2377 (Comm. - CA 502013CA018102XXXXMB)
I request to inspect anypublic records* ofcommunications between any of those entities identified
herein as the Town of Gulf Stream** that is solely regarding case number
502013CA018102 .
Dear Chris O'Hare [mail to: chrisoharegulfstream(a)gmail.coml:
The Town of Gulf Stream has received your public records requests dated November 1, 2016. The
original public records request can be found at the following link:
httv://www2.gulf-streatn.org/weblink/O/doc/103415/Pagel.ast)x
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,
I�
�f RAWA41 DF�u
As requested by Rita Taylor
Town Clerk, Custodian of the Records
TOWN OF GULF STREAM
PALM BEACH COUNTY, FLORIDA
Delivered via e-mail
January 26, 2017
Chris O'Hare [mail to: chrisoharegulfstream@,gmail.coml
Re: GS #2377 (Comm. - CA 502013CA018102XX3CXMB)
I request to inspect any public records* of communications between any of those entities
identified herein as the Town of Gulf Stream ** that is solely regarding case number
502013CA018102,V I1B.
Dear Chris O'Hare [mail to: chrisoharegulfstream(7a,gmail.coml:
The Town of Gulf Stream has received your public records request dated November 1, 2016.
You should be able to view your original request and partial response at the following link:
hLtp://www2.gulf-stream.org/weblink/O/doc/I 03415/Page l . aspxx
You have asked that the Town only provide those records that do not require extensive use of
information technologies or extensive staff time or both in excess of 15 minutes and that the
Town provide an estimate of the cost that would be required to fulfill the request as permitted by
the Public Records Act. To that end, the Town has spent at least 15 minutes on your request and
is providing with you with a response at the same link above.
While we believe that these are "any records of communication" responsive to your request, to
be sure of that fact, the Town requests a deposit for an additional half hour of IT support at
$95.00 per hour and a half hour of administrative support at $37.34 per hour, the labor cost of the
personnel providing the service, per Fla. Stat. § 119.07(4)(d).
If the costs of producing these documents will exceed your deposit, the Town will provide you
with an initial production of responsive records and an estimate for the production of any
additional responsive records. If the costs of production are less than the deposit, the Town will
provide you with the responsive records and a refund.
(1/2 hour @ 95.00 + 1/2 hour at 37.34) = Deposit Due: $66.17 in cash or check.
Upon receipt of your deposit, the Town will use its very best efforts to further respond to your
public records request in a reasonable amount of time. If we do not hear back from you within
30 days of this letter, we will consider this request closed.
Sincerely,
RM' d RAW"
As requested by Rita Taylor
Town Clerk, Custodian of the Records
Renee Basel
From: Macfarlane, Mary <MMacfarlane@jonesfoster.com>
Sent: Friday, April 11, 2014 11:57 AM
To: Bill Thrasher
Cc: OConnor, Joanne M.
Subject: O'Hare v Gulfstream - 502013CA018102XXXXMB AA
Attachments: 1J26705 -motion sanctions.PDF; 1126722 -motion summaryjudgment.PDF
Attached please find a Motion for Summary Judgment and Motion for Sanctions filed in the above -referenced
matter yesterday.
JONESFOSTER
Mary T. Macfarlane Secretary to H. Adams Weaver and Joanne M. O'Connor
Direct Dial: 561.650.0496 1 Fax: 561.650.5300 1 mmacfarlane0lionesfoster.com
Jones, Foster, Johnston & Stubbs, P.A.
F7agler Center Tower, 505 South Elagler Drive, Suite 1100, West Palm Beach, Florida 33401
561-659-3000 1 www.jonesfoster.com
U.S. Treasury Regulation Circular 230 requires us to advise you that written communications issued by us are not intended to
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IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO: 502013CA018102)OCXX IB AA
CHRISTOPHER F. O'HARE,
Plaintiff,
VS.
TOWN OF GULF STREAM,
Defendant.
DEFENDANT'S MOTION FOR SANCTIONS
PURSUANT TO FLA. STAT. 857.105
Defendant, Town of Gulfstream ("Defendant" or the "Town"), moves the Court to
sanction Plaintiff, Christopher F. O'Hare, and his counsel, Mark J. Hanna, jointly and severally
(collectively "Plaintiff'), pursuant to Section 57.105, Florida Statutes. In support, the Town
states as follows:
1. By his Verified Complaint to Enforce Florida's Public Records Act and for
Declaratory, Injunctive and Monetary Relief ("Verified Complaint"), Plaintiff has sued the Town
in two counts for alleged violations of Florida's public records laws, Chapter 119, Fla. Stat.
Plaintiff asserts (1) an unreasonable delay in responding to a public records request and (2) the
alleged imposition of an unlawful "automatic delay."
2. Plaintiff asserts that the following request, made on September 26, 2013 and
renewed on October 22, 2013 (the "Variance Information Request"), constituted a request for
public records to which the Town unreasonably delayed in responding:
The specific section number AND section language of the Town of Gulf Stream
Code that provides for an applicant to apply for a variance from the regulations of
Chapter 70 of the Town's Zoning Code.
(Compl. at ¶ 17 & Ex. A; Compl. at ¶ 22 & Ex. D) (emphasis added).
3. Plaintiff further contends that correspondence that the Town sent him on
September 27, 2013 imposed an unlawful automatic delay on a public records request. (Comp].
¶¶ 18, 41-43 & Ex. B).
4. For all of the reasons detailed in the Town's contemporaneously filed Motion for
Judgment on the Pleadings or, Alternatively, for Summary Judgment, Plaintiff knew or should
have known at the time that he filed the Verified Complaint, as well as since that date, that the
claims against the Town for unreasonable delay and automatic delay were not supported by
material facts or applicable law.
5. First, the Variance Information Request, which asked the Town to give Plaintiff
information regarding a specific section number and language of the Code that governs a
variance application -- not to produce documents — was not a request for public records and does
not implicate the Public Records Act.
6. The statutory obligation of the custodian of public records is to provide access to,
or copies of, public records when certain conditions are met. Fla. Stat. §§ 119.07(1)(a) and (4).
7. "However, a custodian is not required to give out information from the records
of his or her office. AGO 80-57." GOVERNMENT -IN -THE -SUNSHINE -MANUAL (2014 ed.) at p.
139. See also Fla. AGO 92-38 (Chapter 119 does not require town to produce an employee, such
as its financial officer, to answer questions regarding the town's financial records); In re Report
of the Supreme Court Work -group on Public Records, 825 So. 2d 889, 898 (Fla. 2002) (the
custodian of judicial records "is required to provide access to or copies of records but is not
required either to provide information from records or to create new records in response to a
request").
8. As a courtesy, the Town nevertheless provided Plaintiff with the information that
he requested on October 22, 2013. Specifically, the Town provided Plaintiff with information
regarding the website, not maintained by the Town, where Plaintiff could access the relevant
Code section. (Compl. 19 & Ex. B).
9. Plaintiff never requested access to, or copies of, public records and cannot conjure
up a Public Records Act and no claim lies under the Public Records Act for the courtesy
extended to the Plaintiff by the Town in attempting to provide the information he sought.
10. Second, the Town did not engage in any automatic delay in responding to
Plaintiffs public records request, as alleged in Count H. In fact, the acknowledgment letter sent
to Plaintiff, as quoted by Plaintiff in paragraph 18 of the complaint and attached thereto as
Exhibit B, explicitly states that Town staff "will review your request within the next three
business days, and we will promptly send you the appropriate response, or an estimated cost to
respond."
11. The Town did not engage in or have any policy which provides for an automatic
delay in the production of public records and the acknowledgment letter the Town sent to
Plaintiff on September 27, 2013 does not indicate otherwise. (Compl., Ex. B). See generally
GOVERNMENT -IN -THE -SUNSHINE -MANUAL (2014 ed.) at p. 141.
12. The correspondence that the Town sent to Plaintiff the day after receiving his
September 26, 2013 request for information simply acknowledged that request, stating that Town
staff "will review your request within the next three business days, and we will promptly send
you the appropriate response, or an estimated cost to respond." (Compl. ¶ 18 & Ex. B)
13. In an abundance of caution, the Town Records Custodian acknowledged the
request, as would be required by statute in the event it were construed as one for public records
3
(which it was not). See Fla. Stat. ¶ 119.07 (1)(c) ("A custodian of public records and his or her
designee must acknowledge requests to inspect or copy records promptly ...") (emphasis added).
14. Even if Plaintiff had made a public records request, which he did not, the
acknowledgment letter does not evidence any automatic delay.
15. Section 57.105(1), Fla. Stat. provides that the court shall award reasonable
attorneys' fees when the court finds that a party or its attorney "knew or should have known"
that a claim or defense: (A) was not supported by the material facts necessary to establish the
claim or defense or (B) would not be supported by the application of the then -existing law to
those material facts. An award of attorney's fees may be made upon a showing that the claim is
clearly devoid of merit both on the facts and the law as to be completely untenable and frivolous.
Pappalardo v Richfield Hospitality Services, Inc., 790 So.2d 1226, 1227 (Fla. 41h DCA 2001).
The purpose of section 57.105 is to discourage baseless claims, stonewall defenses, and sham
appeals in civil litigation by placing a price tag through an attorneys' fees award on the losing
parties who engage in such activities. Turovets v. Khromov, 943 So.2d 246, 249 (Fla 41' DCA
2006).
16. In light of the foregoing material facts and applicable law and pursuant to Florida
Statute Section 57.105, the Town demands that Plaintiff and his counsel withdraw the above
mentioned claims against the Town.
17. In the event that Plaintiff does not withdraw his Verified Complaint within 21
days after service of this Motion, the Town will seek all sanctions available to it under Fla. Stat.
§57.105.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the E -Filing Portal this 10'h day of April 2014 to: MARK J. HANNA, Esquire,
GMM/Madison, P.A., 401 South County Road, #3272, Palm Beach, Florida 33480
(mhannana,g3mlaw.com and eservice(o)g3mlaw.com) and to CHRISTOPHER F. O'HARE, 2520
Avenue Au Soleil, Gulf Stream, Florida 33483 (yinegdAgmail.com).
p:\docs\13147110045\pld\I iu0269.docx
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Town of Gulf Stream
505 South Flagler Drive, Suite 1100
Post Office. Box 3475
West Palm Beach, FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
By: /s/ Joanne M. O'Connor
John C. Randolph
Florida Bar No. 129000
irandoloh(u)ionesfoster.com
Joanne M. O'Connor
Florida Bar No. 0498807
ioconnor@,ionesfoster.com
Kelly A. Gardner
Florida BarNo. 106366
kgardner(a,ionesfoster.com
9
Filing # 12377854 Electronically Filed 04/10/2014 04:19:52 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO: 502013CA018102XXXXMB AA
CHRISTOPHER F. O'HARE,
Plaintiff,
VS.
TOWN OF GULF STREAM,
Defendant.
DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS OR,
ALTERNATIVELY. FOR SUMMARY JUDGMENT
Defendant, Town of Gulf Stream ("Defendant" or the "Town"), moves the Court
pursuant to Florida Rule of Civil Procedure 1.140(c) for judgment on the pleadings or,
alternatively, for summary judgment pursuant to Florida Rule of Civil Procedure 1.510 against
Plaintiff, Christopher F. O'Hare. In support, the Town states as follows:
SUMMARY OF ARGUMENT
This is one of eighteen (18) suits brought by Plaintiff against the Town pursuant to
Florida's Public Records Act and currently pending in the 15'h Judicial Circuit in and for Palm
Beach County. The frivolity of Plaintiff's claims is readily apparent. Plaintiff asked the Town for
"[t]he specific section number AND section language" of the Town Code of Ordinances that
governs an application for a variance from Chapter 70 of that Code. Notwithstanding Plaintiff's
self-serving characterization of his request as one for "public records," his request (attached to
the Complaint as Exhibit A) speaks for itself. He did not request records, but information. The
Town's Records Custodian had no obligation to answer his question and provide the information
sought. Plaintiff now attempts to generate a fee claim simply because the Town extended
Plaintiff the courtesy of providing him with a website link to a third party website that would
answer his question, which link Plaintiff claims he was unable to access. "Gotcha" tactics like
Plaintiff's cannot be countenanced.
The pleadings alone show that Plaintiff has failed to state a cause of action and the Town
is entitled to a judgment on the pleadings in its favor as a matter of law. Alternatively, the
undisputed facts demonstrate, beyond any genuine issue of material fact, that the Town is
entitled to summary judgment in his favor as a matter of law. The Town reserves its rights to
seek fees against Plaintiff and/or his counsel as a sanction for Plaintiffs bad faith litigation
conduct and pursuant to Fla. Stat. § 57.105.
VVITeT1uT1 `�"
By his Verified Complaint to Enforce Florida's Public Records Act and for Declaratory,
Injunctive and Monetary Relief ("Verified Complaint"), Plaintiff has sued the Town in two
counts for alleged violations of Florida's public records laws, Chapter 119, Fla. Stat. Plaintiff
asserts (1) an unreasonable delay in responding to a public records request and (2) the alleged
imposition of an unlawful "automatic delay."
A. Legal Standard
A motion for judgment on the pleadings may be granted "when the party is clearly
entitled to a judgment, as a matter of law, based solely on the pleadings." Newsome v. GEO
Group, Inc., 72 So. 3d 168, 170 (Fla. 4" DCA 2011) (quoting Tres -AAA -Exxon v. City First
Mortg., Inc., 870 So. 2d 905, 907 (Fla. 4a' DCA 2004)). "The court must accept as true all well -
pleaded allegations of the non-moving party." Id. (quoting Thompson v. Napotnik, 923 So. 2d
537, 539 (Fla. 5' DCA 2006)). A motion for judgment on the pleadings "is appropriate where
the complaint fails to state a cause of action ...... Venditti-Siravo, Inc. v. City of Hollywood,
Florida, 418 So. 2d 1251, 1253 (Fla. 4" DCA 1982).
2
It is the Court's duty to enter summary judgment when the material facts are undisputed
and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c); Yohtsia
County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000); Continental
Concrete, Inc. v. Lakes at La Paz III, Ltd., 758 So. 2d 1214, 1217 (Fla. 4th DCA 2000). See also
Castellano v. Raynor, 725 So. 2d 1197, 1199 (Fla. 2d DCA 1999) ("[w]here the material facts
are not in dispute and the moving party is entitled to a judgment as a matter of law, it is the
court's duty to enter summary judgment."). The Fourth District Court has explained:
The purpose of summary judgment is to dispose of those cases in which no
genuine issue of material fact exists. A genuine issue is not a fanciful or mystical
one, but is that which may be reasonably inferred from the case as a whole. When
one party sufficiently establishes the nonexistence of any genuine issue, it is
incumbent upon the other party to come forward in good faith and show that such
does exist.
Fla. Palm Aire Corp. v. Delvin, 230 So. 2d 26, 28 (Fla. 4'h DCA 1970) (emphasis supplied).
A complaint incorporates the exhibits attached and such exhibits are considered part of
the pleading for all purposes, Fla. R. Civ. P. 1.130(b), including a motion for judgment on the
pleadings, Clarke v. Henderson, 74 So. 3d 112, 114 (Fla. 3d DCA 2011), and summary
judgment, Yun Enterprises, Ltd. v. Graziani, 840 So.2d 420, 422 (Fla. 5th DCA 2003) (affirming
grant of summary judgment where documents attached to complaint could not be reconciled and
did not establish a valid contract). Indeed, "[w]hen exhibits are attached to a complaint, the
contents of the exhibits control over the allegations of the complaint" Duke v. HSBC Mortg.
Services, LLC, 79 So.3d 778, 780 (Fla. 4th DCA 2011) (internal citation and quotation omitted)
3
A. The Town is Entitled to Judgment on Count I: Plaintiff Never Requested Public
Records and the Town Has No Obligation to Respond to Requests for Information.
Plaintiff asserts that the following request, made on September 26, 2013 and renewed on
October 22, 2013 (the "Variance Information Request"), constituted a request for public records
to which the Town unreasonably delayed in responding:
The specific section number AND section language of the Town of Gulf Stream
Code that provides for an applicant to apply for a variance from the regulations of
Chapter 70 of the Town's Zoning Code.
(Compl. at $ 17 & Ex. A; Compl. at ¶ 22 & Ex. D).
As a threshold matter, the Variance Information Request, which asked the Town to give
Plaintiff information regarding a specific section number and language of the Code that governs
a variance application — not to produce documents -- does not implicate the Public Records Act.
The statutory obligation of the custodian of public records is to provide access to, or
copies of, public records when certain conditions are met. Fla. Stat. §§ 119.07(1)(a) and (4).
"However, a custodian is not required to give out information from the records of his or her
office. AGO 80-57." GOVERNMENT -IN -THE -SUNSHINE -MANUAL (2014 ed.) at p. 139. See also
Fla. AGO 92-38 (Chapter 119 does not require town to produce an employee, such as its
financial officer, to answer questions regarding the town's financial records); In re Report of the
Supreme Court Workgroup on Public Records, 825 So. 2d 889, 898 (Fla. 2002) (the custodian of
judicial records "is required to provide access to or copies of records but is not required either to
provide information from records or to create new records in response to a request").
Here, Plaintiff did not ask for the Town Code or even a particular section of the Town
Code. Instead, he asked the Town to interpret his request and provide him with a "specific
section number AND section language." Plaintiff never requested access to, or copies of, public
records.
M
In fact, Plaintiff had earlier submitted a public records request, on August 8, 2013, for a
"Complete and updated copy of the Code of Ordinances for the Town of Gulf Stream Fl." That
request, which did seek public records, is the subject of separate, pending litigation Plaintiff has
brought against the Town, O Hare v. Town of Gulf Stream, Case No. 50
2013CAOI6864X3 XXMBAB (Brown, J.)' and of which this Court can take judicial notice if it
deems necessary. Fla. Stat. § 90.202(6).
Erring on the side of caution, the Town promptly acknowledged Plaintiff's requests, as
specifically contemplated by Fla. Stat. § 119.07(1)(c) should this request have been considered
as one for public records ("A custodian of public records ... must acknowledge requests to
inspect or copy records promptly ...). (Compl., Ex. B).
As a courtesy, the Town then responded and provided Plaintiff with the information that
he requested on October 22, 2013. Specifically, the Town provided Plaintiff with information
regarding the website, not maintained by the Town, where Plaintiff could access the relevant
Code section. (Compl. ¶ 19 & Ex. B). The Town's response provides as follows:
The followine has been identified as responsive to your request:
htti)://Iibrary.municode.com/HTML/14096/level4/SPB. LAND DEVELOPMEN
T REGULATIONS CH66ZO ARTVSIPL DIV3VA.html#TOPTITLE
(Id.) Because the website link is lengthy, it rolled over into two lines of text and, therefore, one
could not just click on it to access the website. However, when the link provided is cut and
pasted into a web browser, the aforementioned information plainly directs Plaintiff to Division 3,
Chapter 66 of the Town Code governing Variances.
Plaintiff never requested public records and the Town therefore had no obligation to
produce records in a reasonable time period. Plaintiffs suggestion that the Town's records
'See Verified Compl. dated November 13, 2013, Exhibit A.
5
custodian has some obligation to point him to the specific section and language that may govern
a variance application is mistaken. The Town is entitled to judgment in its favor on Count I.
B. The Town is Entitled to Judgment on Count II: The Acknowledgment Letter Did
Not Impose an Automatic Delay.
The Town did not engage in or have any policy which provides for an automatic delay in
the production of public records and the acknowledgment letter the Town sent to Plaintiff on
September 27, 2013 does not indicate otherwise. (Compl., Ex. B). See generally GovERNMENT-
IN-THE-SUNSHINE-MANUAL (2014 ed.) at p. 141. The correspondence that the Town sent to
Plaintiff the day after receiving his September 26, 2013 request for information simply
acknowledged that request, stating that Town staff "will review your request within the next
three business days, and we will promptly send you the appropriate response, or an estimated
cost to respond." (Comp]. ¶ 18 & Ex. B)
In an abundance of caution, the Town Records Custodian acknowledged the request, as
would be required by statute in the event it were construed as one for public records (which it
was not). See Fla. Stat. ¶ 119.07 (1)(c) ("A custodian of public records and his or her designee
mast acknowledge requests to inspect or copy records promptly ...") (emphasis added).
Even if Plaintiff had made a public records request, which he did not, the
acknowledgment letter does not evidence any automatic delay. The cases cited by Plaintiff are
inapposite.
For instance, in Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984), the City of Tampa
custodian of records refused to release personnel files of three police officers involved in a
shooting, citing a city policy to delay the release of personnel files by seven (7) days pending
notice to the affected employee. 458 So. 2d at 1076. The City of Tampa and the police officers
argued that an automatic delay was necessary so that they could be present during the inspection
ri
of their records and to allow them time to mise any constitutional challenge. See id. at 1078. The
court disagreed, holding that no delay is permitted to allow a court challenge to disclosure: "the
purpose of the Act would be frustrated if, every time a member of the public reaches for a record,
he or she is subjected to the possibility that someone will attempt to take it off the table through a
court challenge." Id. at 1079. Only the records custodian can assert such a challenge. See id.
In State v. Webb, 786 So. 2d 602 (Fla. 151 DCA 2001), also relied on by Plaintiff, a school
board member was convicted for a criminal violation of the Public Records Law. At issue was
whether Webb had provided "reasonable access" to the requested records in her custody. See id.
at 604. The evidence at trial was as follows:
Webb took one and one-half months to respond to Watson's initial public -records
request; that it was nearly four months before Webb attempted to schedule a time
for Watson to review documents responsive to the requests; that Webb gave
Watson one hour to review a ten -inch stack of documents and then allowed only
two additional one-hour sessions five weeks later, that Webb terminated Watson's
review after this third session; and that Webb did not provide all of her public
records until she received a request from the grand jury nearly seven months after
Watson's request. Id.
See also Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 15' DCA 2010) (city flatly refused to
produce board meeting minutes, which were created immediately after meeting, until approved
by city commission). Neither Webb, Tribune nor any other case relied on by Plaintiff involved a
courtesy acknowledgement letter like that at issue here.
By comparison, the Fifth District addressed a similar letter responding to a public records
request in Hewlings, noting that such a responsive letter was not dispositive of whether or not the
municipality's ultimate compliance with the request was done within a reasonable time. 87 So.
3d at 840-41.
Here, Plaintiff did not ask for public records and the Town did not refuse to produce any
public records or condition access to those records in any way. Compare Op. Atty Gen. 2005-12
(Feb. 9, 2005) (finding City of North Port precluded from requiring use of a code for citizens to
view email correspondence of city's police and human resources departments). It simply
provided Plaintiff with a written, courtesy acknowledgement of his request for information and
informed Plaintiff that the Town would review the request "within" three days.
In light of the foregoing, there is no issue of fact or law. The Town is entitled to judgment
in its favor on Count II for automatic delay.
WHEREFORE, Defendant, the Town of Gulf Stream, respectfully requests that the Court
enter an Order granting its Motion for Judgment on the Pleadings or, Alternatively Summary
Judgment, reserving jurisdiction to determine the Town's entitlement to fees and costs, and
granting the Town such further relief as the Court deems just and proper under the
circumstances.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via the E -Filing Portal this 10h day of April, 2014 to: MARK J. HANNA, Esquire,
GMM/Madison, P.A., 401 South County Road, #3272, Palm Beach, Florida 33480
(mhannala,e3mlaw.com and eservice c(�.a3mlaw.com) and to CHRISTOPHER F. O'HARE, 2520
Avenue Au Soleil, Gulf Stream, Florida 33483 (pineedna,gmail.com).
pAdocs\ 13147\00045\pId\I M899.docz
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Town of Gulf Stream
505 South Flagler Drive, Suite 1100
Post Office. Box 3475
West Palm Beach, FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-5300
By: /s/ Joanne M. O'Connor
John C. Randolph
Florida Bar No. 129000
irandolnhna,ionesfoster.com
Joanne M. O'Connor
Florida Bar No. 0498807
ioconnor(a2jonesfoster.com
Kelly A. Gardner
Florida BarNo. 106366
kgardnerCaZionesfoster.com
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