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HomeMy Public PortalAboutPRR 16-2388RECORDS REQUEST (the "Request") Date of Request: 11/08/2016 Requestor's Request IDA: 1334 REQUESTEE: _Custodian of Records Sweetapple. Broeker & Varkas Custodian of Records Jones, Foster. Johnston & Stubbs Custodian of Records Town of Gulf Stream Custodian of Records Richman Greer, P.A. Custodian of Records Cole Scott & Kissane Custodian of Records Johnson Anselmo Murdoch Burke Piper & Hochman. P.A. REQUESTOR: Martin E. O'Boyle REQUESTOR'S CONTACT INFORMATION: E -Mail: records@commerce-group.com Fax: 954-360-0807 or Contact Records Custodian at recordsQcommerce-group.com Phone: 954-360-7713; Address: 1280 West Newport Center Drive, Deerfield Beach, FL 33442 REQUEST: In the last sentence of the third paragraph of the Coastal Star Letter to the Editor of November 2.2016: Gulf Stream confident it's on the right track, Scott Morgan states the following: "Of the old lawsuits. Gulf Stream won or forced the dismissal of four of them, and won verdicts or forced the dismissal of six additional non-public records lawsuits." In connection with the quoted language above, please provide the following: copies of the records relating to the four old lawsuits and Orders in connection with the four old lawsuits which "Gulf Stream won or forced the dismissal of'. See attached Exhibit A. ADDITIONAL INFORMATION REGARDING REQUEST: The term "Town of Gulf Stream" shall mean each of the following: the Town of Gulf Stream. its Commissioners, its Manager, its emolovees, its officers, its staff, its Police Department, its Police Officers: including, without limitation, the attorneys, employees and partners of the following law firms: Sweetapple, Broeker & Varkas: Richman Greer, PA: Jones, Foster, Johnston & Stubbs: Cole, Scott & Kissane. P.A.: and Johnson Anselmo Murdoch Burke Piper & Hochman. P.A. THIS REQUEST IS MADE PURSUANT TO ARTICLE 1, SECTION 24 OF THE FLORIDA CONSTITUTION AND CHAPTER 119, FLORIDA STATUTES IF THE PUBLIC RECORDS BEING SOUGHT ARE MAINTAINED BY YOUR AGENCY IN AN ELECTRONIC FORMAT PLEASE PRODUCE THE RECORDS IN THE ORIGINAL ELECTRONIC FORMAT IN WHICH THEY WERE CREATED OR RECEIVED, SE 6119.01(2)(F). FLORIDA STATUTES. IF NOT AVAILABLE IN ELECTRONIC FORM, IT IS REQUESTED THAT THIS RECORDS REOVEST BE FULFILLED ON 11 X 17 PAPER NOTE: IN ALL CASES (UNLESS IMPOSSIBLE) THE COPIES SHOULD BE TWO SIDED AND SHOULD BE BILLED IN ACCORDANCE WITH Section 119.07(4) (u) (2) ALSO PLEASE TAKE NOTE OF 6119.070l(H) OF THE FLORIDA STATUTES, WHICH )ICH PROVIDES THAT "IFA CIVIL ACTION IS INSTITUTED WITHIN THE 30 -DAY PERIOD TO ENFORCE THE PROVISIONS OF THIS SECTION WITH RESPECT TO THE REQUESTED RECORD, THE CUSTODIAN OF PUBLIC RECORDS MAY NOT DISPOSE OF THE RECORD EXCEPT BY ORDER OF A COURT OF COMPETENT JURISDICTION AFTER NOTICE TO ALL AFFECTED PARTIES." ALL ELECTRONIC COPIES ARE REQUESTED TO BE SENT BY E-MAIL DELIVERY PLEASE PROVIDE THE APPROXIMATE COSTS (IF ANY) TO FULFILL THIS PUBLIC RECORDS REQUEST IN ADVANCE. It will be required that the Requester approve of any costs, asserted by the Agency (as defined in Florida Statute, Chapter 119.01 (Definitions)), In advance of any costs Imposed to the Requester by the Agency. "BY FULFILLING THIS RECORDS REQUEST, THE AGENCY ACKNOWLEDGES THAT THE RESPONSIVE DOCUMENTS ARE "PUBLIC RECORDS" AS DEFINED IN CHAPTER 119, FLORIDA STATUTES". I/P/NP/FLRR 11.04.2016 Letter to the Editor: Gulf Stream confident it's on the right track - The Coastal Star EXHIBIT A Seereh Tha Coastal Star earclr • Sign up • Sinn In ThCoasta ar Main lassifieds Contact Events My Page .cr Photes Talk Vi eo • Your Community • All Discussions • My Discussions Add Letter —SF Letter to the Editor: Gulf Stream confident it's on the right track • Posted by Mury Kate Lemine on November 2, 2016 at 1:47pm in Island Talk • View Discussions In 2014 and early 2015, the town of Gulf Stream found itself under assault from Martin O'Boyle and Christopher O'Hare, two residents who overwhelmed the town with thousands of public records requests and dozens of lawsuits. Town Hell became virtually unable to serve Gulf Stream residents. To defend against this ongoing public records abuse, Gulf Stream brought in legal staff to create a policy to respond to records requests. In addition, Gulf Stream learned through its RICO investigation about other Florida abuses committed by the O'Boyle Law Firm and a related O'Boyle company called Citizens Awareness Foundation, which it added to the town's defenses in the public records lawsuits. Since Gulf Stream took these actions, public records requests have dropped from 60•plus per day down to several a week In addition, there has not been another public records lawsuit against Gulf Stream in over a year and a half. Of the old lawsuits, Gulf Stream won or forced the dismissal of four of them, and won verdicts or forced the dismissal of six additional non-public records lawsuits. I cannot overstate how the volume of lawsuits and records requests back in 2013 and 2014 overwhelmed our small staff. The clerks regularly worked nights and weekends; they put off other town responsibilities; they hunted through old file cabinets and closed lend -use folders trying to respond to requests pouring in almost daily; they called commissioners, board members, past employees and active and retired police to identify documents and their possible locations. But, the quantity of these requests was simply not manageable, and some documents were inadvertently missed. At no time did staff refuse the legitimacy of O'Boyle's or O'Ham's requests or try to prevent them from receiving documents. For example, one such request required production or"All photos of people riding bicycles on N. Ocean Blvd. in the town's public record." Since town records go back to its founding in 1925, this request necessitated a needle -in -the -haystack search, and for which we were still sued over a "gotcha" photograph. A case currently being litigated involves some inadvertently missed documents. Despite a good -faith effort to locate all requested records, missing records constitute a technical violation of the public records law, so the town offered to settle the case. O'Boyle's settlement demand, however, was so outrageously high that the town concluded it was in its best financial interest to go to trial and let a judge determine reasonable fees. That case was tried recently and there will be a hearing on fees in the near future. The town is confident that under Florida law, the court will award fees up to the performance of the records request and not beyond. This is why the town elected to try this case, as it will any other as where it appears that O'Boyle built up large attorneys' fees. Gulf Stream will continue to defend the remaining O'Boyle and O'Hare lawsuits until our two litigious residents drop the meritless cases and negotiate reasonable settlements in good faith on the others. http://thecoastalstar.comlforumltopicslletter-to-the-editor-gulf-stretam-confident-it-s-on-the... TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via a -mail November 8, 2016 Martin E. O'Boyle [mail to: recordsacommerce-eroup.coml Re: GS #2388 (PRR 1334) "Of the old lawsuits, Gulf Stream won orforced the dismissal offour ofthem, and won verdicts or forced the dismissal ofsix additional non-public records lawsuits. " In connection with the quoted language above, please provide the following: copies of the records relating to the four old lawsuits and Orders in connection with the four old lawsuits which "Gulf Stream won or forced the dismissal of'. See attached Exhibit A. Dear Martin E. O'Boyle [mail to: records(ia commerce-eroup.coml: The Town of Gulf Stream has received your public records request dated November 8, 2016. The original public records request can be found at the following link: h!W://www2.gulf-stream.org/weblink/O/doc/103461/Pagel aspxx 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, " As requested by Rita Taylor Town Clerk, Custodian of the Records TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail December 15, 2016 Martin E. O'Boyle [mail to: recordsa commerce -group. coin] Re: GS #2388 (1334) "Of the old lawsuits, Gulf Stream won or forced the dismissal offour of them, and won verdicts orforced the dismissal ofsix additional non-public records lawsuits. " In connection with the quoted language above, please provide the following: copies of the records relating to the four old lawsuits and Orders in connection with the four old lawsuits which "Gulf Stream won or forced the dismissal of'. See attached Exhibit A. Dear Martin E. O'Boyle [mail to: recordsaa,commerce-grouo.com]: The Town of Gulf Stream has received your public records requests dated November 8 and 9, 2016. Your original public records requests and response to your requests can be found at the following links: httn://www2.gulf-stream.org/weblink/O/doc/103461 /Pagel .asnx Your requests for the "records relating to" fails to sufficiently specify the records you seek. We are, however, attaching the dismissal and/or orders awarding judgment in favor of the Town and we understand these to be responsive records you seek. To the extent you seek other records, we request that you specify such that we can produce or provide an estimate. Unless you provide us with further clarification, we will consider this request closed. Sincerely, F" A RE RA 6f, W44, F" As requested by Rita Taylor Town Clerk, Custodian of the Records Filing # 13025929 Electronically Filed 04/28/2014 09:18:54 PM CHRISTOPHER F. O'HARE, Plaintiff, VS. TOWN OF GULF STREAM, Defendant. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 50 2013 CA 18102 AA •l Nis] OK11 akmelOWE, Eva17KIUTFMAI WAY ON. Lei gild 61"111 Lei M The Plaintiff, CHRISTOPHER O'HARE , by and through his undersigned counsel and in accordance with the Fla.R.Civ.P. 1.420, voluntarily dismisses the above -captioned action without prejudice. I certify that on April 28, 2014, 1 electronically filed this document with the Clerk of Court and served the following E -service recipients using the Florida Courts E -Filing Portal system in accordance with AOSC1349:Joanne M. O'Connor at joconnor@jonesfosteccom, mmacfarlane@jonesfosteccom, John C. Randolph at jrandolph@jonesfosteccom, smatias@jonesfosteccom, Kelly A. Garner at kgardner@jonesfoster.com (Telephone Number 561-650-0498). A paper copy has not been mailed to any party. GMMIMADISON P.A. 401 South County Road #3272 Palm Beach, FL 33480-9991 Tel: 561-223-9990 service@g3mlaw.com Mark J. Hanna /s/ Mark J. Hanna Florida Bar No. 0045251 561-723-8284 (cell & text) mhanna@g3mlaw.com cc: Judge Peter Blanc Christopher F. O'Hare (pinegd@gmail.com) Filing # 13472879 Electronically Filed 05/09/2014 10:15:43 AM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULF STREAM, Defendant. CASE NO.: 2014 CA 000818 AG NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Plaintiff, CHRISTOPHER O'HARE, by and through undersigned counsel hereby provides a notice of voluntary dismissal without prejudice of the above -referenced action. This voluntary notice of dismissal is without prejudice. I HEREBY CERTIFY that a copy hereof has been served and filed through the Florida Court E -Filing Portal this 9th day of May, 2014 to: Joanne M. O'Connor, Esquire, Jones, Foster, Johnson & Stubbs, P.A., 505 S. Flagler Drive, Suite 1100, West Palm Beach, Florida 33442, joconnor@jonesfoster.com. THE O'BOYLE LAW FIRM, P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 834-2201 Facsimile: (954) 360-0807 For Service of Court Documents: oboylecourtdocse,oboylelawfir n.com By: /s/ Ryan Witmer Ryan Witmer, Esq. Florida Bar #0107563 g tesa(a),oboylelawftrm.com IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 502014CA000818XXXXMB AG CHRISTOPHER F. O'HARE, Plaintiff, VS. TOWN OF GULF STREAM, Defendant. DEFENDANT'S MOTION FOR SANCTIONS PURSUANT TO FLA. STAT. 457.105 Defendant, Town of Gulfstream ("Defendant" or the "Town"), moves the Court to sanction Plaintiff Christopher F. O'Hare, and his counsel, The O'Boyle Law Firm and Ryan L. Witmer, Esq., jointly and severally (collectively "Plaintiff'), pursuant to Section 57.105, Florida Statutes. In support, the Town states as follows: I. By his Verified Complaint to Enforce Florida's Public Records Act and for Declaratory, Injunctive and Monetary Relief ("Verified Complaint"), Plaintiff asserts one count for unlawful withholding of public records. 2. Specifically, Plaintiff asserts that as of the time he filed the Verified Complaint on January 22, 2014, the Town had unreasonably delayed for 48 days and failed to produce public records responsive to a request made by Plaintiff on December 4, 2013. (Compl. T¶20-21, 33). 3. The public records request at issue, characterized in the Verified Complaint as a December 4, 2013 "Follow -Up Request" is attached to the Verified Complaint as Exhibit D. (See id.). That request acknowledged that the Town had responded to an earlier public records request made by Plaintiff and advised that any responsive records had been destroyed more than six (6) months earlier pursuant to the Town's document destruction schedule. (See id. at Ex. D). Plaintiff requested the following by e-mail to the Town at 2:51 p.m. on December 4, 2013: (1d). A records disposition document or audit record of the records for this property [2550 Avenue An Soleil] destroyed on or about January 1, 2013. (the "2550 Avenue An Soleil Disposition Records Request") 4. Plaintiff is well aware that the Town has not unlawfully withheld and did not unreasonably delay in producing responsive documents. 5. On December 4, 2013, the Town received at least ten (10) public records requests from Plaintiff, including the following request made by Plaintiff at 6:39 p.m. on December 4, 2013: Any and all records disposition documents relative to the destruction of any and all public records during the period from January 1, 2013 through to the date when you substantially responded to this Public Records Request. (the "Document Disposition Records Request") (emphasis added) 6. On its face, the Document Disposition Records Request encompassed all of the documents sought by Plaintiff by the 2550 Avenue Au Soleil Disposition Records Request. 7. The Town timely responded to Plaintiffs Document Disposition Records Request by making available responsive documents to be picked up at Town Hall and communicating that information to Plaintiff by e-mail at 12:56 p.m. on December 6, 2013, less than two business days after the 2550 Avenue Au Soleil Disposition Records Request was made. (Def's Response to Pl.'s Request for Admissions at No. 3). 2 8. The Town's December 6, 2013 production of records to Plaintiff was timely and fully responsive to the 2550 Avenue An Soleil Disposition Records Request. 9. The Public Records Act requires the Town to provide access to, or copies of, public records within a "reasonable time." Fla. Stat. § 119.07(1)(a). However, "[it] does not contain a specific time limit (such as 24 hours or 10 days) for compliance with public records requests." GOVERNMENT -IN -THE -SUNSHINE -MANUAL (2014 ed.) at p. 141. In determining whether the time taken by a municipality to respond to a public records request is reasonable, the Court can consider the cumulative impact of requests made by the Plaintiff. See, e.g., Lang v. Reedy Creek Improvement District, No. CJ -5546 (Fla. 9th Cir. Ct. October 2, 1995), af'd per curian:, 675 So. 2d 947 (Fla. 5th DCA 1996) (rejecting petitioner's claim that agency should have produced requested records within 10, 20 and 60 -day periods) (copy attached as Exhibit "A"). The Town is also permitted such time as necessary to determine whether any statutory exemptions apply. See Tribune Co. v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984). 10. Here, the Town's compliance with the 2550 Avenue An Soleil Disposition Records Request less than two (2) business days after it was made is not unreasonable, particularly when considering the fact that the Town was presented with at least ten (10) other public records requests made on the same day. 11. 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 3 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. 4`h 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. Khroinov, 943 S0.2d 246, 249 (Fla 4a' DCA 2006). 12. 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. 13. In the event that Plaintiff does not withdraw his Verified Complaint within 21 days after service of this Motion, the'rown will seek all sanctions available to it under Fla. Stat. Section 57.105. WHEREFORE,, Defendant, the Town of Gulf Stream, respectfully requests that this Court enter an Order awarding it its attorneys' fees and costs against Plaintiff, Christopher F. O'Hare and Plaintiffs counsel, The O'Boyle Law Firm, PC and Ryan L. Witmer, Esq., jointly and severally, pursuant to Fla. Stat. §57.105, and for any other or further relief the Court deems just and proper under the circumstances. 4 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email this 18th day of April, 2014 to: Ryan L. Witmer, Esquire, The O'Boyle Law Firm, PC, 1286 West Newport Center Drive, Deerfield Beach, FL 33442 (rwitmerna.oboylelawfirm.coml. JONES, FOSTER, JOHNSTON & STUBBS, P.A. Attorneys for Defendant 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 .0yC. Randolph onda Bar No. 129000 irandoloh(alionesfoster.com Joanne M. O'Connor Florida Bar No. 0498807 ioconnor ionesfoster.com Ashlee A. Richman Florida Bar No. 91609 arichman(la ionesfoster.com Kelly A. Gardner Florida BarNo. 106366 kcardnerna.ionesfoster.com p:W=\13147\0004Mp1d\Ij54073.d= IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA PAMELA LANG, BARBARA BROWN, AND MICHELLE BARTLEY, Plaintiffs, VS. CASE NO. CJ -5546 REEDY CREEK IMPROVEMENT DISTRICT, and TOM MOSES, as Records Custodian of Reedy Creek Improvement District, Defendants. THIS CAUSE having come before this Court upon the Alternative Writ of Mandamus and. Plaintiffs' Motion for Determination of Reasonable Fees, and this Court having heard argument and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that: FINDINGS OF FACT 1. On August 8, 1988, Plaintiff Mary Bartley was hired by Reedy Creek Improvement District/Flre Rescue Services ("RCID/FRS") as a firefighter. On December 5, 1988, Plaintiff Pamela Lang was also hired by RCID/FRS as a firefighter. Four months later, on April 17,. 1989, Plaintiff Barbara Jean Brown was hired by RCID/FRS as a firefighter. 2. In 1992, the Plaintiffs complained to Reedy Creek improvement District ("RCID") that co-workers and superiors were discriminating against them becabse of their sex. RCID Initlated.formal internal investigative actions to determine the validity of the claims and to stop any discrimination, Including harassment. 3. In December 1992 and January 1993, all three Plaintiffs filed charges of sex discrimination with the Equal Employment Opportunity Commission ("EEOC"). Subsequently, the Plaintiffs all received right -to -sue letters from the EEOC. 4. On January 21, 1994, Plaintiff Pamela t-angCgquutf her employment with RCID. 5. Plaintiffs Bartley and Brown remain employed by RCID/FRS. 6. On June 24, 1994, the Plaintiffs filed suit against RCID and Walt Disney World Company in the U.S. District Court for the Middle District of Florida asserting multiple claims and cause of actions based on Title VII, 42 U.S.C. 2000(e), DL uq:., the Florida Civil Rights Act -of 1992, ch. 760, Florida Statutes, and common law torts. 7. Commencing in February 24, 1994, and continuing through September 26; 1995, the date of this Court's hearing on this matter, the Plaintiffs sent 19 letters to RCID pursuant to Chapter 119, Florida Statutes, requesting the inspection and/or copying of public records. The 19 letters requested over 135 categories of information and records from both RCID and RCID/FRS. 8. The Plaintiffs' cumulative requests demand the Inspection and/or copying of a.substantial portion of all records retained by RCID: �p� 9. The Plaintiffs' public records requests encompass i� d.otkthm doeuments which lace specifically protected from release and disclosure by §119.07, Fla. Stat., gL seo. v 2 10. While three of the Plaintiffs' public records requests date from 1994, the bulk of these requests were made in July -September 1995. It was not until late August 1995 that the Plaintiffs actively sought RCID's response to the 1994 requests. RCID's subsequent responses to the requests for public records have been within a reasonable time. 11. On August 31, 1995, the Plaintiffs filed their Complaint for Alternative Writ of Mandamus in this Court, alleging that RCID was refusing to produce public records. Also on August 31, 1995, this Court issued an Altemative Writ of Mandamus compelling RCID to respond. 12. On September 20,1995, RCID filed Its Response to the Altemative Writ of Mandamus describing the scope and breadth of the Plaintiffs' requests and the necessary delay for redacting exempt material. Also on September 20, 1995, the Plaintiffs filed a Motion to Determine Reasonable Costs. 13. On September 26, 1995, all interested parties held a hearing on the Alternative Writ of Mandamus and the Determination of Reasonable Costs before this Court, at which time the Plaintiffs also submitted their Response [sic] to Alternative Writ of Mandamus. Legal Conclusions 14. Section 11 9.07(j), Florida Statutes states: (a) Every person who has custody of a public record shall permit the record to be inspected and examined by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public record or his.designse. The custodian shall furnish a copy of or a certified copy of the record upon payment of the fee prescribed by law or, if a fee is not prescribed by law, for duplicated copies of not more 3 than 14 inches by 8 1/2- Inches, upon payment of not more Ulan 15 cents per one-sided copy, and for all other copies, upon payment of the actual cost of duplication of the record. An agency may charge no more than an additional 5 cents for each two-sided copy. For purposes of this section, duplicated copies shall mean new copies produced by duplicating, as defined in s. 283.30. The phrase "actual cost of duplication" means the cost of the material and supplies used to duplicate the record, but it does not include the labor cost or overhead cost associated with . such duplication.... (b) If the nature or volume of public records requested to be inspected, examined, or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual costs of duplication, a special service charge, which shall be reasonable and shall be based on the cost Incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually Incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both, "Information technology resources" shall have the same meaning as In s. 282.303(13). 15. Section 119.07(2)(a) states in relevant part: A person who has custody of a public record and who asserts that an exemption provided in subsection (3) or In a general or special law applies to a particular public record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for Inspection and examination.... 16. Section 119.07(3)(a)-(dd) provides exemptions for certain records as enumerated by the following pertinent examples: (a) All public records which are presently provided by law to be confidential or which are prohibited from being Inspected by the public, whether by general or special law, are exempt from the provisions of subsection (1). (b) All public records referred to Inzs. 624.328(3) and (4), are exempt from the provisions of subsection (1). (c) Examination questions and answer sheets of examinations administered by a governmental agency for the purpose of licensure, certification, or employment are exempt from the provisions of subsection (1). A person who has taken such an examination shall, have the right to review his own completed examination. (k)1 ... The home addresses, telephone numbers, and photographs of firefighters certified In compliance with s. 633.35; the home addresses, telephone numbers, photographs, and places of employment of the spouses and children of such firefighters; and the names and locations of schools and day care facilities attended by the children of such firefighters are exempt from subsection (1).... (n) A public record which was prepared by an agency attomey (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney's express direction, which reflects a mental Impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or which was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from the provisions of subsection (1) until the -conclusion of the litigation or adversarial administrative proceedings. This exemption is not waived by the release of such public record to another public employee or officer of the same agency or any person consulted by the agency attorney. When asserting the right to withhold a public record pursuant to this paragraph, the agency shall Identify the potential parties to any such criminal or civil litigation or adversarial administrative.proceedings. If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney's fees and costs in addition to any other remedy ordered by the court. v (o) Sealed bids or proposals received by an agency pursuant to invitations to bid or requests for proposals are exempt from the provisions of subsection (1) until such time as the agency provides notice of a decision or Intended decision pursuant to s. 120.53(5)(a) or within 10 days after bid or proposal opening, whichever is earlier. (p) In any case in which an agency of the executive branch of state government seeks to acquire real property by purchase or through the exercise of the power of eminent domain all appraisals, other reports relating to value, offers,. and counteroffers must be in writing and are exempt from the provisions of s. 119,01 and subsection (1) until execution of a valld option contract or a written offer to sell which has been conditionally accepted by the agency, at which time the exemption shall expire. (t) All complaints and other records In the'custody of any unit of local government which relate to a complaint of discrimination relating to race, color, religion, sex, national origin, age, handicap, marital status, sale or rental of housing, the provision of brokerage services, or the financing of housing shall be exempt from the provisions of subsection (1) until a finding Is made relating to probable cause, the investigation of the complaint becomes inactive, or the complaint or other record is made part of the official record of any hearing or court proceeding, .. . (x) All information relating to the medical condition or medical status of employees of the state or of a water management district, which Is not relevant to the employee's capacity to perform his duties, Is exempt from the provisions of subsection (1). Information which is exempt shall include, but Is not limited to, information relating to workers' compensation,. Insurance benefits, and retirement or disability benefits. All Information which is exempt from subsection (1) pursuant to this paragraph shall be maintained separately from nonexempt employment information. (z) Any financial statement which an agency requires a prospective bidder to submit in order to . prequalify for bidding or for responding to a proposal for a road or any other public works project Is confidential and exempt from the provisions of subsection (1). This exemption is subject to the Open Government sunset Review Act in accordance with s, 119.14. (bb) Medical Information pertaining to a prospective, current, or former officer or employee of an agency which, if disclosed, should Identify that officer or employee is confidential and exempt from the provisions of subsection (1). However, such information may be disclosed if the person to whom the information pertains or the person's legal representative provides written permission. This exemption is subject to the Open Government Sunset Review Act in accordance with s. 119.14. (dd) The social security numbers of all state employees contained In state employment records are exempt from the provisions of subsection (1) and exempt from s. 24(a), Art. 1 of the State Constitution. 17. The Supreme Court of Florldahas established that the custodian of public records may delay providing copies of those public records in order to excise exempted portions therein. Tribune Co. V. Cannella, 458 So. 2D 1075 (Fla. 1984). 18. In the instant case, the plaintiffs are entitled to receive the non-exempt materials requested of RCID. Considering the voluminous nature of the Plaintiffs' requests, however, RCID has thus far responded In a timely fashion that is reasonable under the circumstances, See Florida Institu)ional Legal Services Inc V Florida Department of Corrections, 579 So. 2d 267 (Fla. 1st DCA 1991) (entity's charging for services necessary for producing public records that took over 15 minutes was reasonable due to the cumulative Impact of the requests). 19. Furthermore, this Court finds that the content of many of the public I records requested necessitates the excising of exempt Information as provided by 1 §119.07(3), Fla, Stat. A substantial amount of redaction Is necessary due to the nature } of the requests involving firefighters and other areas of this governmental entity. See 1 Chapter 119.07(3)(k). Not only must RCID redact firefighter -related materials, but it must also check each record to insure that no other exempt material is released, It Is certainly reasonable that checking for exempt material and redacting would take more./ than the 10, 20 and d 60 day periods the Plaintiffs argued would allow RRCI�D to produce all of the'records due to the cumulative Impact of th Plaintiffs' 19 requests.,1 r� 20. Moreover, pursuant to § 119.07(1)(b), a government entity is allowed to charge for the reasonable cost of extensive clerical or supervisory assistance necessary to produce the public records. The Florida legislature established in § 119.07(1)(b) that the cost of producing voluminous public records should not be bomb entirely by the taxpayers. In this instance, this Court specifically finds that $35.00 per hour is a reasonable fee for redaction of exempt materials when special expertise is required for redaction. FROM THE FOREGOING IT IS ADJUDGED that: Pursuant to §119.07, Fla. Stat., all requested public records which are not exempt shall be produced by the Defendants within a reasonable time, 2. Due to the voluminous amount of records requested in this case and the duplicative nature of these requests, the schedules attached to the Plaintiffs' Response to the Alternative Writ of Mandamus shall be produced by RCID In the following manner: Schedule A shall be produced within 120 days; Schedule B shall be produced within 240 days; and Schedule C shall be produced within 360 days. 3. Pursuant to § 119.07(1), the reasonable costs of duplicating these records shall be paid by the Plaintiffs in the amount of $.15 per copy produced. �A 4. Additionally, the Plaintiffs shall pay the Defendants $35.00 per hour for redaction of exempt material as necessary. 5. Because the Defendants' production of requested public Information has been reasonable, the Plaintiffs' request for attorney's fees pursuant to § 119.12, Florida Statutes is denied. DONE AND ORDERED this -2� day of C)Mi���_, 1995, In Orlando, Orange County, Florida. GEORGE A: SPRiNKA IV Circuit Court Judge 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 SANCTIONS PURSUANT TO FLA. STAT. &57.105 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: 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. (Compl. ¶J 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 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"). OA 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 II. 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. 4"' 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 4°i 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. 4 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 (mhanna@e3mlaw.com and eservice g3mlaw.com) and to CHRISTOPHER F. O'HARE, 2520 Avenue Au Soleil, Gulf Stream, Florida 33483 (nineed(a,smail.com). p:\docs\I3147\00045\pld\I W0269.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 irandolphO,ionesfoster.com Joanne M. O'Connor Florida Bar No. 0498807 ioconnorOa ionesfoster.com Kelly A. Gardner Florida Bar No. 106366 keardnernionesfoster.com 5 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 2014CA003396 AB CITIZENS AWARENESS FOUNDATION, INC., Plaintiff, VS. TOWN OF GULF STREAM, Defendant. DEFENDANT'S MOTION FOR SANCTIONS PURSUANT TO FLA. STAT. 457.105 Defendant, Town of Gulfstream ("Defendant" or the "Town"), moves the Court to sanction Plaintiff, Citizens Awareness Foundation, Inc., and its counsel, the O'Boyle Law Firm including Giovani Mesa, Esq., jointly and severally (collectively "Plaintiff"), pursuant to Section 57.105, Florida Statutes. In support, Defendant states as follows: 1. By its Complaint to Enforce Florida's Public Records Act and for Declaratory and Monetary Relief ("Complaint"), Plaintiff has sued the Town in two counts for alleged violations of Florida's public records laws, Chapter 119, Fla. Stat. Plaintiff asserts that the Town (1) unlawfully withheld public records responsive to its public records request and (2) imposed an unlawful "automatic delay" by sending Plaintiff correspondence acknowledging the Request. 2. Specifically, on February 19, 2014, Plaintiff made the public records request attached hereto as Exhibit "A," seeking: ... copies of all Public Records Requests made by any of the following individuals from the period beginning January 1, 2013 through the date of this Request: Mayor Joan Orthwein; Donna S. White; W. Garrett Dering; Robert Ganger; Thomas Stanley; Scott Morgan; Paul A. Lyons, Jr.; Thomas Smith; Malcom Murphy; Amanda ]ones; William Boardman; David Bodker; Richard Mouw; Patricia Randolph; Benjamin Schreier. 3. The Town promptly acknowledged Plaintiffs public records request, as is required by Fla. Stat. § 119.07(1)(c) ("A custodian of public records ... must acknowledge requests to inspect or copy records promptly ...). (See Exhibit "B'J. 4. The Town thereafter informed Plaintiff in writing that the only requests for public records responsive to its request had been made to the Town orally. (See Exhibit "C'). Although not required to do so by Florida law, the Town summarized those oral requests for Plaintiff as a courtesy. See AGO 08-29 (agency not required to create list in response to request for information). 5. At the time that Plaintiff filed the Verified Complaint against the Town, as well as since that date, Plaintiff and its attorneys knew or should have known that the claims against the Town for unlawful withholding and automatic delay were not supported by material facts or applicable law. 6. As to Count I for unlawful withholding of public records, Plaintiff knew or should have known that there were no public records responsive to his request that the Town was withholding. The Town informed Plaintiff that there were no public records responsive to Plaintiff's request because the only public records requests that were responsive had been made orally, not in writing. (See Exhibit Q. Because no responsive public records requests had been made in writing, there are no "public records" responsive to Plaintiffs request. 7. As to Count II for automatic delay, The Town did not engage in any automatic delay by sending Plaintiff the courtesy acknowledgment of its request attached as Exhibit B, as required by statute. See Fla. Stat. 1119.07 (1)(c) ("A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly ...") (emphasis added). 8. 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 does not indicate otherwise. See generally GOVERNMENT-IN-THE-SuNSHtNe-MANUAL (2014 ed.) at p. 141. 9. 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. 0 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 4a' DCA 2006). 10. In light of the foregoing material facts and applicable law and pursuant to Florida Statute Section 57.105, the Town demands that Plaintiff and its counsel withdraw the above mentioned claims against the Town. 11. In the event that Plaintiff does not withdraw its Complaint within 21 days after service of this Motion, the Town will seek all sanctions available to it under Fla. Stat. §57.105. WBEREFORE, Defendant, the Town of Gulf Stream, respectfully requests that this Court enter an Order awarding it its attorneys' fees and costs against Plaintiff, Citizens Awareness Foundation, Inc., and Plaintiffs counsel, the O'Boyle Law Firm including Giovani Mesa, Esq., pursuant to Fla. Stat. §57.105, and for any fiuther relief the Court deems just and proper under the circumstances. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email to Giovani Mesa, Esquire, The O'Boyle Law Firm, P.C., 1286 West Newport Center Drive, Deerfield Beach, Florida 33442 (emesa a oboylelawfirm.coml obovlecourtdocg@obovlelawfirm.com) this l ls' day of April, 2014 JONES FOSTER JOHNSTON & STUBBS Attorneys Defendant 505 South Flagler Drive, Suite 1100 West Palm Beach, Fl *da 33401 Phone:56 jam) Fax: 561-1- 0-53 M p:Wd k13147W00581pW%1125119.docx John C/handolph Florida Bar No. 129000 irandolph@jonesfoster.co Joanne M. O'Connor Florida Bar No. 0498807 4oconnor 'onesfoster.com Ashlee A. Richman Florida Bar No. 091609 arichm ionesfoster.com Kelly A. Gardner Florida BarNo. 106366 kgardne[&onesfoster.com Your original request. dated February 18. 2014, is reproduccd in the space below: Date of Acquest: 2II M 014 RnqucsWo Request IM C-113 AEQUESTBE: CustodianofImord9Town ofGulf SLum REQUBSTOR: Citizens Awareness Foundation, Inc, REQL7ES'LOR'3CONT.4CT INFORI-Lk7rON: &Mail: wotds&aaiA e'er-group.cnm F%x: 9S4-364.0Mi Address: 1280 WoslNowpod UerterDrit'c. DetrFie:dBeacb, FL 33442 REQUEST: Plsasc provi& copies of all PubtrG Rccattis Raquestl Mack by any oTthe IpUowiuR individuals ftotn the period baginningJanuary 1, 2013 tltrpugE iht daft' of thLt Nqucst: Mayor loan OrEmcin; Dorms S. White; W. Garmit Dcdng; Robert Ganger, Thomas Stamey; Swtt Morgan; Paul A Lyons, 7r,; Thomns Smith; IVIUMM MUVby; Amanda Jones; lyilliam Boardman; David 9odkcr:Richard hiouw; YntrlciaRaudallil�; Donjamin Sc&eler. ADDITIONAL INKaLNIATIt;IN RBGARDwo rinQmT: 'PHIS REQUEST IS ylAM;21JIMANT TO PUBLIC RLCORWAM, CRAFTER 119 OF THE FLORIDA STATUTES AND 39 ALSO REQWSPED UNDER THE CQM31ON LAW RIGHT TO IMW, THE CONZION TAIY RIGST OF ACCESS; AND ANY STATUTORY WGgT TO KNOW 0WCLUDINC, VWMOUT LWITATION, ANY STATUTORY RIGHT 017 ACCESS, AS AYFLICABLB), THIS REQUEST IS ALSO MAIIl PURSUANT TO ME RIGTITS OF TAR RV.gUESTOdi PRO17MCO IN TETE FLORIDA CONST NVION. RHC0949 RMUCS T SE FULFTLLID ON 7 t,,li I717APLR. NOTE: rN AI3, CASFR_!Un_LES ( RNISS1BL.g1TAECOPIESSHOULDBF.TWOSIDEDANDSHOULDBEBILLQDIry AC'CORDAN'CE W(TH &colon 119,07(41(al (21 ALL nX0CTPOM COPIES ARE REOVESTED TO E16 BENT BY E-MtAILD%L'rWRV. PLEASE PROVIDE THE APPROMMTH COSTS (IF ANY) TO FUGI?Mt THIS PUBLIC RECORDS REQUEST IN ADVANCE. The Town's acknowledcement of the above Public Records Request, dated February 19 2014 is reproduced in the space below. TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via c -mail February 19, 2014 Citizens Awareness Foundation Inc. (CAF) [records@commerce-group.com] Re: PUBLIC RECORDS REQUEST - #C-113 - public records requests Please provide copies of all Public Records Request made by any of thefollowing Individuals from the period beginning January 1, 2013 through the date of this request: Mayor Joan Orthwein; Donna S. White; W Garrett Derfng; Robert Ganger; Thomas Stanley; Scott Morgan; Paul A Lyons, Jr.; Thomas Smith; Malcom Murphy; Amanda Jones; William Boardman; David Bodker; Richard Mouw; Patricia Randolph; Benjamin Schreier. Dear Citizens Awareness Foundation Inc. (CAF), The Town of Gulf Stream has received your public records request dated February 19, 2014. If your request was received in writing, then the first page of that request is attached to this cover letter. If your request was verbal, then the description of your public records request is set forth in the space below. 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, Town Clerk Custodian of the Records rx•D PALM BEACH COUNTY, FLORIDA Delivered via email March 19, 2014 Citizens Awareness Foundation Inc. (CAF) [records@commerce-group.com] Re: PUBLIC RECORDS REQUEST - #C-113 - public records requests Please provide copies of all Public Records Request made by any of the following individuals from the period beginning January 1, 2013 through the date of this request: Mayor Joan Orthwein; Donna S White; W. Garrett Dering,• Robert Ganger; Thomas Stanley; Scott Morgan; Paul A. Lyons, Jr.; Thomas Smith; Malcom Murphy, Amanda Jones; William Boardman; David Balker; Richard Mouw, Patricia Randolph; Benjamin Schreier. Dear Citizens Awareness Foundation Inc. (CAF), This letter provides you with the full responsive production of the public records requested in your email dated February 18, 2014 that we acknowledged on February 19, 2014. This correspondence is reproduced below for your convenience. The following requests were made orally to our office: Date of Request Renuestor 2/5/2014 William Boardman 2/18/2014 Joan Orthwein 2/28/2014 William Boardman Records Reauested O'Boyle/Gulf Stream settlement agreement and O'Boyle candidate filing papers Copies of pictures of O'Boyle's house with the parody paintings on it Copies of two most recent lawsuits filed by Martin E. O'Boyle against the Town of Gulf Stream Unless we hear back from you, we consider this matter closed. Sincerely, Town Clerk Custodian of the Records EX -G Filing 9 12940753 Electronically Filed 04/25/2014 01:30:35 PM IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CITIZENS AWARENESS FOUNDATION, INC., Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. CASE NO.: 2014CA003396 AB NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE Plaintiff, CITIZENS AWARENESS FOUNDATION INC, by and through undersigned counsel hereby provides a notice of voluntary dismissal without prejudice of the above - referenced action. This voluntary notice of dismissal is without prejudice. I HEREBY CERTIFY that a copy hereof has been served and filed through the Florida Court E -Filing Portal this 25°i day of April, 2014 to: Joanne O'Connor, Esquire, Jones Foster Johnson & Stubbs, jrandolph@jonesfoster.com. THE O'BOYLE LAW FIRM, P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 834-2201 Facsimile: (954) 360-0807 For Service of Court Documents: oboylecourtdocs@oboylelawfum.com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar #008679 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401 MARTIN O'BOYLE Appellant / Petitioner(s) BY ORDER OF THE COURT: October 14, 2016 CASE NO.: 4D15-1762 L.T. No.: 2014CA005189XXXXMB v. TOWN OF GULF STREAM Appellee / Respondent(s) ORDERED that the appellant's August 11, 2016 motion for clarification, rehearing, rehearing en banc and/or certification is denied. Served: cc: Kelly A. Gardner Joanne M. O'Connor Jonathan O'Boyle II LONN WEISSBLUM, Clerk Fourth District Court of Appeal Daniel Desouza DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT MARTIN O'BOYLE, Appellant, U TOWN OF GULF STREAM, Appellee. No. 4D15-1762 [July 27, 2016] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jessica Ticktin, Judge; L.T. Case No. 2014CA005189XXXXMB. Daniel DeSouza of Daniel DeSouza Law, P.A., Fort Lauderdale, for appellant. Joanne M. O'Connor of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee. PER CURIAM. Appellant Martin O'Boyle appeals a trial court judgment holding that the fee imposed by the Town of Gulf Stream ("the Town") for public records requests was lawful. We affirm. Although the parties in this case focus entirely on whether the "actual cost of duplication" charged by the Town was the "actual cost" as that term is defined in section 119.011(1), Florida Statutes, we hold that a determination on this issue is unnecessary based on the facts before us. Section 119.07(4)(a) provides that a Town may charge "[u]p to 15 cents per one-sided copy" up to a certain size and an additional 5 cents for two-sided copies. Here, Appellant requested 4,573 pages worth of copies and was charged $496.21. That amounts to a rounded value of 11 cents per page; within the 15 cents that is authorized by subsection (a). The fact that the Town followed a calculation that appears to line up with section 119.07(4)(d), which allows the Town to impose a special service fee on top of the actual costs of duplication, is irrelevant. The Town was authorized to charge up to 15 cents per page. It charged only 11 cents per page. This charge was authorized by Section 119.07(4)(a). Affirmed. DAMOORGIAN and FORST, JJ., and PERLMAN, SANDRA, Associate Judge, concur. Not final until disposition of timely filed motion for rehearing. IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MARTIN O'BOYLE, CIVIL DIVISION: AE Plaintiff, CASE NO.: 502014CA005189X3O{XMB ►'A THE TOWN OF GULF STREAM, Defendant. ORDER DENYING DEFENDANT'S MOTION FOR ENTRY OF AMENDED FINAL JUDGMENT, CLARIFYING MARCH 30, 2015 FINAL JUDGMENT, AND DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION THIS CAUSE came before the Court on Plaintiffs Motion for Reconsideration of the Court's March 30, 2015 Final Judgment, filed April 13, 2015, and Defendant's Motion for Entry of Amended Final Judgment, filed on April 20, 2015. Accordingly, it is hereby ORDERED that Defendant's Motion for Entry of Amended Final Judgment is DENIED. In an abundance of caution, it is further ORDERED that the Court's March 30, 2015 Final Judgment is clarified as follows: It is hereby ORDERED AND ADJUDGED that judgment is entered in favor of Defendant for the reasons set forth in the Court's Final Judgment dated March 30, 2015. This resolves all issues pending before the Court. Plaintiff takes nothing by this suit and Defendant shall go hence without day. Finally, it is further ORDERED that Plaintiff's Motion for Reconsideration is DENIED. DONE and SIGNED in Chambers, at West Palm Beach, Palm Beach County, Florida, this day of April, 2015. tom/ A.4 a11t_ O Le tm JESSICA TICKTIN CIRCUIT JUDGE Copies furnished to: Daniel DeSouza, Esq., DeSouza Law, P.A., 1515 N. University Drive, Suite 209, Coral Springs, FL 33071, ddesouza@desoazalaw.com Vrenda Cain, Esq., The O'Boyle Law Firm, P.C., 1286 West Newport Center Drive, Deerfield Beach, FL 33442, vcain@oboylelawfirm.com; oboylecourtdocs@oboylelawfirm.com Joanne M. O'Connor, Esq., Jones Foster Johnston & Stubbs, PA, 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401, joconnor@jonesfoster.com John C. Randolph, Esq., Jones Foster Johnston & Stubbs, PA, 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401,jrandolph@jonesfoster.com IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION: AE CASE NO.: 502014CA005189XXXXMB MARTIN O'BOYLE, Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. FINAL JUDGMENT THIS CAUSE came before the Court after a bench trial on Plaintiff Martin O'Boyle's "Complaint for Violation of the Florida Public Records Law and Releif (sic) Pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119 Florida Statutes." Plaintiff filed his Complaint for declaratory and injunctive relief on April 30, 2014, and the Town filed its Answer on May 15, 2014. No motions directed to the pleadings were filed. The Court held the bench trial on February 5, 2015. After the bench trial, the parties submitted supplemental memoranda as permitted by the Court. The Court has reviewed the parties' submissions, the court file, the exhibits presented at trial, and the applicable law. I. The issue before the Court is whether the Town of Gulf Stream's ("the Town") fees for duplicated copies of public records exceeded the actual cost of duplication and were thus unauthorized under section 119.07(4), Florida Statutes, at the time the Town provided the estimates to Plaintiff of the amounts owed for his four separate public records requests in January of 2014. The fees involved were eight cents per page for 8 -''/z -by -I 1 -inch black -and -white copies Page 1 of 14 and nine cents per page for 8-%:-by-l4-inch black -and -white copies of public records. The per - page fee charged by the Town was the aggregate of three costs: (1) a sheet of paper; (2) a pro rata share of the monthly fee the Town pays to Xerox to have the photocopier that it uses to duplicate public records; and (3) a meter charge the Town pays to Xerox for every page that "goes through" the photocopier. For the requests made by Plaintiff in this case, the Town was only authorized to charge fees reflecting the "actual cost of duplication," which means "the cost of the material and supplies used to duplicate the public record," but expressly does not include "labor cost or overhead cost associated with such duplication." §§ 119.011(1), 119.07(4)(d)(3), Fla. Stat. As explained below, the Court finds that the Town's per -page fees reflected the actual cost of duplication and were therefore authorized under section 119.07(4), Florida Statutes. II. FACTS A. The Town's Photocopier The Town entered into a five-year lease agreement with Xerox on or about May 29, 2013, pursuant to which the Town rents its photocopier. Under this lease, the Town pays a flat monthly fee to Xerox of $501.42, for rental, maintenance, and ink. More specifically, this fee is paid for the rental of the photocopier and a "Maintenance Plan." One of the features of the Maintenance Plan under the Town's lease with Xerox is that "consumable supplies" are "included for all prints." According to the "Terms and Conditions" attached to the lease, where "Consumable Supplies" are included as one of the Maintenance Plan features, "Maintenance Services will include black toner and/or solid ink and color toner and/or solid ink, if applicable." Xerox also agrees, as part of "Maintenance Services," to "keep the Equipment (the Xerox Machine) in good working order." Page 2 of 14 As part of its monthly payment to Xerox, the Town also pays two "Print Charges" based on the "Meter": $0.0099 per black print and $0.0690 per color print. As Town Clerk Rita Taylor put it, the Town pays Xerox these meter charges for "every piece" that goes through the machine. Xerox's monthly invoices to the Town indicate that the lease agreement includes "equipment, maintenance, and supply charges." They further provide that the "total of invoice may vary according to meter usage billed." Ms. Taylor offered the following testimony about the Town's use of the photocopier. It is the only one the Town has for making copies, though there is also a small printer in the Town Manager's office. The Town chose its particular photocopier because it was "all in one" and the Town does not have room for more than one such machine in its office. The entire staff of the Town can use the photocopier, and the majority of the Town's printing is done on the machine. Finally, the Town uses the photocopier in its "regular course of business" and would "need that copy machine" even if "there was no Mr. O'Boyle and no Mr. O'Hare." I B. The Town's Fees for Duplicates of Public Records The Town's per -page fee included three components: the cost of paper, the cost of a share of the monthly rental fee, and the cost of the meter charge. The Town's fiscal year runs from October 1st to September 30th. Based on information from that fiscal year, the Town came up with calculations for each of the three components, the sum of which formed the per -page fee for public records requests. The calculations are detailed in a memorandum from Edward Nazzaro, a Contract Paralegal, to Ms. Taylor, the Town Clerk. ' Ms. Taylor testified that the Town had experienced an increase in its public records requests in the year and a half before her deposition, primarily attributable to Mr. O'Boyle (Plaintiff) and Christopher O'Hare. Page 3 of 14 First, with respect to paper, for the fiscal year 2013, the Town purchased paper for its photocopier from various vendors, including Office Depot, Sam's Club, and Staples. The Town arrived at the figure of one cent per sheet of 8 ''/z -by -1 l -inch paper and two cents per sheet of 8 -by-14-inch paper. These figures are not in dispute. Second, as for the fixed monthly rental fee, the Town had made 97,058 total copies in the 2013 fiscal year, or an average of 8,088 copies per month. The average pages per month divided by the monthly copier charge for 2013 equaled $0.0619. The Town thus rounded that figure down to six cents per page. Finally, the Town rounded up the $0.0099 meter charge it paid to Xerox for each black and white copy to one cent per page. The sum of these three figures was eight cents per page for 8'/--by-1 l -inch black -and -white copies and nine cents per page for 8'/Z -by -l4 -inch copies. C. Plaintiff's Public Records Requests Plaintiff is a resident of the Town of Gulf Stream, and the Town is an agency for purposes of the Public Records Act. In January of 2014, Plaintiff made four separate requests for public records under the Act which form the four counts of the present Complaint. 1. The Work Permits Request (Count One) On or about January 21, 2014, Plaintiff made a public records request to the Town relating to "applications for all work permits to the Town of Gulf Stream" for the period beginning January 1, 2012 through the date of the request. The Town sent Plaintiff an email on January 24, 2014, estimating the total cost to fulfill the request at $194.17: (1) $32.57 for one hour of administrative support, (2) $161.60 for the cost of duplication (2020, 8 1/2 x I 1", 2 -sided pages at $0.08 per page). The Town requested a deposit in the amount of the estimate from Plaintiff before it would produce the requested records. Plaintiff has not paid the deposit and the Town has not produced the records. Page 4 of 14 2. The Marsh Development Applications Request (Count Two) On January 21, 2014, Plaintiff made a public records request to the Town relating to "all applications for development wherein Mark Marsh was the applicant, signed for the applicant, or was designated as the architect" for the period beginning July 2, 2012 through the date of the request. The Town sent Plaintiff an email on January 27, 2014, estimating the total cost to fulfill the request at $28.19: (1) $27.14 for 50 minutes of administrative support, (2) $1.05 for the cost of duplication (3, 8 1/2 x 11", 1 -sided pages at $0.08 per page, and 9, 8 '/z x 14" 2 -sided pages at $0.09 per page). The Town requested a deposit in the amount of the estimate from Plaintiff before it would produce the requested records. Plaintiff has not paid the deposit and the Town has not produced the records. 3. The O'Boyle/Boyle/Jonathan Communications Request (Count Three) On January 24, 2014, Plaintiff made a public records request to the Town relating to "all communications ... which include the name 'O'Boyle,' `Boyle,' and/or Jonathan" for the period of July 1, 2013 through the date of the request. The Town acknowledged Plaintiff's request on January 24, 2014, and sent him a partial production in response to the request on March 14, 2014. The Town then sent Plaintiff an email on March 19, 2014, estimating the total cost to fulfill the request at $228.40: (1) $38.00 for 70 minutes of administrative support, (2) $190.40 for the cost of duplication (2380, 8 1/2 x 11", 1 -sided pages at $0.08 per page). Plaintiff has not paid the requested deposit and the Town has not produced the records. 4. The Town Commissioner Forms Request (Count Four) On January 27, 2014, Plaintiff made a public records request to the Town relating to "Forms" and other documents submitted by all Town Commissioners during the years beginning 2008 through the date of the request. Page 5 of 14 The Town sent Plaintiff an email on January 28, 2014, estimating the total cost to fulfill the request at $45.45: (1) $32.57 for one hour of administrative support, (2) $12.88 for the cost of duplication (114, 8 1/2 x I 1", I -sided pages at $0.08 per page, and 47, 8 '/x x I1" 2 -sided pages at $0.08 per page). The Town requested a deposit in the amount of the estimate from Plaintiff before it would produce the requested records. Plaintiff has not paid the deposit and the Town has not produced the records. III. LEGAL ANALYSIS AND RULING Under section 119.07(4), "the custodian of public records shall furnish a copy or a certified copy of the record upon payment of the fee prescribed by law." Where a fee is not prescribed by law, however, the subsection authorizes a series of fees. Id. The parties agree that the fees to be paid for the requests at issue in this case are not otherwise prescribed by law, and are governed specifically by section 119.07(4)(d): If the nature or volume of public records requested to be inspected or copied pursuant to this subsection is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved, or both, the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both. The only dispute in this case concerns whether the fees in the Town's estimates reflected the "actual cost of duplication." Plaintiff does not dispute the special service charges. A. The Town's photocopier costs, including the monthly fee and the meter charge, are costs of the supply used to duplicate a public record and are therefore actual costs of duplication. The term "actual cost of duplication" is defined by the statute to mean "the cost of the material and supplies used to duplicate the public record, but does not include labor cost or overhead cost associated with such duplication." § 119.011 (1), Fla. Stat. Neither "material" nor Page 6 of 14 "supplies" is defined within the statute. "One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless the words are defined in the statute or by the clear intent of the legislature." Green v. State, 604 So. 2d 471, 473 (Fla. 1992) (citing Se. Fisheries Ass'n, hrc. v. Dep't of Natural Res., 453 So. 2d 1351 (Fla. 1984)). "If necessary, the plain and ordinary meaning of the word can be ascertained by reference to a dictionary." /d (citing Gardner v. Johnson, 451 So. 2d 477 (1984)). Relying on the dictionary definition of the term, the Town contends that the photocopier is one of the "supplies" used to duplicate the public record. Merriam -Webster's Dictionary defines "supplies" as "things (such as food, equipment, fuel, etc.) that are needed for a particular purpose and that will be used by a particular person or group." Merriam -Webster Dictionary Online, available at http://www.merriam-webster.com/dictionary/supply (viewed on March 11, 2015). The Town emphasizes the word "equipment," which is separately defined as "the set of articles or physical resources serving to equip a person or thing as the implements used in an operation or activity[.]" Id. (punctuation and enumeration omitted), available at http://www.merriwn-webster.com/dictionary/equipment (viewed on March 11, 2015). By these definitions, the Court agrees with the Town that the photocopier constitutes one of the supplies used to duplicate a public record. Specifically, the photocopier is the physical resource that equips the Town to make copies and is thus the equipment needed for the Town's particular purpose of duplicating public records and is used for that purpose. Accordingly, the costs of that supply constitute "the cost of the material and supplies used to duplicate the public record."' § 119.011 (1), Fla. Stat. ' Authority from other jurisdictions and academic commentary on the issue provide further Page 7 of 14 For the Town, the costs of the photocopier include both the monthly rental fee and the meter charges. Moreover, the specific charges levied — six cents for the share of the rental fee and one cent for the meter charge — reflect the actual cost of duplication in this case. To elaborate, the Town's calculation of the pro rata share of the rental fee is a lawful way of calculating the actual cost of duplication of public records. A public records custodian should only be required to recalculate its fees with reasonable frequency, rather than every time a request is made. See Smith v. Hudson Cnty. Register, 988 A.2d 114, 134 (N.J. Super. Ct. App. Div. 2010) (statute limiting charge for public records to "actual cost of duplication" does not "require a government agency to continually re -calculate its actual costs and establish a new' copying rate every time a citizen makes copies of a government record" and instead merely requires agency to "re -calibrate" the charge "with reasonable periodic frequency"); Szikszay v. Buelow, 107 Misc. 2d 886, 891, 436 N.Y.S.2d 558, 562 (Sup. Ct. 1981) (regulation which allowed government to impose "actual reproduction cost" did not "require the agency to calculate the actual cost of each individual order, resulting in the cost per unit fluctuating from one order to the next as the quantity of each order increases or decreases."). Moreover, calculating a copying charge on annual basis, particularly based on fiscal year data, meets this reasonableness requirement. See Smith, 988 A.2d ai 134 ("We believe that it would be support for the conclusion that actual costs include machine costs. See N. Cnry. Parents Org. v. Dep't of Educ., 28 Cal. Rptr. 2d 359 (Cal. Ct. App. 1994) (the "direct cost of duplication," which is more restrictive than the "actual cost," is "the cost of running the copy machine"); Hardin Cnty. n Valentine, 894 S.W.2d 151, 151-53 (Ky. Ct. App. 1995) (where statute allowed for recovery of "actual and reasonable expenses of reproducing" medical charts and records, trial court concluded "material and maintenance costs" were recoverable, including pro rata costs of machine maintenance and depreciation); Op. Att'y Gen. Kan. 87-4, 1987 WL 290402, at *2 (Jan. 13, 1987) ("Direct costs include, but are not necessarily limited to, staff time, paper, and machine costs."); John Bender, Solid -Gold Photocopies: A Revietiv of Fees for Copies of Public Records Established Under State Open Records Laws, 29 URB. LAw. 81, 88 (1997) ("Usually, reproduction costs seem to include copier costs, paper, and supplies, although sometimes agencies try to include other expenses."). Page 8 of 14 reasonably sufficient for the agency to perform such re -calibrations on at least an annual basis."). For the fiscal year 2013, the Town made 97,058 total copies, or an average of 8,088 copies per month. Basing its per -page fee off of the total number of copies rather than just those of public records also insured that the Town would not be recouping the costs of its own use of the machine. The average pages per month divided by the monthly copier charge for 2013 equaled $0.0619. The Town thus rounded that figure down to six cents per page in the estimates it gave to Plaintiff in January and March of 2014. As for the meter charge, Plaintiff contends that it cannot be an actual cost of duplication because it is a "profit-making surcharge" that does not reflect the costs of paper or ink. (Immediate Hearing/Trial Brief at 16.) This argument is primarily flawed because it presupposes that "material or supplies" means only paper or ink, while the Court concludes that the terms are more expansive than that. In any event, nothing indicates that the cost of a material or supply itself cannot include whatever markups or surcharges the providers might charge. For example, under a similar statute which provided that the fee for a copy "shall not exceed the cost thereof to the public agency," a Connecticut superior court concluded that municipalities did not violate the statute by charging requesters the exact cost charged to the municipalities by the vendor to provide data in computerized form, regardless of whether the fee was reasonable. See Carreira v. Freedom of Info. Comni'n, No. CV 94 0065182, 1994 WL 720394, at `4 (Conn. Super. Ct. Dec. 19, 1994) (unpublished). Here, wiry Xerox imposes the meter charge does not matter, because it is an actual cost incurred by the Town to use the Xerox machine when making copies of public records. Plaintiff does not appear to specifically challenge the Town's rounding up of the meter Page 9 of 14 charge to one cent for every page. To the extent he does, the Court notes that it is lawful for the Town to do so. See Smith, 988 A.2d at 134 ("[A]ctual per -page costs may be reasonably approximated. A margin of error of a penny or two in the per -page rate will be tolerable."). In sum, both the six -cent charge for the share of the rental fee and the one -cent charge for the meter charge reflect the cost of material and supplies used to duplicate a public record. B. The Town's photocopier costs are not overhead costs. As the statute is written, `overhead cost associated with such duplication" is excluded from the "actual costs of duplication."3 The statute does not define "overhead cost." Offering some insight, the Florida Attorney General has observed that the statutory language excludes "[t]he incidental costs, such as utilities, personnel or other office expenses." Op. Att'y Gen. Fla. 92-38 (1992). While use of the term "incidental" is helpful, the general reference to "other office expenses" leaves the Court with the sante question about the photocopier costs. The Court next looks to dictionary definitions of the term. Black's Lau, Dictionary defines "overhead" as "[b]usiness expenses (such as rent, utilities, or support -staff salaries) that cannot be allocated to a particular product or service," or "fixed or ordinary operating costs." Merriam -Webster's Dictionary, meanwhile, defines the term as the "costs for rent, heat, electricity, etc., that a business must pay and that are not related to what the business sells." Merriam -Webster Dictionary Online, available at http://www.merriam- webster.com/dictionary/overhead (viewed on March 12, 2015). Looking to other jurisdictions, the Kansas Attorney General opined in the context of public records that "[g]eneral building overhead expenses should not be included if such costs would exist notwithstanding the requirement that public agencies furnish copies of public 3 Plaintiff does not contend that the disputed costs constitute labor costs. Page 10 of 14 records." Op. Att'y Gen. Kan. 87-4, 1987 WL 290402, at *2 (Jan. 13, 1987). Spelling "overhead" out in more detail, the relevant implementing regulation for the federal Freedom of Information Act provides that "direct costs" include "the cost of operating duplication machinery," but do not include `overhead expenses such as the costs of space and heating or lighting of the facility in which the records are kept." 28 C.F.R. § 16.11(b)(2). As noted above, the Public Records Act requires a custodian of public records to furnish a copy or certified copy of a public record upon payment of a fee prescribed by law. § 119.07(4)(d), Fla. Stat. The Court thus reads "overhead cost associated with such duplication," in conjunction with `the cost of the material and supplies used to duplicate the public record," to include only those expenses that would exist notwithstanding a public records custodian's statutory obligation to furnish copies of public records. This would include the operating costs of existing as a local government entity, such as office space, air conditioning, and lighting, even though some portion of those costs might be associated with the cost of duplicating public records. As explained below, however, the costs of using the photocopier machine are not overhead costs. Plaintiff contends that the rental fee is an overhead cost because it would be incurred in the same amount regardless of whether the Town actually received any public records requests and because the Town uses the Xerox machine for its own printing and copying needs. In that regard, Ms. Taylor testified that the Town uses the Xerox machine in its regular course of business, that the majority of its printing is done on that machine, and that it would "need that copy machine" even if "there was no Mr. O'Boyle and no Mr. O'Hare." What Plaintiffs Plaintiff ultimately agrees with this definition: "[Tjhe common element among all definitions of `overhead' ... is that it consists of costs that a party would incur regardless of, for example, the need to respond to public records requests." (Plaintiffs Response to Defendant's Supplemental Trial Memorandum at 1.) Page I I of 14 argument ignores, however, is that the Town has a legal obligation ander the Public Records Act to furnish copies of public records. Ms. Taylor did not testify as to whether the Town would have a photocopier if it did not have the obligation to furnish copies of public records; regardless, any testimony by her on that subject would be wholly speculative. The mere fact that the amount the Town pays for its photocopier each month is fixed does not render the cost itself overhead in light of the Town's statutory obligation to furnish copies of public records.5 The photocopier is an actual and necessary part of the duplication process, just as much as a piece of paper or the ink that is used to duplicate each record. Furthermore, as evinced by the Town's calculation of the annual per -page cost of maintaining the Xerox machine, such per -page cost is clearly distinguishable from rent, electricity, or other utilities, the use of which in duplicating a public record cannot be calculated and itemized in such a manner. For the meter charge, the inquiry is even simpler. The Town would not incur the particular meter charges actually being charged to public records requesters but for the duplication of the particular public records requested. The meter charges for public records requests are therefore clearly not "overhead costs" for purposes of section 119.011 (1), Florida Statutes. In sum, neither the six -cent charge for the share of the rental fee nor the one -cent meter charge are overhead costs. Because the three components of its fees — eight cents per page for 8- /2 -by -ll -inch black -and -white copies and nine cents per page for 8-%-by-14-inch black -and - white — reflect the cost of the material and supplies used to duplicate public records and not overhead costs, these fees reflect the actual cost of duplication and were authorized under section ' The issue raised by the Town's shared usage, if any, would instead be whether the Town is accurately charging public records requestors the cost of the material and supplies used to duplicate a public record. As discussed supra, the Town's method of calculation is lawful. Page 12 of 14 119.07(4)(d). C. Further injunctive relief is also unwarranted. In his Complaint, Plaintiff also asks the Court to enjoin the Town from denying access to records which are subject to the Public Records Act. "Where a litigant satisfies the requirements for injunctive relief, such relief will lie under the Public Records Law." Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989). "Injunctive relief would be appropriate, we believe, where there is a demonstrated pattern of noncompliance with the Public Records Law, together with a showing of likelihood of future violations" Id. at 680-81. On the record before the Court, Plaintiff has shown neither a demonstrated pattern of noncompliance nor the likelihood of future violations. Further injunctive relief is therefore unwarranted. Accordingly, it is hereby ORDERED that Plaintiff s request for declaratory and injunctive relief is DENIED. The fees at issue were authorized under section 119.07(4), Florida Statutes. The Town has not unlawfully refused to furnish copies of the public records requested in this case, as Plaintiff has not paid the statutorily authorized fees. DONE and SIGNED in Chambers at West Palm Beach, Palm Beach County, Florida, this 0 / day of March, 2015. UP.d,4.G2Ar JESSICA TICKTIN CIRCUIT JUDGE Copies furnished to parties on service list. Page 13 of 14 SERVICE LIST Daniel DeSouza, Esq., DeSouza Law, P.A., 1515 N. University Drive, Suite 209, Coral Springs, FL 33071; ddesouza(adesou7alaw.com Vrenda Cain, Esq.; The O'Boyle Law Firm, P.C., 1286 West Newport Center Drive, Deerfield Beach, FL 33442; obovlecourtdoes(a,obovlelawfirm.com; evain(a�obovlelawfirm.com Joanne O'Connor, Esq., Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401; ioconnor(alionesfoster.com John C. Randolph, Esq., Jones, Foster, Johnston & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401; irandoloh(a�ionesfoster.com Page 14 of 14