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
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—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
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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."
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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.
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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.
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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.
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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
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"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
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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.").
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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
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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.
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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.
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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
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