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HomeMy Public PortalAboutComplaint to Enforce Florida Public Recs. Act (O'Hare)l CASE NUMBER: 2014CA002311 DIVISION: AN Filing # 10684067 Electronically Filed 02/25/2014 0::26:28 PM U u Y U U to C4 z Oa Q T m J w Y 0 0 U ELI S CL. A w IN THE CIRCUIT COURT OF THE 15`h JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER E. O'HARE, Plaintiff, l'1 THE TOWN OF GULF STREAM, Defendant. CASE NO.: Gp SliMiVI0NS "r THE STATE OF FLORIDA`ll -hely , PQG, To Each Sheriff of the State: rY 0 c).- YOU :YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law - suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Giovani Mesa, Plaintiffs attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on February 2014 Clerk of the Court By. FEB 26 2014 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 gmesa(ailoboylelawfum.com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar #0086798 SHARON R. BOCK Clerk & Comptroller Loraine Hunt P.O. Box 4667 West Palm Beach, Florida 33402-4667 IN THE CIRCUIT COURT OF THE 15`x' JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 10 toll • 0 . . Plaintiff, V. THE TOWN OF GULF STREAM, Defendant. CASE NO.: COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY RELIEF The Plaintiff, Christopher E. O'Hare, ("Plaintiff'), by and through the undersigned counsel, hereby sues the Defendant, Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges the following: IMMEDIATE BE, 1. This action concerns Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. TI -ds action seeks declaratory relief. 3. Pursuant to Chapter 119, "whenever an action is filed to enforce the provisions of this chapter, the Court shall set an immediate hearing, giving the case priority over pending cases." § 119.11 (1), Florida Statutes. 4. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory ditty to permit access to public records, and compelling the Defendant to provide access to the requested public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11 (1), Florida Statutes'. PARTIES. JURISDICTION AND VENUE 5. Plaintiff is a resident of Palm Beach County, Florida, is over the age of eighteen, and is otherwise sui juris. 6. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat. and § 1.01(3), Fla. Stat. ("The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.") 7. The Defendant is an agency for the purposes of Chapter 119, the Florida Public Records Act. Fla. Stat. §119.011(2). 3. Defendant has a ministerial duty to permit inspection, examination, and copying of its public records by any person desiring to do so, at reasonable times, under reasonable conditions, 'Note Article I Section 24, Fla. Const. Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. 2 Note § 119.11 (1), Fla. Stat. Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. and for reasonable cost, pursuant to § 119.07(1)(a), Florida Statutes. (Emphasis added). See also, Art. I, § 24, Fla. Const. 9. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 10. This Court has personal jurisdiction over the Defendant, because Defendant is a public agency in Palm Beach County. 11. This Court is the appropriate venue for the vindication of Plaintiff's civil rights because the cause of action accrued in Palm Beach County. 12. All conditions precedent to this action have occurred or have been excused or waived. FACTS PERMENT TO ALL COUNTS 13. On February 13, 2014, Plaintiff submitted the following public records request ("Request") via -email to Defendant: All records of checks or other forms ofpayment made by the Torvrr or Town cheeks handwritten by William Thrasher for car wash services during the tine period starting on January 1, 2011 through to the date you received this public records request. See Ex. A. 14. The request further stipulates the following: If you anticipate the production of these public records to erceed $1.00 please notify me in advance of theirproductiar with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials. See Ex. A. 15. On February 20, 2014, Defendant responded to the Request via -email indicating that "[t]he town will not process this new public records request, or any future public records request filed by you [Plaintiff], until the aforementioned cost [deposit of $792.54 for prior request] have been paid or otherwise resolved" ("Response"). Defendant's Response cites Lozman v. City of Riviera Beach, 995 So 2d 1027 (Fla. 4th DCA 2008), as Defendant's legal justification for not processing Plaintiffs Request. See Ex. B. 16. Other than citing Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008), Defendant cited no statutory exemption which would relieve it of its duty to comply with Florida's Public Records Law. 17. All conditions precedent to this action have occurred or have been excused or waived. I8. Violations of Section It 9.07, Florida Statutes constitute an irreparable public injury3. COUNT UNLAWFUL WITHHOLDING OF PUBLIC RECORDS 19. Plaintiff re -alleges and incorporates by reference the above numbered paragraphs I through 18 as if fully alleged herein. 20. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009). 21. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf..: ' Art. I, § 24, Fla. Const.; see also § 119.011(2), Fla. Stat. 22. Under the Public Records Act, "[e]very person who has custody of a public record 'Note Daniels v. Bryson, 548 So. 2d 679,680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request. Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat. 23. Defendant, as an agency defined in Fla. Stat. Section 119.011(2), owes a duty to provide access to the public of all records within its control pursuant to Fla. Stat. Section 119.01(1). 24. Lacking any exemption to the Public Records Law, Defendant has an express statutory duty to make the public records available for inspection virtually on demand. See, generally, Fla. Stat. § I 19.07(1)(a); Tribune Co. v. Cannella, 458 So.2d 1075 (Fla. 1984), appeal dismissed sub issue nom., Deperte v. Tribune Co., 471 U.S. 1096 (1985). 25. While Defendant is authorized to impose a special service charge when the nature or volume of public records to be inspected is such as to require extensive use of information technology resources, or extensive clerical or supervisory assistance, or both, the charge must be reasonable and based on the labor or computer costs actually incurred by the agency. See Board ofCounty Commissioners of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008) (special service charge applies to requests for both inspection and copies of public records when extensive clerical assistance is required). 26. The Public Records Act requires Defendant to make the public records available and/or respond to the request within a reasonable amount of time. See Town ojManalaan v. Rechler, 674 So. 2d 789, 790 (Fla. 4th DCA), review denied, 684 So, 2d 1353 (Fla. 1996); State v. Nebb, 786 So. 2d 602, 604 (Fla. 1st DCA 2001) . The only delay in producing public records permitted under Chapter 119 "is the limited reasonable time to allow the custodian to retrieve the 34. Violation of Section 119.07, Fla. Stat. constitutes an irreparable public injury. See Grapski v. City of Alachua, 31 So.3d 193,200 (Fla. DCA 2010)( holding that the mere showing that the law has been violated constitutes an irreparable public injury.) 35. Plaintiff has a clear legal right to insist that Defendant perform its duties, which includes permitting access to any public records within its control. 36. Plaintiff has no adequate remedy at law. 37. This matter must be set for immediate hearing. See Fla. Stat. Section 119.11(1). 38. All condition precedent to this action have occurred, been excused or waived. ATTORNEYS' FEES 39. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See § 119.12, Fla. Stat. RELIEF REQUESTED WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 1] 9.11, Florida Statutes; (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article 1, Section 24 of the Florida Constitution and the Public Records Act; (c) Order the Defendants to produce the requested records (upon payment of the statutorily authorized fees); (d) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this 7 action, as provided in Section 119.12, Florida Statutes; and (e) Grant such further relief as the Court deems proper. Respectfully submitted, Dated: February 25. 2014 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: obovlecourtdocs@obovlelaw5rm.com By: /s/ Giovani Mesa Giovani Mesa, Esq. Florida Bar#0086798 Rmesa(7obovlelawfirm.com D1- 10 -201 060 1 z8W IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. OTIARE, Plaintiff 50 2013 CA 01 8 0 9 5 XX)A9 V. Cease No.: TOWN OF GULF STREAM, Defendant. TO: Joan K. Orthwein, Mayor TOWN OF GULF STREAM 543 Palm Way Gulf Stream, FL 33483 SUMMONS IMPORTANT A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiffs Attorney" named below. IMPORTANTE Usted ba sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una llamada telefoncia no to protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes 1 of 3 interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted consultar a un abogado, puede llamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o entregar una Copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). lul' Y7�V:\►YY Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci- jointe aupres de cc tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre response ecrite dans le relai requis, vous resquez de perdre la cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis ulterieus du tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a on service de reference d'avocats on a un bureau d'assistance juridique (figurant a 1'annuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement, en meme temps que cette formalite, faire parvenir on expedier une copie de votre reponse ecrite an "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat) nomme ci-dessous. CHRISTOPHER F. O'HARE, as Pro Se Plaintiff 2520 Avenue An Soleil Gulf Stream, FL 33483 Telephone: (561) 350-7551 pinegd(aemail.com 2of3 STATE OF FLORIDA TO EACH SHERIFF OF THE STATE: You are commanded to serve this summons and a copy of the Complaint in this lawsuit on the above-named Defendant. WITNESS MY HAND AND SEAL of said court. DATE: December , 2013. DEC 10 2011 Clerk of the Court SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 'KRISTIN BUTLERWest Palm Beach, Florida By: 33402-4667 -- Deputy Clerk 3 of 3 SHpRUN R. BOCK Clerk & Comptroller I J IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FORVXMp PALM BEACH COUNTY, FLORIDA O�V13CAOoOn G CHRISTOPHER F. OTIARE, Plaintiff, V. CASE NO.: COPY RECEIVED FOR FILING DEC 10 2013 TOWN OF GULF STREAM, SHARON R. BOCK CLERK & COMPTROLLER Defendant. CIRCUIT CIVIL DIVISION VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF The Plaintiff, Christopher F. OHare, ("Plaintiff'), without counsel as a Pro Se litigant, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore alleges as follows: 1. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the "Public Records Act"). 2. This action seeks declaratory, injunctive and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory'- duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Const. Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their bebaK except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution 1of11 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11(1), Florida Statutes3. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119. 11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiff's civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(l)(a), Fla. Stat 4 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 ' Note § 119.07(1)(a), Fla. Stat. Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 3 Note § 119.11(1), Fla. Stat Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. Q See Footnote "2". s Note § 119.011(2), Fla. Stat `Agency' means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the 2of11 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by 2V person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. (Emphasis added). See § 119.07, Fla. Stat.; Art. L § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. 1, § 24, Fla. Const.; see also § 119.011(2), purposes of this chapter, the Commission on Ethics, the Public Service Commission, and die Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. 6 Note Government -In -The -Sunshine -Manual 2012 Edition page 144. The term "reasonable conditions" as used in s. 119.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Mait v. Florida Power & Light Company, 372 So. 2d420,425 (Fla. 1979). See also Slate er rel. Davis v. klcbfrllan, 38 So. 666 (Fla 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.CL 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. `The courts or this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. Inf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla 1st DCA 200 1) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). 'Note NCAA v. Associated Press 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government 3of11 Fla. Stat s 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat.9 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.10 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(lxa)11, §I19.07(3)(a)1-, Fla. Stat.; Art. 1, § 24, Fla. Const.13 Factual Background 16. On September 29, 2013 at 10:23 a.m., Plaintiff submitted a public records request via e-mail to the custodian of records of the Town of Gulf Stream. 17. Specifically, Plaintiff sought to obtain: Any photos of the Gulf Stream property of Percy Orthwein in the Town's public record (the "Photo Request"). Said Photo Request is attached hereto and specifically incorporated 'See Footnote "5". 9 See Footnote "T'. 10 Note § I I9.07(3)(a), Fla. Stat. Any person shall have the right of access to public records for the purpose of m.ilcing photographs of the record while such record is in the possession, custody, and control of the custodian of public records. u u See Footnote "2". 1= See Footnote "10". " See Footnote "1". 4of11 herein as Exhibit A. 18. Some four (4) days after receipt of the Photo Request, on October 3, 2013, Defendant sent a letter to Plaintiff via e-mail, also received October 3, 2013, stating in relevant part: Our 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. (the "Initial Photo Response"). Said Initial Photo Response is attached hereto and specifically incorporated herein as Exhibit B. 19. Some forty-two (42) days after receipt of Plaintiffs Photo Request, Defendant sent a letter to Plaintiff via e-mail on November 10, 2013, also received November 10, 2013, stating in relevant part: In response to the public records you have requested in your email dated September 29, 2013, that we acknowledged on October 3, 2013, be advised that no such records exist. [emphasis added] (the "Final Photo Response"). Said Final Photo Response is attached hereto and specifically incorporated herein as Exhibit C. 20. Upon information and belief; the requested public records are maintained by the Defendant in electronic form. 21. As of the date of this complaint, some seventy-two (72) days after Plaintiffs original public records request, Plaintiff has not received the requested public records. 22. Plaintiff has requested that the responsive documents for the public records requests described herein be provided in electronic form and provided an E -Mail address to whom the response was to be sent. 5of11 23. The records requested by the Plaintiff are public records that are readily accessible to Defendant. 24. All of the records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. 25. There is no statutory exemption that applies to any of the requested public records and the Defendant has cited none. 26. Violations of Section 119.07, Florida Statutes constitute an irreparable public injuryl5 27. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 28. Section 119.1 1(1), Florida Statutes requires this matter be set for an immediate hearing. is 29. All conditions precedent to this action have occurred or have been excused or waived. 30. Defendant's actions with respect to the public records requests discussed herein and in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that is Note § 119.011(12), Fla Stat "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the tmnmction of official business by any agency. u Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injuryto the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. ie See Footnote `3". 6of11 injunctive relief is appropriate. Count I — Unlawful Withholding of Public Records: Unreasonable Delay for the Production of Photo in Electronic Form 31. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 30 as if fully alleged herein. 32. The Defendant's refusal to allow Plaintiff to inspect the requested public records violates Article I, Section 24(a) of the Florida Constitution, Section 119.07(1)(a), Florida Statutes17 and is inconsistent with well-established case law18 33. Section 119.01(2)(f), Florida Statutes provides, "An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium." 34. "The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Dibrnte Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984). 35. Despite Plaintiff s request of obtaining a copy of the requested photo in digital (or electronic) form, some seventy-two (72) days after the Defendant received Plaintiffs original Photo Request, Defendant still has not offered to provide same to Plaintiff under any terms. 36. The above described seventy-two (72) day delay is unreasonable and in violation of " See Footnote "2". " See Bell v. Kendrick 6 So. 868 (Fla. 1889) (public records belong "to the public office and not to the officer."); See also State ex .rel. Davidson v. Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No 2157 298 So.2d 478 (Ist DCA 1974) (records that "are made by a city employee in the normal course of conducting the city's business are materials which are open to the citizens of this state for inspection."); See also State ex rel. Veale v. City of Boca Raton 353 So. 2d 1194 (Fla 4th DCA 1977) (the Public Records Act "requires the public official with custody of a public record to disclose it to any member of the public, including the media, who wishes to inspect it. Non -disclosure is permitted only if there is an exemption provided" by statute.); See also News -Press Publishing Co. v. Gadd. 388 So. 2d 276, 278 (Fla 2d DCA 1980) ("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and the damage to an individual or institution resulting from such disclosure."). 7of11 the Public Records Act. Count H — Automatic Delay: the Production of Photo in Electronic Form 37. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 36 as if fully alleged herein. 38. In its Initial Photo Response, Defendant imposed an automatic delay by refusing to respond except "within three business days," even though the Photo Request was received four (4) days prior to the date appearing on the Defendant's Initial Photo Response and the requested records were readily available to the Defendant at that time. 39. The Defendant's imposition of an automatic delay has no statutory basis and is, therefore, in violation of the Public Records Act. 19 Attorneys' Fees 40. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. 41. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in the preparation of this complaint, however, he reserves the right to retain counsel in this matter 19 See Tribune Co. v. Cannella_ 458 So.2d 1075 (Fla., 1984) ("We hold that no automatic delay is permitted..." and "an automatic delay, no matter how short, impermissibly interferes with the public's right, restrained only by the physical problems involved in retrieving the records and protecting them, to examine the records. The legislature has placed the books on the table; only it has the power to alter that situation."); See also Graosld v. City of Alachua 31 So.3d 193 (Fla App., 2010); See also R=Werv. Town of Manalaoan. No. CL 94-2724 AD (Fla. 15th Cir. CL November 21, 1994), afrmeit 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denier, 684 So. 2d 1353 (Fla. 1996); See also State v. Webb. 786 So.2d 602 (Fla App., 2001). 8ofII for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses for the preparation of this complaint and any additional purposes for which attorney's fees and expenses are incurred in this matter. Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;20 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article 1, Section 24 of the Florida Constitution21 and the Public Records Act;" (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in its original electronic form; (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 23 (f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this 20 See Footnote "3". 21 See Footnote "1". 22 See Footnote `2" 23 Note Government-In-The-Smishine-Manual page 172. Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstmte the high likelihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court. 9ofII action, as provided in Section 119.12, Florida Statutes;'' -`t and (g) Grant such further relief as the Court deems proper. Dated. t✓ � I () 2013 'd See Verified Complaint at "40". 10 of 11 Respectfully submitted, PREPARED WITH ASSISTANCE OF COUNSEL F. O'HARE, as Pro Se Plaintiff 2520 Avenue Au Soleil Gulf Stream, FL 33483 Telephone: (561) 588-8920 pinegdna.Qmail.com ****I- i i ' Z 0 I t CASE NUMBER: 2014CA000894 DIVISION: AB **** Filing # 9507465 Electronically Filed 01/24/2014 10:53:26 AM I 3, 40 , 050 ZPq IN THE CIRUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN C 7 AND FOR PALM BEACH COUNTY, `C FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA To Each Sheriff of the State: Case No.: SUMMONS YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law- suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Ryan L. Witmer, plaintiff's attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on Janui JAN 24 2014 Clerk of the Court Josie Lucce 0aN SHARON R. BOCK F F �� Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmert7a,oboylelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 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.: VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF The Plaintiff, Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned counsel, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore alleges as follows: 1. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. This action seeks declaratory, injunctive and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Const. Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf; except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. ' Note § 119.07(lxa), Fla. Stat. 1of10 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11(1), Florida Statutes3. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiff's civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat,4 9. The Defendant is an `agency" pursuant to Section 1 19.011(2), Florida Statutes.5 Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. ' Note § 119.1 Ill), Fla. Stat. Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. 4 See Footnote "2". 'Note § 119.011(2), Fla. Stat "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity 2of10 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by mnr person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. I, § 24, Fla. Const.; see also § 119.011(2), acting on behalf of any public agency. 6 Note Govemment-In-The-Sunshine-Manua12012 Edition page 144. The term "reasonable conditions" as used in s. I I9.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420, 425 (Fla 1979). See also State e r rel. Davis v. McMillan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include it rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch.119, F.S. Inf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla_ 1 st DCA 200 1) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). r Note NCAA v. Associated Press, 18 So. 3d 1201, 1212 (Ist DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government. 3of10 Fla. Stat s 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat.9 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.to 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a)11, §119.07(3)(a)12, Fla. Stat.; Art. I, § 24, Fla. Const.la Factual BackEround 16. On October 29, 2013, Plaintiff, submitted a public records request via e-mail to the Defendant. 17. Among other public records, Plaintiff sought to obtain: Any and all documents, files, photos, folders or other material in digital form that can be reasonabli, considered a public record which is located on ani, and all computers in the personal possession of or the personal control of, Mayor Joan Ortizwein. s See Footnote "5'. 9 See Footnote "2". 10 Note § 119.07(3)(a), Fla. Stat. Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. " See Footnote "2". 1'- See Footnote "10". 13 See Footnote "I". 4 of 10 (the "Request"). Said Request is attached hereto and specifically incorporated by reference herein as Exhibit A. 18. One day after Defendant received the Request, on October 30, 2013, Defendant sent a letter to Plaintiff via e-mail, stating in relevant part: Our 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. (the "Initial Response"). Said Initial Response is attached hereto and specifically incorporated by reference herein as Exhibit B. 19. Seventy-two days after Defendant sent the Initial Response, on January 10, 2014, Defendant's custodian of records sent a letter to Plaintiff via e-mail, stating in relevant part: This letter is attached to an email that provides you with the full responsive production of public records requested in your email dated October 29, 2013. (the "Second Response"). Said Second Response is attached hereto and specifically incorporated by reference herein as Exhibit C. 20. Attached to the Second Response were multiple e-mails which were the only responsive documents provided to Plaintiff in connection with the Request. General Alleeations Common to All Counts 21. The records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. "Note § 119.011(12), Fla Stat. "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 5of10 22. There is no statutory exemption that applies to any of the requested public records and the Defendant has cited none. 23. The Defendant's refusal to allow Plaintiff to inspect the requested public records violates Article I, Section 24(a) of the Florida Constitution, Section I I9.07(1)(a), Florida Statutes16 and is inconsistent with well-established case lawls. 24. Violations of Section 119.07, Florida Statutes constitute an irreparable public injuryl7 25. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 26. Section 119.11 (1), Florida Statutes requires this matter be set for an immediate hearing.l8 27. All conditions precedent to this action have occurred or have been excused or waived. 28. Defendant's actions with respect to the public records requests discussed herein and "See Footnote "2". is See Bell v. Kendrick 6 So. 868(Fla. 1889) (public records belong "to the public office and not to the officer."); See also Stite ex rel Davidson v Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v State ex rel International Association ofFire Fighters Local No 157 298 So.2d 478 (1st DCA 1974) (records that "are made by a city employee in the normal course of conducting the city's business are materials which are open to the citizens of this state for inspection."); See also State ex rel. Veale v City ofBocaR ton 353 So. 2d 1194 (Fla. 4th DCA 1977) (the Public Records Act "requires the public official with custody of public record to disclose it to any member of the public, including the media, who wishes to inspect it. Non -disclosure is permitted only if there is an exemption provided" by statute.); See also News -Press Publishine Co v Gadd 388 So. 2d 276, 278 (Fla. 2d DCA 1980) ("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and the damage to an individual or institution resulting f om such disclosure."). "Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. 1° See Footnote "3". 6of10 in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Count I — Unlawful Withholding of Public Records: Unreasonable Delav 29. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 28 as if fully alleged herein. 30. "The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tribune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984). 31. The Defendant delayed some Seventy-two days before providing any of the requested records to Plaintiff. 32. The above described Seventy-two day delay is unreasonable and constitutes a denial of access under the Public Records Act. Count II — Unlawful Withholding of Records: Not All Records Produced 33. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 32 as if fully alleged herein. 34. Upon information and belief, Defendant did not produce all records responsive to the Request. 35. Defendant has made it clear that no further records will be provided in response to the Request. 36. Defendant's failure to produce all records responsive to the Request constitutes a denial of access to public records in violation of the Public Records Act. 7of10 Attornevs' Fees 37. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See § 119.12, Fla. Stat. Relief Reouested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;ta (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution220 and the Public Records Ac[?t (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees, if any); (d) Order the Defendants to provide a copy of the requested records in electronic ..nlu. (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 22 "See Footnote "3". 20 See Footnote "I". 21 See Footnote "211. "Note Govemment-tn-The-Sunshine-Manual page 172. Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future 8of10 (0 Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes;23 and (g) Grant such further relief as the Court deems proper. Respectfully submitted, Dated: January 21, 2014 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmer(a?obovlelawfirm.com By: /s/ Rvan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court. 2' See Verified Complaint at "98". 9of10 CHRISTOPHER F. ORARE, Plaintiff; V. TOWN OF GULF STREAM, Defendant. TO: Joan K. Orthwein, Mayor TOWN OF GULF STREAM 543 Palm Way Gulf Stream, FL 33483 21-20(N 9:SSvM IN THE CIRCUIT COURT OF THE C P5 FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, y FLORIDA 602013 CA 01010 0 XXXXNB Case No.: SUMMONS IMPORTANT A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (fisted in the phone book). If you choose to file a written response yourself, at the same time you file your written response to the court you must also mail or take a copy of your written response to the "PlaintiMPlaintiff s Attorney" named below. IMPORTANTE Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, para contester la demanda adjunta, por escrito, y presentarla ante este tribunal. Una Ilamada telefoncia no to protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes 1 of 3 interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted consultar a un abogado, puede hamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o entregar una Copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci- jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nominees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre response ecrite dans le relai requis, vous resquez de perdre ]a cause ainsi que votre salaire, votre argent, et vos biens peuvent etre saisis par la suite, sans aucun preavis ulterieus du tribunal. II y a d'autres obligations juridiques et vous pouvez requerir les services immediats dun avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'avocats ou a un bureau d'assistance juridique (figurant a Pannuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement, en meme temps que cette formalite, faire parvenir on expedier une copie de votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat) nomme ci-dessous. CHRISTOPHER F. OHARE, as Pro -Se Plaintil}f Christopher 'Hare 2520 Avenue An Soleil Gulf Stream, FL 33483 Telephone: (561) 350-7551 pineedAgmail.com 2 of 3 t_ s2 8.11 TO EACH SHERIFF OF THE STATE: You are commanded to serve this summons and a copy of the Complaint in this lawsuit on the above-named Defendant. WITNESS MY HAND AND SEAL of said court. DATE: December Intsi! 19: Bo cit Clerk of the Court Chrstinarii, Leahan Deputy Clerk �. aocK c �omptroiler P.O. Eoa4667 West Palm Beach, Florida! 33402-4667 3 of 3 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, %12Q13 AA Q 181 U 0 XXXX Plaintiff; CASE NO.: COPY V. RECEIVED FOR FILING TOWN OF GULF STREAM, r"� j 0 M3 Defendant. SNA9014 R DOCK CLERK A COW-FROLLER (�f tl r•i i-rri n: fah/ ";.�`,�I VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY INJUNCTIVE AND MONETARY RELIEF The Plaintiff, Christopher F. O Hare, ("Plaintiff'), without counsel as a Pro Se litigant, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore alleges as follows: 1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the "Public Records Act"). 2. This action seeks declaratory, injunctive and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Const. Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf; except with respect to records exempted Pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. I of 11 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.1 1(1), Florida Statutesa. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiff s civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(l)(a), Fla. Stat.d 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 Note § 119.07(1)(a), FLa. Stat Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 3 Note § 119.11(1), Fla. Stat Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing giving the case priority over other pending cases. See Footnote "2". 'Note § 119.011(2), FLa. Stat "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including for the 2of11 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by air person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs6. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. I, § 24, Fla. Const.; see also § 119.011(2), purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. G Note Goverrunent-In-7[he-Sunshine-Manua12012 Edition. page 144. The term "reasonable conditions" as used in s. 119.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." {Fait v. Florida Poirer & Light Compartg 372 So. 2d 420, 425 (FLa. 1979). See also State er rel Davis v. MUTIllan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nonc, DePerte v Tribune Company, 105 S.Ct 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include anile or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "'Tile courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. Inf Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). ' Note NCAA v. Associated Press 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government 3of11 Fla. Stat s 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stat 9 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § I I9.07(3)(a), Fla. Stat. 19 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a)11, § 119.07(3)(a)12 Fla. Stat.; Art. L § 24, Fla. Const. 13 Factual Background 16. On September 29, 2013 at 10:21 a.m., Plaintiff submitted a public records request via e-mail to the custodian of records of the Town of Gulf Stream. 17. Specifically, Plaintiff sought to obtain a: Any photos of the Gulf Stream School in the Tome's public record (the "Photo Request"). Said Photo Request is attached hereto and specifically incorporated 'See Footnote "5". 9 See Footnote "2". 10 Note § 119.07(3)(a), Fla. Stat. Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. ' � See Footnote "2". 1' See Footnote "10". " See Footnote "I". 4ofII herein as Exhibit A. 18. Some four (4) days after receipt of the Photo Request, on October 3, 2013, Defendant sent a letter to Plaintiff via e-mail, also received by Plaintiff on October 3, 2013, stating in relevant part: Our 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. (the "Photo Response"). Said Photo Response is attached hereto and specifically incorporated herein as Exhibit B. 19. Plaintiff has requested that the responsive documents for the public records requests described herein be provided in electronic form and provided an E -Mail address to whom the response was to be sent. 20. As of the date of this complaint, some seventy-two (72) days after Plaintiffs original public records request, Plaintiff has not received the requested public records. 21. Upon information and belief; the requested public records are maintained by the Defendant in electronic form. 22. The records requested by the Plaintiff are public records that are readily accessible to Defendant. 23. All of the records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. is Note § 119.011(12), Fla Stat "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing soRware, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 5of11 24. There is no statutory exemption that applies to any of the requested public records and the Defendant has cited none. 25. Violations of Section 1] 9.07, Florida Statutes constitute an irreparable public injury15 26. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 27. Section 119.11(l), Florida Statutes requires this matter be set for an immediate hearing.ls 28. All conditions precedent to this action have occurred or have been excused or waived. 29. Defendant's actions with respect to the public records requests discussed herein and in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Count I — Unlawful Withholdinn of Public Records: Unreasonable Delay for the Production of Photos in Electronic Form 30. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 29 as if fully alleged herein. 31. The Defendant's refusal to allow Plaintiff to inspect the requested public records violates Article 1, Section 24(a) of the Florida Constitution, Section 119.07(1)(a), Florida "Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public maldng a request, nondisclosure prevents access to the information and is an injury- not ordinarily compensable in damages. 16 See Footnote "T' 6ofII Statutes17 and is inconsistent with well-established case law's 32. Section 119.01(2)(1), Florida Statutes provides, "An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium." 33. "The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tfibune Co. v. Cannella, 458 So. 2d 1075, 1079 (Fla. 1984). 34. Despite Plaintiff s request of obtaining a copy of any photos of the referenced Gulf Stream School in digital (or electronic) form, some seventy-two (72) days after the Defendant received Plaintiffs original Photo Request, Defendant still has not offered to provide same to Plaintiff under any terms. 35. The above described seventy-two (72) day delay is unreasonable and in violation of the Public Records Act. Count II—Automatic Delay: Photos of Gulf Stream School 36. Plaintiffre-alleges and incorporates by reference paragraphs 1 through 35 as if fully alleged herein. 37. In its Photo Response, Defendant imposed an automatic delay by refusing to respond " See Footnote "2". 18 See Bell v. Kendrick 6 So. 868 (Fla. 1889) (public records belong "to the public office and not to the officer."); See also State ex .rel. Davidson v. Couch 156 So. 297 (Fla. 1934); See also City of Gainesville v. State ex. rel. International Association of Fire Fighters Local No 2157 298 So.2d 478 (1st DCA 1974) (records that "are made by a city employee in the normal course of conducting the city's business are materials which are open to the citizens of this state for inspection."); See also State ex rel. Veale v. City of Boca Raton 353 So. 2d 1194 (Fla. 4th DCA 1977) (the Public Records Act "requires the public official with custody of a public record to disclose it to any member of the public, including the media, who wishes to inspect it Non -disclosure is permitted only if there is an exemption provided" by statute.); See also News -Press Publishing Co v Grind_ 388 So. 2d 276, 278 (F7a. 2d DCA 1980) ("Absent a statutory exemption, a court is not free to consider public policy questions regarding the relative significance of the public's interest in disclosure and the damage to an individual or institution resulting from such disclosure."). 7of11 except `within three business days," even though the Photo Request was received four (4) days prior to the date appearing on the Defendant's Photo Response and the requested records were readily available to the Defendant at that time. 38. The Defendant's imposition of an automatic delay has no statutory basis and is, therefore, in violation of the Public Records Act. 19 Attorneys' Fees 39. The Public Record Act provides that "[i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. 40. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in the preparation of this complaint, however, he reserves the right to retain counsel in this matter for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses for the preparation of this complaint and any additional purposes for which attorney's fees and expenses are incurred in this matter. " See Tribune Co. v. Cannella. 458 So.2d 1075 (Fla, 1984) (`We hold that no automatic delay is permitted..." and "an automatic delay, no matter how short, impermissibly interferes with the public's right, restrained only by the physical problems involved in retrieving the records and protecting them, to examine the records. The legislature has placed the books on the table; only it has the power to alter that situation."); See also Gransld v. City of Alach n 31 So.3d 193 (Fla App., 2010); See also Rechler v. Town of Marsala n No. CL 94-2724 AD (Fla. 15th Cir. CL November 21, 1994), affirmed 674 So. 2d 789, 790 (F7a. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996); See also State v. Webb. 786 So.2d 602 (Fla. App., 2001). 8of11 Relief Reauested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;20 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution'' -t and the Public Records Act;" (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in its original electronic form; (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 23 (f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes;24 and (g) Grant such further relief as the Court deems proper. 30 See Footnote "3". v See Footnote "1". "See Footnote "2". 23 Note Government -In -The -Sunshine -Man ml page 172. Injunctive relief may be available upon an appropriate showing for a violation of Ch 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (FLL 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated pattern of noncompliance with the Public Records Act, together with a showing of Rehhood of future violations; mandamus would not be an adequate remedy since mandamus would not prevent future harm). Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawful conduct will continue and the urgent need for injunctive relief from this court 24 See Verified Complaint at "39". 9of11 Dated: December 10 2013 10 of 11 Respectfully submitted, PREPARED WITH ASSISTANCE OF COUNSEL CHRISTOPHER F. O`FIARE, as Pro Se Plaintiff Christopher. .O3Hare 2520 Avenue Au Soleil Gulf Stream, FL 33483 Telephone: (561) 588-8920 pinead@wnaii.com **** CASE NUMBER: 2014CA000818 DIVISION: AG **** Filing 9 9429503 Electronically Fied 01/22/2014 03:12:52 PM CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA To Each Sheriff of the State: D 11 214 -Z.a 2- :go ery C P5t 12,91 IN THE CIRUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN ` AND FOR PALM BEACH COUNTY, FLORIDA Case No.: SUMMONS YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law- suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Ryan L. Witmer, plaintiffs attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiff's attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on January 22, 2014 JAN 23 2014 Clerk of the Court By: l Deputy Clerk Christina Beahan The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmerRobovlelawfirm com By: /s/ Rvan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida Filing # 9429503 Electronically Filed 01/22/2014 03:1252 PM 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.: The Plaintiff, Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned counsel, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore alleges as follows: I. This action concerns the Defendant's violation of Plaintiffs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the `Public Records Act"). 2. This action seeks declaratory, injunctive and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 'Note Article 1 Section 24, Fla. Coast Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf; except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. 'Note § 119.07(lXa), Fla. Stat 1of10 Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11(1), Florida Statute -S3. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County, therefore, this Court is the appropriate venue for the vindication of Plaintiffs civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat 4 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 Every person who has custody of a public record shalt permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 'Note § 119.11(1), Fla. Stat- Whenever tat Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. 4 See Footnote "2". 'Note § l 19.011(2), Fla. Star. "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity 2of1O 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs6. (Emphasis added). See § 119.07, Fla. Stat.; Art 1, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...: ' Art. I, § 24, Fla. Const.; see also § 119.011(2), acting on behalf of any public agency. e Note Government -In -The -Sunshine -Manual 2012 Edition page 144. The term "reasonable conditions" as used in S. 119.07(1)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420,425 (Fla 1979). See also State er rel. Davis v. McMillan, 38 So. 666 (FhL 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.CL 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. 'The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. Inf Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla. Ist DCA 200 1) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). r Note NCAA v. Associated Press 18 So. 3d 1201,1212 (Ist DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the Jaw might have on interstate commerce clearly does not outweigh the goal of ensuring open government 3of10 Fla. Slats 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § 119.07(1)(a), Fla. Stats 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.lo 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(l)(a)", §119.07(3)(a)w, Fla. Stat; Art. 1, § 24, Fla. Constrs Town. Factual Background 16. On September 4, 2013, Plaintiff; submitted a public records request via e-mail to the 17. Specifically, Plaintiff sought to obtain: The first three pages of the Permit issued for the secondary building structure located adjacent to the South property line of the residential structure of Parcel Number 20434604220000450 also known as 2550 Avenue Au Soleil in Gulf stream, Florida. ' See Footaote "5". ' See Footnote "2". i0 Note § 119.07(3)(a), Fla Stat. Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian ofpublic records. u See Footnote'?". n See Footnote "10". "See Footnote "1" 4of10 (the "Initial Requesf'). Said Initial Request is attached hereto and specifically incorporated herein as Exhibit A. 18. Two days after receipt of the Initial Request, on September 6, 2013, Defendant's custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant part: Our 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. (the "Initial Response"). Said Initial Response is attached hereto and specifically incorporated herein as Exhibit B. 19. Sixty days after Defendant sent the Initial Response, on November 5, 2013, Defendant's custodian of records sent a letter to Plaintiff via E -Mail, stating in relevant pad: Records associated with this address, 2550 Avenue Au Soleil, were destroyed pursuant to the Town's destruction schedule on January 31, 2013, documentation of which can be provided for von at your request (emphasis added) (the "Second Response"). Said Second Response is attached hereto and specifically incorporated herein as Exhibit C. 20. On December 4, 2013, in an effort to obtain copies of the above stated documentation of destruction, Plaintiff submitted another public records request via E -Mail. 21. Specifically, Plaintiff sought to obtain:, Any and all records identifying the destruction or other means of disposition of records that would have been responsive to my Public Records Request which is copied along with your previous response below. (the "Follow Up Request"). Said Follow -Up Request is attached hereto and specifically incorporated herein as Exhibit D. 5of10 22. The Follow -Up Request contained copies of the Initial Request, the Initial Response, and the Second Response. 23. As of the date of this Verified Complaint, a total of 48 days have passed since Plaintiff made the Follow -Up Request and yet no responsive documents have been provided. 24. In fact, to date, no response whatsoever to the Follow Up Request has been received by Plaintiff. Count I —Unlawful Withholdine of Public Records 25. The records being sought by Plaintiff are public records pursuant to Section 119.011(12)14, Florida Statutes. 26. Plaintiff requested the responsive documents be provided in electronic form and provided an E -Mail address to whom the response was to be sent. 27. There is no statutory exemption that applies to the requested public records and the Defendant has cited none. 28. Violations of Section 119.07, Florida Statutes constitute an irreparable public injury15. 29. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. "Note § 119.011(12), Fla. Stat 'Public records" means all documents, papers, letters, maps, books, tapes, photographs, Elms, sound recording's, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. rs Note Daniels v Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. 6of10 30. Section 119.1 1(1), Florida Statutes requires this matter be set for an immediate hearing.la 31. The requested document is a public record that is readily accessible to Defendant. 32. "The only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt." Tribune Co. v. Cannella, 458 So. 2d 1075,1079 (Fla. 1984). 33. The Defendant's continuing delay in the production of the requested public records, which currently stands at 48 days as of the writing of this Verified Complaint, is an unreasonable delay which constitutes a denial of access to public records in violation of the Public Records Act. 34. All conditions precedent to this action have occurred or have been excused or waived. 35. Defendant's actions with respect to the public records request discussed herein and in other public record requests made by Plaintiff and other parties, demonstrate a pattern of noncompliance'with the Public Records Act and also a likelihood of future violations such that injunctive relief is appropriate. Attorneys' Fees 36. The Public Record Act provides that "fi]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. "See Footnote "3„ 7of10 Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;17 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution's and the Public Records Act;ls (c) Order the Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in electronic form. (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act: 20 (1) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes; and (g) Grant such further relief as the Court deems proper. 17 See Footnote "3". 1" See Footnote "1". "See Footnote' 2". 20 Note Govemment-In-The-Sunshine-Manual page 172 Injunctive relief may be available upon an appropriate showing for a violation of Ch. 119, F.S. See Daniels v. Bryson, 548 So. 2d 679 (Fla. 3d DCA 1989) (injunctive relief appropriate where there is a demonstrated Pattern of noncompliance with the Public Records Act, together with a showing of likelihood of future violations; mandamus would not bean adequate remedy since mandemns would not prevent future harm). Defendant's actions clearly demonstrate the high likelihood, in not the certainty, that such unlawfid.conduct will continue and the urgent need for injunctive relief from this court. M" Respectfully submitted, Dated: January 21, 2014 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 rwitmerAoboylelawfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar 90107563 9of10 v **** CASE NUMBER 2014CA000720 DMSION. AI **** Filing # 9343109 Electronically Filed 01/20/2014 052:51 PM CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULF STREAM, WILLIAM H. THRASHER, JR., Defendants. THE STATE OF FLORIDA: To Each Sheriff of the State: dl- Z3 - Zt ):10 P" IN THE CIRUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA cP5 e (/,Y, Case No.: SUMMONS YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law -suit on defendant: JAN 212014 Dated: Clerk of the Circuit Court By: O�L v As Deputy Clerk Belva Hamilton William H. Thrasher, Jr. 100 Sea Road Gulf Stream, FL 33483 EMPORTANT SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above 1 of 3 and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yoursel% at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiffs Attorney" named below. IMPORTANTE Usted ha sido demandado legalmente. Tiene 20 dias, contados a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una ilamada telefoncia no to protegera. Si usted desea que el tribunal considere so defensa, debe presentar so respuesta por escrito, incluyendo el humero del caso y los nombres de las partes interesadas. Si usted no contests In demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted consultar a on abogado, puede llamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta so respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de so respuesta a la persona denominada abajo tomo "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de Passignation de cette citation pour deposer one reponse ecrite a In plainte ci- jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nominees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre response ecrite dans le relai requis, vous resquez de perdre la cause ainsi que votre salaire, votre argent, et vos biers peuvent etre saisis par la suite, sans aucun preavis ulterieus du tribunal. Il y a d'autres obligations juridiques et vous pouvez requerir les services immediate d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a on service de reference d'avocats on a on bureau d'assistance juridique (figurant a Pannuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalement, on meme temps que tette formalite, faire parvenir on expedier une copie de votre reponse ecrite an "Plaintiff/Plaintiffs Attorney" (Plaignant on a son avocat) nomme ci-dessous. 2of3 The O'Boyle Law Firm P.C. Attorneys fnr Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 Email: rwitmer(aloboylelaw6rm com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 3 of 3 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, VA TOWN OF GULF STREAM, WILLIAM H. THRASHER, JR, individually, Defendants. CASE NO.: COMPLAINT WITH DEMAND FOR JURY TRIAL CHRISTOPHER F. O'HARE ("Plaintiff' or "O'Hare"), by and through the undersigned counsel, hereby sues the TOWN OF GULF STREAM, (the "Town"), and WILLIAM H. THRASHER, JR., ("Thrasher") individually, (hereinafter collectively referred to as the "Defendants") and as grounds therefore alleges the following: THE PARTIES, JURISDICTION. AND VENUE Plaintiff is a Florida citizen who resides at 2520 Place Au Soleil in the Town of Gulfstream, which is located Palm Beach County. 2. The Defendant Town is a duly established municipality under the laws of Florida located within Palm Beach County, and therefore subject to the personal jurisdiction of this Court. 3. Defendant Thrasher is the Manager for the Town of Gulf Stream and resides and works in Palm Beach County, and is therefore subject to the personal jurisdiction of this Court. 4. Jurisdiction is appropriate under F.S. § 790.33(3)(f) and F.S. § 26.012(1), (3) because injunctive relief is requested. 5. Venue is appropriate because all parties reside or are seated in Palm Beach County. COUNT Violation of 790.33 & Renuest for Iniunction and Declaratory Relief that Municipal Policy is Preempted by State Law and Damages 6. On October 14, 2013, O'Hare submitted a building application to the Town for zoning review and approval, a condition required before said application would be allowed to be submitted to Delray Beach, (surrogate for Florida Building Code enforcement for the Town) to construct a shooting range backstop and a shooting bench. The packet attached to the application gave the municipality details of the proposed work. The application, including the packet attached to it, is attached hereto and incorporated by reference herein as Exhibit A. The packet contained elaborate and precise drawings of O'Hare's home, the proposed location of the two structures, drawings of the proposed bench and backstop, and the energy values of select firearm cartridges. 7. On or about October 17, 2013, Town Clerk Rita Taylor sent O'Hare's attorney— Lou Roeder, Esq. —a facsimile letter by the Town Manager, William Thrasher, denying O'Hare's request. The October 17, 2013 letter is attached hereto and incorporated by reference herein as Exhibit B. 8. In that missive, Thrasher elaborated on O'Hare's denial stating, "(A]lthough the Town does not regulate the possession or use of firearms or ammunition, the use you request is not a permitted use within the residential zoning classification in which your property is located. Your request for a permit is, therefore, denied." 9. On or about October 18, 2013, O'Hare submitted another construction application to the Town for zoning review and approval. The request was partially similar but substantially 2 different than O'Hare's original permit request. O'Hare excluded any reference to a shooting range, eliminated the previously proposed shooting bench and sought only to install a ballistic backstop, target holder, and the addition of two Rhapis excels, lady palms plants to benefit the appearance of the backstop. The October 18, 2013 application and attached packet are attached hereto and incorporated by reference herein as Exhibit C. 10. The application was resubmitted with the above changes and O'Hare decided to substantially reduce the amount of proposed construction to only those items he felt essential to the safe and diligent use of a firearm on his private property. 11. On or about October 23, 2013, O'Hare received yet another missive from Thrasher denying his new request. Thrasher directed O'Hare to the previous letter for an explanation of denial. The October 23, 2013 denial is attached hereto and incorporated herein as Exhibit D. Town Manager Thrasher wilfully and knowingly, under color of law, regulated part of the field of firearms and ammunition when he pretextually denied O'Hare's building permit because he wanted to prevent O'Hare from discharging or otherwise using firearms on his private land. 12. O'Hare understood Town Manager Thrasher's letter as sending a clear message, that O'Hare is not permitted to use firearms in his backyard in the Town; that O'Hare should not expect the Town of Gulf Stream to relinquish the Town's authority to regulate its own land use to any other power. 13. Thrasher's "possession or use of firearms or ammunition" language in his October 18, 2013, letter shows that he had knowledge of the firearm preemption law in Florida because that law uses similar, if not identical language. Moreover, Thrasher was unable to cite a single Town law that otherwise prohibited the structure that O'Hare proposed. Thrasher candidly and knowingly denied O'Hare his permits based on his desire to prevent the recreational use of firearms in his Town, regardless of the willingness O'Hare exhibited to exercise care and safety, as evidenced by his desire to build a ballistic backstop — said denialis in direct violation to the preemption of Sec. 790.33 Fla. Stat. 14. Under Town Code Chapter 70, Art. 111, single-family residential uses are regulated. The only uses permitted are "single family dwellings" under § 70-47 and "telephonic transactions and communications" under § 70-49(b). Prohibited Uses under § 7049 are solely cognizable as activities relating to structures, not the structures themselves. Thrasher's language in the denial of both applications describes the reason for the denial as, "the use you request is not a permitted use..." In essence, Thrasher was directing his denial solely towards the firearm - related activity surrounding O'Hare's proposed structure. 15. Thrasher's statutoryjob description is administrator of the Town's Code of Ordinances, and the Town's Chief executive, as described in detail in Chapter 2 of the Town Code. Thrasher is also responsible for numerous low-level zoning reviews under Chapter 66 of the Town Code including issuing permits for construction under Town Code § 66-101. 16. During the course of this ordeal, O'Hare had to shoulder the costs of reapplying for a second permit and lost the use and enjoyment of building and utilizing his proposed structure with his family. WHEREFORE: Plaintiff demands declaratory relief, an injunction against denying O'Hare for his permit using unlawful means or purpose, and all other equitable relief this court deems necessary to curtail the defendants from regulating that which is expressly reserved to the police powers of the State of Florida. Additionally, Plaintiff demands compensatory damages, 0 interest, attorney's fees, and costs. Also, pursuant to Sec. 79033 Fla. Stat., Plaintiff demands that the Court assess a civil fine of $5,000 against any and all government officials, named or yet to be named, who willfully and knowingly acted improperly under the Joe Carlucci Uniform Firearms Act thereby giving the Governor cause for terminating said government officials. Dated: January 20, 2014 The O'Boyle Law Firm, P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 574-6885 Facsimile: (954) 360-0807 r%vitmer(@,obovleiaivfirm.com By: /s/ Ryan L. Witmer Ryan L. Witmer, Esq. Florida Bar #0107563 5 g '55 AM . 10- (1-2.01. 059 12.9 IN THE CIRCUIT COURT OF THE G TQ FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. OTIARE, - Plaintiff, 2013 CA n i 5 3 g V. Case No.: TOWN OF GULF STREAM, Defendant. TO: Joan K. Orthwein, Mayor TOWN OF GULF STREAM 100 Sea Road Gulf Stream, FL 33483 SUMMONS E%IPORTANT A lawsuit has been filed against you. You have 20 calendar days after this summons is served on you to file a written response to the attached complaint with the clerk of this court. A phone call will not protect you. Your written response, including the case number given above and the names of the parties, must be filed if you want the court to hear your side of the case. If you do not file your response on time, you may lose the case, and your wages, money, and property may thereafter be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may call an attorney referral service or a legal aid office (listed in the phone book). If you choose to file a written response yourself; at the same time you file your written response to the court you must also mail or take a copy of your written response to the "Plaintiff/Plaintiffs Attorney" named below. IWORTANTE Usted ha sido demandado legalmente. Tiene 20 dial, contados a partir del recibo de esta notificacion, para contestar la demanda adjunta, por escrito, y presentarla ante este tribunal. Una ilamada telefancia no to protegera. Si usted desea que el tribunal considere su defensa, debe presentar su respuesta por escrito, incluyendo el numero del caso y los nombres de las partes 1 of 3 interesadas. Si usted no contesta la demanda a tiempo, pudiese perder el caso y podria ser despojado de sus ingresos y propiedades, o privado de sus derechos, sin previo aviso del tribunal. Existen otros requisitos legales. Si to desea, puede usted consultar a un abogado, puede Hamar a una de las oficinas de asistencia legal que aparecen en la guia telefonica. Si desea responder a la demanda por su cuenta, al mismo tiempo en que presenta su respuesta ante el tribunal, debera usted enviar por correo o entregar una copia de su respuesta a la persona denominada abajo como "Plaintiff/Plaintiffs Attorney" (Demandante o Abogado del Demandante). IMPORTANT Des Poursuites Judiciares ont ete entreprises contre vous. Vous avez 20 jours consecutifs a partir de la date de 1'assignation de cette citation pour deposer une reponse ecrite a la plainte ci- jointe aupres de ce tribunal. Un simple coup de telephone est insuffisant pour vous proteger. Vous etes oblige de deposer votre reponse ecrite, avec mention du numero de dossier ci-dessus et du nom des parties nommees ici, si vous souhaitez que le tribunal entende votre cause. Si vous ne deposez pas votre response ecrite dans le relairequis, vous resquez de perdre la cause ainsi que votre salaire, votre argent, et vos biers peuvent etre saisis par la suite, sans aucun preavis ulterieus du tribunal. 11 y a d'autres obligations juridiques et vous pouvez requerir les services immediats d'un avocat. Si vous ne connaissez pas d'avocat, vous pourriez telephoner a un service de reference d'avocats on a un bureau d'assistance juridique (figurant a 1'annuaire de telephones). Si vous choisissez de deposer vous-meme une reponse ecrite, it vous faudra egalemeut, en meme temps que cette formalite, faire parvenir ou expedier une copie de votre reponse ecrite an "Plaintiff/Plaintiffs Attorney" (Plaignant on a son avocat) nomme ci-dessous. 2 of 3 CHRISTOPHER F. O'HARE, as Pro Se Plaintiff Gulf Stream, FL 33483 Telephone: (561) 350-7551 pineed(aJgmail.com STATE OF FLORIDA TO EACH SHERIFF OF THE STATE: You are commanded to serve this summons and a copy of the Complaint in this lawsuit on the above-named Defendant. WITNESS MY HAND AND SEAL of said court. DATE: October 2013. 3 of 3 Clerk of the Court SHARON R. BOCK clerk & Comptroller �.O.Box 4667 West Palm Beach, Florida 23402-4667 By: MSTIN BUTLER Deputy Clerk SHARON R. BOOK Clerk & Comptroller Fla. R. Civ. P. 1.997 Civil Cover Sheet This cover sheet and the information contained in it do not replace or supplement the filing and service of pleadings or other papers as required by law. This form shall be filed by the plaintiff or petitioner for the use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to FS 25.075 (see instructions for completion). I. CASE STYLE IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, CASE NO.: jW a TOWN OF GULF STREAM, L1113 CA f? 15 38 0 YMI Defendant. COPY RECEIVED FOR FILING OCT - 9 2013 SHARON R. BOCK II. TYPE OF CASE CLERK & COMPTROLLER CIRCUIT CIVIL DIVISION If the case fits more than one type of case, select the most definitive category. If the most descriptive label is a subcategory (indented under a broader category), place an x in both the main category and subcategory boxes. _ Condominium _ Non -homestead residential _ Contracts and indebtedness foreclosure $50,001-$24,999 _ Eminent domain _ Non -homestead residential _ Auto negligence foreclosure $250,000 or more Negligence — other _ Other real property actions _ Business governance $0-$50,000 _ Business torts _ Other real property actions _ Environmentanoxic tort $50,001- $249,999 _ Third party indemnification _ Other real property actions _ Construction defect $250,000 or more _ Mass tort _ Professional malpractice _ Negligent security _ Malpractice - business _ Nursing home negligence _ Malpractice - medical Premises liability—commercial �_ _ Malpractice - other professional Premises liability—residential X Other _ Product liability _ Antitrustrrmde regulation Real property/Mortgage foreclosure _ Business transactions _ Commercial foreclosure $0- $50,000 _ Constitutional challenge -proposed _ Commercial foreclosure $50,001- amendment $249,999 _ Constitutional challenge -statute or Commercial foreclosure $2500,00 ordinance or more _ Corporate trusts _ Homestead residential foreclosure _ Discrimination -employment or $0-$50,000 other _ Homestead residential foreclosure _ Insurance claims $50,001 - $249,999 _ Intellectual property _ Homestead residential foreclosure _ Libel/Slander $250,000 or more _ Shareholder derivative action _ Non -homestead residential _ Securities litigation Foreclosure $0 - $50,000 _ Trade secrets _ Trust litigation III. REMEDIES SOUGHT (check all that apply): X monetary X non -monetary declaratory or injunctive relief punitive IV. NUMBER OF CAUSES OF ACTION (specify): [1] 1. Defendants' violation of Article 1, section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2011). V. IS THIS CASE A CLASS ACTION LAWSUIT? _ yes X no VI. HAS NOTICE OF ANY KNOWN RELATED CASES BEEN FILED? X no yes If `yes", list all related cases by name, case number, and court: VII. IS A JURY TRIAL DEMANDED IN COMPLAINT? yes X no I CERTIFYat the information I have provided in this cover sheet is accurate to the best of my �o�edde and belief. or party Fla. Bar # (Bar # if attorney) Christopher F. O'Hare October 9 2013 (type or print name) Date 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. COPY RECEIVED FOR FILING OCT - 9 2013 SHARON R. BOCK CLERK BCOMPTROLLER CIRCUIT CIVIL DIVISION CASE- NO.: 2013CA0�80 J VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY AND MONETARY RELIEF The Plaintiff, Christopher F. O'Hare, ("Plaintiff'), without counsel as a Pro Se litigant, hereby sues the Town of Gulf Stream, ("Defendant" or the "Town"), and as grounds therefore alleges as follows: 1. This action concerns the Defendant's violation of Plaintiff's civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2012), (the "Public Records Act"). 2. This action seeks declaratory and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutional' and statutory2 duty to permit access to public records, and compelling the 1 Note Article 1 Section 24, Fla Const Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder, counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution. ' Note § 119.07(1)(a), Fla. Stat lof14 Defendant to provide access to the requested public records and awarding Plaintiff his attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11 (1), Florida Statutes. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 5. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Palm Beach County. 6. The causes of action in the instant case accrued in Palm Beach County; therefore, this Court is the appropriate venue for the vindication of Plaintiffs civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. 8. Plaintiff is a "person" as that term is used in the Public Records Act. See § 119.O7(1)(a), Fla. Stat 4 9. The Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes.5 Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. 3 Note § 119.11 (1), Fla. Stat. Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases. a See Footnote "2". 5 Note § 119.011(2), Fla. Stat. "Agency" means any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of 2of14 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. (Emphasis added). See § 119.07, Fla. Stat.; Art. I, § 24, Fla. Const. Florida's Public Records Act 11. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v. Associated Press, 18 So. 3d 1201, 1212 (1st DCA 2009)7. 12. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf...." Art. I, § 24, Fla. Const.; see also § 119.011(2), Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency. ' Note Govemment-In-The-Sunshine-Manual 2012 Edition. page 144. The term "reasonable conditions" as used in s. I I9.07(l)(a), F.S., "refers not to conditions which must be fulfilled before review is permitted but to reasonable regulations that would permit the custodian of records to protect them from alteration, damage, or destruction and also to ensure that the person reviewing the records is not subjected to physical constraints designed to preclude review." Wait v. Florida Power & Light Company, 372 So. 2d 420,425 (Fla. 1979). See also State ea rel. Davis v. Mullan, 38 So. 666 (Fla. 1905); and Tribune Company v. Cannella, 458 So. 2d 1075, 1078 (Fla. 1984), appeal dismissed sub nom., DePerte v. Tribune Company, 105 S.Ct. 2315 (1985) (the sole purpose of custodial supervision is to protect the records from alteration, damage, or destruction). Accordingly, the "reasonable conditions" do not include a rule or condition of inspection which operates to restrict or circumvent a person's right of access. AGO 75-50. "The courts of this state have invalidated measures which seek to impose any additional burden on those seeking to exercise their rights to obtain records" under Ch. 119, F.S. laf. Op. to Cook, May 27, 2011. And see State v. Webb, 786 So. 2d 602 (Fla. 1st DCA 2001) (requirement that persons with custody of public records allow records to be examined "at any reasonable time, under reasonable conditions" is not unconstitutional as applied to public records custodian who was dilatory in responding to public records requests). ' Note NCAA v. Associated Press 18 So. 3d 1201, 1212 (1st DCA 2009) We are not persuaded that the Public Records law has an indirect effect on interstate commerce, but even if some effect had been established, we could not say that the law violates the dormant Commerce Clause. The Public Records law implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes a state interest of the highest order. The negligible impact the law might have on interstate commerce clearly does not outweigh the goal of ensuring open government. 3of14 Fla. Stat a 13. Under the Public Records Act, "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." See § I I9.07(1)(a), Fla. Stat 9 14. Under the Public Records Act, "[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § 119.07(3)(a), Fla. Stat.10 15. Defendant, as an agency and custodian of records, has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a)11, §I19.07(3)(a)1'-, Fla. Stat.; Art. I, § 24, Fla. Const.13 16. If the Defendant, as an agency and custodian of records, believes that the content of the records, or any portion thereof, are exempt from inspection or disclosure, "shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential," "including the statutory citation to an exemption created or afforded by statute." See § 119.07(l)(f), Fla. Stat. 14 s See Footnote "S'. See Footnote 'T'. 10 Note § 119.07(3)(a), Fla. Stat Any person shall have the right of access to public records for the purpose of making photographs of the record while such record is in the possession, custody, and control of the custodian of public records. 11 See Footnote "T'. 12 See Footnote "10". 13 See Footnote "I". t' Note § 119.07(1)(e -f), Fla. Stat. 4of14 Factual Backeround 17. On October 28, 2011, an incident occurred at Plaintiffs residence, which was summarized in a Gulf Stream Police Department Incident Report 11-1791. It is clear that this Incident Report is electronically generated and maintained. Said Incident Report is attached hereto and specifically incorporated herein as Exhibit A. 18. On June 21, 2012, Plaintiff, through his representative, submitted a Demand for Preservation of Information (or a spoilation letter) to various representatives of the Town of Gulf Stream - namely, an Officer Ginsberg, Police Chief Ward and Town Manager Thrasher - requesting that all electronic records, including databases and metadata files, related to the 11- 1791 Incident Report, amongst others, be preserved in their electronic form and suspended from routine destruction. Said spoilation letter is attached hereto and specifically incorporated herein as composite Exhibit B. 19. On June 18, 2013 at 11:33 a.m., Plaintiff, through his representative, submitted a public records request via e-mail to the custodian of records of the Town of Gulf Stream. 20. Specifically, Plaintiff sought to obtain: (1) Any and all support documentation, pictures, etc. related to the preparation of Gulf Stream Police Department Incident Report No. 11-1791, submitted by Officer David S. Ginsberg, Officer No. 787, and dated October 28, 2011; and (2) Any and all notes, research files, communications, etc., utilized by Officer David S. Ginsberg in the preparation of the above referenced Incident Report No. 11-1791; and (e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute. (f) If requested by the person seeking to inspect or copy the record, the custodian of public records shall state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential. 5of14 (3) Any and all notes, research files, communications, etc. to and front Officer David S. Ginsberg regarding the above referenced Incident Report No. 11-1791, including, but not limited to, ally communications after the filing of said incident report, and (4) Evidence of the exact date Officer David S. Ginsberg filed the above referenced Incident Report No. 11-1791; and (S) The incident reports far the "two burglaries /just had] in Town of unoccupied houses" as referenced by Officer David S. Ginsberg in Incident Report No. 11-1791. (the "Request"). Said Request is attached hereto and specifically incorporated herein as Exhibit C. 21.On August 21, 2013, at 2:09 PM, having had no response from the Town on his public records request, again through his representative, sent an e-mail to the custodian of records of the Town of Gulf Stream requesting that the responsive documents be provided in electronic format, and provided an E -Mail address for the response to be sent to (the "Follow -Up Request"). Said Follow -Up Request is attached hereto and specifically incorporated herein as Exhibit D. 22. Upon information and belief, most, if not all, of the requested records are maintained by the Defendant in electronic form. 23. On September 1, 2013, some 73 days after Plaintiffs original Request, Plaintiff received via telecopy a letter from Defendant, dated August 31, 2013, which stated "I expect to have an estimate of cost for you within a week." Said telecopy letter is attached hereto and specifically incorporated herein as Exhibit E. 24. On September 10, 2013, some 82 days after Plaintiffs original Request, Plaintiff received via telecopy a letter from Defendant, dated September 9, 2013, which stated which records were available, and that for a cost of $20.72, that Defendant would "commence world' on 6of14 the request. The $20.72 incorporated an "estimated" $20 charge for labor and $.72 for (9) nine single -sided copies. Said telecopy letter is attached hereto and specifically incorporated herein as Exhibit F. 25. On September 12, at the direction of the custodian of records of the Town of Gulf Stream, Rita Taylor, Plaintiffs representative made yet another follow-up public records request, this time to Chief of Police Garrett Ward via e-mail. 26. Specifically, Plaintiff sought to obtain: Evidence of the exact date Officer David S. Ginsberg filed the above referenced Incident Report No. 11-1791 (same as item no. 4 on the original public records request). (the "Second Follow-up Request'). Said Second Follow-up Request is attached hereto and specifically incorporated herein as Exhibit G. Count I — Imposition of an Unlawful Fee 27. Plaintiff re -alleges and incorporates by reference paragraphs t through 26 as if fully alleged herein. 28. The records being sought by Plaintiff are public records pursuant to Section 119.011(12)15, Florida Statutes. 29. Section 119.07(4), Florida Statutes states that "The custodian of public records shall furnish a copy of the record upon payment of the fee prescribed by law." 30. The Defendant imposed a fee of $.72 for copies in addition to a fee of $20 for labor. 31. The Defendant made it clear that Plaintiff would not be able to receive the requested "Note § 119.011(12), Fla. Stat. "Public records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. 7of14 records until the fee was paid. 32. Plaintiff requested the responsive documents be provided in electronic form and provided an E -Mail address for the response to be sent to. 33. Upon information and belief, most, if not all, of the requested records are maintained by the Defendant in electronic form. 34. Section 119.01(2)(1), Florida Statutes provides, "An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium." 35. For electronic records, the agency may only charge the "actual cost of duplication." See, § 119.07(4), Fla. Stat. (2012), Op. Att'y Gen. Fla. 2013-03 (2013). 36. Section 119.07(4)(d), Florida Statutes provides: 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. (emphasis added). 37. Section 119.01 1(1), Florida Statutes provides that the actual cost of duplication "means 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." 38. The actual cost of duplication of the requested records is substantially less than $.72. 39. Defendant has imposed an unlawful fee upon Plaintiff by billing Plaintiff for labor costs in addition to per page copy charges which exceed the actual cost of duplication, in WildCl contravention of the Public Records Act. 40. Additionally, upon information and belief, the $20 fee for "one hour labor" is excessive for just nine (9) copies, and is not a reasonable estimate of Defendant's costs for reproducing the requested records. 41. For the reasons stated above, the $20.72 that was required by Defendant to satisfy the Town's supposed response to Plaintiffs Records Request constitutes the imposition of an unlawful fee in violation of the Public Records Act. Count II — Unlawful Withholding of Public Records - Electronic Format 42. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 41 as if fully alleged herein. 43. The Plaintiff requested the responsive documents be provided in electronic form and provided an E -Mail address for the response to be sent to. 44. Upon information and belief, most, if not all, of the requested records are maintained by the Defendant in electronic form - especially the copies of the incident reports and attached pictures. 45. Defendant has refused to provide any of the requested documents in electronic form, despite the fact that the information requested is maintained electronically, and by virtue of a previous spoilation letter, is supposed to be preserved. 46. Defendant has refused to provide the following requested documents, again, despite the fact that the information requested is maintained electronically, and by virtue of a previous spoilation letter, is supposed to be preserved, namely: Evidence of the Bract date officer David S. Ginsberg filed the above referenced Incident Report No. 11-179 (item no. 4 on the original public records request). 9of14 47. Defendant has refused to provide the following portion of the requested documents: The incident reports for the "two burglaries yust had] in Town of unoccupied houses" as referenced by Officer David S. Ginsberg in Incident Report No. 11-1791. (item no. S on the original public records request). While the request was the stated "two burglaries in Town of unoccupied houses as referenced by Officer David S. Ginsberg in Incident Report No. 11-1791," the records provided the Town were of burglaries of occupied houses. 48. Section 119.01(2)(f), Florida Statutes provides, "An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium." 49. Defendant's refusal to provide the responsive documents in the medium requested is in violation of Section 119.01(2)(f). 50. There is no statutory exemption that applies to the requested public records and the Defendant has cited none. 51. The Defendant's refusal to allow Plaintiff access to the requested public records violates Article I, Section 24(a) of the Florida Constitution, Section 119.07, Florida Statutes. 52. Violations of Section 119.07, Florida Statutes constitute an irreparable public injuryi6. 53. Plaintiff has a clear legal right to insist upon the performance of the Defendant's duty to permit inspection, copying and photographing of public records. 16 Note Daniels v. Bryson, 548 So. 2d 679, 680 (Fla. 3d DCA 1989) The impermissible withholding of documents otherwise required to be disclosed constitutes, in and of itself, irreparable injury to the person making the public records request Since the purpose of Chapter 119 is to afford disclosure of information without delay to any member of the public making a request, nondisclosure prevents access to the information and is an injury not ordinarily compensable in damages. 10 of 14 54. Section 119.11(1), Florida Statutes requires this matter beset for an immediate hearing.17 55. All conditions precedent to this action have occurred or have been excused or waived. 56. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 55 as if fully alleged herein. 57. Defendant's use of their August 31, 2013 reply letter, wherein the Defendant stated "I expect to have an estimate of cost for you within a week." constitutes the imposition of an automatic delay, which has no statutory basis and is, therefore, unlawful is. Attorneys' Fees 58. The Public Record Act provides that "f i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See § 119.12, Fla. Stat. 59. Plaintiff has retained counsel in this matter only for the limited purpose of assisting in the preparation of this complaint, however, he reserves the right to retain counsel in this matter 1' See Footnote `3". 1 s See Tribune Co. v C1111nelloo, 458 So.2d 1075 (Fla, 1984) ... "We hold that no automatic delay is permitted..." and "an automatic delay, no matter how short, impermissibly interferes with the public's right, restrained only by the physical problems involved in retrieving the records and protecting them, to examine the records. The legislature has placed the books on the table; only it has the power to alter that situation." See also Graoski v City of Alach—M 31 So.3d 193 (Fla. App., 2010); See also Rechler_ v, Town of Mnnalaoan. No. CL 94-2724 AD (Fla. 15th Cir. Ct. November 21 1994), arnied. 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996); See also St';; d Webb 786 S 9 602 (Fla. APP., 2001).y. 11 of 14 for additional purposes and therefore asserts his statutory claim to attorney's fees and expenses for the preparation of this complaint and any additional purposes for which attorney's fees and expenses are incurred in this matter. Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;19 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution29 and the Public Records Act;' -1 (c) Order the Defendant to produce copies of all the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendant to provide copies of all the requested records to Plaintiff in electronic format (for the records that are so maintained); (e) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes;'' and (f) Grant such further relief as the Court deems proper. w See Footnote "r. 20 See Footnote "I". '' See Footnote "T'. "See Verified Complaint at "58." 12 of 14 Respectfully submitted, PREPARED WITH ASSISTANCE OF COUNSEL O'HARE, as Pro Se Dated: 00T 2013 Christopher F—.0are 2520 Avenue An Soleil Gulf Stream, FL 33483 Telephone: (561) 588-8920 pineed�com 13 of 14 ****CASE NUMBER: 2014CA001776 DIVISION: AJ **** Filing # 10228324 Electronically Filed 02/13/2014 09:06:50 AM 3 SS �i CPQ law IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN G-r AND FOR PALM BEACH COUNTY, FLORIDA CHRISTOPHER F. O'HARE, Plaintiff, V. TOWN OF GULF STREAM, Defendant. THE STATE OF FLORIDA To Each Sheriff of the State: Case No.: SUMMONS YOU ARE COMMANDED to serve this summons and a copy of the complaint in this law- suit on defendant: Town of Gulf Stream 100 Sea Road Gulf Stream, FL 33483 Each defendant is required to serve written defenses to the complaint or petition on Manett W. Hanna, plaintiff's attorney, whose address is 1286 West Newport Center Drive, Deerfield Beach, Florida 33442, within 20 days after service of this summons on that defendant, exclusive of the day of service, and to file the original of the defenses with the clerk of this court either before service on plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be entered against that defendant for the relief demanded in the complaint or petition. DATED on February 2014 Clerk of the Court FEB 13 2014 By. 51A4 Deputy Clerk Karla Guzman SHARON R. BOCK Clerk & Comptroller P.O. Box 4667 West Palm Beach, Florida 33402-4667 The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 570-3518 Facsimile: (954) 360-0807 mhanna@obovlelawfu-m.com By: Is/Marrett W. Hanna Marrett W. Hanna, Esq. Florida Bar #0016039 CHRISTOPHER F. O'HARE Plaintiff, V. THE TOWN OF GULF STREAM, Defendant IN THE CIRCUIT COURT OF THE 15' JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: VERIFIED COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY INJUNCTIVE AND MONETARY RELIEF The Plaintiff Christopher F. O'Hare, ("Plaintiff'), by and through the undersigned counsel, hereby sues the Town of Gulf Stream, ("Defendant"), and as grounds therefore alleges the following: IMMODUCTION 1. This action concerns the Defendant's violation of PlaintiTs civil rights pursuant to Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes, (the "Public Records Act"). 2. This action seeks declaratory, injunctive, and monetary relief. 3. Specifically, Plaintiff seeks an order declaring the Defendant to be in breach of its constitutionals and statutory2 duty to permit access to public records, and compelling the Defendant to provide access to the requested public records, enjoining the Defendant from ' Article I Section 24, Fla. Const. 2 § I I9.07(1)(a), Fla. Stac denying access to public records, and awarding Plaintiff attorney's fees and costs. Additionally, Plaintiff requests this matter be expedited pursuant to Section 119.11 (1), Florida Statutes. Parties, Jurisdiction and Venue L Plaintiff is a resident of Palm Beach County, Florida, is over the age of eighteen, and is otherwise sui juris. 2. Defendant is an "agency" pursuant to Section 119.011(2), Florida Statutes. 3. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 4. This Court has personal jurisdiction over Defendant, because 1) Defendant is a government unit established by law; 2) Defendant is located in Palm Beach County, Florida; and 2) Defendant engaged is substantial and not isolated activity within this state. See Section 48.193(2), Fla Stat. 5. The causes of action in the instant case accrued in Palm Beach County making this Court the appropriate venue for the vindication of Plaintiffs civil rights. 6. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. See § 119.07, Fla. Stat.; Art.1 § 24, Fla Const. 7. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes "a state interest of the highest order." See NCAA v Associated Press 18 So. 3d 1201,1212 (1st DCA 2009). 8. The right of access to public records applies to "any public body, officer, or employee of the state, or persons acting on their behalf..." Art I, § 24, Fla Const.; see also § 119.011(2), Fla. Stat 9. Under the Public Records Act, " [elvery person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records."jaec § 119.07(1)(a), FIa. Stat. 10. The Public Records Act provides that '[a]ny person shall have the right of access to public records for the purpose of making photographs of the record..." See § I I9.07(3)(a), Fla. Stat 11. Defendant has an obligation to provide any non-exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a); §119.07(3)(a). See also Fla. Stat.; Art. I, § 24, Fla. Const. Facts Pertinent to All Allegations 12. On January 16, 2014, Plaintiff submitted the following public records request via e- mail to Defendant: Any and all documents, files, photos, folders or other material in digitalform that can be reasonably considered a public record which is located on any and all cell phones or other portable electronic decvices [sic] in the personal possession of, or the personal control of, Scott Morgan. See Ex. A. 13. On January 16, 2014 Plaintiff made an additional request: Any and all documents, files, photos, folders or other material in digital form that can be reasonably considered a public record which is located on any and all computers in file personal possession of, or the personal control of, Scott Margin,. See Ex. B. 14. Defendant has refused to release the above requested documents. 15. As of February 11, 2014 Defendant cited no lawful excuse or statutory exemption, which relieves it of its duty to comply with Florida's Public Records Law. Substantive Allegations 16. Plaintiff is seeking records pursuant to Section 119.011(12), Fla. Stat 17. The public records requested by Plaintiff do not fall within any exemption as set forth in Florida's Public Records Law. 18. Violations of Section 119.07, Florida Statutes constitute an irreparable public injury. 19. Plaintiff has a clear legal right to demand that Defendant comply with its duty to permit inspection, copying and photographing of public records. 20. Plaintifffiled the instant action to enforce the provisions of Florida's Public Records Law, which requires an accelerated hearing wherein the Court is required to give this case Priority over other pending cases. See Section 119.1 1(1), Fla. Stat 21. All conditions precedent to this action have occurred or have been excused or waived. 22. Defendant's actions with respect to the instant Request (and to other public records requests) reveal a clear pattern of conduct, in which Defendant has demonstrated a knowing and willful noncompliance with Florida's Public Records Law. 23. Defendant's conduct also evidences a likelihood that Defendant will commit firture violations of Florida's Public Records Law such that injunctive relief is appropriate. Count I— Unlawful RefuWfWitbholding of Records, Failure to Produce All Records 24. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 23 as if fully set forth herein. 25. Upon information and belief, Defendant did not produce all records within its custody, which are responsive to Plaintiffs Request Ell 26. Defendant has made it clear that no further records will be provided in response to the Request. 27. Defendant's failure to produce all records responsive to Plaintiff's Request constitutes a denial of access to public records in violation ofFlorida Public Records Law. Attorneys, Fees 28. Plaintiff hired the undersigned attorneys and is entitled to recover from Defendant its reasonable attorney's fees, costs, and expenses pursuant to Section 119.12, Florida Statutes. Relief— Requested WHEREFORE, Plaintiff prays this Honorable Court for the following relief: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes; (b) Declare that Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution and the Public Records Act; (c) Order Defendants to allow the inspection, copying and photographing of the requested records (upon payment of the statutorily authorized fees); (d) Order the Defendants to provide a copy of the requested records in electronic form. (e) Enjoin the Defendant from denying access to records which are subject to the Public Records Act_ (0 Award Plaintighis reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes; and (9) Grant such further relief as the Court deems proper. 5 Respectfully submitted, The O'Boyle Law Firm P.C. Attorneys for Plaintiff 1286 West Newport Center Drive Deerfield Beach, FL 33442 Telephone: (954) 570-3518 (direct line) Facsimile: (954) 360-0807 mhanna(alobovlelawfirn, By: /s/Marrett W. Hanna Marrett W. Hanna, Fsq. Florida Bar #0016039 CERTIFICATE OF SERVICE I hereby certify that on February 12, 2014 I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. THE O'BOYLE LAW FIRM P.C. By: /s/Marrett W. Hanna Merrett W. Hanna, Esq.