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HomeMy Public PortalAboutVerified Complaint to Enforce Fla Pub. Recs. and for Declaratory Inj. Relief (O'Hare)IZ/ICS/ls UI- z.y —Zor IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA C PS -ff-12 CHRISTOPHER F. OTIARE, W2053(A0181 Q .yG, XXXKM 74 Plaintiff, t A /ASA V. Case 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. IlMPORTANTE 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 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 legates. 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). IDIPORTANT Des Poursuites Judiciares ont etc 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. 11 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 I'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 ou expedier une copie de votre reponse ecrite au "Plaintiff/Plaintiffs Attorney" (Plaignant ou a son avocat) nomme ci-dessous. CHRISTOPHER F. OHARE, as Pro SAPlaintiff Christopher R p'Hare 2520 Avenue Au Soleil Gulf Stream, FL 33483 Telephone: (561) 350-7551 pinegd@,gmail.com 2of3 r 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. SHARON R. BOCK DEC 14 201 ()jerk & Comptroller Clerk of the Court 3 of 3 By. Chr_stinaNA.Peahan Deputy Clerk SHARON R. BOCK Clerk & Comptroilar P.O. Box 4667 West Palm 59ach, Florida 33402-4667 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY. FLORIDA CHRISTOPHER F. OTIARE, Plaintiff V. TOWN OF GULF STREAM, Mnn 2013 GA 0 18 10 2 XMW CASE NO.: COPY RECEIVED FOR r-�i_. r I L� SHARON R P . Defendant. CLERK & COMp T F;]t i CIRCUIT CIVIL DIVISION 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 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 r 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 bebA 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 commiccion, or entity created pursuant to law or this Constitution. 1 of 12 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 Plaintiffs civil rights. The Parties 7. Plaintiff is a Florida citizen who resides in Palm Beach County. S. 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 2 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. 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 2of12 10. The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by agy person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costsa. (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. 1, § 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. 6 Note Government-In-The-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 Power & Light Company, 372 So. 2d420,425 (Fla. 1979). See also State ex rel. Dais 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 anile 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. Ind. 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 3of12 Fla. Stat 8 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(l)(a)tt, §119.07(3)(a)12, Fla. Stat.; Art. 1, § 24, Fla. Const.13 Factual Backeround 16. On September 26, 2013 at 9:28 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: The specific section number AND section language of the Town of Gulf Stream Code that provides for an applicant to apply for a variance front the regulations of Chapter 70 of the Tmpn's Zoning Code. 8 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 possessor, custody, and control of the custodian of public records. ' u See Footnote "2". u'- See Footnote "10". 13 See Footnote "1". 4of12 (the "Records Request'). Said Records Request is attached hereto and specifically incorporated herein as Exhibit A. 18. The day after receipt of the Initial Record Request, on September 27, 2013, Defendant sent a letter to Plaintiff via e-mail, also received September 27, 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 Records Response"). Said Initial Records Response is attached hereto and specifically incorporated herein as Exhibit B. 19. Some twenty-six (26) days after receipt of Plaintiffs Records Request, Defendant sent a letter to Plaintiff via e-mail on October 22, 2013, also received October 22, 2013, stating in relevant part: The following has been identified as responsive to your request: http://library. municode.comdfrN4UI4096Aevel4/S PB. LAND DEVELOPMENT REGULATIONS CH66Z0 ARTVSIPL DIV3VA.htm1#TOPTITLE (the "Final Records Response"). Said Final Records Response is attached hereto and specifically incorporated herein as Exhibit C. 20. Without instructions, Plaintiff could only assume that the information provided was a web site link on the internet. The link provided by the Defendant did NOT work. 21. On October 23, 2013 at 12:40 p.m., Plaintiff submitted a follow-up public records request via e-mail to the custodian of records of the Town of Gulf Stream. 22. Specifically, Plaintiff stated: 5of12 Your October 22, 2013 response to this request is as follows: The following has been identified as responsive to your request: http: //lihrary. mumicode. com/HTA4U]40961level4/SPB._LA ND DEVELOPMENT REGULATIONS CH66ZO ARTVS IPL DIV3VA.htm1#TOPTITLE I assume this response is a link to a website page but I cannot get it to work as you have provided it. Instead I have used the contents of your response and searched the municode for CH66 ARTV DIV3 TOPTITLE. The document found at this location is non-responsive to the Public Record Request. Please provide "The specific section number AND section language of the Town of Gulf Stream Code that provides for an applicant to apply for a variance from the regulations of Chapter 70 of the Town's Zoning Code." as per the terms of my original request of September 26, 2013. the "Follow-up Records Request"). Said Follow-up Records Request is attached hereto and specifically incorporated herein as Exhibit D. 23. As of the date of this complaint, some seventy-five (75) days after Plaintiffs original public records request, Plaintiff has not received the requested public records. 24. Upon information and belies; the requested public records are maintained by the Defendant in electronic form. 25. Plaintiff has requested, more than once, 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. 26. The records requested by the Plaintiff are public records that are readily accessible to Defendant. 27. All of the records being sought by Plaintiff are public records pursuant to Section 6of12 119.011(12)t't, Florida Statutes. 28. There is no statutory exemption that applies to any of the requested public records and the Defendant has cited none. 29. Violations of Section 119.07, Florida Statutes constitute an irreparable public injuryt0 30. 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. 31. Section 119.11(1), Florida Statutes requires this matterbe set for an immediate hearing. tc 32. All conditions precedent to this action have occurred or have been excused or waived. 33. 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. "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. " 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. 16 See Footnote "3". 7of12 Count I — Unlawful Withholdine of Public Records: Unreasonable Delay for the Production of Records in Electronic Form 34. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 33 as if fully alleged herein. 35. 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 law's 36. 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." 37. If information contained in the public record is available from other sources, a person seeking access to the record is not required to make an unsuccessful attempt to obtain the information from those sources as a condition precedent to gaining access to the public records19 38. "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." Tribime Co. v. Ccnnrella, 458 So. 2d 1075, 1079 (Fla. 1984). " 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 (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 Bop Ra[on 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."). 19 See Warden v Bennett 340 So. 2d 977, 979 (Fla. 1976) "The fallacy in this reasoning is that it presupposes that simply because the information contained in certain public records might be available from other sources, the person seeking access to these records must first show that he has ,ms cress ty sought the information from these sources. The Public Records Act contains no such requirement" 8of12 39. Despite Plaintiff s request of obtaining a copy of the requested record in digital (or electronic) form, some seventy-five (75) days after the Defendant received Plaintiffs original Record Request, Defendant still has not offered to provide same to Plaintiff. 40. The above described seventy-five (75) day delay is unreasonable and in violation of the Public Records Act. Count H— Automatic Delay: the Production of Records in Electronic Form 41. Plaintiff re -alleges and incorporates by reference paragraphs 1 through 40 as if fully alleged herein. 42. In its Initial Records Response, Defendant imposed an automatic delay by refusing to respond except "within three business days," even though the Records Request was received the day before the date appearing on the Defendant's Initial Records Response and the requested records were readily available to the Defendant at that time. 43. The Defendant's imposition of an automatic delay has no statutory basis and is, therefore, in violation of the Public Records Act.2e Attorneys' Fees 44. 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, "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 Graoski v. Citv of Alachua 31 So.3d 193 (Fla. App., 2010); See also Rechler v. Town of Manalatran No. CL 94-2724 AD (Fla. 15th Cir. CL November 2L, 1994), affirmed 674 So. 2d 789, 790 (Fla. 4th DCA 1996), review denied, 684 So. 2d 1353 (Fla. 1996); See also State v. Webb. 786 So.2d 602 (Fla. App., 2001). 9of12 against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees." See §119.12, Fla. Stat. 45. 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. Relief Requested WHEREFORE, Plaintiff prays this Court: (a) Set an immediate hearing pursuant to Section 119.11, Florida Statutes;21 (b) Declare that the Defendant's failure to provide Plaintiff with access to the requested public records was unconstitutional and unlawful under Article L Section 24 of the Florida Constitution" and the Public Records Act;23 (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:' 1 See Footnote "3". See Footnote "1". Z' See Footnote "T'. 24 Note Government -In -The -Sunshine -Manual page 17Z 10 of 12 (f) Award Plaintiff his reasonable attorney's fees, costs, and expenses incurred in this action, as provided in Section 119.12, Florida Statutes;25 and (g) Grant such further relief as the Court deems proper. Dated: W 10 12013 Respectfully submitted, PREPARED WITH ASSISTANCE OF COUNSEL F. O'HARE, as Pro Se 2520 Avenue Au Soleil Gulf Stream, FL 33483 Telephone: (561) 588-8920 pinegd(@—amail.com Injunctive relief maybe 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 AM ether with a d of future violations; mandamus would not be an adequate remedy since mand ,n„u would e ldnot 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. v See Verified Complaint at "44" 11 of 12