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HomeMy Public PortalAboutPRR 17-2618 Renee Basel From:Jonathan O'Boyle <jonathanroboyle@gmail.com> Sent:Thursday, December 21, 2017 4:38 PM To:Renee Basel; Trey Nazzaro; Jonathan O'Boyle Subject:Transcript Records Request I would like a copy of the electronic version of the Transcript of November 20, 2017 Trial of 2014CA003721. Jones Foster ordered the transcript so they will be able to locate the record with ease. Thank you. -- Jonathan O’Boyle, Esq., LLM. The O’Boyle Law Firm, P.C. www.oboylelawfirm.com joboyle@oboylelawfirm.com Pennsylvania Office 1001 Broad St. Johnstown, PA 15906 Tel: 814-535-5175 Fax: 215-893-3641 New Jersey Office 10 Grove St. Haddonfield, NJ 08033 Tel: 814-535-5175 Fax: 215-893-3641 Florida Office 1 1286 West Newport Center Drive Deerfield Beach, FL 33442 Office: 954-570-3533 Fax: 754-212-2444 IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. =========================================================== NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS E- MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION. 2 TOWN OF GULF STREAM PALM BEACH COUNTY, FLORIDA Delivered via e-mail December 29, 2017 Jonathan O’Boyle [mail to: jonathanroboyle@gmail.com] Re: GS #2618 (Transcript Records Request) I would like a copy of the electronic version of the Transcript of November 20, 2017 Trial of 2014CA003721. Dear Jonathan O’Boyle [mail to: jonathanroboyle@gmail.com]: The Town of Gulf Stream has received your public records request dated December 21, 2017. You should be able to view your original request and response at the following link: http://www2.gulf-stream.org/weblink/0/doc/116224/Page1.aspx We have also attached the transcript to this e-mail for your convenience. We consider this request closed. Sincerely, Reneé Rowan Basel As requested by Rita Taylor Town Clerk, Custodian of the Records IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, · · · · ·IN AND FOR PALM BEACH COUNTY, FLORIDA · · · · · ·CASE NO. 502014CA003721XXXXMB(AH) STOPDIRTYGOVERNMENT, LLC, · · · · · ·Plaintiff/Petitioner, · vs. TOWN OF GULF STREAM, · · · · · ·Defendant/Respondent. _____________________________________/ · · · · · · · · · · · ------------ · · · · · · · ·TRIAL PROCEEDINGS BEFORE · · · · · · · · HONORABLE LISA S. SMALL · · · · · · · · · · · ------------ DATE: NOVEMBER 20, 2017 TIME: 10:15 A.M. - 12:00 P.M. · · ·APPEARING ON BEHALF OF PLAINTIFF: · · ·SACHS, SAX, CAPLAN, P.L. · · ·BY: ROBERT RIVAS, ESQUIRE · · ·6111 BROKEN SOUND PARKWAY NW · · ·SUITE 200 · · ·BOCA RATON, FL 33487 · · ·(561) 994-4499 · · ·APPEARING ON BEHALF OF DEFENDANT: · · ·JONES, FOSTER, JOHNSTON & STUBBS, P.A. · · ·BY: JOANNE O'CONNOR, ESQUIRE · · ·BY: ROBERT SWEETAPPLE, ESQUIRE · · ·505 SOUTH FLAGLER DRIVE · · ·SUITE 1100 · · ·WEST PALM BEACH, FL 33401 · · ·(561) 659-3000 ALSO PRESENT: Jonathan O'Boyle Martin O'Boyle Edward "Trey" Nazzaro, Town of Gulf Stream · · · · · · · · · · · ·representative · · · · · · - - - - - - - - - - - - - - - - · · · · · BE IT REMEMBERED, that the following trial proceedings were taken in the above-styled cause before Honorable LISA S. SMALL, Presiding Judge, at the Palm Beach County Courthouse, 205 North Dixie Highway, in the City of West Palm Beach, County of Palm Beach, State of Florida, on the 20th day of November, 2017, to wit: · · · · · · · · · · - - - · · ·THE COURT:· Okay.· Good morning, everyone.· We are going to resume the non-jury trial in the case StopDirtyGovernment, LLC, versus the Town of Gulf Stream.· We began the trial on Tuesday, November 14th, and today we have the better part of the day to conclude the matter. · · ·So we'll have appearances, and then we'll proceed with the defendants' side of the case. · · ·MR. RIVAS:· Robert Rivas, Your Honor, for the plaintiff. · · ·MS. O'CONNOR:· Joanne O'Connor and Bob Sweetapple for the defendant, Your Honor. · · ·MR. SWEETAPPLE:· And we have Trey Nazzaro who is the attorney for the Town and is our corporate representative here today. · · ·THE COURT:· Okay.· Good morning, everyone. · · ·So we had concluded the plaintiffs' prima facie case on November 14th, and we are now on the defendant's side of the case.· Who would be the first witness the defendant calls? · · ·MS. O'CONNOR:· Your Honor, the defense will call Freda DeFosse. · · ·MR. SWEETAPPLE:· May we take something up with the Court, Your Honor, which is going to obviously impact the presentation?· We submitted memoranda to the Court. · · ·THE COURT:· I have it, yes. · · ·MR. SWEETAPPLE:· And we are prepared to put on our case based on our understanding of the law, which is that good faith and reasonableness are issues that are relevant under the statute.· And we need to have the Court's ruling on that because the plaintiff, essentially, made a proffer and we're going to be seeking to deal with issues that he opened the door to in that proffer in the event you admit that testimony. · · ·So there was conditional testimony given in plaintiffs' case so before we proceed, we need to have the Court's ruling as to whether or not good faith is an appropriate issue and reasonableness is an appropriate issue in this case. · · ·And you received the memo.· If you want further -- · · ·THE COURT:· I did. · · ·MR. SWEETAPPLE:· If you want further argument, I'm happy to provide argument. · · ·THE COURT:· Very briefly from both sides so that you may present it as part of the hearing record.· So, I'll hear from plaintiff first. · · ·MR. RIVAS:· I think the Town should go first. · · ·THE COURT:· I think you're right because the Town is saying that a certain line of inquiry is relevant to the Court's consideration.· We'll have the Town go first, the party who is proposing to elicit this information, and then I'll go to the response from plaintiff. · · ·MR. SWEETAPPLE:· So just so the Court's aware, you're going to allow us to make a record based on the evidence that the plaintiff put in conditionally?· So -- which is fine.· The case may go a little bit longer based on that because there were -- · · ·I read the transcript this weekend and there was testimony put in attempting to show our bad faith that this was done in order to prevent or to interfere with an attempt to get election information, and a lot of our evidence is going to go to that, just so the Court understands.· We will put it in based on our belief that that is the appropriate standard, but it -- that's fine.· We'll do it conditionally as well. · · ·THE COURT:· All right.· Well, let's have -- I think what you wanted the Court to do is just rule on the issue right now whether it's coming in or not because when we were -- when we began the trial on November 14th, both sides requested to give the Court a memo on the issue, and so that's why I handled it that way.· So you all have given me your memos on it at the end of last week, so I think I should address it right now, right? · · ·MR. SWEETAPPLE:· That's what I was trying to politely suggest. · · ·THE COURT:· Right.· That's what I was going to do. · · ·MR. SWEETAPPLE:· I wasn't very direct, but I should have said -- · · ·THE COURT:· Oh, no.· Oh, okay.· I should have been more clear, but I want you all to argue it and then I'm going to rule. · · ·MR. SWEETAPPLE:· Yeah, I was hoping that I could be heard on it -- · · ·THE COURT:· Yes. · · ·MR. SWEETAPPLE:· -- and then you could rule and then we could, of course, put on our case based on the statute. · · ·THE COURT:· Right.· That's what we're going to do right now. · · ·MR. SWEETAPPLE:· Thank you. · · ·THE COURT:· So any other argument that you wanted -- · · ·MR. SWEETAPPLE:· I do.· If Mr. Rivas wants to go first, it's -- do you want me to go first? · · ·MR. RIVAS:· She just said that. · · ·THE COURT:· I think that, right, Mr. Rivas agrees that since you are the party who is seeking to present this information, that you will go first. · · ·MR. SWEETAPPLE:· I'll be happy to, Your Honor. · · ·First, I want to address the Court to the statute and the black letter law of the state.· And the black letter law of the state is that if a legislature includes language in a statute, it's deemed to have import.· Just like two weeks ago when I appeared before the Fourth District and Judge Levine pointed out that the "improper purpose" language that was added to the statute in the attorney's fee section was not there previously and it is there now, so it was deemed to not have been there previously. · · ·So what do we have in this statute that we know the legislature intended for the Court to look at?· And contrary to plaintiffs' argument, this is not a strict liability statute.· If it were a strict liability statute, you could take your black marker and you could cross out key words and then you would arrive at the plaintiffs' interpretation, but the only way you arrive at the plaintiffs' interpretation is if you cross out key words. · · ·Let's look at the very first Section (1)(a) which requires that we permit records, the Town, to be inspected at any reasonable time and under reasonable conditions.· So the notion of reasonableness is infused from the very beginning of this statute.· And that's just not a reference to the fact that we're not going to put a requester in a dark room, but it also means if a requester comes in and says, "Give us every public record you have, give us every public record received by Mr. X," that you have to impose reasonable conditions on that.· This isn't like a request to produce in a litigation.· If you come in and ask the Town of Gulf Stream for every public record, you're asking for hundreds of thousands of documents and that has to be done under reasonable conditions, and the Court has to look at the response in terms of what occurred here and was it reasonable.· How do we know that? · · ·Very simple.· You just have to go down to the next section after (b), so you go down two sections, and what does (c) say?· "A custodian of public records and his or her designee must acknowledge a request to inspect or copy records promptly and respond to such records in good -- request in good faith." · · ·So we know what good faith means.· There's a whole body of law that describes what good faith is that can guide the Court.· And then the statute gives you a partial definition of good faith.· It doesn't give you the complete definition of good faith.· It says that "A good faith response includes making reasonable efforts," back to reasonable again, "to determine from other officers and employees within the agency whether such records exist, and if so, the location of which the records can be accessed."· So the statute specifically requires you to look at good faith and gives you one instance of what good faith would be. · · ·Now what do we have here?· You're going to hear the evidence, Your Honor.· You're going to hear that Citizens Awareness Foundation, Inc., which is the plaintiff in the Wantman case, which we cite, is these gentlemen here.· It's Martin O'Boyle.· It's Jonathan O'Boyle. · · ·Mr. Rivas, I don't know that he's ever undertaken to represent that particular company controlled by the O'Boyles, but this issue has already been raised by the O'Boyles, and they already lost before Judge Sasser and they already lost before the Fourth District Court of Appeal. · · ·In that case, there was a spam-type request that was submitted to try to create a -- or apparently to create a difficulty in knowing if it was real or not.· There are all types of requests. We have "kill shot" requests you're going to hear about.· We have "gotcha" requests.· In that case it was a spam-looking, innocuous email that the Wantman Group, which was of course the co-plaintiff, with the city of Gulf Stream in various cases you may have read about. · · ·So what happened?· Judge Sasser appropriately ruled that even though nothing was provided at all, nothing was provided at all in response to the public records request, she said that Wantman acted in good faith.· And the Fourth District not only affirmed the case, it distinguished Lee, the Supreme Court case, just as we argued to you, and said in Lee they were dealing with an attorney's fee entitlement after there had already been a statutory violation of a separate subsection, the cost section for photocopying, and good faith doesn't go into an analysis of attorney's fees. Once you either win or lose, you're the prevailing party and then there's a straight fee analysis.· So Wantman told us that Lee is not authority to somehow repudiate what the legislature clearly said.· And, furthermore, Wantman teaches us something else that will come into this case, which is public records laws are not to be enforced or interpreted in a way that just generates attorney's fees. · · ·You're going to hear that this young man, Mr. O'Boyle, opened up his law firm in January of 2014.· They opened up an alleged not-for-profit to make public records requests called CAFI, Citizens Awareness Foundation.· They had already -- Mr. Martin O'Boyle, in 2013, had already filed hundreds of public records requests, and I believe 14 or 17 suits against Gulf Stream, and all of this is being done in this case contrary to the dictates of Wantman, unreasonable requests for the sole purpose of generating legal fees.· And you have the ability, under the case law, to look at the evidence and determine whether or not that's what's going on.· But the notion that Mr. Rivas makes to you is absolutely preposterous, preposterous.· He cites no case law at all, and he makes an argument that, on its face, is ridiculous. · · ·The argument is there's an injunction provision in the statute.· Yes, no doubt.· And because there's an injunction remedy, therefore, there must be strict liability so that means -- that means that if we send a request to Gulf Stream and we ask for all public records you have for the last ten years, and you miss one document, you're liable. · · ·Well, why do we know that's ridiculous?· Well, Wantman tells us that's ridiculous.· Wantman tells us no documents were provided and it was a good faith response. · · ·CAFI could have gone in the Wantman case and said, "We want an injunction.· We now want our public records request to be honored.· We want the documents that were in the request."· And the Court could have easily said, "Yes, you can now have your documents."· That doesn't mean that the Court's finding as to whether or not the conduct of the defendant was reasonable or unreasonable is any different of an analysis. · · ·The notion that any person in this state can file a request for every document any government has, and then sue if they're not provided, if that were the law, I could, myself, close this courthouse, close the City of West Palm Beach, and close the government.· All I would have to do is to make requests, which you can make under the judiciary, or you can make it only for administrative matters.· You can ask for every single document that exists.· You could robocall nonstop for records.· And the idea that if you don't respond -- now the legislature has put in the "improper purpose" argument so we can argue improper purpose, but we could always argue good faith. · · ·The fact that bad faith is not -- or may not be admissible, and you've ruled it's not admissible in this proceeding, doesn't mean that our good faith isn't admissible.· The plaintiff says we're acting in bad faith.· The plaintiff has tendered that we did this to interfere with the election and to keep him from getting election material. · · ·We're going to prove that our client was attempting, under the fear of yet another dozen or dozen more of lawsuits, was grappling with trying to timely and properly respond to hundreds and hundreds of requests that were filed by Jonathan O'Boyle, Martin O'Boyle, all of their alterego companies, and the lawsuits that were just stemming in January from the new law firm that Jonathan O'Boyle opened in his father's office with his partner Ryan Witmer. · · ·So the notion that this is strict liability flies in the face of Wantman.· It flies specifically in the face of the Grapski opinion, which we cited, quote, Common sense and reason must play a part in applying this statute to a set of facts.· The legislature never intended this statute to be used as a hammer to club an agency or public official in a game of minutiae when a few documents are inadvertently omitted. · · ·In this case, this is not you're going to see a game of minutiae.· This is a game of inundating and attempting to generate litigation, and the Court needs to look at all the facts that were going on that my client was dealing with, and the Court needs to apply common sense and reason.· This is not strict liability.· Thank you. · · ·THE COURT:· What is your response to the plaintiffs' argument that this good faith issue should have been pled as an affirmative defense? That's point number two -- no, it's the last point in the -- · · ·MR. SWEETAPPLE:· It's an element in the statute.· You don't plead elements of proof in affirmative defenses.· Affirmative defense is everything's true and you avoid it.· We're saying it's -- that's an element.· It says right there what you have to -- · · ·We're not saying that -- there's nothing that says if you don't produce it, you're liable.· The issue is:· When are we liable?· The burden of proof is on the plaintiff to show that we act in a manner that demonstrated a lack of good faith or reasonable conduct, and we have the right to come forward as part of our case to show that we did. It's not an affirmative defense. · · ·THE COURT:· Okay.· Thank you.· Response? · · ·MR. RIVAS:· Thank you, Your Honor. · · ·As an incidental matter, if I may, I just would like to provide Your Honor with a little folder with some cases I've given opposing counsel that pertain to the modern application in the email world of the mailbox rule.· And I want to give it to you now because it will help orient -- might help orient the Court as we go forward regardless of what happens.· There are -- · · ·MR. SWEETAPPLE:· Can I have a copy of whatever you're giving? · · ·THE COURT:· Do you have a copy? · · ·MR. SWEETAPPLE:· Yes.· He left it on the desk. · · ·MR. RIVAS:· No.· I put it in -- · · ·MR. NAVARRO:· My hand, yes. · · ·MR. RIVAS:· -- Mr. Navarro's hands.· And enough about that for the moment because I know Your Honor wants to focus on the good faith defense. · · ·The Town has entangled a bunch of different concepts in this discussion of the good faith defense, and I'd like to try to disentangle the issues.· And I think the first string to pull is to talk about the meaning of the word "liability" and "strict liability," which is even more absurd.· I, contrary to the argument that's been made, have never said anything about liability.· Neither have I ever said the Town acted in bad faith. · · ·The reality is that liability is a word that is normally understood to mean civil or criminal liability.· Civil liability is perhaps for damages, but it's not liability for a court to make a declaratory judgment.· That's not liability unless you're referring to liability for fees, and that's what the Town keeps doing is mixing up the subject of the substantive need for the Court to enter an injunction, a declaratory judgment and an injunction that we're asking for, with the subject of fees.· And we are not asking for there to be any liability for fees. · · ·In fact, at the conclusion of today's trial, Your Honor's probably not going to rule from the bench.· I assume you're going to want post-trial briefs.· I'd be happy to do it either way. Regardless, we are not asking the Court today, or in the judgment that flows from this trial, for the order to recite that the Court makes any finding as to which side owes the other side any attorney's fees or whether we are entitled to attorney's fees. It isn't necessary.· I just assume the Court have a hearing down the road on the question of attorney's fees, and that's what the Town keeps talking about when it's talking about liability. · · ·I want to refer to the federal case, which I'm not even citing.· I'm just using this as a metaphor in the discussion.· Ex parte Young, early in the 20th Century, the Supreme Court of the United States recognizing that the 11th Amendment prohibits lawsuits -- prohibits jurisdiction in federal court over lawsuits against the state ruled that that's true, but if you file -- if a lawsuit -- in terms of seeking liability, but if a lawsuit is styled as a case for a declaratory judgment and injunctive relief for a finding that the state is doing something that violates the constitution, then that case can proceed against the individual who's the head of the agency involved because it is not a matter of liability for a court to find and rule in a declaratory judgment that an agency has run afoul of the law and to require the agency to comply with the law. Ex parte Young says no state could take the position that it shouldn't be obligated to follow the law.· All we're asking the Court to do is to require the Town to follow the law. · · ·Now there are two paragraphs in the Prayer for Relief in the complaint that refer to the injunction we're asking for.· One is a simple request that there be a declaration that the Town's violated the law and coupled with an injunction that the Town basically go back and do the response to the public records request over again and do it in compliance with the law, one time event. · · ·There's a separate paragraph that says enjoin the Town not to violate the law in the future, and we withdraw that here and now just to simplify things.· We're not asking the Court to enter an injunction that would involve ongoing supervision, just an injunction that the Town comply with the existing public records request which, four years and nine months after it's made, has still not been followed. · · ·MR. SWEETAPPLE:· Note my objection to any attempt to involuntary dismiss any claim after the plaintiff rested. · · ·MR. RIVAS:· It's not a claim, it's just a sentence in the Prayer for Relief.· We can decline to ask for it at any time.· It doesn't make any difference. · · ·The evidence has already proven that the Town didn't produce some records that were required to be produced pursuant to the public records law.· As a matter of fact, on closer inspection, if you look at Exhibits 28 through 46 and read the documentation that's attached to those agendas -- and I'll go through this in some detail if Your Honor would like me to, but there's proof where Mr. Ganger, from his own mouth, says he's received this and that.· Things he's just discussing, they're in the minutes.· The minutes are always attached to the agenda from the previous meeting in order to enable the commission to vote on them. · · ·The Town didn't produce, in response to the public records request, any minutes, any agendas, any budgets.· Exhibits 46 -- 28 through 46 contain hundreds of references to things that were public records received by Ganger from the Town that the Town would be obligated to produce pursuant to the public records request.· It's plain terms.· It says, "Communications and public records that were received by Ganger." · · ·The record establishes, by much more than a preponderance of the evidence, only a few that we specifically can show you a copy of that were not produced; but in addition to that, the record contains more than sufficient evidence to establish that there are hundreds of other documents that the Town's response to the public records request in this case was utterly out of compliance with the duty of the Town to go search for the records and produce them. · · ·And we can set all of that aside for purposes of this discussion too because it completely misses the point.· The only cases that the Town cites in support of its position are all delay cases.· Under Section 119.07 the statute says that the Town -- that an agency has to produce all records, that's the legal requirement, all records that are not exempt. · · ·There's no issue in this case -- I don't know why we keep hearing discussions about reasonableness of service charges, reasonableness of time and place.· There's no evidence that there's not going to be any evidence that there was any pressure put on the Town to comply within a certain time frame.· The Town gave its own response and unilaterally decided that they were going to declare the response, in the response itself, to be final.· And if the Town was acting in good faith, if the Town was acting in good faith, at any time in the last four years and nine months the Town would have produced all the records responsive to the public records request and the case would have been reduced immediately. · · ·There's the mootness doctrine.· When a Court is shown that all the documents that needed to be produced in response to a public records request have been produced, the case is moot in a sense, and it would be moot except in the case of say there's an exception to the mootness doctrine if collateral consequences flow from the judgment, and the Court needs to rule on the judgment.· And so the Court proceeds from then on to decide whether the delay constituted an unlawful refusal.· That's where the good faith comes in. · · ·And every single one of the cases the Town is relying on is a delay case.· They're looking at whether there was an unlawful refusal based on a delay in Wantman.· I'm sure opposing counsel misspoke in Wantman.· The case recites that all the records were produced long before trial.· They were produced when the lawsuit was filed.· All the records in this case could have been produced when the lawsuit was filed.· It would reduce this case to a delay case.· And the Court would be deciding whether or not the circumstances of the receipt and compliance with the public records requests were such that the Town's delay was not unlawful because under the circumstances it was reasonable and it was justified and, therefore, the Court would find -- proceeding forward from what would otherwise be a moot case, solely to determine the award of attorney's fees, the Court would then determine whether or not the delay was an unlawful delay under Section 119.12, the attorney's fee provision. · · ·Wantman was a delay case.· In Wantman it says, right on its face, that all the documents were produced. · · ·Jackson Shaw Company versus Jacksonville Aviation Authority is one of the cases relied upon by the Town in its brief.· It's a delay case. There are many reasons why that federal case is not any kind of useful precedent in this case.· But among the alternative explanations the federal judge gave for why he wasn't going to award relief under the public records request law is that it was a delay case and the delay was not unreasonable. · · ·In Wantman, the only holding in Wantman, you can read -- you can read it and you can see where the Town gets its rhetoric, but the only holding in Wantman and in Consumer Rights, LLC, versus Union County is that if a Town gets an email and the Town genuinely doesn't know who it's from, it doesn't have a significant -- like sometimes Mr. O'Boyle, you'll see from the evidence, uses the name of a corporation but he signs his name Marty.· Everybody knows in Town knows who it is.· There's no question here about whether they knew who it was from.· But in Wantman and in Consumer Rights -- · · ·First of all, in Wantman and Consumer Rights the agency produced all the documents.· In both of those cases the agency produced all the documents before the trial, so it was just a delay case. · · ·And, secondly, the Court found in both of those cases identically if an agency receives an email and the email comes from somebody, they don't know who it is, they don't have a phone number. They don't have a mailing address.· They have no idea how to communicate with this person except to click on the email and their IT persons says, "Don't click on that email.· It may be dangerous. It may be a spearfishing email," I think it just uses the word "fishing."· Spearfishing is more particular about what kind of fishing it is.· But when the -- and so both of those cases, the full extent of their holding is that it's not an unreasonable delay in responding to a public records request and thereby doesn't create liability for attorney's fees if the Town can't respond without running the risk that they're going to victimize their computer system because they don't know what's at the other end of this link that they've got.· That's all those cases hold, and both of them are delay cases. · · ·And, you know, in this case military people like this expression that when they're deciding whether to continue to fight to the finish to defend a particular defensive point, they ask if this is the hill I'm prepared to die on to defend the hill.· The Town decided to defend the hill of taking the position that the Town is going to be excused from ever complying with the public records law with respect to records that the Town did not produce and has not produced through today. There's no precedent anywhere in the world for that.· Nothing about the Town's good faith could possibly explain why they didn't reduce this case to an unlawful delay case at any time in the last three years and nine months we would be here arguing. · · ·If the Town is acting in the kind of good faith that the statute is talking about, the Town would have said, "Oh, you brought to my attention during this litigation that there was some documents we didn't produce.· Well, here they are." And we would have no choice but to be arguing to Your Honor whether or not there was good faith in the sense that the delay was justified for some reason or was reasonable. · · ·The Town knows, has known all along and knows to this day, and if the Court were to go along with the Town's view that there could be a good faith defense to a public records request in a case where the Town still hasn't produced the documents through the judgment, the Court would be creating, for the first time in Florida history, a public records black hole. · · ·Would a judgment mean that if StopDirtyGovernment went back to the Town again, long after the judgment, and says, "I'd like a copy of all communications sent to or received by Mr. Ganger" during the same window of time that the Town could come back and say, "It's res judicata. We don't have to produce them.· We have a judgment that says we don't have to produce them"? · · ·In all of the cases that have been cited and all of the cases that have been discussed, there's no case -- there's no case ever in Florida where a court has found that an unlawful failure and refusal to produce a document, it is not rectified or corrected ever, that an agency can be excused from refusing to produce it.· And the Court is saddled with the responsibility to grant an injunction that the Town comply with the law, go back and do the public records response over again in order to bring itself into compliance with the law.· And that's not liability, that's a finding. It's a declaratory judgment.· It's an injunction. A Town cannot call it liability to be ordered to comply with the law.· That's not -- it's not even a liability.· Liability is what comes up when we talk about fees. · · ·Your Honor said so many times throughout this case "I understand there's a difference between fees and the issue in the case."· Your Honor's got that so clearly and said it so many times and yet the Town is still arguing the good faith thing in an effort to figure out how to slip attorney's fee arguments into the decision about whether the Town's liable for -- I caught myself using that word again. · · ·THE COURT:· I've got a question -- · · ·MR. RIVAS:· Okay. · · ·THE COURT:· -- for you.· Are you saying that in delay cases the good faith and the reasonableness or lack of reasonableness of the public entity is at issue, but in a case where there's been an alleged failure to produce documents, that good faith doesn't apply and reasonableness doesn't apply? · · ·MR. RIVAS:· Yes. · · ·THE COURT:· Okay. · · ·MR. RIVAS:· The reasonableness and good faith are an analysis as in Wantman. · · ·THE COURT:· Well, what about the issue of -- and I understand the plaintiffs' position that this is not merely the inadvertent failure to produce one piece of paper amongst hundreds of documents, this is not an "excusable neglect, inadvertent failure to produce situation" based on the facts, I understand that.· But setting that aside, what the facts are, just looking at the legal issue, would an inadvertent failure -- · · ·MR. RIVAS:· I think -- · · ·THE COURT:· -- be something that the Court should look at in terms of not producing a document? · · ·MR. RIVAS:· I understand the question, Your Honor.· The answer to it is that if there was something that was inadvertently produced and the Town is operating in good faith, the Town would produce it as soon as it's brought to the Town's attention that there has been something inadvertently produced, and then the Town would reduce the whole thing to a discussion about the delay.· And then the Town would -- then the Court, because there are many cases that say if you file a public records lawsuit, because you had to file a public records lawsuit in order to obtain the records because an agency didn't produce them all or didn't produce any, the Court then -- and then they're all produced after suit is filed.· There's the exemption from the mootness doctrine.· The Court has to decide whether or not the failure to produce was an unlawful refusal because attorney's fees are only awarded if there's an unlawful refusal. · · ·So the only thing going forward that the Court is deciding is whether there was an unlawful refusal, and that's where the Town's explanation for why the Town didn't produce the document, why the delay was the length it was, everything about the circumstances of the delay becomes relevant to what the Court -- and you see it in the analysis of all these cases.· Everything about the circumstances goes to whether the Court will decide "I'm going to find liability for fees because I'm going to find that the delay was unreasonable." · · ·Typically, if you just see a case where an agency just refused to produce any documents at all, had to be sued, then the Court will say that's -- there's no justification for that under the law.· But there are many cases:· Wantman, Consumer-Union, there are many cases where there was a delay, after filing suit the documents were produced, the plaintiff goes forward in an effort to prove that the delay was an unlawful delay and, therefore, the plaintiff is entitled only to fees. That's where liability arises and that's where there can be a good faith -- I don't like the words "good faith."· I suppose it's in the statute, but what it's really referring to is whether the -- under the circumstances -- · · ·The reason I object to good faith is because I don't know what it means.· And this Town is using it here; I don't know what it means.· If it's just an inadvertent failure to produce one piece of paper, is that good faith?· They want to argue that good faith is much bigger than a breadbox, whatever the heck it is.· You can see how much evidence they've got of their good faith. · · ·But all that aside, the Court has to look at the circumstances and decide whether, under the circumstances, the delay was justified, the Town misunderstood the request, the Town searched diligently, complied with its obligation. I believe that the sentence you're reading in Chapter 119 -- Section 119.07(1)(c) -- · · ·THE COURT:· Right. · · ·MR. RIVAS:· -- refers to a duty.· It does not create a defense.· It just helps explain the duty. And there's plenty of legislative history that shows that it was not intended to create a defense, it was solely intended to create a duty, and that's why it can't be an element of the pleading.· And that's even why, we submit, it can't even be in a case where records were absolutely not produced. It can't even be an affirmative defense because if it were, then upon the filing of a petition for a writ of mandamus it would be impossible to ever obtain one because the Court has to find -- in order to enter an alternative and a peremptory writ of mandamus, the Court has to find that there's a discretionary, non-delegable duty. · · ·As a matter of law, the Town absolutely violated a nondiscretionary, mandatory duty to produce the records.· And the Court can't find that if there's a good faith explanation -- if a good faith explanation might explain the Town's failure to produce the records, it wouldn't be an appropriate candidate for a writ of mandamus.· It might be an appropriate candidate for what we have here, a case where there's a request for an injunction, but not a writ of mandamus.· There can't be defenses like that in a writ of mandamus case.· And there's dozens of Florida cases finding that a writ of mandamus is appropriate to enforce the public records law, but those couldn't be if there was a good faith affirmative defense. · · ·And I also submit, as we did in our brief, if you look -- the proof of the pudding here about whether or not the Town should be barred from putting on the affirmative defense of good faith is if you look at the affirmative defense that they pled and proposed, it explains that the Town acted in good faith.· Your Honor denied it all.· They never came back in arguments -- and maybe Your Honor didn't even notice.· They never came back in arguments and said, "Oh, we're not only trying to plead an affirmative defense of bad faith by the O'Boyles, we're also trying to plead an affirmative defense of good faith by the Town and Your Honor should let that aspect of it stand."· They didn't say that. · · ·Your Honor's already denied their motion for -- and we just -- we can't -- we didn't take depositions of people who are going to testify. They have all this stuff that O'Hare was working for O'Boyle.· There's no evidence of that in the world that there were these thousands of public records requests.· They're all in different time frames.· There was nothing constraining the Town. The evidence will show you there was nothing constraining the Town not to be able to comply with the public records request in the relevant time frame.· And all of these discussions they want to have about their good faith affirmative defense we would have been able -- we would have been prepared to Cross-Examine their witnesses and so forth if they had been -- if they had pled this. · · ·They didn't even call up their motion to leave to add the affirmative defense until after the case -- until the eve of trial.· It was pending for a year.· It wasn't even made for the first two years.· And we're not well-prepared at all to defend against the good faith evidence that the Town wants to put on.· And I heard Your Honor to deny that argument for the procedural reason as well. · · ·MR. SWEETAPPLE:· May I respond, Your Honor? · · ·THE COURT:· All right.· Thank you. · · ·MR. SWEETAPPLE:· If I can approach, I have a copy of an order that was issued and affirmed on appeal in the Grapski versus Machen case, if I can approach.· I think we have a copy for counsel, don't we?· Your Honor -- · · ·THE COURT:· Oh. · · ·MR. SWEETAPPLE:· -- we cite that case.· That's the case, Your Honor, that's on the Attorney General's website.· And I think counsel basically understands that an unlawful delay case is an unlawful withholding case.· And to try to make this distinction that the duty of good faith only applies in a delay case, that subsection of unlawful withholding and not the threshold issue of whether there was an unlawful holding is disingenuous. · · ·And, in fact, when you look at the case we cited to you, which is Grapski versus Machen, which is the situation involving the former president at the University of Florida, on paragraph 14, "The sole issue for determination by this Court is if the defendant, through his designee, quote, unlawfully refused to permit a public record to be inspected, examined, or copied."· Then it goes, "If the Court determines that defendant did unlawfully refuse, then plaintiff is entitled to production of the refused documents and he is entitled to reasonable costs of enforcement." · · ·If, first -- the first threshold issue in this case is very simple and it's not a matter of res judicata.· That's -- that's not accurate.· You just have a very simple, normally, a very simple analysis to make.· In your case it will not be simple at all.· And that is at the time this request was filed, looking at the request itself, is it a "gotcha" request that says all requests -- all public records requests received by somebody, and then communications with that somebody, where they don't say "We want agendas.· We want every -- we want you to go look at videos of every meeting for a year and a half and see everything that a commissioner saw or received when he was sitting on the dais"?· It's really a request?· Now he's telling us, "It's really a request for thousands of pages," he just said. · · ·It's a threshold issue.· At the time the request was made, you look at what the statute tells you to look at:· Reasonableness, time, conditions, and our response.· It isn't res judicata.· It's just a determination as to this time. · · ·Now how do we know that the issue in Grapski is the same issue in this case?· Paragraph 14 tells you this is an unlawful refusal case.· Paragraph 25 tells you -- 24, the question is whether the defendant, through his designated -- designee it should say, unlawfully refused inspection, examination, or copying of these public records. · · ·What is the issue in this case?· Gee, what a coincidence.· We've stipulated the issue of unlawful withholding is exactly the same issue in this case that it was in Wantman, as it was in Grapski.· Unlawful withholding is the same issue even if there's a delay in responding. · · ·Our stipulation, paragraph IV, "Whether the Town's conduct amounts to an unlawful refusal to provide public records under Chapter 119 Florida Statutes."· That's the issue.· Was there an unlawful refusal?· It's the same issue in all these cases.· And what counsel says is "Oh, if you would have come in later and said, 'Oh, we found them,' you'd be off the hook." · · ·No.· You're going to hear that we thought that we had given everything.· Our client didn't know that -- when you read the request, it looks like you're asking for communications, things that were sent, emails that were sent.· And we asked Mr. Ganger, who unfortunately has had a stroke while he was enduring all of this abuse, and, you know, I'm not going to be able to call him, but he went and produced everything that he received by way of email. · · ·Now they're saying, "Oh, no.· We really wanted agendas.· We really wanted everything he ever got while he was" -- he read or received thousands of documents.· Every contract they reviewed on the dais, every minute of every meeting.· It's a "gotcha" request and you should have understood that that's what the request meant.· And we're going to say no.· In good faith, based on the thousands of requests Mr. Martin O'Boyle has made over the last ten years where he's pulverized other cities, and that Jonathan's O'Boyle's involved in, they knew how to ask for what they wanted.· They frame -- you're going to see dozens and dozens of requests in this month they framed.· They know how to frame a request. · · ·So good faith is an issue in a delay case because a delay case isn't unlawful withholding. Good faith is a issue in an unlawful withholding case where the Town believes they gave everything, which is what our Town believed, and you're going to hear that. · · ·Now I hear Mr. Rivas say he wasn't prepared because he didn't -- maybe he thought because you denied our affirmative defense, we took your denial of the affirmative defense as dealing with just bad faith, not the issue of any good faith in the statute.· If I would have thought that, I would have, you know, obviously taken exception to it. But Mr. Rivas says he's not, I guess, prepared to go forward and didn't anticipate this. · · ·With all respect to Mr. Rivas, who's an expert in public records law, if he wants to continue this so that he can take discovery to deal with our case and take our client's depo, I'm happy to have the Court adjourn this if that's what he wants.· But if not, Your Honor, I think that the statute says what it says.· This is an unlawful withholding case. All the authorities we've cited are unlawful withholding cases.· It's not limited to delay cases.· Those are just unlawful withholding cases. And the Court, unfortunately, is going to need to critically look at:· What happened here?· What really happened here?· What's really going on here? What are the plaintiffs really doing?· And was this an attempt to subvert Mr. O'Boyle, Martin O'Boyle's running for election or was this an attempt to inundate the Town with so many overbroad "gotcha" requests, "kill shots" they call them in their January emails, for the purpose of making it hard for us to understand what the request was to respond to it, to make it impossible to diligently meet the overburdening? · · ·And so you're going to need to hear testimony from our clerks, and also from the O'Boyles, and see the documents that we've obtained from their own hands, written by their own hands.· And then you're going to have to apply what the statute says:· Reasonable, good faith. · · ·This is not strict liability.· The plaintiff, in their memo, tried to tell you it's strict liability and if a municipality or a government doesn't give a document, it's an unlawful withholding.· That is not the law and we intend to prove that we acted in good faith at all times under the facts and circumstances of this case. · · ·We're prepared to go forward to do that today. If Mr. Rivas needs time, I don't want any error created in this case.· So if he wants to ask for time, I have no opposition to it. · · ·THE COURT:· I'm prepared to rule on the issues presented based upon the written memoranda submitted by both sides and the extensive legal argument. · · ·The Public Records Act at Section 119.07(1)(c) provides that "A custodian of public records and his or her designee must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.· A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed." · · ·So the good faith of the Town is an issue for the Court to consider based on the statute, but here's the issue in terms of a pleading issue: While listening to argument, I reviewed the order that the Court entered on the Motion for Leave to Amend the Affirmative Defenses that I entered that took you off the trial calendar. · · ·MR. RIVAS:· Well -- · · ·THE COURT:· And the order -- · · ·MR. RIVAS:· -- may I, Your Honor? · · ·THE COURT:· Yeah.· I looked at it and it just addresses the bad faith. · · ·MR. RIVAS:· It was just the -- it was our motion that took us off the trial calendar -- · · ·THE COURT:· Oh, okay. · · ·MR. RIVAS:· -- related to settlement negotiations -- · · ·THE COURT:· Joint motion to continue.· That's right. · · ·MR. RIVAS:· -- just to be clear. · · ·THE COURT:· And then we addressed -- you're right.· The agreed order regarding the joint motion to continue, that was on September 1, 2017.· And let's see.· The -- what preceded that would have been my August 2, 2017 order.· We had a contested hearing at UMC on this issue which had to do with the Town's motion for relief to file affirmative defenses and then address the -- "The denial of the motion for leave to add a bad faith defense is without prejudice for bad faith to be raised in connection with any post-judgment motions regarding attorney's fees." · · ·So in that order the Court is finding that the alleged bad faith of the plaintiffs in making the request is not an issue for the Court to decide as it relates to whether or not the Town violated the Public Records Act. · · ·MR. SWEETAPPLE:· Your Honor, if I could point out that under Lee, good faith is not for the attorney's fee section.· And in our proposed affirmative defense we say "Under the outrageous conditions, circumstances intentionally created by plaintiff and its cohorts, defendant has acted reasonably and in good faith to respond to such a" -- · · ·THE COURT:· Right.· I'm getting to that.· So you did do that, right, in the affirmative -- in the -- · · ·MR. SWEETAPPLE:· I did it in an abundance of caution -- I'm sorry to cut you off. · · ·THE COURT:· Right. · · ·MR. SWEETAPPLE:· I did it in an abundance of caution -- · · ·THE COURT:· Of the bad faith part, right.· So it's in play, but I'm hearing that there is an issue of -- · · ·MR. SWEETAPPLE:· I don't believe it's an affirmative defense, but I put it in as an abundance of caution -- · · ·THE COURT:· I understand.· So that's what I'm addressing right now, this pleading issue.· Whether or not, as the statute is written, is it not an affirmative defense or is it? · · ·MR. SWEETAPPLE:· Your Honor, here's what I -- · · ·THE COURT:· Let me finish.· In any respect, the Town, in the proposed affirmative defense that was filed, is raising it, albeit under the heading "Bad Faith," okay, but the issue of whether or not the Town acted reasonably under the circumstances was raised by the Town. · · ·My order denies the motion as it relates to the bad faith part, so here is the ultimate question, which is:· Is the plaintiff prepared to go forward with rebutting the good faith issue? · · ·What I heard from the plaintiffs' argument was a concern about being ready to address this issue. The issue is appropriate for the Court to consider in addressing the ultimate merits of both sides' position in reaching a resolution of the case. · · ·So the question to plaintiff is:· Do you wish to suspend the proceeding to alleviate the concern of being prepared to address the issue of good faith now that the Court has definitively stated that the issue will be presented during the trial, suspend the proceedings, or is plaintiff prepared to proceed today? · · ·MR. SWEETAPPLE:· Do you want to take time to talk to your client? · · ·THE COURT:· If you want to take a recess -- we've been in for an hour.· Usually I take a break every hour to an hour and fifteen minutes out of respect for everyone's comfort, so if you would like an opportunity to consult with your client and then we can -- I'll have a comfort break. · · ·MR. RIVAS:· I'll get to that, but I first wanted to ask, may we -- may we know -- · · ·THE COURT:· When you'd be coming back? · · ·MR. RIVAS:· -- the Court's view of what good faith means? · · ·MR. SWEETAPPLE:· Your Honor, that's got to be a legal argument for the Court, and I would be -- certainly I'm going to be bringing the Court authority on that.· That should be something that the Court hears argument on, not tell us your view of what good faith is now.· I'm going to brief the Court on what good faith is. · · ·THE COURT:· I would be looking at all the facts and circumstances at the time that the request was made.· We're not talking about going back months or years, but facts and circumstances would mean a few weeks before and a few weeks after the request comes in, okay?· So basically within a month of that request. · · ·And I would also be -- well, the timeliness, the reasonable conditions, the verbiage of the request, to the extent that these are all factors, I'm -- right now these factors are not exhausted, but those immediately come to mind in looking at the good faith. · · ·MR. RIVAS:· There are allegations in the affirmative defense that was denied of bad faith, and it sounds to me like we're now on notice that every allegation of bad faith that CAFI has something to do with it, public records requests by Chris O'Hare have something to do with the case, Marty O'Boyle was in conspiracy with others -- · · ·THE COURT:· No, I'm not going to be looking at that kind of motive.· I'm just going to be looking at the facts and circumstances -- · · ·MR. SWEETAPPLE:· Your Honor -- · · ·THE COURT:· -- that are -- because I already ruled on the bad faith, so that is not an affirmative defense.· There's a nuance here -- · · ·MR. RIVAS:· I believe -- · · ·THE COURT:· -- on top of that. · · ·MR. RIVAS:· -- I understood that, Your Honor. I just wanted my client -- · · ·THE COURT:· But I'm not looking at -- I'll be looking at the facts and circumstances, but I'm not going to be -- because I think if I start looking at motivation, then I'm looking at bad faith. · · ·MR. SWEETAPPLE:· Your Honor -- · · ·THE COURT:· Right? · · ·MR. SWEETAPPLE:· Your Honor, with all due respect, I'd ask that you not grant any advisory opinions or give any impressions as to what or how you would rule based on evidence. · · ·THE COURT:· Well, I've already ruled on what I'm not going to consider.· I already have an order here, so I'm not -- · · ·MR. SWEETAPPLE:· Well, you haven't heard argument from me, Your Honor, and you haven't heard -- · · ·THE COURT:· Well, I've already heard argument from -- · · ·MR. SWEETAPPLE:· No.· You haven't heard argument from me as to what happened in this proceeding which very clearly is that the testimony that plaintiff put in conditionally -- · · ·THE COURT:· Oh, well, right. · · ·MR. SWEETAPPLE:· -- is now going to open the door to other issues. · · ·THE COURT:· That's a different subject. That's a different subject. · · ·MR. SWEETAPPLE:· That's why I don't want you to go into -- you're starting to say things about prior rulings. · · ·THE COURT:· I'm just talking about the -- just looking at good faith, what it means in terms of what factors. · · ·Now I understand that -- and I heard it and I read the transcript that was sent to me of the proceeding, and there was testimony from Mr. Jonathan O'Boyle concerning the nature of the request and testimony in terms of his view as to why the request was not complied with, and so that does open the door to the Town being able to rebut that.· I understand that. · · ·MR. SWEETAPPLE:· Your Honor, I'll quote the testimony at 136.· "I do know that it was clearly for opposition research that the defendant has opened the door over my objection to their motivation for filing this request." · · ·Counsel asked to call him conditionally.· He called him.· That's the testimony he gave.· He left this Court with a distinct impression this was done for opposition research and that my client did not want to provide these documents because somehow -- · · ·THE COURT:· You're going to have an opportunity to rebut that. · · ·MR. SWEETAPPLE:· That's what I want to make sure is clear. · · ·THE COURT:· To the extent -- · · ·MR. SWEETAPPLE:· That's why I'm giving -- · · ·THE COURT:· All right.· So let me just -- before you cut me off again. · · ·MR. SWEETAPPLE:· I'm sorry, Your Honor. · · ·THE COURT:· Okay. · · ·MR. SWEETAPPLE:· I apologize.· I get excited. · · ·THE COURT:· I know.· So let's just get to the issue so you all are clear so that we'll have an efficient and smooth presentation. · · ·To the extent that certain issues have been explored and the Town has -- and any party, whether it was explored in Cross or in Direct, the other side will have the opportunity to rebut that testimony. · · ·MR. RIVAS:· All I have been trying to say, Your Honor, is I just wanted my client to be able to hear that colloquy before we go back and discuss our position. · · ·THE COURT:· Of course.· Because I'm sure that would -- · · ·MR. RIVAS:· So we agree that this would be -- I'm sorry. · · ·THE COURT:· Right.· So now you have a -- do you have any other questions about -- · · ·MR. RIVAS:· No, Your Honor. · · ·THE COURT:· -- what would be fair in terms of the scope of the presentation going forward? · · ·So it's within the scope of what's already been presented in the form of testimony from Misters Jonathan O'Boyle and Christopher O'Hare, who testified in person, and then the good faith -- I gave you some of the types of information, factors that the Court automatically is, and it's not exhausted, in terms of what would be evaluated in determining the good faith. · · ·MR. RIVAS:· Thank you, Your Honor. · · ·THE COURT:· All right.· So we'll take ten minutes, okay?· Thank you. · · ·MR. SWEETAPPLE:· Thank you, Your Honor. · · ·(Thereupon, a short recess was taken.) · · ·MR. RIVAS:· I'm sorry to take so long, Your Honor. · · ·THE COURT:· That's all right. · · ·MR. RIVAS:· But the plaintiffs do move the Court for a continuance, if you'll allow it. · · ·THE COURT:· Okay. · · ·MR. SWEETAPPLE:· I have no objection, Your Honor. · · ·THE COURT:· Okay. · · ·MR. SWEETAPPLE:· I understand that discovery may be in order. · · ·THE COURT:· All right.· Then the request for the continuance is granted, and we will leave the record open. · · ·MR. RIVAS:· Isn't "recess" the word we're looking for instead of "continuance"? · · ·THE COURT:· I think so.· You want to recess to be able to take some, if need be, some additional discovery? · · ·MR. RIVAS:· Correct. · · ·THE COURT:· Okay.· So we've recessed.· Do you want me to place you -- how long until we reset the continuation of this non-jury trial? · · ·MR. SWEETAPPLE:· I'm now raising my hand so I don't cut you off repeatedly. · · ·THE COURT:· That's okay. · · ·MR. SWEETAPPLE:· I have a terrible habit. · · ·MR. RIVAS:· For once I welcome your input, Mr. Sweetapple. · · ·MR. SWEETAPPLE:· I'm just thinking we're all trying to create a record, and I know you like to do things so this is perfect, and I like to make sure this is perfect, and what I really should do -- even though I don't believe good faith is an affirmative defense, there's really no case law on it, so what I'd like to do is have leave to actually refile my affirmative defense so that it is a good faith affirmative defense and then allow us to take discovery so that that part of the case can be concluded.· Right now -- · · ·THE COURT:· You want to clean up your pleading? · · ·MR. SWEETAPPLE:· Yeah.· Because in my pleading I included the good faith in the bad faith -- · · ·THE COURT:· That's right. · · ·MR. SWEETAPPLE:· -- and I should have made them two separate.· And I know I could go argue, "Well, I'm inept" and I've won that argument too many times.· I'd rather argue that I got a do-over. · · ·So I should have made it two separate topics, and I think it would be better for our record if I have it pled as an affirmative defense of good faith.· In case the plaintiff is correct that it's got to be in a separate affirmative defense, it's my burden to plead it.· That way we have that legal hoop is clear on the record. · · ·MR. RIVAS:· I think that's clear on the record now.· I don't -- I don't think there's any need for that, but be that as it may, I think that we need through January.· And if you could give us a special set in February, we think we would be ready at that time. · · ·THE COURT:· Okay. · · ·MR. SWEETAPPLE:· I would just make an ore tenus motion then that my affirmative defense be deemed filed as to the issue of good faith only if it's not an issue for him.· I just want it in the pleading that -- · · ·THE COURT:· Right. · · ·MR. SWEETAPPLE:· -- I did what I needed to do to make sure it is an affirmative defense. · · ·THE COURT:· It was pled.· The order addressed the denial of the bad faith but did not address the status of the issue presented being the good faith of the defendant, right? · · ·MR. SWEETAPPLE:· That's correct.· The problem is, though, it was a motion for leave to amend.· It wasn't a motion to strike. · · ·THE COURT:· Right. · · ·MR. SWEETAPPLE:· So I didn't get leave to file the entire affirmative defense, technically. · · ·THE COURT:· No.· Technically, right.· You may file the appropriate motion.· I think a better course of practice at this point would be in order to clean up the record and make it clear is for there to be a written motion per the rules of procedure and then proceed that way, okay? · · ·So the trial is recessed, and we'll reset you in February, but we're not -- I can't set you right now.· I'm just going to give you -- I'm going to give you the lay of the land, okay. · · ·If it's docketed in February -- we have four week trial dockets that combine the jury and the non-jury trials and what we do is we put them together.· We don't definitively say week one is jury, week two is non-jury.· We don't do it that way.· It just depends on how the calendar looks in terms of, for example, government holidays.· We've got some that makes up for a four day week. · · ·So what we're looking at right now is a docket that starts on February 2nd -- no.· That's a Friday.· February 5th.· And then February 5th to March 2nd, that is the docket.· I know for a fact that we got a jury starting on Tuesday, February 20th.· We have two cases that are med mal that are special set because we have to ask for a large panel.· Those are special set and have been for a while.· One is a backup to the other. · · ·But from February 5th -- you have a possibility of being called February 5th through February 8th, February 12th through February 15th, and your possibility of getting called is low for the week of February 19th and the week of February 26th.· Those will be jury for sure. I know that right now based upon what I'm looking at. · · ·So I can't set you yet because I don't want to violate the rule on -- well, we're in trial so it's really -- we're in trial and you have pled it, and I'm finding you've pled it, so I'm not sure what the motion is going to -- how it's going to read, but you did -- · · ·MR. SWEETAPPLE:· You didn't give me leave to plead -- · · ·THE COURT:· I didn't give you leave to plead the other.· I denied you leave to -- because we're so focused on the bad faith part at the hearing -- · · ·MR. SWEETAPPLE:· Right. · · ·THE COURT:· -- so I denied the Town leave to pursue a bad faith affirmative defense, but I did not grant the leave to do the good faith defense, so -- and you did already file a motion for leave but the proposed affirmative defense, it's a bad faith, but then it had -- and then there's a lot about the alleged bad faith, but then there was, in it, the good faith of the Town.· So you may file the appropriate motion as it relates to the order that I entered. · · ·MR. SWEETAPPLE:· I'll do that. · · ·MR. RIVAS:· We would explicitly, on the record, waive any objection to the Court entering a pretrial order at this time to the extent any objection could be based on the fact that the case is not at issue as a consequence of this pleading question that we're now discussing. · · ·THE COURT:· Okay. · · ·MR. RIVAS:· So I think that would solve it if the Town also will -- that would solve one of the concerns that Your Honor is trying to grapple with. · · ·THE COURT:· Correct.· So the -- thank you.· So noted. · · ·So you just would send me an order -- it would be a -- I can't tell you what motion to file, but you would -- it would address the order that I issued before in terms of the status of the good faith issue. · · ·MR. SWEETAPPLE:· I'll do that, Your Honor. · · ·THE COURT:· Okay. · · ·MR. SWEETAPPLE:· And I think counsel and I -- · · ·THE COURT:· Yeah.· You all can work together on the verbiage because I think the goal of both sides is to do the trial at one time and for the issues presented, if there are issues on appeal, that -- and this is how it looks to me, that both sides are both on the substantive issues as opposed to creation of -- let me restate that.· Both sides are focused on the substantive part of the case, the substantive law as it relates to the duty of a public agency to respond to a public records request, and whether that duty has been met in this case as opposed to having to be focused on some other procedural issues within the Rules of Civil Procedure in litigating the case.· So I want to make sure that I stay in line with your focus to make sure that whatever issues may need to be addressed after this trial are focused on the substantive law as opposed to the trial court creating an error because of an alleged -- or some kind of issue with the Rules of Procedure.· That's what I want to avoid. · · ·MR. RIVAS:· I agree. · · ·THE COURT:· So we'll work together on you sending me an order in that respect.· We'll put you on the docket for February.· I'll keep all of my notes.· The clerk will maintain the exhibits that have been admitted in evidence thus far. · · ·MR. RIVAS:· Let me suggest that we ask the clerk to accept into the record at this time the existing trial transcript from Tuesday as well. And that we will order -- · · ·THE COURT:· Okay. · · ·MR. RIVAS:· -- that somebody will order a transcript of today and make sure it's in the record as well. · · ·THE COURT:· Oh, okay.· Because I have the one from -- right. · · ·MR. RIVAS:· And if you have any friends who are law professors, a first year civil procedure teacher needs this for a great question. · · ·THE CLERK:· He's just filing the transcript, right? · · ·THE COURT:· Right. · · ·THE CLERK:· And also I was going to say I will take the evidence, Your Honor, and it will go into the evidence department.· So when the trial is reset, you need to let Judge Small's JA know that there's evidence so we can get it for you at the trial because I won't keep it in our book closet, it will go into the evidence clerk. · · ·THE COURT:· Right.· So that's -- · · ·MR. RIVAS:· We have it all.· Both sides have it all. · · ·THE COURT:· Okay. · · ·MR. RIVAS:· I don't think it's going to be an issue. · · ·THE COURT:· Right.· So you won't need to, but I'll make sure when we -- when we have you come back in February, I'll remember to tell my JA Brenda to -- · · ·MR. RIVAS:· Bring it in. · · ·THE COURT:· -- call the evidence clerk and bring it on up, so that's fine. · · ·Okay.· So I think we are finished with what we were able to address today.· We're in recess. We'll resume in February.· Everyone please have a wonderful Thanksgiving holiday, okay. · · ·MR. SWEETAPPLE:· Thank you. · · ·THE COURT:· Thank you. · · ·MR. RIVAS:· Thank you, Your Honor. · · ·(Thereupon, the trial proceedings are in recess and will be continued on a future date.) · · · · · · · · CERTIFICATE OF REPORTER STATE OF FLORIDA· · ) COUNTY OF PALM BEACH) · · · · · I, ANGELA CONNOLLY, Registered Professional Reporter, certify that I was authorized to and did stenographically report the foregoing proceedings and that such transcription, Pages 1 through 59, herein is a true and accurate record of my stenographic notes. · · · · · I FURTHER CERTIFY that I am not a relative or employee or attorney or counsel of any of the parties, nor am I a relative or employee of such attorney or counsel, or financially interested, directly or indirectly, in this action. · · · · · The certification does not apply to any reproduction of the same by any means unless under the direct control and/or direction of the reporter. · · · · · Dated this 9th day of December, 2017. · · · · · · ·_________________________ · · · · · · ·Angela Connolly, R.P.R.