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.