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HomeMy Public PortalAboutPRR 15-1876Kelly Avery From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Attachments: GinsbertSpoliationPRR _062915.pdf; Ward Spoliation Itr 6- 21- 12.pdf From: lou.roeder @gmail.com [mailto:lou.roeder @gmail.com] On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearns @jambg.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Louis Roeder Attorney at Law Phone: 407-758-4194 Email: Ieu @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 CONFIDENTIALITY NOTE: This email message and any attachments may contain confidential, privileged and non- disclosable information. The information is intended ottyfor the use of the individual or entity named on this entail. Ifyou are not the intended recipient, yon are hereby notified that an v disclosure, copying, distribution, or the taking of any action in reliance on the contents of this entail it formation, is strictly prohibited and that die documents should be reatrned to the sender immediately. Ifyou have received this email in error or by accidental transmission, please notify the sender by return entail immediately, delete all electronic copies of this email and all attachments and destroy all hard copies. Thank you. THIS IS A PUBLIC RECORDS REQUEST ATTENTION: Custodian of Public Records for the Town of Gulf Stream, FL The records requested to be examined are needed as part of discovery in an active litigation. The timely examination of all responsive records is essential to this litigation. Please provide these records for my examination within ten (10) business days. Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes, I wish to make a public records request of your agency to inspect the following records: The original electronic records of any incident reports in regard to the properties known as 2510 Avenue An Soled or 2516 Avenue Au Soleil, as written by Officer Ginsberg, and as they were originally created on any electronic device by Officer Ginsberg, or originally created on any electronic device by anyone else on behalf of Officer Ginsberg. For Purposes of clarification, the records that are the subject of this request are: 1. those created between August 29, 2011 and June 21, 2012; 2. NOT a printed copy of any original Incident reports, nor are they an electronic reproduction or system "back up" of any original electronic records of any incident report; 3. the original electronic records located on the computer hard drive upon which they were originally created; 4. the complete electronic records, including the electronically stored information, ESI, and all application metadata which is automatically included or embedded in electronic records as an integral part of the computer process of creating them. ESI and metadata integral to the records are to be in their native form; 5. those electronic records described above, including their respective ESI and metadata portion which contain historic and descriptive characteristics associated with the complete electronic record reflecting a file's name, size, custodian, location, and dates of creation and last modification or access. For further clarification of this request, please refer to attached letter of June 21, 2012 to Garret Ward, Chief of Police, re: O'Hare adv. Town of Gulf Stream at al/ Demand for Preservation of Information (copy attached). I do NOT request a hard copy of these records at this time. Therefore, no estimate is required for the cost of any duplication. Please be aware, I do not wish to inspect any other records or information that may also be located on the hard drive which contains the specific public records I seek. Referring to §119.07(1 xe) of the Florida Statutes, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed, except as otherwise permitted by law and also referring to §119.07(4)(d). If the nature. of public records requested to be inspected. is such as to require extensive use of supervisory assistance by personnel, the agency may access a special service charge. If you anticipate requiring such a service charge, please provide an estimate for such a charge if supervisory assistance Is required to assist me in examining only those complete electronic records responsive to me request, and not any other records that may be located on that same hard drive. Page 1 of 2 All responses to this public records request should be made in writing, first to the following email address: lou cfDlouroeder.com, or in the alternative to fax number: 866 -610 -6090 Please see §119.01(2)(0, Florida Statutes regarding the production of records in their original electronic format. If you contend that any of the records I am seeking, or any portion thereof, are exempt from Inspection or disclosure, please cite the specific exemption as required by §199.07(1 He) of the Florida Statutes and state in writing, and with particularity, the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes. Please take note of §119.07(c) Florida Statutes and your affirmative obligation to: (1) promptly acknowledge receipt of this public records request, and (2) make a good faith effort which "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." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. Louis Roeder ATTORNEYATLAW 7414 Sparkling Lake Road Orlando, FL 32819 cell: 407 - 7584194 Attachment THANK YOU Page 2 of 2 102 NE Second Street, Suite 179 Boca Raton, Florida 33,132 rel 561. 369-9900 fax 561- 368-8499 June 21, 2012 Garret Ward. Chief of Police Town of Gulfstream 100 Sea Road Gulfstream, FL 33483 Via Federal Express wevw.eart erknvi i nn.0 s 405 Overbnxik 1lozernan, Montana 59715 tel 406. 582 -7552 fax 406-662-0180 Re: O'Hare adv. Town of Gulf Stream et al/ Demand for Preservation of Information Dear Sirs: Please be advised that I represent Mr. and Mrs. Christopher O'Hare with regard to their claims arising from the unlawful conduct of Officer Ginsberg that occurred at 2520 Avenue Au Solcil on: 10/28/11: 12/27/11; 12/28/11; 3/5/12: and 31/20/12 ( "Incidents "). Demand is hereby made for you to take all reasonable and necessary action to preserve all documents, tangible things or electronically stored information that has any reference or connection in any way to the above Incidents. For purposes of this request, the term "you" and "your' refers to Mr. Thrasher. Officer Ginsburg, Chief Ward and die Town of Gulf Stream generally. It is expected that much of the information within the scope of the demand may be stored on your current and former computer systems and other media and devices. As to electronically stored information (' ESI ") this should be afforded the broadest possible definition. Accordingly. ESI includes (by way of example and not as an exclusive list) any potentially relevant information that is electronically. magnetically or optically stored as: • Digital communications (e.g., e-mail. voice mail, instant messaging): • Word processed documents (e.g.. Word or WordPerfect documents and drafts): • Image and Facsimile Files (e.g...PDF, .TIFF, .JPG..GIF images): • Sound Recordings (e.g., .WAV and .MP3 files): • Video Recordings (e.g., .AVI and .MOV files); Databases (e.g.. Access, Oracle. SQL Server data. SAP); • Contact and Relationship Management Data (c.g.. Outlook. ACT!); • Calendar and Diary Application Data (e.g.. Outlook PST, Yahoo. blog tools): Online Access Data (e.g.. Temporary Internet Files. History, Cookies); Demand for Preservation of Evidence Page 2 of 5 • Network Access and Server Activity Logs; and • Back Up and Archival Piles (e.g.. Zip, .GHO) Preservation Requires Immediate Intervention It is essential that you understand that adequate preservation of information requires more than simply refraining from efforts to destroy or dispose of potentially relevant evidence. You must immediately act to intervene in preventing loss due to routine operations and employ proper techniques and protocols suited for the protection of any information that is within the scope of this demand. Be advised that sources of ESI are commonly altered and erased by continued use of computer and other electronic devices that contain ESI. Booting a drive, examining its contents or running any application may irretrievably alter the information it contains and may constitute unlawful spoliation of evidence. Consequently, alteration and erasure may result from your failure to act diligently and responsibly to prevent loss or corruption of ESI. This specific reference to ESI should be understood to diminish your concurrent obligation to preserve documents and other tangible things that potentially contain relevant evidence. Suspension of Routine Destruction You are further directed to immediately initiate a litigation "hold" procedure for potentially relevant ESI, documents and tangible things, and to act diligently and in good faith to secure and audit compliance with such litigation "hold" procedure. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate to cause the loss of potentially relevant ESI. Examples of such features and operations include: • Purging the contents of e-mail repositories by age, capacity or other criteria; • Using data or media wiping, disposal, erasure or encryption utilities or devices: • Overwriting. erasing, destroying or discarding back up media; • Re- assigning, re- imaging or disposing of systems, servers, devices or media; • Running antivirus or other programs affecting wholesale metadata alteration; • Releasing or purging online storage repositories: • Using metadata stripper utilities: • Disabling server or IM logging: • Executing drive or file defragmentation or compression programs. Guard Against Deletion You should anticipate that your individuals with access to ESI and other information may seek to hide, destroy or alter it. You are directed to take action to prevent or guard against such actions. Especially where government machines have been used for Internet access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential or embarrassing and, in so doing, may also delete or destroy Demand for Preservation of Evidence Page 3 of 5 potentially relevant ESI. This concern is not one unique to the Town of Gulf Stream or its employees and officers. It's simply an event that occurs with such regularity in electronic discovery efforts that any custodian of ESI and their counsel are obliged to anticipate and guard against its occurrence. Preservation by Imaging You arc also directed to take affirmative steps to prevent anyone with access to data, systems and archives from seeking to modify. destroy or hide electronic evidence on network or local hard drives (such as by deleting or overwriting I ilex, using data shredding and overwriting applications, defragmentation. rc- imaging or replacing drives, encryption, compression, steganography or the like). With respect to local hard drives, one way to protect existing data on local hard drives is by the creation and authentication of a forensically qualified image of all sectors of the drive. Such a forensically qualified duplicate may also be called a bit stream image or clone of the drive. Be advised that a conventional back up of a hard drive is not a forensically qualified image because it only captures active, unlocked data files and fails to preserve forensically significant data that may exist in such areas as unallocated space, slack space and the swap file. With respect to the hard drives and storage devices of the individuals named herein as well as any other person likely to have information pertaining to any of the above instances, demand is made for you to immediately obtain, authenticate and preserve forensically qualified images of the hard drives in any such computer system (including portable and home computers) used by that person from August 29, 2011 through the date of this demand. Demand is further made for you to record and preserve the system time and date of each such computer. Once obtained, each such forensically qualified image should be labeled to identify the date of acquisition, the person or entity acquiring the image and the system and medium from which it was obtained. Each such image should be preserved without alteration. Preservation in Native Form You should anticipate that certain ESI will be sought in the form or forms in which it is ordinarily maintained. Accordingly, you should preserve ESI in such native forms, and you should not select methods to preserve ESI that remove or degrade the ability to search your ESI by electronic means or make it difficult or burdensome to access or use the information efficiently in the litigation. You should additionally refrain from actions that shift ESI from reasonably accessible media and forms to less accessible media and forms if the effect of such actions is to make such ESI not reasonably accessible. Metadata You should further anticipate the need to disclose and produce system and application metadata and act to preserve it. System metadata is information describing the history and characteristics of other ESI. This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file's name, size, custodian, location and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content. Demand for Preservation of Evidence Page 4 of 5 draft language, commentary, collaboration and distribution data and dates of creation and printing. Be advised that metadata may be overwritten or corrupted by careless handling or improper steps to prescrve ESI. For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data. in addition to the: To, From. Subject, Received Date, CC and BCC fields. Servers With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange, Lotus Domino) or network storage (often called a user's "network share "), die complete contents of each user's network share and c -mail account should be preserved. There are several ways to preserve the contents of a server depending upon. e.g.. its RAID configuration and whether it can be downed or must be online 34/7. Home Systems, Laptops, Online Accounts and Other ESI Venues It is expected that you will act swiftly to preserve data on office workstations and servers and immediately determine if any home or portable systems contain potentially relevant data. To the extent that persons may have sent or received potentially relevant c -mails or created or reviewed potentially relevant documents away from the office, you must preserve the contents of systems, devices and media used for these purposes (including not only potentially relevant data from portable and home computers. but also from portable thumb drives, CD -R disks and the user's PDA, smart phone, voice mailbox or other forms of ESI storage). Similarly, the contents of browser -based email accounts or services (such as AOL, Gmail, Yahoo Mail or the like) used to send or receive potentially relevant messages and attachments, should be preserved. Ancillary Preservation You must preserve documents and other tangible items that may be required to access, interpret or search potentially relevant ESI, such as logs. naming protocols, file lists, data entry forms, abbreviation keys, user ID and passwords. You must also preserve any cabling, drivers and hardware that may be needed to access or interpret media on which ESI is stored. This includes tape drives, bar code readers, Zip drives and other legacy or proprietary devices. Paper Preservation of ESI is Inadequate As hard copies do not preserve electronic scarchability or metadata, they are not an adequate substitute for, or cumulative of, electronically stored versions. If information exists in both electronic and paper forms. you should preserve both forms. Third Parties Your preservation obligation extends beyond ESI in your care, possession or custody and includes ESI in the custody of others that arc subject to your direction or control. Accordingly. you must notify any current or former employee, custodian or contractor in possession of potentially relevant ESI to preserve such ESI to the full extent of your obligation to do so, and Demand for Preservation of Evidence Page 5 of 5 you must take reasonable steps to secure their compliance. System Sequestration It is strongly suggested that all ESI systems and hardware used by the above named individuals be removed from service and sequestered. In the event you deem it impractical to sequester systems and devices you should consider creating forensically sound imaging of the systems and devices. As it is reasonable to expect the future need for forensic examination of one or more of the systems and devices, you should employ forensically sound ESI preservation methods. Failure to use such methods poses a significant threat of spoliation and data loss. "Forensically sound preservation' requires that any duplication of ESI be done only while using tools and methods that make no changes to the evidence and support authentication of the duplicate as a true and complete bit -for -bit image of lie original. A forensically sound preservation method guards against changes to metadata evidence and preserves all parts of the electronic evidence, including in the so- called "unallocated clusters," holding deleted files. Preservation Protocols I am amenable to working with you to agree upon an acceptable protocol for forensically sound preservation of media to be preserved. It should be understood that a successful and compliant ESI preservation effort will require technical expertise. You are urged to engage die services of an expert in electronic evidence and computer forensics. Do Not Delay Preservation It is essential that you immediately under take preservation efforts. Should you fail to preserve potentially relevant evidence and this results in the corruption. loss or delay in production of evidence to which we will be entitled in a future lawsuit, such failure will be deemed to constitute Spoliation of Evidence. Confirmation of Compliance Please confirm by July 3. 2012 that you have taken rte steps outlined in this demand to preserve all information in your possession, custody or control that exists in connection with the Incidents. If you have do not undertake the steps outlined above please describe what you have done to ensure that adequate preservation takes place. Thank you very much. t ctf ully. . John E. Carter, Esq. �_! Cc: John Randolph, Esq. Kelly Avery From: OConnor, Joanne M. <JOConnor @jonesfoster.com> Sent: Tuesday, June 30, 2015 5:10 PM To: Lou Roeder Cc: Mark J Hanna; Rita Taylor; Kelly Avery Subject: RE: PUBLIC RECORDS REQUEST - COMPREHENSIVE FINANCIAL REPORT re O'HARE Categories: Red Category Lou — This request is patently overbroad, vague and ambiguous. The request for "reports... regarding Christopher O'Hare that [were] gathered.. by any ... institution, organization.." would arguably encompass public record logs created by the Town reflecting requests made by Mr. O'Hare and "reports" of public records requests and lawsuits filed by Mr. O'Hare made by the Town or by outside counsel that were communicated to the Town. Given the overwhelming number of public records requests and lawsuits filed by Mr. O'Hare, I suspect that this is not what you are looking for but would appreciate it if you will confirm. Regards, Joanne JONFSFOSUR J(fflMmNksmeeaf. Joanne M. O'Connor Attorney Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 ioconnorng jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drivc, Suite 1100, West Palm Bench, Florida 33401 561- 659 -3000 1 www.jonesfoster.com Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be Privileged and confidential. If yew are not the intended recipient, you received this in error. If so, am review, dissemination, or copying of this email is prohibited. Please immediately notify us be email and delete the original message. From: lou.roeder @gmail.com [mailto:lou.roeder @gmail.com] On Behalf Of Lou Roeder Sent: Tuesday, June 30, 2015 9:35 AM To: Rita Taylor Cc: OConnor, Joanne M.; Mark J Hanna; Jonathan O'Boyle; Chris O'Hare Subject: PUBLIC RECORDS REQUEST - COMPREHENSIVE FINANCIAL REPORT re O'HARE THIS IS A PUBLIC RECORDS REQUEST ATTENTION: Custodian of Public Records for the Town of Gulf Stream, FL. Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes, I wish to make a public records request of your agency for the following records: Public record of any reports, profiles, data or information provided to the Town, or provided to an agent of the Town, regarding Christopher O'Hare that was gathered, collected, collated, organized or otherwise aggregated by any record keeping service, agency, institution, organization or data collection service. If the public records being sought are maintained by your agency in an electronic format, please produce the records in the oriuinal electronic format in which they were created or received. See § 119.01(2)(f), Florida Statutes. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure, please cite the specific exemption as required by §119.07(I)(e) of the Florida Statutes and state in writing, and with particularity, the basis for your conclusions as required by §I 19.07(1)(1) of the Florida Statutes and provide the portion of the responsive record that is not exempt. Please take note of § 119.07(c) Florida Statutes and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "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." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If the requested records are not all readily available, I will accept them piecemeal. I request that whichever records are readily available be provided to me immediately; and those other records be provided to me as soon as possible. If you anticipate the production of these public records to exceed $1.00, please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials. All responses to this public records request should be made in writing, first to the following email address: lou(FOouroeder.com . or in the alternative to fax number: 866- 610 -6090 Louis Roeder ATTORNEYAT LAW 7414 Sparkling Lake Road Orlando, FL 31819 cell: 407 -758 -4194 Kelly Ave From: OConnor, Joanne M. <JOConnor @jonesfoster.com> Sent: Thursday, July 02, 2015 1:47 PM To: Lou Roeder Cc: Mark J Hanna; Jonathan O'Boyle; Chris O'Hare; Kelly Avery; Rita Taylor Subject: RE: PUBLIC RECORDS REQUEST - COMPREHENSIVE FINANCIAL REPORT re O'HARE Categories: Red Category Lou — As I told Jonathan when the Town produced the Lexis/Nexis Accurint report run by Jones Foster, we do not concede that that report is a public record of the Town. We nevertheless produced it in an abundance of caution and as a courtesy. In response to your inquiry for any similar reports on Mr. O'Hare, I can tell you that neither the Town nor its outside counsel possess any responsive records. In other words, and again solely as a courtesy, there is no report on Mr. O'Hare similar to that on Jonathan O'Boyle in the possession of outside counsel that is being withheld on the grounds that it does not constitute a public record or is somehow exempt under the Public Records Act. I trust this helps to clarify things. Enjoy your holiday weekend - Joanne JONES FOSTER Joanne M. O'Connor Attorney Direct Dial: 561.650.0495 1 Fax: 561.650.5300 1 ioconnor@jonesfoster.eom Jones, Foster, Johnston & Stubbs, P.A. Plagler Center Tower, 505 South Flaglcr Drive, Suite I IU0, \\ cst Palm Beach, Florida 33401 561- 659 -3000 1 www.jonesfostencom Incoming emails are filtered which may delay' receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, ant- review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: lou.roeder @gmail.com [mailto:lou.roeder @gmail.com] On Behalf Of Lou Roeder Sent: Thursday, July 02, 2015 9:15 AM To: OConnor, Joanne M. Cc: Mark J Hanna; Jonathan O'Boyle; Chris O'Hare; Kelly Avery; Rita Taylor Subject: Re: PUBLIC RECORDS REQUEST - COMPREHENSIVE FINANCIAL REPORT re O'HARE Joanne, I am a little confused by your answer that the Town has no responsive public records to my request. Can you please clarify your claim that the Town has no financial reports on Mr. Chris O'Hare? Are you certain no financial reports OF ANY KIND are in the possession of the Town or any of the law firms, agencies, agents or anyone working on behalf of the Town, whether the report has been copied to the Town or will eventually be copied to the Town at the conclusion of any litigation? However, if any such reports exist and you feel they are currently exempt from inspection, please confirm their existence and cite the exemption that you think currently applies. Regards Louis Roeder Attorney at Law Phone: 407- 758 -4194 Email: lou@louroeder.com Address: 7414 Sparkling Lake Road. Orlando, FL 32819 I—ElONFIDENTIALITY NOTE: This email message and ary attachments nay contain cot fdential, privileged and non- disclosable it formation. The it formation is attended onlyfor the use of the individual or entity named on this entail. Ifyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents of this mail infornation, is strictly prohibited and that the documents should be returned to the sender immediately. Ifyou have received this entail in error or by accidental transmission, please notify the sender by return email immediately. delete all electronic copies of this canal and all attachments and destroy all hard copies. Thankymn. On Wed, Jul 1, 2015 at 2:38 PM, OConnor, Joanne M. <JOConnor ct,jonesfoster.eom> wrote: Lou — Further to our conversation this afternoon in which you advised that the below request seeks any Lexis Nexis or Westlaw or other financial reports regarding Christopher O'Hare similar to the Lexis Nexis Accurint report produced by the Town regarding Jonathan O'Boyle, please be advised that the Town possesses no responsive public records. We consider this matter closed. Regards, Joanne JONESFOSTER ;1 'ue. urv& s It nn,. r.1- Joanne M. O'Connor Attornec Direct Dial: 561.650.0498 1 1 .t% 561.650.5300 ioconnor(@,jonesfosteccom Jones, Foster, Johnston & Stubbs, P.A. F7agler Centex lower, 505 South Flagler Drive, Suite 1 100, West Palm Beach, Florida 33401 561 -659 -3000 1 www_jonesfoster.com Incoming emails arc filtered which may delay receipt. 'this email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, yon received this in error. If so, any review-, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: lou.roeder(alomail.com [mailto:lou.roeder@)gmail.com1 On Behalf Of Lou Roeder Sent: Tuesday, June 30, 2015 9:35 AM To: Rita Taylor Cc: OConnor, Joanne M.; Mark J Hanna; Jonathan O'Boyle; Chris O'Hare Subject: PUBLIC RECORDS REQUEST - COMPREHENSIVE FINANCIAL REPORT re O'HARE THIS IS A PUBLIC RECORDS REQUEST ATTENTION: Custodian of Public Records for the Town of Gulf Stream, FL. Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes, I wish to make a public records request of your agency for the following records: Public record of any reports, profiles, data or information provided to the Town, or provided to an agent of the Town, regarding Christopher O'Hare that was gathered, collected, collated, organized or otherwise aggregated by any record keeping service, agency, institution, organization or data collection service. If the public records being sought are maintained by your agency in an electronic format, please produce the records in the orieinal electronic format in which they were created or received. See §119.01(2)(1), Florida Statutes. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure, please cite the specific exemption as required by §I 19.07(1)(e) of the Florida Statutes and state in writing, and with particularity, the basis for your conclusions as required by § 119.07(1)(£) of the Florida Statutes and provide the portion of the responsive record that is not exempt. Please take note of § 119.07(c) Florida Statutes and your affirmative obligation to (1) promptly acknowledge receipt of this public records request and (2) make a good faith effort which "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." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. If the requested records are not all readily available, I will accept them piecemeal. I request that whichever records are readily available be provided to me immediately; and those other records be provided to me as soon as possible. If you anticipate the production of these public records to exceed $1.00, please notify me in advance of their production with a written estimate of the total cost. Please be sure to itemize any estimates so as to indicate the total number of pages and/or records, as well as to distinguish the cost of labor and materials. All responses to this public records request should be made in writing, first to the following email address: lounn louroeder.com, or in the alternative to fax number: 866 -610 -6090 Louis Roeder ATTORNEYAT LAW 7414 Sparkling Lake Road Orlando, FL 31819 cell: 407- 758 -4194 Kelly Avery From: OConnor, Joanne M. <JOConnor @jonesfoster.com> Sent: Wednesday, July 08, 2015 2:57 PM To: Lou Roeder (lou @louroeder.com); Louis Roeder (lou.roeder @gmail.com) Cc: Kelly Avery; Macfarlane, Mary Subject: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Attachments: GinsbertSpoliationPRR- 062915.pdf; Ward Spoliation Itr 6- 21- 12.pdf Categories: Red Category Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, I have not heard back from you. note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne JONESFOSTER JOHm-umkav"$ lM Joanne M. O'Connor Attorney Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 'oconnor@ionesfoster.com jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center lower, 505 South Flagler Drive, Suite 1100, West Palm Leach, I'lurida 33401 561 - 659 -3000 j www.ionesfoster.com Incoming emails are filtered which mati delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you ire not the intended recipient, you received this in error. If so, am review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder(@gmail.com [mailto:lou.roeder@gmail.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearns(@ amba.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Loitis Roeder Attorney at Law Phone: 407- 758 -4194 Email: Iou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 x ONF /DENT /AL/TY NOTE: This email message and any attachmenLS any conmin confidential, privileged and noirrliselosnble it fornmtiott. The it formation is intended onlyfor the use of the individual or entity named on this email. lfymt are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this enail it fornation, is strictly prohibited and that the documents should be returned to the sender immediately. lfyou have received this enail in error or by accidental transmission, please notify the sender by return email immediately, delete all electronic copies oflhis email and all attachments and destroy all hard copies. Thankyou. THIS IS A PUBLIC RECORDS REQUEST ATTENTION: Custodian of Public Records for the Town of Gulf Stream, Fl- The records requested to be examined are needed as part of discovery in an active litigation. The timely examination of all responsive records is essential to this litigation. Please provide these records for my examination within ten (10) business days. . Pursuant to Article 1, Section 24 of the Florida Constitution and Chapter 119 of the Florida Statutes, I wish to make a public records request of your agency to inspect the following records: The original electronic records of any incident reports in regard to the properties known as 2520 Avenue An Soleil or 2516 Avenue An Soleil, as written by Officer Ginsberg, and as they were originally created on any electronic device by Officer Ginsberg, or originally created on any electronic device by anyone else on behalf of Officer Ginsberg. For Purposes of clarification, the records that are the subject of this request are: 1. those created between August 29, 2011 and June 21, 2012; 2. NOT a printed copy of any original incident reports, nor are they an electronic reproduction or system "back up" of any original electronic records of any incident report; 3. the original electronic records located on the computer hard drive upon which they were originally created; 4. the complete electronic records, including the electronically stored information, ESI, and all application metadata which is automatically included or embedded in electronic records as an integral part of the computer process of creating them. ESI and metadata integral to the records are to be in their native form; 5. those electronic records described above, including their respective ESI and metadata portion which contain historic and descriptive characteristics associated with the complete electronic record reflecting a file's name, size, custodian, location, and dates of creation and last modification or access. For further clarification of this request, please refer to attached letter of June 21, 2012 to Garret Ward, Chief of Police, re: O'Hare adv. Town of Gulf Stream et al/ Demand for Preservation of Information (copy attached). I do NOT request a hard copy of these records at this time. Therefore, no estimate is required for the cost of any duplication. Please be aware, I do not wish to inspect any other records or information that may also be located on the hard drive which contains the specific public records I seek. Referring to §119.07(1 xe) of the Florida Statutes, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed, except as otherwise permitted by law and also referring to §119.07(4)(d). If the nature. of public records requested to be inspected. is such as to require extensive use of supervisory assistance by personnel, the agency may access a special service charge. If you anticipate requiring such a service charge, please provide an estimate for such a charge if supervisory assistance is required to assist me in examining only those complete electronic records responsive to me request, and not any other records that may be located on that same hard drive. Page 1 of 2 All responses to this public records request should be made in writing, first to the following email address: lou(cDlOuroeder.com, or in the alternative to fax number: 866 - 610 -6090 Please see §119.01(2)(f), Florida Statutes regarding the production of records in their original electronic format. If you contend that any of the records I am seeking, or any portion thereof, are exempt from inspection or disclosure, please cite the specific exemption as required by §199.07(1)(e) of the Florida Statutes and state in writing, and with particularity, the basis for your conclusions as required by §119.07(1)(f) of the Florida Statutes. Please take note of §119.07(c) Florida Statutes and your affirmative obligation to: (1) promptly acknowledge receipt of this public records request, and (2) make a good faith effort which "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." I am, therefore, requesting that you notify every individual in possession of records that may be responsive to this public records request to preserve all such records on an immediate basis. Louis Roeder ATTORNEYAT LAW 7414 Sparkling Lake Road Orlando, FL 32819 cell. 407- 758 -4194 Attachment THANK YOU Page 2 of 2 102 NE Second Street, Suite 179 Boca Raton, Florida 33432 tel 561- 3689' -100 fax 561- 366-S4.99 June 21. 2012 Garret Ward, Chief of Police Town of Gulfstream 100 Sea Road Gulfstream, FL 33483 Via Federal Express wimcarterlawfirm.us 405 Overbrook Bozeman, Montana 59715 tel 406. 582 -7552 fax 406- 662.0180 Re: O'Hare adv. Town of Gulf Stream et al/ Demand for Preservation of Information Dear Sirs: Please be advised that I represent Mr. and Mrs. Christopher O'Hare with regard to their claims arising from the unlawful conduct of Officer Ginsberg that occurred at 2520 Avenue Au Solcil on: 10/28/11: 12/27/11; 12/28/11 3/5/12: and 3/20/12 ( "Incidents• "). Demand is hereby made for you to take all reasonable and necessary action to preserve all documents, tangible things or electronically stored information that has any reference or connection in any way to the above Incidents. For purposes of this request, the term "you" and "your" refers to Mr. Thrasher. Officer Ginsburg, Chief Ward and the Town of Gulf Stream generally. It is expected that much of the information within the scope of the demand may be stored on your current and former computer systems and other media and devices. As to electronically stored information ( "ESI ") this should be afforded the broadest possible definition. Accordingly. L-SI includes (by way of example and not as an exclusive list) any potentially relevant information that is electronically. magnetically or optically stored as: Digital communications (e.g., a -mail, voice mail, instant messaging); • Word processed documents (e.g.. Word or WordPerfect documents and drafts); • Image and Facsimile Files (e.g...PDF, .TIFF, .JPG..GIF images): • Sound Recordings (e.g., . WAV and .MP3 files): • Video Recordings (e.g., .AVI and .MOV files); • Databases (e.`_.. Access. Oracle. SQL Server data, SAP); Contact and Relationship Management Data (e.g.. Outlook. ACT!); • Calendar and Diary Application Data (e.g., Outlook PST, Yahoo, blog tools): • Online Access Data (e.g.. Temporary Internet Files. History, Cookies); Demand for Preservation of Evidence Page 2 of 5 • Network Access and Server Activity Logs: and • Back Up and Archival Files (e.g.. Zip, .GHO) Preservation Requires Immediate Intervention It is essential that you understand that adequate preservation of information requires more than simply refraining from efforts to destroy or dispose of potentially relevant evidence. You must immediately act to intervene in preventing loss due to routine operations and employ proper techniques and protocols suited for the protection of any information that is within the scope of this demand. Be advised that sources of ESI are commonly altered and erased by continued use of computers and other electronic devices that contain ESI. Booting a drive, examining its contents or running any application may irretrievably alter the information it contains and may constitute unlawful spoliation of evidence. Consequently, alteration and erasure may result from your failure to act diligently and responsibly to prevent loss or corruption of ESL This specific reference to ESI should be understood to diminish your concurrent obligation to preserve documents and other tangible things that potentially contain relevant evidence. Suspension of Routine Destruction You are further directed to immediately initiate it litigation "hold" procedure for potentially relevant ESL documents and tangible things, and to act diligently and in good faith to secure and audit compliance with such litigation "hold" procedure. You are further directed to immediately identify and modify or suspend features of your information systems and devices that, in routine operation, operate to cause the loss of potentially relevant ESI. Examples of such features and operations include: • Purging the contents of e-mail repositories by age. capacity or other criteria; • Using data or media wiping, disposal, erasure or encryption utilities or devices; • Overwriting. erasing, destroying or discarding back up media; • Rc- assigning, re- imaging or disposing of systems, servers, devices or media; • Running antivirus or other programs affecting wholesale metadata alteration; • Releasing or purging online storage repositories; • Using metadata stripper utilities; • Disabling server or IM logging. • Executing drive or file defragmentation or compression programs. Guard Against Deletion You should anticipate that your individuals with access to ESI and other information may seek to hide, destroy or alter it. You are directed to take action to prevent or guard against such actions. Especially where government machines have been used for Interact access or personal communications, you should anticipate that users may seek to delete or destroy information they regard as personal, confidential or embarrassing and, in so doing, may also delete or destroy Demand for Preservation of Evidence Page 3 of 5 potentially relevant ESI. This concern is not one unique to the Town of Gulf Stream or its employees and officers. It's simply an event that occurs with such regularity in electronic discovery cffons that any custodian of ESI and their counsel are obliged to anticipate and guard against its occurrence. Preservation by Imaging You are also directed to take affirmative steps to prevent anyone with access to data, systems and archives from seeking to modify, destroy or hide electronic evidence on network or local hard drives (such as by deleting or overwriting files, using data shredding and overwriting applications, defragmentation, re- imaging or replacing drives, encryption, compression, steganography or tite like). With respect to local hard drives, one way to protect existing data on local hard drives is by the creation and authentication of a forensically qualified image of all sectors of the drive. Such a forensically qualified duplicate may also be called a bit stream image or clone of the drive. Be advised that a conventional back up of a hard drive is not a forensically qualified image because it only captures active, unlocked data files and fails to preserve forensically significant data that may exist in such areas as unallocated space, slack space and the swap file. With respect to the hard drives and storage devices of the individuals named herein as well as any other person likely to have information pertaining to any of the above instances, demand is made for you to immediately obtain, authenticate and preserve forensically qualified images of the hard drives in any such computer system (including portable and home computers) used by that person from August 29, 2011 through the date of this demand. Demand is further made for you to record and preserve the system time and date of each such computer. Once obtained, each such forensically qualified image should be labeled to identify die date of acquisition, the person or entity acquiring die image and the system and medium from which it was obtained. Each such image should be preserved without alteration. Preservation in Native Form You should anticipate that certain ESI will be sought in die form or forms in which it is ordinarily maintained. Accordingly, you should preserve ESI in such native forms, and you should not select methods to preserve ESI that remove or degrade the ability to search your ESI by electronic means or snake it difficult or burdensome to access or use the information efficiently in the litigation. You should additionally refrain from actions that shift ESI from reasonably accessible media and forms to less accessible media and forms if die effect of such actions is to make such ESl not reasonably accessible. Metadata You should further anticipate the need to disclose and produce system and application metadata and act to preserve it. System metadata is information describing the history and characteristics of other ESL This information is typically associated with tracking or managing an electronic file and often includes data reflecting a file's name, size, custodian, location and dates of creation and last modification or access. Application metadata is information automatically included or embedded in electronic files but which may not be apparent to a user, including deleted content, Demand for Preservation of Evidence Page 4 of 5 draft language. commentary, collaboration and distribution data and dates of creation and printing. Be advised that metadata may be overwritten or corrupted by careless handling or improper steps to preserve ESL For electronic mail, metadata includes all header routing data and Base 64 encoded attachment data. in addition to the: To. From. Subject, Received Date, CC and BCC fields. Servers With respect to servers like those used to manage electronic mail (e.g., Microsoft Exchange, Lotus Domino) or network storage (often called a user's "network share "), die complete contents of each user's network share and c -mail account should be preserved. There are several ways to preserve the contents of a server depending upon, e.g., its RAID configuration and whether it can be downed or must be online 24/7. Home Systems, Laptops, Online Accounts and Other ESI Venues It is expected that you will act swiftly to preserve data on off ice workstations and servers and immediately determine if any home or portable systems contain potentially relevant data. To the extent that persons may have sent or received potentially relevant c -mails or created or reviewed potentially relevant documents away from the office, you must preserve the contents of systems, devices and media used for these purposes (including not only potentially relevant data from portable and home computers. but also from portable thumb drives. CD -R disks and the user's PDA, smart phone, voice mailbox or other forms of ESI storage). Similarly, the contents of browser -based email accounts or services (such as AOL, Gmail, Yahoo Mail or the like) used to send or receive potentially relevant messages and attachments, should be preserved. Ancillary Preservation You must preserve documents and other tangible items that may be required to access, interpret or search potentially relevant ES 1, such as logs, naming protocols, file lists, data entry forms, abbreviation keys, user ID and passwords. You must also preserve any cabling, drivers and hardware that may be needed to access or interpret media on which ESI is stored. This includes tape drives, bar code readers, Zip drives and other legacy or proprietary devices. Paper Preservation of ESI is Inadequate As hard copies do not preserve electronic searcltability or meladata, they are not an adequate substitute for, or cumulative of, electronically stored versions. If information exists in both electronic and paper forms, you should preserve both forms. Third Parties Your preservation obligation extends beyond ESI in your care, possession or custody and includes ESI in the custody of others that are subject to your direction or control. Accordingly. you must notify any current or former employee, custodian or contractor in possession of potentially relevant ESI to preserve such ESI to the full extent of your obligation to do so, and Demand for Preservation of Evidence Page 5 of 5 you must take reasonable steps to secure their compliance. System Sequestration It is strongly suggested that all ESI systems and hardware used by the above named individuals be removed from service and sequestered. In the event you deem it impractical to sequester systems and devices you should consider creating forensically sound imaging of the systems and devices. As it is reasonable to expect the future need for forensic examination of one or more of the systems and devices, you should employ forensically sound ESI preservation methods. Failure to use such methods poses a significant threat of spoliation and data loss. "Forensically sound preservation" requires that any duplication of ESI be done only while using tools and methods that make no changes to die evidence and support authentication of the duplicate as a true and complete bit- for -bit image of die original. A forensically sound preservation method guards against changes to mctadata evidence and preserves all parts of the electronic evidence, including in the so- called "unallocated clusters," holding deleted files. Preservation Protocols I am amenable to working with you to agree upon an acceptable protocol for forensically sound preservation of media to be preserved. It should be understood that a successful and compliant ESI preservation effort will require technical expertise. You are urged to engage the services of an expert in electronic evidence rind computer forensics. Do Not Delay Preservation It is essential that you immediately under take preservation efforts. Should you fail to preserve potentially relevant evidence and this results in the comrpiion, loss or delay in production of evidence to which we will be entitled in a future lawsuit, such failure will be deemed to constitute Spoliation of Evidence. Confirmation of Compliance Please confirm by July 3. 2012 that you have taken die steps outlined in this demand to preserve all information in your possession, custody or control that exists in connection with the Incidents. If you have do not undertake the steps outlined above please describe what you have done to ensure that adequate preservation takes place. Thant: you very much. R cctfully, John E. Carter, Esq. Cc: John Randolph. Esq. Kelly Avery From: lou.roeder @gmail.com on behalf of Lou Roeder <lou @louroeder.com> Sent: Wednesday, July 08, 2015 3:31 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Categories: Red Category Joanne, The latest PRR, one of the requests sent to the Town today, is apart and separate from the one we talked about last week - which concerned our desire to inspect the metadata for the records, a subset of what we had previously requested be preserved through a 2012 spoliation letter. I'm still trying to get information from our IT expert as to just what we would like to inspect. I will be back to you shortly on that. Regarding the latest PRR, the response can be accommodated via the production of PDF files of the Ginsberg incident reports for the requested period. Thank you for the follow up. Louis Roeder Attorney at Law Phone: 407-758-4194 Email: lou@louroeder.com Address: 7414 Sparkling Lake Road, Orlando. FL 32819 0 ONF/DENTIAL/TYNOTE: This email message and any attachments may contain confidential, privileged and non- disc(asab(e information. The information is intended only for the use of the individual or entity named on this email. /jyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ofthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. /jyou have received this email in error or by accidental transmission, please notes the sender by return email immediately, delete all electronic copies of this email and all attachments and destroy all hard copier. Thankyou. On Wed, Jul 8, 2015 at 2:57 PM, OConnor, Joanne M. <JOConnoraa,ionesfoster.com> wrote: Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, I have not heard back from you. I note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne JONESFOSTER Joanne M. O'Connor Attorney Direct Dial: 56L650.0498 I Fax: 561.650.5300 1 joconnor(A7onesfoster.com 1 ( mes, Foster, Johnston & Stubbs, P.A. Hagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561- 659 -3000 www.jonesfoster.com Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder @amail.com [mailto:lou.roeder @amail.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearns@iamba.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Lortis Roeder Attorney at Law Phone: 407-758-4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road. Orlando, FL 32819 12CONFIOENTIALITY NOTE: This enail message and any aitadnments niay contain cot fdential, privileged and non- disclosahle infomiation. The infformation is intended only far the use of the individual or entity named on this email. Ifymn are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ofdtis email information, is strictly prohibited and that the documents should be returned to the sender immediately. Ifyou have received this email in error or by accidental transmission, please notify the sender by return email immediately, delete all electronic copies of this email and all attachments and destroy all hard copies. Thank you. Kelly Avery From: lou.roeder @gmail.com on behalf of Lou Roeder <lou @louroeder.com> Sent: Wednesday, July 08, 2015 4:17 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Attachments: GinsbertSpoliationPRR- 062915.pdf; Ward Spoliation Itr 6- 21- 12.pdf Categories: Red Category Joanne, This is in response to our previous conversation regarding the attached public record request. While we are very familiar with the program named File Maker Pro, we are not looking to examine any files made with File Maker Pro. Rather we wish to inspect the hard drive that was on the computer that was used to make the incident report, albeit in File Maker Pro. The 2012 spoliation letter specifically asks that public records of the electronic data on relevant hard drives be preserved. Rather than simply inspecting a particular file related to an incident report which had been created at one time using File Maker Pro, we want to inspect the electronic record preserved on the hard drive itself, created during the process of generating the original incident report. Simply put, we want to inspect the hard drive from the computer used by Ginsberg on Oct. 28, 2011, or used by Ginsberg on whatever day he actually created the incident report. Please let me know when you have the hard drive so we can coordinate a mutually agreeable time for my client to inspect it. Regards, Louis Roeder Attorney at Law Phone: 407 -758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 0 ONFlDENT/AL/TYNOTE: This email message and any attachments may contain confidential, privileged and non - disc losable information. The information is intended only for the use of the individual or entity named on this email. ljyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ojthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. /jyou have received this email in error or by accidental transmission, please notes the sender by return email immediately, delete all electronic copies ojthis email and all attachments and destroy all hard copies. Thankyou. On Wed, Jul 8, 2015 at 2:57 PM, OConnor, Joanne M. <JOConnor(@,jonesfoster.com> wrote: Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, I have not heard back from you. I note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne JONESFOSTER trnucsrrrYa�snanx ra. Joanne M. O'Connor Artomey Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 joconnor(a,,jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Hagler Center'rower, 505 South Flagler Drive, Suite 1100, A fret Palm Beach, Florida 33401 561- 659 -3000 1 www.jonesfoster.com Incoming emails are filtered which may delay- receipt. This email is personal to the named recipient(s) and may be privileged and confidential. if %ou are not the intended recipient, you received this in error. if so, an% review, dissemination, or copying of this email is prohibited. Please immediately notify us bt email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder@gmail.com [mailtodou.roeder(eDgmail.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearnsCDiambe.com Subject: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Louis Roeder Attorney at Law Phone: 407 -758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road. Orlando, FL 32819 x CONF /DENT /AL /TYNOTE: This email message and any atmcbments nay contain confidentin /, privileged and non- disclosable infomation. The information is intended only for the use ofthe individual or entity named on this email. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents of this email information, is strictly prohibited and that the documents should be returned to the sender immediately. IJ'you have received this email in error or by accidental transmission, please notify the sender by return email immediately. delete all electronic copies of this email and all attachments and destroy all lard copies. Thank you. Kelly Avery From: OConnor, Joanne M. <JOConnor @jonesfoster.com> Sent: Thursday, July 09, 2015 4:55 PM To: Lou Roeder Cc: Kelly Avery; Macfarlane, Mary Subject: RE: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Attachments: 201507091531.pdf Categories: Red Category Lou — Your request to freely inspect the hard drive of a computer in the Town's police department presents a number of legal issues. Your right to public records is not unfettered. The Town is obligated to protect exempt and confidential information on its computer systems including, among other things, criminal intelligence information, crime victim information and security system plans that would be exempt under Fla. Stat .119.071(3). The Town cannot protect such exempt and confidential information and allowing you free access to a police department hard drive at the same time. See Fla. AGO 13 -07, attached. I understood from our prior conversation that you seek any metadata that would show when the October 28, 2011 incident report was created. If this is correct, please advise. As I understand it, police officers log in to the Town's computers using a generic login. Additionally, Filemaker Pro is generally always "open" on the computer system. As I have said previously, there is no indexing on the pertinent version of Filemaker Pro that would allow for tracking when a report was created or modified (unlike, for example, the "properties" function on word). In other words, even if we could allow you unfettered access to a police department hard drive, which we cannot, I do not have any reason to believe that will produce the records you seek. If you are not willing to limit your request, please let me know and the Town will respond consistent with the attached AGO opinion. I will be out of the office tomorrow but continue to confer with the Town's IT consultant in an effort to determine whether the Town possesses the data that you may seek. Regards, Joanne JONESFOSTER pmw+tuaxstvens.rt. Joanne M. O'Connor Attome} Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 joconnor(@,jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Hagler Drive, Suite 1100, West Palm Beach, Florida 33401 561 -659 -3000 1 www.ionesfoster.com Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, ) ou received this in error. If so, anv review, dissemination, or copying of this email is prohii)ited. Please immediately notify us by email and delete the original message. From: lou.roeder @gmail.com [mailto:lou.roeder @gmail.com] On Behalf Of Lou Roeder Sent: Wednesday, July 08, 2015 4:17 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Joanne, This is in response to our previous conversation regarding the attached public record request While we are very familiar with the program named File Maker Pro, we are not looking to examine any files made with File Maker Pro. Rather we wish to inspect the hard drive that was on the computer that was used to make the incident report, albeit in File Maker Pro. The 2012 spoliation letter specifically asks that public records of the electronic data on relevant hard drives be preserved. Rather than simply inspecting a particular file related to an incident report which had been created at one time using File Maker Pro, we want to inspect the electronic record preserved on the hard drive itself, created during the process of generating the original incident report. Simply put, we want to inspect the hard drive from the computer used by Ginsberg on Oct. 28, 2011, or used by Ginsberg on whatever day he actually created the incident report. Please let me know when you have the hard drive so we can coordinate a mutually agreeable time for my client to inspect it. Regards, Louis Roeder Attorney at Law Phone: 407 -7523 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando. FL 32819 RCONFIDENTIALITY NOTE: This email message and any attachments may contain cot fdential, privileged and torn- disclosable it formation. The information is intended only for the rise ofdte individual or entity named on this emmaiL Ifyat are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this entail information, is strictly prohibited and that the documents should be returned to the sender inarediately. Ifyou have received this email in error or by accidental transmission, please notify, the sender by return email immediately, delete all electronic copies of this email and all attachments and destroy all hard copies. Thank you. On Wed, Jul 8, 2015 at 2:57 PM, OConnor, Joanne M. <JOConnorna ionesfoster.com> wrote: Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, I have not heard back from you. note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne JONESFOSTER _ _._._. —.� louMdnu n s n. 081, PA Joanne M. O'Connor Attorney Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 ioconnor(al,jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Hagler Center Tower, 505 South Flagler Drive, Suite 1 100, West Palm Beach, Florida 33401 561 -659 -3000 1 www.jonesfoster.com Incoming emails are filtered which may delay receipt. This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder @smail.com imailto:lou.roeder(a@email.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearns @iamb¢.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Louis Roeder Attomey at Law Phone: 407 - 758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road. Orlando, FL 32819 ❑" ONFlDENTlALITYNOTE: This email message and any attachments may contain confidential, privileged and non- disclosable information. The information is intended only for the use of the individual or entity named on this email. ljyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ofthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. # you have received this email in error or by accidental transmission, please notes the sender by return email immediately, delete all electronic copies of this email and all attachments and destroy all hard copies. Thankyou. Advisory Legal Opinion - Records, access to agency database Florida Attorney General Advisory Legal Opinion Number: AGO 2013 -07 Date: April 1, 2013 Subject: Records, access to agency database Ms. Eve Boutsis Attorney for the Village of Palmetto Bay 18001 Old Cutler Road, Suite 533 Miami, Florida 33157 -6416 Page 1 of 4 RE: PUBLIC RECORDS - MUNICIPALITIES - TRADE SECRETS - ELECTRONIC RECORDS - access to agency database through external hard drive. s. 119.07, Fla. Stat. Dear Ms. Boutsis: On behalf of the Village of Palmetto Bay, you ask substantially the following question: Must the Village of Palmetto Bay allow access to its copyrighted and licensed database which includes bank account information and social security numbers for copying directly to a hard drive provided by an individual requesting public records? In sum: The village is not required to allow direct access to its electronic records through a hard drive provided by a requestor, but must allow inspection and copying of the requested records in a manner that protects exempt and confidential information from disclosure. You state that an individual has br he wishes to download all financial village. You indicate that licensed by the village to input data, which materials, and that the data is not copyrighted licensed programs. aught his own hard drive onto which information data maintained by the and copyrighted software is used includes exempt and confidential extractable without revealing the Chapter 119, Florida Statutes, Florida's Public Records Law, provides a right of access to the records of the state and local governments. In the absence of a statutory exemption, the right of access applies to all materials made or received by an agency in connection with the transaction of official business which are used to perpetuate, communicate, or formalize knowledge.[l] Section 119.01(2)(f), Florida Advisory Legal Opinion - Records, access to agency database Page 2 of 4 Statutes, requires: "Each agency that maintains a public record in an electronic recordkeeping system shall provide to any person, pursuant to this chapter, a copy of any public record in that system which is not exempted by law from public disclosure. An agency must provide a copy of the record in the medium requested if the agency maintains the record in that medium, and the agency may charge a fee in accordance with this chapter. For the purpose of satisfying a public records request, the fee to be charged by an agency if it elects to provide a copy of a public record in a medium not routinely used by the agency, or if it elects to compile information not routinely developed or maintained by the agency or that requires a substantial amount of manipulation or programming, must be in accordance with s. 119.07(4)." The statute clearly provides that if an agency maintains a record in a particular medium and that medium is requested for the copy, the agency "must provide a copy of the record in the medium requested if it is maintained in that medium[.] "[2] The statute also provides that "the agency may charge a fee in accordance with this chapter." The courts of this state have determined that data stored in a computer is a public record subject to inspection and copying.[3] Data processing software which has been obtained by an agency under a licensing agreement prohibiting its disclosure and which is a trade secret under section 812.081, Florida Statutes, is exempt from disclosure under Florida's Public Records Law, Chapter 119, Florida Statutes.[4] You also indicate that data stored in the village's computer database contains exempt and confidential information. As you have represented, the village is unaware of a means to allow an individual to have direct access to its electronic database through the individual's hard drive without compromising licensing agreements by divulging trade secrets and revealing exempt and confidential information. While public agencies are required to provide reasonable access to records electronically maintained, such agencies must ensure that such records which are exempt or confidential are not disclosed, except as otherwise allowed by law.[5] As the court in Rea v. Sansbury[6] concluded, the authority of a public agency to facilitate the inspection and copying of public records by electronic means, "does not mean that every means adopted by the [agency] to facilitate the work of [agency] employees ipso facto requires that the public be allowed to participate therein. "[7] Thus, while the village is obliged to provide the requested financial records in an electronic format with confidential and exempt information redacted, there is nothing in the Public Records Law requiring that the individual requesting the public records may dictate the manner in which the records are accessed or copied, such that the confidentiality and protection of licensed and protected material is compromised. As noted above, the custodian's duty to allow inspection or copying of public records must Advisory Legal Opinion - Records, access to agency database Page 3 of 4 be in a manner that will accommodate the requestor, but at the same time safeguard the records.[8] Accordingly, it is my opinion that the Village of Palmetto Bay is not required to allow the requestor of public records to directly access the village's computer records through a hard drive provided by the requestor, but must otherwise allow inspection and copying of such records in a manner which will accommodate the request, but protect from disclosure exempt or confidential materials. Sincerely, Pam Bondi Attorney General PB /tals [1] See ss. 119.011(12), Fla. Stat., defining "public records" and 119.07, Fla. Stat., requiring every custodian of a public record to permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records. See also Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980) ( "public records" encompass all materials made or received by an agency in connection with official business which are used to perpetuate, communicate, or formalize knowledge). [2] And see Op. Att'y Gen. Fla. 91 -61 (1991) (custodian of public records must, if asked for a copy of a computer software disk used by an agency, provide a copy of the disk in its original format; a typed transcript of the disk would not satisfy the requirements of the Public Records Law). [3] See Seigle v. Barry, 422 So. 2d 63, 65 (Fla. 4th DCA 1982), review denied, 431 So. 2d 988 (Fla. 1983) ( "There can be no doubt that information stored on a computer is as much a public record as a written page in a book or a tabulation in a file stored in a filing cabinet "). [4] Section 119.071(1)(£), Fla. Stat. And see Ops. Att'y Gen. Fla. 90- 104 (1990) and 90 -102 (1990). [5] Section 119.01(2)(a), Fla. Stat., stating that agencies "must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law." And see Rule 1B- 26.003(6)(g)3., F.A.C., adopted by the Division of Library and Information Services of the Department of State. [6] 504 So. 2d 1315 (Fla. 4th DCA 1987). Advisory Legal Opinion - Records, access to agency database Page 4 of 4 [7] Id. at 1318. [8] Cf. s. 119.01(2)(a), Fla. Stat., in part, expressing the policy of the state: "Automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic recordkeeping, each agency must provide reasonable public access to records electronically maintained and must ensure that exempt or confidential records are not disclosed except as otherwise permitted by law." Kelly Avery From: lou.roeder @gmail.com on behalf of Lou Roeder <lou @louroeder.com> Sent: Wednesday, July 15, 2015 12:08 PM To: Joanne O'Connor M. Cc: Kelly Avery; Mary Macfarlane; stearns @jambg.com; Chris O'Hare; Rita Taylor Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Categories: Red Category Joanne, I am responding to your most recent email of July 9, 2015. Please be advised as follows: 1. We never requested to "freely inspect the hard drive of a computer in the Town's police department. " 2. We also never stated or implied that our "right to public records is ... unfettered. " 3. We have no interest in inspecting, nor have we ever asked to inspect any "criminal intelligence information, crime victim information and security system plans that would be exempt under Fla. Stat .119.071(3). " You have provided, by attachment to your email, a copy Fla. AGO 2013 -07 as if to justify your assertion that "The Town cannot protect such exempt and confidential information and allowing you free access to a police department hard drive at the same time." Well, I have reviewed the AGO opinion you provided and fail to see how this reference is relevant because: a. Again, we have never asked for "free access to a police department hard drive;" and b. The Attorney General is opining on a totally different issue - whether a requestor can directly access public computer records copied to a hard drive provided by the requestor - something we are NOT asking to do; and c. The Attorney General does state, however, that an agency "must otherwise allow inspection and copying of such records in a manner which will accommodate the request, but protect from disclosure exempt or confidential materials. " That is precisely what we are asking the Town's Custodian of Records to do. You say that you understand 'police officers log in to the Town's computers using a generic login" and "Filemaker Pro is generally always "open" on the computer system" and "there is no indexing on the pertinent version of Filemaker Pro that would allow for tracking when a report was created or modified." From these reasons you conclude that "even if we could allow you unfettered access to a police department hard drive, which we cannot, 1 do not have any reason to believe that will produce the records you seek." We disagree. You also admit that you understand we "seek any metadata that would show when the October 28, 2011 incident report was created. "You ask that I advise you if this is correct. In response, we would like to make it clear that in addition to determining WHEN the incident report was created we also wish to determine WHO created it. If, as you claim, anyone can log in using a "generic login," we will ask the forensic IT expert to see of they can determine who filed the incident report. I respectfully request that you reconsider your conclusions. You admit that the metadata may or may not be stored on all File Maker Pro files. However, you should know that the metadata and ESI (Electronically Stored Information) records we wish to inspect ARE stored on the computer's original hard drive; and that the Town was instructed to preserve it, via our spoliation letters of June 21, 2012 - copies of which have been provided to you. I remind you that we have been very precise as to what records we wish to inspect. If the hard drive where the requested information was originally produced has been destroyed, and /or the files have been transferred over to a new hard drive, we'd appreciate knowing this. If not, then I would ask that you follow the Attorney General's advice, as memorialized in the very opinion you provided, and allow us to inspect that portion of the hard drive of the computer used to create certain Incident Reports by Officer Ginsberg, especially the incident report dated October 28, 2011. Finally, if you will not respond via our recent Section 119 public records request, then we will seek other remedies to allow us to inspect what we consider to not only be a public record, but potentially significant evidence. As the representative of the Town's public records custodian, that would be your choice to make. Please e-mail me letting me know how the Town would like to proceed on this request Regards, Lolls Roeder Attorney at Law Phone: 407 - 758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 ❑ ONF /DENT /.1L /TY NOTE: This email message and any attachments may contain coi fdential. privileged mad non- disclosable it fornnreion. The it formation is intended only for the use of the individual or entity named on this email. lfyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents ofdhis email information. is strictly prohibited and that the documents should be returned to the sender immediately. Ifyou have received this email in error or by accidental transmission, please notify the sender by return email immediately, delete all electronic copies of this email and all attachments and destroy all hard copies. Thankyou. On Thu, Jul 9, 2015 at 4:55 PM, OConnor, Joanne M. <JOConnoraionesfoster.com> wrote: Lou — Your request to freely inspect the hard drive of a computer in the Town's police department presents a number of legal issues. Your right to public records is not unfettered. The Town is obligated to protect exempt and confidential information on its computer systems including, among other things, criminal intelligence information, crime victim information and security system plans that would be exempt under Fla. Stat .119.071(3). The Town cannot protect such exempt and confidential information and allowing you free access to a police department hard drive at the same time. See Fla. AGO 13 -07, attached. I understood from our prior conversation that you seek any metadata that would show when the October 28, 2011 incident report was created. If this is correct, please advise. As I understand it, police officers log in to the Town's computers using a generic login. Additionally, Filemaker Pro is generally always "open" on the computer system. As I have said previously, there is no indexing on the pertinent version of Filemaker Pro that would allow for tracking when a report was created or modified (unlike, for example, the "properties" function on word). In other words, even if we could allow you unfettered access to a police department hard drive, which we cannot, I do not have any reason to believe that will produce the records you seek. If you are not willing to limit your request, please let me know and the Town will respond consistent with the attached AGO opinion. I will be out of the office tomorrow but continue to confer with the Town's IT consultant in an effort to determine whether the Town possesses the data that you may seek. Regards, Joanne JONESFOSTER _.._....._.. --- ..._, pnINS [ON & srtmn. r k Joanne M. O'Connor Attornec Direct Dial: 561.650.0498 1 Pas: 561.650.5300 1 ioconnor(a,,jonesfoster.com Jones, I-oster, Johnston & Stubbs, P_1. Hagler Center Tower, 505 South I1tgler Drive, Suite 1 100, West Pcdm 13cac11, I Iorida 33401 561 -659 -3000 1 www.ionesfoster.com Incoming entails are filtered which mac delac receipt. This email is personal to die named recipient(s) and may be privileged and confidential. If you are not the intended recipient, cou received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately no6R- us by email and delete the original message. From: lou.roeder0tintail.com [mailtodou.roeder(ftmail.coml On Behalf Of Lou Roeder Sent: Wednesday, July 08, 2015 4:17 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Joanne, This is in response to our previous conversation regarding the attached public record request. While we are very familiar with the program named File Maker Pro, we are not looking to examine any files made with File Maker Pro. Rather we wish to inspect the hard drive that was on the computer that was used to make the incident report, albeit in File Maker Pro. The 2012 spoliation letter specifically asks that public records of the electronic data on relevant hard drives be preserved. Rather than simply inspecting a particular file related to an incident report which had been created at one time using File Maker Pro, we want to inspect the electronic record preserved on the hard drive itself, created during the process of generating the original incident report. Simply put, we want to inspect the hard drive from the computer used by Ginsberg on Oct. 28, 2011, or used by Ginsberg on whatever day he actually created the incident report. Please let me know when you have the hard drive so we can coordinate a mutually agreeable time for my client to inspect it. Regards, Louis Roeder Attorney at Law Phone: 407 -758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 ❑" ONFIDENTIALITYNOTE: This email message and any attachments may contain confidential, privileged and non- disclosable information. The information is intended onlyfor the use ofthe individual or entity named on this email. Ifyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents ofthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. hfyou have received this email in error or by accidental transmission. please notify the sender by return email immediately. delete all electronic copies ofthis email and all attachments and destroy all hard copies. Thank you. On Wed, Jul 8, 2015 at 2:57 PM, OConnor, Joanne M. <JOConnor n jonesfoster.com> wrote: Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, have not heard back from you. I note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne JONESFOSTER �.__._ ;0W..t,r.n+1, 011• i't Joanne M. O'Connor - Worney Direct Dial: 561.650.0498 1 Fax: 561.650.5300 1 ioconnornionesfoster.com Jones, Foster,)ohnston & Stubbs, P.A. I- Iagler Center `rower, 505 South I'lagler Drive, Suite 1100, West Palm Beach, Florida 33401 561 -659 -3000 I www.ionesfoster.com i Incoming emails are filtered which may delay receipt. 'this email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder@gmail.com [mailto:lou.roeder(@gmaii.com Rmail.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearns@iambs.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Louis Roeder Attomey at Law Phone: 407-758-4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road.. Orlando, FL 32819 NLONFIDENTIALI7T This email message and any attachments may contain confidential, privileged and non- disclosabte information. The information is intended only jar the use of the individual or entity named on this email. ifyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ofthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. ifyou have received this email in error or by accidental transmission, please notify the sender by return email immediately, delete all electronic copies ofthis email and all attachments and destroy all hard copies. Thank you. Kelly Avery From: OConnor, Joanne M. <JOConnor @jonesfoster.com> Sent: Monday, July 20, 2015 1:57 PM To: 'Lou Roeder' Cc: Kelly Avery; Macfarlane, Mary; stearns @jambg.com; Chris O'Hare; Rita Taylor Subject: RE: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Categories: Red Category Lou — On behalf of the Town of Gulf Stream, please be advised that there are no (and never have been any) electronic public records that are responsive to your request. The Town considers this request closed. Regards, Joanne From: lou.roeder @gmail.com [mailto:iou.roeder @gmail.com] On Behalf Of Lou Roeder Sent: Wednesday, July 15, 2015 12:08 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary; stearns @jambg.com; Chris O'Hare; Rita Taylor Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Joanne, I am responding to your most recent email of July 9, 2015. Please be advised as follows: 1. We never requested to "freely inspect the hard drive of a computer in the Town's police department. " 2. We also never stated or implied that our "right to public records is ... unfettered. " 3. We have no interest in inspecting, nor have we ever asked to inspect any "criminal intelligence information, crime victim information and security system plans that would be exempt under Fla. Stat .119.071(3). " You have provided, by attachment to your email, a copy Fla. AGO 2013 -07 as if to justify your assertion that "The Town cannot protect such exempt and confidential information and allowing you free access to a police department hard drive at the same time. " Well, I have reviewed the AGO opinion you provided and fail to see how this reference is relevant because: a. Again, we have never asked for "free access to a police department hard drive;" and b. The Attorney General is opining on a totally different issue - whether a requestor can directly access public computer records copied to a hard drive provided by the requestor - something we are NOT asking to do; and c. The Attorney General does state, however, that an agency "must otherwise allow inspection and copying of such records in a manner which will accommodate the request, but protect from disclosure exempt or confidential materials. " That is precisely what we are asking the Town's Custodian of Records to do. You say that you understand "police officers log in to the Town's computers using a generic login" and "Filemaker Pro is generally always "open" on the computer system" and "there is no indexing on the pertinent version of Filemaker Pro that would allow for tracking when a report was created or modified." From these reasons you conclude that "even if we could allow you unfettered access to a police department hard drive, which we cannot, l do not have any reason to believe that will produce the records you seek." We disagree. You also admit that you understand we "seek any metadata that would show when the October 28, 2011 incident report was created. "You ask that I advise you if this is correct. In response, we would like to make it clear that in addition to determining WHEN the incident report was created we also wish to determine WHO created it. If, as you claim, anyone can log in using a "generic login," we will ask the forensic IT expert to see of they can determine who filed the incident report. I respectfully request that you reconsider your conclusions. You admit that the metadata may or may not be stored on all File Maker Pro files. However, you should know that the metadata and ESI (Electronically Stored Information) records we wish to inspect ARE stored on the computer's original hard drive; and that the Town was instructed to preserve it, via our spoliation letters of June 21, 2012 - copies of which have been provided to you. I remind you that we have been very precise as to what records we wish to inspect. If the hard drive where the requested information was originally produced has been destroyed, and /or the files have been transferred over to a new hard drive, we'd appreciate knowing this. If not, then I would ask that you follow the Attorney General's advice, as memorialized in the very opinion you provided, and allow us to inspect that portion of the hard drive of the computer used to create certain Incident Reports by Officer Ginsberg, especially the incident report dated October 28, 2011. Finally, if you will not respond via our recent Section 119 public records request, then we will seek other remedies to allow us to inspect what we consider to not only be a public record, but potentially significant evidence. As the representative of the Town's public records custodian, that would be your choice to make. Please e-mail me letting me know how the Town would like to proceed on this request. Regards, Louis Roeder Attorney at Law Phone: 407-758-4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 F ECONFIDENTIALITY NOTE: This email message and any attachments may contain cot fdential, prihdleged and non- disclosable infornmtion. The information is intended onlyfor the use of the individual or entity named on this email. Ifyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ojthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. Yyou have received this email in error or by accidental transmission, please notes the sender by return email immediately, delete all electronic copies ojthis email and all attachments and destroy all hard copies. Thankyou. On Thu, Jul 9, 2015 at 4:55 PM, OConnor, Joanne M. <JOConnor(cdjonesfoster.com> wrote: Lou — Your request to freely inspect the hard drive of a computer in the Town's police department presents a number of legal issues. Your right to public records is not unfettered. The Town is obligated to protect exempt and confidential information on its computer systems including, among other things, criminal intelligence information, crime victim information and security system plans that would be exempt under Fla. Stat .119.071(3). The Town cannot protect such exempt and confidential information and allowing you free access to a police department hard drive at the same time. See Fla. AGO 13 -07, attached. I understood from our prior conversation that you seek any metadata that would show when the October 28, 2011 incident report was created. If this is correct, please advise. As I understand it, police officers log in to the Town's computers using a generic login. Additionally, Filemaker Pro is generally always "open" on the computer system. As I have said previously, there is no indexing on the pertinent version of Filemaker Pro that would allow for tracking when a report was created or modified (unlike, for example, the "properties" function on word). In other words, even if we could allow you unfettered access to a police department hard drive, which we cannot, I do not have any reason to believe that will produce the records you seek. If you are not willing to limit your request, please let me know and the Town will respond consistent with the attached AGO opinion. I will be out of the office tomorrow but continue to confer with the Town's IT consultant in an effort to determine whether the Town possesses the data that you may seek. Regards, Joanne JONESFOSTER L xIL1 a l3 N 111. eas. r.A. Joanne M. O'Connor \ttomea Direct Dial: 561.650.0498 1 I ac 561.650.5300 1 ioconnor(d),jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center lower, 505 South Flagler Drive, Suite 1 100, West Palm Beach, Florida 33401 561 -659 -3000 1 www.jonesfoster.com Incoming emails are filtered which mail delay receipt. this email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, any review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: lou.roeder(alomail.com [mailto:lou.roeder@Qrnail.coml On Behalf Of Lou Roeder Sent: Wednesday, July 08, 2015 4:17 PM To: OConnor, Joanne M. Cc: Kelly Avery; Macfarlane, Mary Subject: Re: FW: PUBLIC RECORDS REQUEST - ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Joanne, This is in response to our previous conversation regarding the attached public record request. While we are very familiar with the program named File Maker Pro, we are not looking to examine any files made with File Maker Pro. Rather we wish to inspect the hard drive that was on the computer that was used to make the incident report, albeit in File Maker Pro. The 2012 spoliation letter specifically asks that public records of the electronic data on relevant hard drives be preserved. Rather than simply inspecting a particular file related to an incident report which had been created at one time using File Maker Pro, we want to inspect the electronic record preserved on the hard drive itself, created during the process of generating the original incident report. Simply put, we want to inspect the hard drive from the computer used by Ginsberg on Oct. 28, 2011, or used by Ginsberg on whatever day he actually created the incident report. Please let me know when you have the hard drive so we can coordinate a mutually agreeable time for my client to inspect it. Regards, Louis Roeder Attorney at Law Phone: 407 -758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 ONF /DENTIALITYNOTE: This emni/ message and airy attachments ntay contain confidential. privileged and non- disclosable information. The information is intended onlyfor the use of the individual or entity named on this email. Ifyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking of any action in reliance on the contents of this email infornmtion, is strictly prohibited and that the documents should be returned to the sender immediately. Ifyou have received this entail in error or by accidental transmission, please notify the sender by return entail immediately, delete all electronic copies of this entail and all attachments and destroy all hard copies. Thank yon. On Wed, Jul 8, 2015 at 2:57 PM, OConnor, Joanne M. <JOConnor cr ionesfoster.com> wrote: Lou — We spoke about the attached public records request last week. I advised you that we have conferred with the Town's contract IT consultant and that the incident reports at issue were prepared using File Maker Pro 5.0, version 2. That early version is a very simplistic data entry software which does not have an auditing or indexing function. The Town no longer uses that program and has not had contact with the company that makes it for years. You advised that you were going to confer with Mr. O'Hare to determine whether you have any reason to believe that the Town can obtain the data that you seek from this antiquated software program. To date, I have not heard back from you. I note that your request seeks incident reports from August 29, 2011 to June 21, 2102. Today the Town received from you another public records request for incident reports filed or submitted by Officer Ginsberg from August 29, 2011 through October 31, 2011, a subset of the earlier time period, in their original electronic format. We are prepared to produce to you an exported PDF with the records that you seek. If that format is not acceptable and you have good cause to believe that we can produce some other electronic version of these records or some other electronic data about them, please let me know. The Town is more than willing to get you the public records you seek in the format that you want them to the extent it is possible to do so. Regards, Joanne J— .- ---- ONESFOSTER Joanne M. O'Connor Attorney Direct Dial: 561.650.0498 1 Pax: 561.650.5300 1 joconnor(@jonesfoster.com Jones, Foster, Johnston & Stubbs, P.A. Flagler Center Tower, 505 South Flagler Drive, Suite 1100, West Palm Beach, Florida 33401 561- 659 -3000 1 www.4onesfoster.com Incoming emails are filtered which may delac receipt_ This email is personal to the named recipient(s) and may be privileged and confidential. If you are not the intended recipient, you received this in error. If so, amv review, dissemination, or copying of this email is prohibited. Please immediately notify us by email and delete the original message. From: Rita Taylor Sent: Tuesday, June 30, 2015 6:54 AM To: Bill Thrasher Subject: FW: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS From: lou.roeder@gmail.com [mailto:lou.roeder@gmail.coml On Behalf Of Lou Roeder Sent: Monday, June 29, 2015 4:51 PM To: Rita Taylor Cc: Chris O'Hare; stearnsCnliambs.com Subject: PUBLIC RECORDS REQUEST- ELECTRONIC RECORDS OF OFFICER GINSBERG INCIDENT REPORTS Rita, Please note the attached public records request. Due to litigation time constraints, your prompt attention would be appreciated. Respectfully. Louis Roeder Attomey at Law Phone: 407 -758 -4194 Email: lou @louroeder.com Address: 7414 Sparkling Lake Road, Orlando, FL 32819 ❑" ONFIDENTIALJTYNOTE: This email message and any attachments may contain confidential, privileged and non- disclosable information. The information is intended onlyfor the use ojthe individual or entity named on this email. Ijyou are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, or the taking ofany action in reliance on the contents ojthis email information, is strictly prohibited and that the documents should be returned to the sender immediately. Ijyou have received this email in error or by accidental transmission, please notes the sender by return email immediately, delete all electronic copies ojthis email and all attachments and destroy all hard copies. Thankyou.