Annotated Summary of Public Records History-1

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THE CITYS OBSTRUCTION OF CITIZENS ACCESS TO PUBLIC RECORDS

The Florida Constitution says: Every person has the right to inspect or copy any public

record made or received in connection with the official business of any public body, officer, or

employee of the state, orpersons acting on their behalf.

For the past sixteen months, the City of Miami has unreasonably and improperly fought

efforts by citizens to obtain Public Records to which they are legally entitled under Floridas

landmark Public Records Law and Floridas Constitution.

These obstructionist tactics have forced citizens to go to court to secure public records

which has pushed the costs to the taxpayers into the stratosphere.

Now that we have those documents we know the City had good reasons to attempt to hide

them because they raise serious questions about the Citysdecisions and decision-making

processes.

The publicsproblem is Citys deliberatepattern of attempting to frighten away the

public from monitoring its affairs.

The publics opportunityis to vigorously challenge such behavior and hold the City and

its officials accountablefor this project and as a lesson for others.

Miami residents of the Venetian Causeway and their homeowner associations were able

to obtain critically important records regarding the proposed commercial development of

Watson Island known as the Flagstone Island Gardens Projectonly by filing lawsuits against the

City under Floridas Sunshine and Public Records laws.

There are two parallel issues here, both supported throughout the chronology on this site,

with linked documents.


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The first is that by the Citys delaying the production of documents beyond certain key

dates, the public did not have the information it needed to form an opinion about certain

important matters and inform its elected representatives of their views, let alone conduct

independent and expert analysis to challenge the citys findings, if appropriate.

And it turned out to be very appropriate.

The second is that by the Citys forcing the public into court and a series of hearings and

delayed litigation, it forced the members of the public seeking these documents to spend

enormous amount of personal funds versus the Citys apparently unlimited budget to litigate.

Regarding the first issue, in addition to the contents of what has been found documented

elsewhere on this site, the City of Miamis history of blocking public participation served as an

attempted cover-up of wrong doing by City officials.

For example, on June 7, 2013, Venetian Island resident Stephen Herbits requested the

Citys public records pertaining to the Related Groups proposal to amend the approved plans

for Watson Island. The City ignored his request made under the State Public Records laws for

nearly one month, until he filed a lawsuit on July 2. Within a week of the Courts setting a

hearing, the City produced three CDs of cached emails and a small number of paper documents.

These documents showed that City officials were throughout their period of resistance, working

aggressively behind closed doors with the developer to expand the Watson Island Project by

doubling the amount of retail space, adding more hotel rooms, and other additions, without any

analysis of the impact on traffic, public safety, the environment, or other impacts.

And the Citys plan was to do this without consideration of a new RFP or referendum. The

information, though, generated a groundswell of public opposition, including a resolution by the


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Miami Beach City Commission opposing the expansion.1 Within a few weeks, the Related

Group withdrew.2

As the City was determined to advance the project, however, Herbits and other neighbors

continued to formally request public records.

On another matter, the court on May 8, 2014 ordered the production of documents

requested on September 13, 2013 related to the public use requirement for Watson Island ,

holding that the City had improperly asserted they were exempt from disclosure. Unfortunately,

this ruling came two weeks after the State Department of Environmental Protection agreed to

allow the City to proceed with the Flagstone deal by agreeing to waive the requirement that

Watson Island only be used for public purposes.

The City had also been withholding for nearly a year a traffic study supposedly conducted

in the fall of 2013. The City simply never disclosed its existence between November 2013 and

May 2014 despite public records requests asking for traffic studies. It was not until May 13,

2014, when citizens asked the State Cabinet to reject the Citys request for a waiver of the public

purpose requirement, based in part on the Citys failure to conduct a traffic study more current

than 2002, that Assistant City Attorney Alice Bravo disclosed the existence of the 2013 study.

When it was finally producedalso because of the pendency of Herbits court case the reasons

the City had withheld it were obvious. The study is fundamentally flawed, containing multiple

1

See, e.g.Andres Viglucci, Its Miami vs. Miami Beach in heated tussle over massive WatsonIsland plan, The Miami Herald, July 13, 2013. On July 17, the City of Miami Beach passed aresolution to authorize the City Manager and City Attorney to take appropriate steps to protectthe citys interests. Andres Viglucci, Miami Beach Commission vows to fight Miamis WatsonIsland plan, The Miami Herald, July 21, 2013.2 Christiana Veiga, Developer backs out of plan for bigger Watson Island Project, TheMiami Herald, August 9, 2013, Exhibit E.


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4

deviations from accepted professional standards, as well as several important factual and

analytical discrepancies. It concedes that even without the Flagstone Project existing peak hour

traffic on MacArthur Causeway exceeds the FDOT generalized capacity estimate by 32%.

Worse, the 2013 study failed to evaluate the primary impact points that will be most affected by

the Project the intersection points between MacArthur Causeway and Biscayne Blvd, and

Alton Road.

As is shown in the chronology of the Citys actions, one of the most egregious violations of

law by the City is that it is violating Section 29-B of the City Charter by allowing the developer

to lease the Watson Island land for far less than the fair market value. City Official Henry Torre

on May 5three days before the votewrote a memo showing that Fair Market Rent increased

from $1.89 million in 2002 to $7.26 million in 2014. Yet, at their May 8 meeting when

Commissioners approved the project yet again, some commissioners and high-ranking city

officials publicly denied having knowledge of the new appraisals or their results.

The City had withheld this memo from May 5, 2014, until Herbits filed another lawsuit on

August 15, 2014, and the Court ordered the Cityto produce the past due documents within one

week.

There are many more examples of damage caused by deliberate delays surely a matter for

future litigation.

But beyond the illegalities of withholding the information is the Citys pattern of forcing

every issue into court, costing the citizens more to obtain the documents and the taxpayers the

cost of the Citys defending itself (and spend the staff attorneysown time) than the actual cost

of the fees that they should have paid under the law. This aspect of the Sunshine Laws is critical

because:


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without the citys having to pay for the litigants expenses, the city has no reason to

obey the Sunshine statutes;

it is a massive disincentive to others to attempt to use the courts to obtain what is

rightly theirs; and

the court process itself is slow and demonstrates therefore a deliberate exacerbating of

the timing problem

To help with the rescue of public participation in keeping government wrongdoing hidden

comes the First Amendment Foundation, Inc. They have filed an amicus brief on behalf of the

citizens who are fighting the city. The brief was filed on behalf of the following:

The Florida Times-Union

The Florida Press Association

The McClatchy Company (owner of the Miami Herald)

The Florida Society of News Editors

The Gannett Co., Inc. and their subsidiaries.

The sordid details of the Citys strategy to keep their wrongdoing secret may be found in a

chronology of the Citys behavior on Public Records on this site. Regardless of how our

residents, business owners and employees feel about development on Watson Island, every one

of us should be outraged by the Citys blatant attempts to prevent the public from learning of

what they are doing behind closed doors.

It is incumbent on us to challenge the City behavior to hold them accountable for wasting

enormous resources and making illegal decisions both in process and in substance. Not only

should the substantive decisions that the City has made during this period be reversed, but the


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personnel records of those individuals who participated in this charade should be required to

include appropriate notations that could affect their compensation, bonuses and promotions.


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IN THE CIRCUIT COURT FOR THE

11TH JUDICIAL CIRCUIT IN AND FORMIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISIONSTEPHEN HERBITS,CASE NO.: 13-23128 CA 31

Plaintiff,

vs.

THE CITY OF MIAMI,

Defendant._______________________________________________/

ORDER GRANTING WRIT OF MANDAMUS

THIS CAUSEcame before the Court on Plaintiffs Motion for Order Enforcing CitysObligation to Produce Public Records and Request for Immediate Hearing Under Section

11.011(1), Florida Statutes. The Court, having reviewed the motion, the response, having

considered the arguments of counsel, having conducted an in camera inspection of the records atissue, and being otherwise fully advised in the premises, hereby finds as follows:

1.

In response to a January 14, 2014 public records request made by the Plaintiff, StephenHerbits, the Defendant, the City of Miami, asserted that certain documents were exempt

from disclosure pursuant to Florida Statute section 119.071(1)(d). Herbits has moved for

issuance of a writ of mandamus and/or injunctive relief to require the City of Miami to

produce the documents.

2. The documents have been provided to the Court for an in camerainspection.

3. Section 119.071(1)(d) creates an attorney-client privilege exemption from the broad

requirement that government records be made available to the public. See Lightbourne v.

McCollum, 969 So. 2d 326 (Fla. 2007). It exempts:

1. A public record that was prepared by an agency attorney (including an

attorney employed or retained by the agency or employed or retained byanother public officer or agency to protect or represent the interests of the

agency having custody of the record) or prepared at the attorney's express

direction, that reflects a mental impression, conclusion, litigation strategy,or legal theory of the attorney or the agency, and that was prepared


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exclusively for civil or criminal litigation or for adversarial administrative

proceedings, or that was prepared in anticipation of imminent civil or

criminal litigation or imminent adversarial administrative proceedings, isexempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until

the conclusion of the litigation or adversarial administrative proceedings.

For purposes of capital collateral litigation as set forth in s. 27.7001, theAttorney General's office is entitled to claim this exemption for thosepublic records prepared for direct appeal as well as for all capital collateral

litigation after direct appeal until execution of sentence or imposition of a

life sentence.

2. This exemption is not waived by the release of such public record toanother public employee or officer of the same agency or any person

consulted by the agency attorney. When asserting the right to withhold a

public record pursuant to this paragraph, the agency shall identify the

potential parties to any such criminal or civil litigation or adversarialadministrative proceedings. If a court finds that the document or other

record has been improperly withheld under this paragraph, the partyseeking access to such document or record shall be awarded reasonable

attorney's fees and costs in addition to any other remedy ordered by the

court.

4. The public records act is to be construed liberally in favor of openness, and all

exemptions from disclosure are to be construed narrowly and limited in their designated

purpose. Lightbourne 969 So. 2d at 332-33 (quoting City of Riviera Beach v.

Barfield,642 So.2d 1135, 1136 (Fla. 4th DCA 1994)).

5. Accordingly, the exemption provided by section 119.071(1)(d) only extends to those

records that contain the attorney's mental impressions, litigation strategy, or legal

theory andare prepared exclusively for litigation or in anticipation of imminent

litigation. Lightbourne 969 So. 2d at 332 (emphasis in original).

6. Imminent means About to occur; impending. AMERICAN HERITAGE COLLEGE

DICTIONARY 679(3d ed. 1993).

7. The governmental agency must identify the potential parties to imminent litigation, and

has the burden of showing that the requested documents fall within the statutory

requirements of the exemption. See Fla. Stat. 119.071(1)(d)2;Lightbourne 969 So. 2d

at 333.

8. Thus, the question in the instant case is whether the City has met its burden of

demonstrating that the records at issue contain the attorney's mental impressions,

litigation strategy, or legal theory and were prepared exclusively for litigation or in

anticipation of imminent litigation.


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9. Based upon a review of the record and the in camera inspection, it does not appear that

any of the documents at issue were prepared in anticipation of imminent litigation.

a. The first document on the Citys privilege log is the Watson Island Title

History. As the title suggests, this is a summary of the title history of the Watson

Island property. The title documents discussed in the summary are included asattachments to the summary. This document and its attachments were prepared in

order to review ownership of the property. They were not prepared in anticipation

of imminentlitigation. Having reviewed the record and the documents submitted

in camera, the Court finds that the City perhaps had these documents prepared for

the possibility of potential litigation, but that is far different than imminent

litigation.

b. The second document on the Citys privilege log is an email dated October 11,

2013, and an attached draft of an engagement letter between the City and the

Holland & Knight law firm. From the terms of the engagement letter itself,however, the engagement was not for the purpose of imminent litigation, but for

the purpose of reviewing property ownership. Although there was an

understanding that litigation might arise out of ownership issues, by the terms of

the engagement letter, it did not cover any such potential litigation. The Court

finds this document was not prepared in anticipation of imminent litigation.

c. The third document on the Citys privilege log is an email dated October 3, 2013,

and an earlier draft of the same engagement letter. The Court finds this document

also was not prepared in anticipation of imminent litigation.

d. The fourth document on the privilege log is a short email chain dated January 6,

2014 which asks various individuals to send an attorney named Roberto Blanch

an engagement letter and other documents. As this email relates to the

engagement of Mr. Blanch to review ownership property issues, the Court finds

that is was not preparedin anticipation of imminent litigation (again expressly

excluding from the agreement any potential litigation that could arise out of such

issues).

e. The fifth document on the privilege log is an email chain dated January 7, 2014,

which is identical to the January 6

th

chain except that it includes a follow-up thankyou note. The Court finds that this note was not prepared in anticipation of

litigation.

f. The sixth document is another branch of the email chain, this one dated January 8,

2014, in which one of the individuals from the previous chain asked for and

received Mr. Blanchs contact information in order to prepare an engagement

letter for him. As with the other related emails, the Court finds that this was not


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prepared in anticipation of imminent litigation, but instead for the purpose of

reviewing property ownership.

g. The seventh document is an email chain dated January 8, 2014, following up the

previous email, and similarly the Court finds that it was not prepared in


h. The eighth document is another email dated January 8, 2014, attaching a draft of

the engagement letter. From the terms of the draft, it is clear that the purpose of

the engagement letter is for the review of property ownership, and that it was not

prepared in anticipation of imminent litigation, and the letter expressly does not

cover potential litigation that could possibly arise from the matter.

i. The ninth document is an email dated January 9, 2014, from Roberto Blanch,

asking for previously referenced documents. The Court finds that this document

relates to Mr. Blanchs engagement to review property ownership issues, and notto imminent litigation.

j. The tenth document is another email dated January 9, 2014 from Roberto Blanch,

asking that the previous email be disregarded. The Court finds that this document

was not prepared in anticipation of imminent litigation.

k. The eleventh document is an email dated January 9, 2014, which responds to the

previous email and simply seeks to arrange a meeting between the parties to the

email. As with the other emails in this group, the Court finds that it was not

prepared in anticipation of imminent litigation.

l. The twelfth document is a copy of the second. Again, the Court finds that it was

not prepared in anticipation of imminent litigation.

m. The thirteenth document is an email dated October 18, 2013. It is another draft of

the engagement letter between the City and Holland & Knight. As with the other

versions of the engagement letter, it was prepared in connection with the review

of the ownership of properties, and by its terms did not cover litigation that might

arise out of such review. Accordingly, the Court finds that it was not prepared in


n. The fourteenth document is another email dated October 18, 2013, with another

draft of the Holland & Knight engagement letter attached. Like the other

versions, this draft was prepared in connection with the review of the ownership

of properties, and by its terms did not cover litigation that might arise out of such

review. The Court finds that it was not prepared in anticipation of imminent

litigation.


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o. The fifteenth document is an email dated October 18, 2013, related to the draft of

the engagement letter that was done for the purposes of reviewing property

ownership, and like the letter itself, the Court finds that it was not prepared in


p.

The sixteenth document is an email dated October 21, 2013, with another draft ofthe Holland & Knight engagement letter attached. As with the previous version,

this draft was prepared in connection with the review of the ownership of

properties, and by its terms did not cover litigation that might arise out of such

review. Accordingly, the Court finds that it was not prepared in anticipation of

imminent litigation.

q. The seventeenth document1is apparently the final draft of the Holland & Knight

engagement letter. As with all the drafts, it is for the purpose of reviewing

ownership of properties, and expressly does not deal with potential future

litigation that could possibly arise out of the matter. It was not prepared inanticipation of imminent litigation.

r. The eighteenth document is another draft of the engagement letter between the

City and Mr. Blanch, dated January 9, 2014. The purpose of this letter is to

review property ownership and it expressly does not cover any possible litigation

that might arise out of the matter. The Court finds that it was not prepared in


s. The nineteenth document is a copy of the seventh document, not prepared in


t. The twentieth document is a copy of the eighth document, not prepared in


u. The twenty-first document is dated January 24, 2014, and is a draft engagement

letter between the City and the McDonald Hopkins law firm. As with the

engagement letters with other attorneys, this letter was for the purpose of

reviewing property ownership and expressly excluded litigation that might

possibly arise out of the matter from its terms. Accordingly, the Court finds that

it was not prepared in anticipation of imminent litigation.

v. The twenty-second document is a photocopy of a case from Southern Second.

The citation to the case is listed in the privilege log. It does not have any notes,

1There are actually three copies of this document included in the in camera inspection materials, but they appear to

be identical except that one of them is signed and printed on City of Miami letterhead.


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underlining, or highlighting on it. There is no indication that this case was

photocopied in anticipation of imminent litigation.

w. The final document is titled NOTES and discusses submerged land deed issues.

Since the City perceived issues with these land deeds, it is possible that it

anticipated the potential forpossiblelitigation in preparing these notes. However,there is no indication in the notes, or in the record in general that imminent

litigation prompted the creation of these notes. Accordingly, the Court finds that

it was not prepared in anticipation of imminent litigation.

10.The City has not demonstrated that it prepared any of the documents in anticipation of

imminent litigation. The documents do not meet the requirements of section

119.071(1)(d), so they must be produced. Mandamus is an appropriate remedy to compel

a city's timely production of public records. Poole v. City of Port Orange, 33 So. 3d 739,

741 (Fla. 5th DCA 2010).

Therefore, for the reasons stated herein, it is hereby ORDEREDand ADJUDGEDthat:

1. Plaintiffs request for a writ of mandamus is granted. The City shall furnish the materials

discussed in this order to Plaintiff by close of business on Monday, May 12, 2014..

DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 05/08/14.

_____________________________ABBY CYNAMONCIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION

CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit emailconfirmation which includes all emails provided by the submitter. The movant shallIMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or

hand-delivery, to all parties/counsel of record for whom service is not indicated by theaccompanying 11th Circuit confirmation, and file proof of service with the Clerk ofCourt.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.


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IN THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

CASE NO. [3D14-20]

STEPHEN HERBITS,Appellant,

v.

THE CITY OF MIAMI,

Appellee.

BRIEF OF AMICUS CURIAE, FIRST AMENDMENT FOUNDATION, INC.;MORRIS PUBLISHING GROUP, LLC, d/b/a THE FLORIDA TIMES-UNION;

FLORIDA PRESS ASSOCIATION, INC.; THE MCCLATCHY COMPANY

(OWNER OF THE MIAMI HERALD); The FLORIDA SOCIETY OF NEWS

EDITORS; and GANNETT CO. INC.includingFLORIDA TODAY, THE FORTMYERS NEWS-PRESS, PENSACOLA NEWS JOURNAL, TALLAHASSEE

DEMOCRAT, WTLV-TV, WJXX-TV and WTSP-TV ,IN SUPPORT OF APPELLANT

On Appeal From a Final Order of the Circuit Court of the Eleventh Judicial

Circuit, in and for Miami-Dade County, Florida, Denying Appellants Motion for

Attorneys Fees and Costs Pursuant to Section 119.12(1), Florida Statutes

HOLLAND & KNIGHT, LLPGeorge D. Gabel, Jr. (FBN 027220)Timothy J. Conner (FBN 767580)

Jennifer A. Mansfield (FBN 0186724)50 North Laura Street, Suite 3900Jacksonville, Florida 32202

Telephone: (904) 353-2000Facsimile: (904) 358-1872

Attorneys for Amici Curiae

i


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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................. ii

TABLE OF AUTHORITIES ....................................................................... iii

I. IDENTITY OF AMICI AND STATEMENT OF INTEREST .................... 1

II. SUMMARY OF THE ARGUMENT ........................................................... 2

III. ARGUMENT ................................................................................................ 4

A. This Court reviews de novo the trial courts conclusion that

the delay was not unjustified .............................................................. 4

B. The City of Miamis Delay Was Unreasonable ................................. 3

1. Unjustified delay in producing records until after a lawsuit

is filed is unlawful delay mandating an award of

attorneys fees under 119.12 ...................................................... 5

2. The City bears the burden of proving its delay inproducing the records was justified .............................................. 8

3. Public Policy Favors Reversal of the Trial Courts Denialof Attorneys Fees ....................................................................... 13

C. Appellant is Entitled to Recover Reasonable Attorneys Fees

and Costs for the Citys Unjustified Delay ...................................... 15

IV. CONCLUSION ........................................................................................... 15

CERTIFICATE OF SERVICE ................................................................... 17

CERTIFICATE OF TYPEFACE COMPLIANCE .................................... 17

ii


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Office of the State Attorney v. Gonzalez,953 So.2d 759 (Fla. 2d DCA 2007) .................................................................... 10

The Promenade DIberville, LLC v. Sundy,

Case No. 1D13-5583, __ So. 3d __, 2014 WL 4242961 (Fla. 1st

DCA Aug. 28, 2014) ........................................................................... 3, 4, 7, 9, 10

Puls v. City of Port St. Lucie,

678 So. 2d 514 (Fla. 4th DCA 1996) .............................................................. 6, 15

Richmond Newspapers, Inc. v. Virginia,

448 U.S. 555 (1983) .............................................................................................. 2

State v. McMillan,

38 So. 666 (Fla. 1905) .......................................................................................... 1

Times Pubg Co., Inc. v. City of St. Petersburg,

558 So. 2d 487 (Fla. 2d DCA 1990) ..................................................... 8, 9, 10, 11

Tribune Company v. Cannella,458 So. 2d 1075, 1078 (Fla. 1984) ................................................................... 7, 8

Weeks v. Golden,

764 So. 2d 633 (Fla. 1st DCA 2000) ............................................................ 10-11

Wisner v. City of Tampa Police Dept.,

601 So. 2d 296 (Fla. 2d DCA 1992) ................................................................... 11

Constitution and Statutes

Article V, section 4(b)(3) of the Florida Constitution ............................................... 6

119.12, Florida Statutes ...................................................................................... 5, 6

Chapter 119, Florida Statutes ..................................................................................... 5

Rules

Rule 9.370, Florida Rules of Civil Procedure ............................................................ 1

iv


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Other

Katrina G. Hull,Disappearing Fee Awards and Civil Enforcement of Public

Records Laws, 52 U. Kan. L. Rev. 721, 724 (2004) ......................................... 13

v


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Pursuant to Rule 9.370 Florida Rules of Appellate Procedure, the First

Amendment Foundation, Inc.; Morris Publishing Group, LLC, d/b/a The Florida

Times-Union; Florida Press Association, Inc.; The McClatchy Company (owner of

The Miami Herald); The Florida Society of News Editors; Gannett Co. Inc., a news

and information company whose properties include Florida Today, The Fort Myers

News-Press, Pensacola News Journal, Tallahassee Democrat, WTLV-TV,

WJXX-TV and WTSP-TV (collectively, "Amici"), respectfully submit this brief and

would show the Court as follows:

I. IDENTITY OF AMICI AND STATEMENT OF INTEREST

The Amici are organizations and media outlets devoted to ensuring that the

citizenry's constitutional guarantee of open government is not diluted and that

Florida's government is conducted in the sunshine, subject to the searching view of

the public. The First Amendment Foundation Inc., provides representation,

guidance, and research in First Amendment and freedom of information litigation.

While the Amici are organizations and media outlets, they file this brief for the

benefit of all Floridians whom the constitutional guarantees of open government and

transparency are intended to benefit.

Florida has a long history of requiring that its government operate in the

sunshine. Indeed, as early as 1905, the Florida Supreme Court stressed Floridas

commitment to open government. State v. McMillan, 38 So. 666, 667-68 (Fla.

1


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1905). Most people do not obtain information by first hand observation or word of

mouth, but chiefly acquire information through the print and electronic media. In

that sense, the media function as a surrogate for the public at large. Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1983).

The Amici are frequently confronted with the opportunity to report on and

inform the citizenry of what their local governments are doing. In the past, Amici

have had to file their own public records lawsuits in order to enforce their, and the

publics, constitutionally protected right to public records. Timely access to

information through the Public Records Act is critical to Amicis efforts to monitor

adherence to statutory mandates. The Amicis interest in this case is in maintaining

their and the publics access to public records, because the law and public policy are

furthered when any citizen brings a lawsuit to enforce an open government law.

In cases like this one, where a citizen must file a lawsuit in order to receive

access to public records, it should be the unlawful government body, not the citizen

serving the publics interest, that bears the financial burden. Litigation is expensive,

and the public and Amici do not have the financial resources to litigate access to

public records without an award of attorneys fees. If the trial courts order is

affirmed, it will deal an eviscerating blow to public records access for all Florida

citizens.

2


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records, the public, public officials, and the media investigated the proposed

development and provided input into the Citys decision-making process. Thus, this

public records lawsuit resulted in the opening of information and revealed the inner

workings of local government the precise intent of the statutory and constitutional

rights to open government. Without this litigation, the City may have continued to

conceal the records concerning the Watson Island development. Appellant took on

the financial burden to restore transparency in government on behalf of all the

citizens of Miami. In the absence of this lawsuit, there is no indication in the record

that the documents would have been produced at all, let alone before the City took

action on the subject matter of the requested documents. The Citys delay was

unreasonable and the trial court erred in denying Appellants attorneys fees.

Therefore, Amici respectfully request that this Court enter an Order reversing

the trial courts Order, and holding that the City of Miamis failure to release

documents for 24 days after a records request constitutes an unjustified delay that

amounts to an unlawful refusal to comply with Chapter 119, Florida Statutes, and

that Appellant is entitled to his attorneys fees both in the trial court and this Court.

III. ARGUMENT

A.

This Court reviewsde novothe trial courts conclusion that the

delay was not unjustified.

The standard of appellate review, as to whether an agency willfully violated

the Public Records Act by unjustifiably delaying production of records until after a

4


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lawsuit is filed, is de novo. SeeThe Promenade DIberville, LLC v. Sundy, Case No.

1D13-5583, __ So. 3d __, 2014 WL 4242961 (Fla. 1st DCA Aug. 28, 2014).

B. The City of Miamis Delay Was Unreasonable.

1. Unjustified delay in producing records until after a lawsuit is

filed is an unlawful delay mandating an award of attorneys

fees under 119.12.

Section 119.12, Florida Statutes, is designed to encourage voluntary

compliance with the requirements of Chapter 119. New York Times Co. v. PHH

Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993) (If public agencies are

required to pay attorneys fees and costs to parties who are wrongfully denied access

to the records of such agencies, then the agencies are less likely to deny proper

requests for documents.);Barfield v. Town of Eatonville, 675 So. 2d 223, 224 (Fla.

5th DCA 1996). Awards of attorneys fees pursuant to 119.12, Florida Statutes,

discourage agencies from unlawfully refusing to comply with the liberal access to

public records afforded to the citizenry of Florida by the Public Records Act and the

Florida Constitution.Barfield, 675 So. 2d at 224. Thus, the attorneys fees provision

is an enforcement mechanism which effectuates the public policy of the Public

Records Act to open public records to allow Floridas citizens to discover and

participate in actions of their government. Doe v. State, 901 So. 2d 881 (Fla. 4th

DCA 2005). Furthermore, statutes enacted for the public benefit should be

interpreted most favorably to the public. Grapski v. City of Alachua, 31 So. 3d 193

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(Fla. 1st DCA 2010).

Florida courts have construed Chapter 119 as reinforcing the rights set forth

in Article V, section 4(b)(3) of the Florida Constitution, and thus hold that Chapter

119 is to be construed liberally in favor of relief, including the attorneys fees

provision in 119.12. See New York Times Co. v. PHH Mental Health Servs., Inc.,

616 So. 2d 27, 29 (Fla. 1993) (holding the attorneys fees provision is designed to

encourage public agencies to comply with public records law and allow persons

seeking to enforce public records law to pursue their rights);Hewlings v. Orange

County, 87 So. 3d 839, 840 (Fla. 5th DCA 2012) (This section is liberally construed

so as to best enforce access to public records.); Downs v. Austin, 559 So. 2d 246,

247 (Fla. 1st DCA 1990) (Section 119.12, a part of the Act and intended as a tool

for its enforcement, see Florida Patient's Compensation Fund v. Rowe, 472 So.2d

1145, 1148 n. 4 (Fla.1985), should therefore be liberally construed so as to best

enforce the promotion of access to public records.). Without an award of attorneys

fees, citizens seeking enforcement of the their rights to public records simply cannot

afford the high costs of litigation, which in turn discourages enforcement of and

compliance with the public records law.

An unjustified delay in complying with a request for public records amounts

to an unlawful refusal to comply under section 119.12, Florida Statutes. Lilker v.

Suwannee Valley Transit Auth., 133 So. 3d 654, 655 (Fla. 1st DCA 2014);Barfield,

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justified. SeeLilker, 133 So. 3d at 655 (the court must determine whether the delay

was justifiedunder the facts of the particular case) (emphasis added); Times Pubg

Co., Inc. v. City of St. Petersburg, 558 So. 2d 487, 493 (Fla. 2d DCA 1990). As

explained in Times Publishing:

In a mandamus action, once it has been determined that the complaintestablishes a prima facie case that the defendants have breached a legal

duty, the court issues an alternative writ. Fla.R.Civ.P. 1.630. Thealternative writ requires the defendants either to perform the neglected

act or to show cause why final judgment in the form of a peremptorywrit should not be rendered. Conner v. Mid-Florida Growers, Inc., 541

So.2d 1252 (Fla. 2d DCA 1989); Fla.R.Civ.P. 1.630(d)(3). Once thealternative writ here was entered, the White Sox could either move to

quash the writ or file a return. The White Sox filed a return, which

placed upon it the burden to establish material facts sufficient to defeat

the Times' claim. See State v. Haskell, 72 Fla. 176, 72 Fla. 244, 72 So.651 (1916).

558 So. 2d at 493. It is always the agencys burden to justify the non-production of

public records. See The Promenade DIberville, LLC v. Sundy, Case No. 1D13-5583,

__ So. 3d __, 2014 WL 4242961 (Fla. 1st DCA Aug. 28, 2014) (holding agency

failed to justify its non-production of documents prior to the filing of the lawsuit).

Because there is no dispute that the requested documents are public records,

it was the Citys burden to prove that its delay in producing those public records was

justified. Evidence that the City mayhave needed time to review documents prior

to production, as opposed to evidence that its actual review took up the entire delay

period, is not legally sufficient to prove that its delay was justified. The trial courts

order essentially finds that a 24 day delay is never unjustified if there are many

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documents that mayneed reviewing. Since each case is to be decided on its specific

facts, that conclusion is error. SeeJohnson v. Jarvis, 74 So. 3d 168, 170-71 (Fla. 1st

DCA 2011). The trial court arrived at that error by applying the wrong standard and

reversing the burden of proof. 558 So. 2d at 493.

The trial courts error is exemplified by the fact that Florida courts have held

that production after a lawsuit is filed is not a justifiable delay. The Promenade

DIberville, LLC v. Sundy, Case No. 1D13-5583, __ So. 3d __, 2014 WL 4242961

(Fla. 1st DCA Aug. 28, 2014) (holding that the case law is clear that unjustifiable

delay to the point of forcing a requester to file an enforcement action is by itself

tantamount to an unlawful refusal to provide public records in violation of the Act.).

See alsoBrunson, 525 So. 2d at 934 (When considered in the light of the intent of

chapter 119, which has as its purpose the prevention of government agencies from

restricting access to public records, the Board's unjustified delay in complying with

the requests until after a suit was brought amounted to an unlawful refusal under

section 119.12, for which attorney's fees and costs are to be awarded.);Althouse v.

Palm Beach County Sheriffs Office, 92 So. 3d 899, 902 (Fla. 4th DCA 2012) ([T]he

Sheriffs delay in complying with Althouses request until after the filing of his suit

amounted to an unlawful refusal under section 119.12, for which fees and costs are

to be awarded.); Barfield, 675 So. 2d 223 at 224; Office of the State Attorney v.

Gonzalez, 953 So.2d 759, 764 (Fla. 2d DCA 2007) (holding that attorneys fees are

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awardable when an agency unjustifiably fails to respond to a public record request

by delaying until after the enforcement action has been commenced); Weeks v.

Golden, 764 So. 2d 633, 635 (Fla. 1st DCA 2000) (An unjustified failure to respond

to a public records request until after an action has been commenced to compel

compliance amounts to an unlawful refusal for purposes of section 119.12(1).);

Wisner v. City of Tampa Police Dept., 601 So. 2d 296 (Fla. 2d DCA 1992) (holding

that requestor is entitled to reasonable costs under section 119.12(1), even though

the City subsequently provided Wisner a copy of the polygraph chart, as Wisner

found it necessary to file a civil action against the City to enforce the provisions of

this chapter and the City unlawfully refused to permit the public records to be

copied.). As stated inBarfield:

Application of section 119.12(1) and the relevant case law leads to but

one conclusion here, that the appellant was entitled to recovery of

attorney's fees and costs. The evidence clearly establishes that it wasonly after the appellant filed a lawsuit that the documents he had

previously sought by written request to the Town were finally turnedover to him. Indeed, many of the documents were only turned over afterthe appellant sought entry of a temporary injunction and a show cause

order was directed to the Town.

The Town's defense, that the delay in production of the records wascaused by either the intentional wrongdoing or ineptitude of its Town

clerk, amounts to an unlawful refusal and is not a valid basis fordenying recovery of attorney's fees and costs under section 119.12(1),

Florida Statutes. The Town's failure to turn over the documents was not

lawful and the appellant is entitled to recovery of his attorney's fees and

costs.

675 So. 2d at 224-25. Thus, the City had the burden to establish material facts

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sufficient to defeat [Appellants] claim that its delay was unlawful. 558 So. 2d at

493. The trial court erred in placing the burden on Appellant.

This case is similar to Hewlings v. Orange County, 87 So. 3d 839 (Fla. 5th

DCA 2012). InHewlings, the requestor faxed a public records request for copies of

all records relating to a dangerous dog investigation of her dog. Later that day, the

requestor received a voice mail from the county acknowledging the request. 87 So.

3d at 840. The next day, the requestor faxed another request. Id. One week later,

after receiving no response, her attorney contacted the countys attorney, who said

that a response would go out that day. Three days after that, the requestors attorney

received a faxed letter from the countys attorney stating that the county intended to

comply with the request, and someone would contact the requestor to arrange a time

within the next 14 days for her to examine the documents and designate which she

wanted copied. The requestor responded by letter, explaining that she was

requesting copies of all responsive documents. After receiving no further

communication from the county, the requestor filed suit. Id. The trial court ordered

production within 48 hours. The requestor then moved for attorneys fees, which

the trial court denied. The county maintained fees should be denied because it

responded to the request by voicemail and fax. The trial court agreed and denied

attorneys fees. Id. The Fifth District Court of Appeal reversed.

The Fifth District Court of Appeal held that the pertinent inquiry is not

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whether the county responded to the request, rather whether it compliedwith the

request. Hewlings, 87 So. 3d at 841 [T]he mere fact that the County quickly

responded to Hewlings' request was not dispositive of whether the County

unjustifiably delayed in complying with her request.).

The trial courts order was also erroneous to the extent it imposes a

reasonableness standard. As noted by the Fourth District Court of Appeal, prior to

1984, Chapter 119 only provided for an award of attorneys fee when an agencys

refusal was unreasonable. But the statute was amended by the Legislature in order

to broaden and simplify access to public records. News and Sun-Sentinel co. v.

Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987), approved in part and

disapproved in part byPHH Mental Health Services, Inc., 616 So. 2d at 29, 30.

Thus, whether an agencys actions seem reasonable in retrospect is not the issue to

be decided. The issue is whether the agency has proven that is delay was justified

under the circumstances. That is not what the trial court decided, and therefore this

Court should reverse the denial of attorneys fees.

3.

Public Policy Favors Reversal of the Trial Courts Denial of

Attorneys Fees

The trial courts holding substantially diminishes the effectiveness of the

Public Records Act and, if adopted by this Court, would have a detrimental effect

on public access for all citizens. Only those with significant private assets could ever

afford to bring a lawsuit to enforce their constitutional and statutory rights to public

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records, leaving civil enforcement only to a privileged enforcement class. See

Katrina G. Hull,Disappearing Fee Awards and Civil Enforcement of Public Records

Laws, 52 U. Kan. L. Rev. 721, 723 (2004).

Litigation is expensive. Even media corporations cannot afford to sue over

every access issue because costs are high. An individual simply does not have the

financial ability to vindicate his rights in court unless the attorneys fees provision

is enforced to award fees where an agency withhold records until after a lawsuit is

filed.

Awarding attorneys fees against an agency which delays producing records

until after a lawsuit, like the City of Miami did here, will encourage prompt and

voluntary future compliance with the Public Records Act. This is not a case where

the Plaintiff tried a gotcha against the City; rather, he waited a month and had his

attorney communicate with the City in an effort to avoid a lawsuit. The Citys own

emails demonstrate that compliance within two or three days was not only possible

but actually accomplished by the City. On the other hand, affirming the court below

will encourage agencies to withhold records until suit is filed and then fight an award

of attorneys fees. Such a result would be counter to public policy, as expressed by

the Florida Constitution and Chapter 119. Accordingly, this Court should hold that

the failure to respond to Appellants public records request until after a lawsuit was

filed is an unjustified delay.

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Chapter 119, Florida Statutes, and Appellant is entitled to award of attorneys fees

pursuant to 119.12, Florida Statutes.

Respectfully submitted,

HOLLAND & KNIGHT LLP

s/ George D. Gabel, Jr.

George D. Gabel, Jr.Florida Bar No. 027220

Timothy J. ConnerFlorida Bar No. 767580

Jennifer A. MansfieldFlorida Bar No. 0186724

50 North Laura Street, Suite 3900

Jacksonville, Florida 32202Telephone: (904) 353-2000

Facsimile: (904) 358-1872

Attorneys for Amici Curiae

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Annotated Summary of Public Records History-1

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