Thursday, October 18, 2018
News Roundup

Lawsuits from public records group are a nuisance, Florida cities say

It starts with a demand that a low-level city employee produce a public record on the spot. Or with an email to a private company demanding invoices relating to a public agency.

Often, it ends with a lawsuit.

For more than a year, government officials all over Florida and the vendors they do business with have complained about a nonprofit group called the Citizens Awareness Foundation.

They say the group sues after requesting records in ways designed to force low-level office workers into technical violations of the state's public records law. Other times, the records requests arrive in emails that appear to be junk mail or phishing scams and, thus, aren't fulfilled.

Cities often settle these lawsuits because it's cheaper than fighting in court.

"It was truly being done, in my mind, for the purpose of extorting money from the cities," said Dunedin City Attorney Tom Trask, adding that industry colleagues call the foundation's tactics a "scam."

In Dunedin and Madeira Beach, foundation workers entered the marina dockmaster's office with cameras rolling, demanding that receptionists produce a slip rental agreement on the spot rather than contact the city clerk, the official records custodian, or allow the worker to seek guidance from a supervisor.

Madeira Beach is fighting its suit in court, while Dunedin settled for $2,500, instead of spending as much as $10,000 litigating.

The situation has gotten the attention of the state Legislature. Sen. Wilton Simpson, R-Trilby, sponsored a bill this past session that would have required the requester to contact a government agency's records custodian (who would reach out to the business vendor if needed) and give five days notice before suing.

Such a law might have made a difference for Michael Foley, who owns RoyalAire Mechanical Services in Oldsmar. He said he deleted an email he received just before 1 p.m. on a Saturday from "An Onoma" requesting invoices referenced in the company's heating, ventilating and air conditioning contract with the University of South Florida. He figured it was spam.

Foley immediately produced the documents when the lawsuit was served, but said the foundation's lawyers rejected the papers as well as an initial settlement offer to cover court costs. Foley eventually spent more than $3,000 fighting the suit before paying a cash settlement.

That was one of four such lawsuits the foundation filed in Pinellas County last year. It also filed five in Hillsborough, two in Pasco and one in Hernando.

The town of Gulf Stream in Palm Beach County tried to fight back. It filed a federal class-action racketeering suit accusing the foundation and its associates of attempting to intimidate and force settlement payments by overwhelming the one-square-mile town's 17 employees with nearly 2,000 "frivolous" public records requests in two years.

Gulf Stream said it has spent more than $1 million fielding records requests and on legal bills. However, a federal judge dismissed the racketeering suit on June 30.

Records show the Citizens Awareness Foundation was created in January 2014. Joel Chandler, a Lakeland activist, was hired as executive director. He's well known for his on-camera Florida Open Government Watch blog, which investigated officials' knowledge about fulfilling public records requests.

The entities that formed the group agree the whole thing went wrong. But when it comes to who's at fault, they point the finger at each other.

Chandler said Citizens Awareness Foundation financier and South Florida shopping center magnate Martin O'Boyle paid him a $120,000 salary to run the foundation.

Chandler said he believed the group's purpose was to foster education about open government, but that he quit in frustration after just five months.

He said the foundation shared office space with Martin O'Boyle's real estate company and a law firm run by O'Boyle's son, Jonathan. Chandler, who said he had stipulated that no suits were to be filed without his authorization, noticed his wishes were being ignored.

"It began to feel like my job was to go out and get lawsuits, not to go out and do civil rights activism,'' Chandler said.

But O'Boyle said it was Chandler who directed the law firm to seek big payouts and threatened to run up the legal tab for those who didn't settle.

O'Boyle said Citizens Awareness is now essentially defunct and is losing thousands of dollars a month resolving the roughly 30 to 40 outstanding lawsuits.

Despite the acrimony, Chandler defends his on-camera investigations, saying all public employees should be trained in open government laws. Facts and video in the Madeira and Dunedin cases are "crystal clear."

"A citizen walks in during normal business hours and asks for a record you have readily available and you tell them 'no.' What do you not like about that other than that they got caught?" Chandler said. "I'm not trying to trick people. I want them to do the right thing."

"The Public Records Act is really clear about this: Every person who has custody of a record shall make it available to anyone. ... The custodian is who has physical custody of them."

But First Amendment Foundation president Barbara Petersen said the law mandates only that agencies must reply promptly and in good faith. Requesters don't necessarily get documents immediately.

Julia Mandell, city attorney for Tampa, which was also hit with a Citizens Awareness lawsuit, said on-the-spot demands can lead to lawsuits "over an extraordinarily unintentional act."

For example, she said, an employee might delay because he or she is in the middle of another task.

"Violating a process doesn't mean violating the spirit of the law," Mandell said. "Unfortunately, some of these lawsuits have been form over substance."

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