MARTIN E. O'BOYLE and ASSET ENHANCEMENT, INC. v. TOWN OF GULF STREAM , 257 So. 3d 1036 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MARTIN E. O’BOYLE and ASSET ENHANCEMENT, INC.,
Appellants,
v.
TOWN OF GULF STREAM, SCOTT MORGAN, JOHN C. RANDOLPH,
ROBERT A. SWEETAPPLE, and JOANNE O’CONNOR,
Appellees.
No. 4D17-2725
[October 24, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David E. French, Judge; L.T. Case No. 50-2015-CA-
001737-XXXX-MB.
Robert Rivas of Sachs Sax Caplan, P.L., Boca Raton, (withdrawn as
counsel after filing brief), and Jonathan R. O’Boyle of The O’Boyle Law
Firm, P.C., Deerfield Beach, for appellants.
Hudson C. Gill and Jeffrey L. Hochman of Johnson, Anselmo, Murdoch,
Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Town of Gulf
Stream, Scott Morgan, John C. Randolph, and Joanne O’Connor.
Therese A. Savona and Kathryn L. Ender of Cole, Scott & Kissane, P.A.,
Miami, for appellee Robert A. Sweetapple.
KLINGENSMITH, J.
Appellants Martin E. O’Boyle and Asset Enhancement, Inc., (“Asset”)
appeal the trial court’s dismissal of their Complaint to Enforce Florida’s
Sunshine and Public Records Laws and for Declaratory and Injunctive
Relief against the Town of Gulf Stream (“the Town”) and other affiliated
individuals (collectively, “appellees”). 1 We find the trial court properly
dismissed the Sunshine Law claims, as well as the claims arising from
alleged public meeting violations under Chapter 286, Florida Statutes, and
affirm on those issues without further comment. However, we reverse the
1Appellants filed their complaint against several other defendants, including the
Town’s mayor, and two of the Town’s attorneys.
dismissal of appellants’ claims under the Public Records Act, and remand
for further proceedings.
In their complaint, Asset and O’Boyle alleged separate Public Records
Act violations regarding two public records requests: (1) for copies of bills
and payments sent to the Town for services rendered by the Town’s
attorney; and (2) for copies of text messages sent or received by the Town’s
Mayor since the time of his appointment. Asset alleged that the Town
produced illegitimately redacted copies of the bills and payments. In
another claim, O’Boyle asserted that the Town produced “a cherry picked”
selection of texts which painted O’Boyle “in a negative light.” After another
records request that produced additional, previously unseen texts, O’Boyle
insisted that the initial release was incomplete and that the Town and
Mayor deliberately concealed records from the public.
Appellants alleged that the Town violated Article I, section 24 of the
Florida Constitution and Chapter 119, Florida Statutes (“the Public
Records Act” or “the Act”). They requested the trial court order the Town
and others to allow the inspection, copying, and photographing of the
requested records after a hearing held pursuant to section 119.11, Florida
Statutes (2017). They then filed a Motion for Mandatory In-Camera
Inspection of Record asking that the court review the redacted legal bills
to determine if they fell within the “work product” exception of the Public
Records Act, as the Town claimed. A week later, the Town turned over the
bills and payment records at issue without any redactions.
Appellees each filed a motion to dismiss, and the trial court held a
hearing on the parties’ motions. The court dismissed the complaint and
granted ten days for amendment. Instead of amending, appellants
requested that a final judgment be entered, and the trial court obliged.
“A motion to dismiss tests whether the plaintiff has stated a cause of
action.” Bell v. Indian River Mem’l Hosp., 778 So. 2d 1030, 1032 (Fla. 4th
DCA 2001). An appeal of a trial court’s ruling on a motion to dismiss is
an issue of law subject to de novo review. See id. The trial court’s decision
regarding a motion to dismiss is limited to a consideration of the
allegations within the four corners of the complaint, and such allegations
must be viewed in the light most favorable to the non-moving party. See
id. Likewise, “[t]he determination of whether something is a public record
is a question of law subject to de novo review and is determined on a case-
by-case basis.” Bent v. State, 46 So. 3d 1047, 1049 (Fla. 4th DCA 2010);
accord State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003); Media
Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir., 840 So.
2d 1008, 1013 (Fla. 2003).
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The right of access to public records is a “cornerstone of our political
culture,” Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So.
3d 120, 124 (Fla. 2016) (further citation omitted); therefore, the Public
Records Act “must be liberally construed in favor of access, and all
exemptions must be limited to their stated purpose.” Palm Beach Cty.
Sheriff’s Office v. Sun-Sentinel Co., LLC, 226 So. 3d 969, 972 (Fla. 4th DCA
2017).
“Article I, Section 24(a) of the Florida Constitution grants ‘[e]very person
. . . 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, or persons acting on their behalf.’” Id. (alterations
in original). The Act “implements this important constitutional tenet, and
declares: ‘It is the policy of this state that all state, county, and municipal
records are open for personal inspection and copying by any person.
Providing access to public records is a duty of each agency.’” Id. (quoting
§ 119.01(1), Fla. Stat. (2017)); accord Rasier-DC, LLC v. B & L Serv., Inc.,
237 So. 3d 374, 376 (Fla. 4th DCA 2018). “Public custodians must allow
a requested record to be inspected and copied by ‘any person desiring to
do so, at any reasonable time, [and] under reasonable conditions.’” Id.(alterations in original) (quoting § 119.07(1)(a), Fla. Stat. (2016)).
To set forth a cause of action under the Act, a party must “prove they
made a specific request for public records, the City received it, the
requested public records exist, and the City improperly refused to produce
them in a timely manner.” Grapski v. City of Alachua, 31 So. 3d 193, 196
(Fla. 1st DCA 2010). “Public records” include “all documents, papers,
letters, maps, books, tapes, photographs, films, sound recordings, data
processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to
law or ordinance or in connection with the transaction of official business
by any agency.” § 119.011(12), Fla. Stat. (2017); accord Braddy v. State,
219 So. 3d 803, 820 (Fla. 2017).
In line with these authorities, we consider the requests for the text
messages and the attorney bills and payments separately.
Text Messages as Public Records
This is an action against a municipality to obtain records that, while
potentially related to the Town’s public business, are in the exclusive
control of one of their elected officials. An elected official’s use of a private
cell phone to conduct public business via text messaging can create an
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electronic written public record subject to disclosure. However, for that
information to indeed be a public record, an official or employee must have
prepared, owned, used, or retained it within the scope of his or her
employment or agency. An official or employee’s communication falls
“within the scope of employment or agency” only when their job requires
it, the employer or principal directs it, or it furthers the employer or
principal’s interests.
Therefore, not all written communications sent or received by public
officials or employees of a government agency are public records subject
to disclosure upon request under the Act. See City of Clearwater, 863 So.
2d at 150. The reach of the Act is to those records related to the employee
or official’s public responsibilities. For instance, “employees do not
generally act within the scope of employment when they text their spouse
about working late or discuss their job on social media. Nor do they
typically act within the scope of employment by creating or keeping records
purely for private use, like a diary.” See Nissen v. Pierce Cty., 357 P.3d 45,
54 (Wash. 2015). None of these examples would result in a public record
in the usual case.
Illustratively, in City of Clearwater, a Times Publishing Company
(“Times”) reporter requested copies of all e-mails sent or received over the
City’s network by two City employees throughout the course of a year. 863
So. 2d at 150. The employees sorted their e-mails into private and public
categories, and the City released the “public” emails to the reporter. Id.However, Times filed an action asserting it was entitled to all emails on the
City’s computers. Id. at 150-51. The trial court ordered all e-mails to be
obtained, preserved, and secured from destruction. Id. After a final
hearing, the trial court denied Times’ requests for a writ of mandamus and
permanent injunctive relief. Id. On appeal, the Second District affirmed
the lower court’s order, but did so without prejudice to Times seeking an
in-camera review of all e-mails, while also ruling that “private” e-mails
were outside the Act’s scope. Id.On review, the Florida Supreme Court agreed with the Second District
that “[b]ased on the plain language of section 119.011(1), . . . ‘private’ or
‘personal’ e-mails ‘simply fall[] outside the current definition of public
records.’” Id. at 153 (alteration in original) (quoting Times Publ’g Co. v. City
of Clearwater, 830 So. 2d 844, 847 (Fla. 2d DCA 2002)). The Court
concluded that not “all e-mails transmitted or received by public
employees of a government agency are public records pursuant to [the Act]
by virtue of their placement on a government-owned computer system.”
Id. at 150 (alteration in original); accord Butler v. City of Hallandale Beach,
68 So. 3d 278, 280-81 (Fla. 4th DCA 2011).
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To comply with the dictates of the Act, the governmental entity must
proceed as it relates to text messaging no differently than it would when
responding to a request for written documents and other public records in
the entity’s possession—such as e-mails—by reviewing each record,
determining if some or all are exempted from production, and disclosing
the unprotected records to the requester. Where specified
communications to or from individual state employees or officials are
requested from a governmental entity—regardless of whether the records
are located on private or state accounts or devices—the entity’s obligation
is to conduct a reasonable search that includes asking those individual
employees or officials to provide any public records stored in their private
accounts that are responsive to a proper request. The ability of public
officials and employees to use cell phones to conduct public business by
creating and exchanging public records—text messages, e-mails, or
anything else—is why a process must be available to offer the public a way
to obtain those records and resolve disputes about the extent of
compliance. Without such a process, the Act cannot fulfill the people’s
mandate to have full access to information concerning the conduct of
government on every level.
When judicial intervention is requested to test the adequacy of the
entity’s response, the court can make the requisite determination of
relevance and privilege as to any contested record. And like pre-trial
discovery conducted in the context of litigation, the text messages or other
records that may ultimately be produced will be narrowly confined to those
found to be “relevant” and “non-privileged.”
Strong public policy reasons also support the conclusion that electronic
information stored on privately-owned devices may be subject to
disclosure under the Public Records Act. The purpose of both Article I,
section 24 and Chapter 119 is to ensure that citizens may review (and
criticize) government actions. That purpose would be defeated if a public
official could shield the disclosure of public records by conducting
business on a private device.
We acknowledge that the public’s statutory right to public records does
not extinguish an individual’s constitutional and statutory rights in private
information. But we do not read Article I, section 24 or the Public Records
Act as a zero-sum choice between personal liberty and government
accountability. Accordingly, the Town’s reasons for its lack of disclosure,
whether for reasons related to relevancy, the application of possible
privileges, or otherwise, necessitates a judicial review of the available
communications to identify those which are subject to disclosure and any
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defenses to allegations of noncompliance. Such review would ensure that
a meaningful determination of relevancy and privilege can be made,
disputes can be expeditiously resolved, and all legitimate privacy concerns
safeguarded.
Clearly, some of the text messages reviewed by the trial court during
this process could include personal or private information, and some could
be the subject of legitimate claims of privilege. Deciding which ones may
remain private was the very purpose of the protocol ratified by the
Supreme Court’s City of Clearwater decision—review these
communications in-camera and afford an opportunity to raise objections
to protect against disclosure of irrelevant, privileged, or otherwise non-
discoverable materials. To avoid that process altogether, assuming the
scope of the request was reasonable, it would have been incumbent on
appellees to show some controlling authority that the Public Records Act
did not apply, or otherwise prohibited, the submission of the text messages
to the court for an in-camera review. No such showing was made here.
Regardless of whether any of the texts are ultimately deemed subject to
disclosure, each element of O’Boyle’s public records claim as stated in the
complaint regarding the text messages was sufficiently pled. See Grapski,
31 So. 3d at 196; Brandon, 141 So. 2d at 279. First, O’Boyle stated in the
complaint that a specific request was made for all texts over a certain
period of time. See Grapski, 31 So. 3d at 196. Second, the Town received
the request because it responded with a release of certain texts deemed to
be public records. See id. Third, the requested public records texts
existed, as was evident by their release and inclusion as an exhibit with
the complaint. See id. Fourth, O’Boyle complained that a later response
by the Town revealed several additional texts that were not released upon
the first request, leading to the belief that there may be more available. See
id.Whether O’Boyle’s individual claim proceeds further may depend on the
outcome of that in-camera review. But for now, we reverse the dismissal
on this count of appellants’ complaint and remand for the trial court to
conduct an in-camera inspection of the disputed text messages sent to and
from the Town’s Mayor to determine whether any qualify as public records.
Production of Redacted Attorney Bills
Following Asset’s public records request for attorney billing records, the
Town responded by citing work product privilege and only provided
redacted copies of the requested records. After appellants filed a motion
for in-camera review, but before the dismissal hearing began, the Town
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acquiesced and provided Asset with a complete set of unredacted billing
records. As a result, the Town asserts this issue on appeal is now moot
and should be dismissed. We disagree.
“An issue is moot when the controversy has been so fully resolved that
a judicial determination can have no actual effect.” Godwin v. State, 593
So. 2d 211, 212 (Fla. 1992). “A moot case generally will be dismissed.” Id.But there are at least three instances where an otherwise moot case will
not be dismissed: (1) when questions of great public importance are raised,
(2) when issues are likely to recur, or (3) “if collateral legal consequences
that affect the rights of a party flow from the issue to be determined.” Id.(emphasis added); accord Paul Jacquin & Sons, Inc. v. City of Port St. Lucie,
69 So. 3d 306, 308 (Fla. 4th DCA 2011).
We find the case of Cookston v. Office of Pub. Def., 204 So. 3d 480 (Fla.
5th DCA 2016), to be analogous. There, Cookston filed a petition for writ
of mandamus seeking the trial court to compel the production of
correspondence from the Public Defender’s Office (“PDO”) and an assistant
public defender pursuant to the Act. Id. at 481. He also petitioned for
costs. Id. The trial court found the petition for writ of mandamus moot
because the PDO provided the requested documents to Cookston in full
shortly after it was filed. Id. On appeal, the Fifth District held, “Cookston’s
petition was not moot because the court did not determine whether he was
entitled to reasonable costs of enforcement pursuant to section 119.12.”
Id. The matter was reversed and remanded for the trial court to determine
whether the PDO’s delay in providing the records entitled Cookston to an
award of costs. Id.; accord Mazer v. Orange Cty., 811 So. 2d 857, 858-60
(Fla. 5th DCA 2002).
Similar to Cookston and Mazer, Asset requested records and, after filing
a claim with the trial court, the records were provided in their requested
form. See Cookston, 204 So. 3d at 481; Mazer, 811 So. 2d at 858-60.
While it was argued in Cookston and Mazer that the issues were rendered
moot, the appellate court held that collateral legal consequences affecting
the rights of a party still existed—namely, the issuance of fees and costs
based on improperly refused, completed, or delayed records requests. See
Cookston, 204 So. 3d at 481; Mazer, 811 So. 2d at 860; Godwin, 593 So.
2d at 212.
Like those cases, we find this claim was not moot due to the presence
of collateral issues yet to be decided by the trial court—specifically, a
determination whether the Town’s initial redactions of the bills were
proper, and whether any reasonable attorney’s fees, costs, and expenses,
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should be awarded. We therefore reverse and remand for a determination
of those issues.
Affirm in part; reverse in part; and remand for further proceedings
consistent with this opinion.
TAYLOR and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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