Yesterday we posted how Clerk of the Courts Scott Ellis had appeared before the City Council at last week’s meeting and also had sent an email summarizing his requests to the City for both emails and the justification for the use of public funds.
The City’s CRA attorney, Clifford Shepard responded to Ellis in an email on January 20, 2014:
This email responds in part to your public records request of 1/19/14, which is hereby acknowledged.
In part, you request justification for an agency expenditure. Please be advised that Florida Statute 119 does not require an agency to answer questions. As the Florida Sunshine Law Manual points out on page 148, the law only requires an agency to facilitate the inspection and copying of public records. Quoting from the text:
11. Is an agency required to answer questions about its public records or create a new record in response to a request for information?
The statutory obligation of the custodian of public records is to provide access to, or copies of, public records “at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records” provided that the required fees are paid. section 119.07(1) (a) and (4), F.s. however, a custodian is not required to give out information from the records of his or her office. ago 80-57. The Public records act does not require a town to produce an employee, such as the financial officer, to answer questions regarding the financial records of the town. ago 92-38. Cf. In re Report of the Supreme Court Workgroup on Public Records, 825 so. 2d 889, 898 (Fla. 2002) (the custodian of judicial records “is required to provide access to or copies of records but is not required either to provide information from records or to create new records in response to a request”).
While I have commended this manual to you previously, it is apparent you still have not studied it. Given your position as an elected official required to comply with the law daily, I again suggest that you either learn the law yourself or retain competent counsel to advise you on it’s many requirements.
You will apparently also be surprised to learn that neither you nor anyone else is required to provide any justification as to why public records are being requested. Quoting again from The Sunshine Law Manual at page 144:
3. Must an individual show a “legitimate interest” or “noncommercial interest” in public records before being allowed to inspect or copy same?
no. The requestor is not required to explain the purpose or reason for a public records request. “The motivation of the person seeking the records does not impact the person’s right to see them under the Public records act.” Curry v. State, 811 so. 2d 736, 742 (Fla. 4th DCa 2002). See also Timoney v. City of Miami Civilian Investigative Panel, 917 so. 2d 885, 886n.3 (Fla. 3d DCa 2005) (“generally, a person’s motive in seeking access to public records is irrelevant”); Staton v. McMillan, 597 so. 2d 940, 941 (Fla. 1st DCa 1992), review dismissed sub nom., Staton v. Austin, 605 so. 2d 1266 (Fla. 1992) (petitioner’s reasons for seeking access to public records “are immaterial”); Lorei v. Smith, 464 so. 2d 1330, 1332 (Fla. 2d DCa 1985), review denied, 475 so. 2d 695 (Fla. 1985) (legislative objective underlying the creation of Ch. 119 was to insure to the people of Florida the right freely to gain access to governmental records; the purpose of such inquiry is immaterial); and News-Press Publishing Company, Inc. v. Gadd, 388 so. 2d 276, 278 (Fla. 2d DCa 1980) (“the newspaper’s motives [for seeking the documents], as well as the hospital’s financial harm and public harm defenses, are irrelevant in an action to compel compliance with the Public records act”).
This provision of the law means that not only are you not required to provide a reason for seeking public documents, your request for such information from the Satellite Beach City Council last week was a violation of the law. I trust that now that you are aware of this restriction you will not repeat the error.
Last but not least you apparently believe that government agencies can agree with one another via “quid pro quo” not to comply with the law when it comes to issues such as attorney work product. This offensive idea is unprecedented in my experience and is further indication that you have a deeply flawed view of Government in the Sunshine and your important role as a would be guardian of that process. I truly hope you will seek the guidance you so clearly need so that you do not continue to embarrass yourself and your office in this way.
Be assured that neither Satellite Beach nor it’s CRA will ever participate in any agreement to avoid the requirements of the Sunshine Law.
Clifford B. Shepard
Board Certified – City, County & Local Government Law
Shepard, Smith & Cassady, P.A.
2300 Maitland Center Parkway
Maitland, FL. 32751
As we read the response, we were perplexed.
First, Shepard says an agency does not have to respond to requests for information about its records. In this case, however, it Ellis is not requesting information about the records the City’s owns or is the custodian of, which is what the text covers. The records in questions are records in the custodial care of the Clerk of the Courts.
Shepard has the roles reversed and in doing so, appears to cite an authority that has no relevance on the issue.
Shepard then cites a passage that basically says the custodian of the records cannot demand the reason for the records request. While we agree with Shepard’s position, that is not what happened here. Ellis is not asking the reasons for the request for the records, but rather is asking if the expenditure for the cost request serves a public interest. Ellis is making this request for the justification not as the Clerk of the Court but as an individual. Is there a difference between the asking the reason for the records and whether the expenditure for the requests serve a public interest?
We believe there is.
Imagine that the records are a hammer. We don’t care what specifically the City wants the hammer for, but as a practical matter and one of accountability on spending, the City should say “we needed the hammer for this certain department.”
To us, it seems to be a distinct and bright line between the reasons for the records request and the rights of citizens to know the money the government is spending serves the public. Even if one were to conclude the request for the records and the expenditure for the requests are the same thing, we believe the public’s right to know and have a transparent government outweighs the City’s position for keeping certain things to themselves.
Ellis responded to Shepard in an email also dated January 20, 2014:
My question for the expenditure of funds has nothing to do with FS 119, Mr. Shepard. But thank you for the lecture.
Public funds must be expended for a public purpose. I have asked the public purpose for the City of Satellite Beach requesting a year’s worth of job applications from the Clerk’s Office.
Your comments on the quid pro quo are laughable, to say the least. Attorney work product is not subject to FS 119. Your claim is there is no attorney work product as there is no litigation. That’s fine, we agreed to your definition (as we did on the private e-mails prior to taking office). We could just as easily have challenged the production of those e-mails in court. There is no agreement to avoid the sunshine law, there is a conflict with what may or may not be subject to the sunshine law with attorney work product (as I am sure you know). We agreed to your interpretation.
Since we have all agreed there is no shielded attorney work product on the Satellite Beach CRA issue then I fully expect any correspondence between yourself and the staff and council members will be open if I ask for it.
I’d say based on your references to ‘shade meetings’ you know exactly what I mean.
It is odd given your condescending attitude that both yourself and your City Manager have given explicit instructions to all to avoid e-mail communication.
Quite the up and up.
We honestly feel Shepard’s response was off target and contained holes big enough to drive a truck through.
Ellis fired up his diesel engine and took the ride.