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Palm Bay: City Attorney Andrew Lannon, Porches, And Big Dogs.

Palm Bay City Attorney Andrew Lannon

This is part three of a three part (maybe four part) series on our interaction with Palm Bay City officials on the issue of a public records request for some emails. Part one and part two can be found here and here.

We apologize for the length of the post. It is borderline “TL;DR” but we wanted people to see the entirety of the conversations and emails. Here at Raised on Hoecakes we have definite opinions. It’s a blog for heaven’s sake. But we like to put out facts and information so that you the reader can come to your own conclusion. That conclusion may be different than ours, but at least we will be exchanging ideas and opinions based on the same set of facts.

After the disaster that was the November 16, 2017 City Council meeting where we Councilman Holton made some bizarre statements about us and the Assistant City Attorney could not or refused to answer a basic question on the disclosure of public records we decided that we would take our quest for answers to the Palm Bay City Attorney, Andrew P. Lannon. We decided that with the holidays coming up, we would postpone any serious discussions with Mr. Lannon until after the New Year.

We went into this knowing two things. First, Lannon admitted that he had withheld emails due to “attorney client privilege.” This is the same thing that Council Holton admitted. Secondly, despite the official title, Lannon does not work for the people of Palm Bay – he works for the City Council. It is his responsibility to legally protect the Council members and not the people of Palm Bay.

What we are going to show here is a series of emails that went back and forth between our merry band and Mr. Lannon.

We sent our first email on January 3, 2018:

Dear Mr. Lannon,

On November 2, 2017, our group sent our representative Steve Headley to speak to the City Council concerning a public records request made by us on August 3, 2017 for emails in the Yates / Babcock LLC / Deer Run Association case.

As Mr. Headley noted that night, there were emails that were missing – emails that we have in our possession that were not accounted for and turned over as required by Florida Statute Chapter 119.

Both you and Councilman Holton responded that you had turned over all emails that were required but had not turned over any which you withheld due to “attorney client privilege.”

You graciously agreed to meet with our representative to review the emails that we have that were not provided, but that would have divulged the source of the emails and we weren’t and aren’t willing to do that. We did, however, have the emails reviewed by our attorneys who noted the missing emails contained nothing that could be construed as falling within the privilege.

As we are sure you can appreciate it is difficult to bring things to light when one is restricted to three minutes during public comments, so we returned to the Council meeting on November 16, 2017. Unfortunately, you were not present at the meeting but your place on the dais was filled by Ms., Patricia Smith.

Once again, Mr. Headley addressed the City Council and made several key points:

1) We agree that the attorney – client privilege exists and at the current time, we have no legal right to the un-redacted emails. (see FS Chapter 119.071(1)(d) ) We do not dispute the existence of that exemption.

2) We do have the right to know of the existence of the emails. Florida Statute 119.07(d) reads:

A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.

In addition, if the records are redacted, because of a claimed exemption, the City must cite the statute under which the exemption they are claiming falls as per the statutes:

Florida Statutes Chapter 119.07(1)(d)

(d) A person who has custody of a public record who asserts that an exemption applies to a part of such record shall redact that portion of the record to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and copying.

Florida Statutes Chapter 119(1)(e)

(e) If the person who has custody of a public record contends that all or part of the record is exempt from inspection and copying, he or she shall state the basis of the exemption that he or she contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute.

In our original request for the emails, we referenced the above statute. We do not know why that part of the request was missed or ignored. However, the City cannot claim they were unaware of the statutory requirement to give the reasons for why records were not produced in their entirety.

We neither received the redacted records nor did we receive any written legal basis for why the records were not turned over.

In other words, we believe that the City failed to show the existence of emails it withheld as required by the Florida statutes, failed to produce the redacted emails as required by Florida statutes, and failed to list or give notice as to why the emails were withheld as per the Florida statutes.

After Mr. Headley’s presentation on November 16th, two things happened:

1) Councilman Holton attacked our representative in violation of the Council Policies and the newly approved “Civility Pledge.” The attack did not address the points of what we presented but served only as an ad hominem attack to try and discredit our representative.

Neither you nor Ms. Smith were a part of that, but we will address that in the future.

2) Councilman Bailey asked Ms. Smith if the citations Mr. Headley had presented were correct and if so, asked whether the City should make sure the City complies with the statutes.

Ms. Smith replied that while she was aware of the issue, you personally were handling it and she didn’t want to comment on it.

Due to the upcoming holidays following the meeting of November 16th, we decided to temporarily out aside the issue until after the new year.

We felt that was the best course of action as we knew that with the holidays, the City staff faces certain time crunches. Our staff also faces the same time issues and for many of our group, the holidays are our busiest time of the year professionally and personally.

We would like to return to this issue and resolve it.

As we were unable to attend or even watch the City Council meetings live in December, it is possible that you and your staff have addressed our concerns and we missed it. We have watched the meetings from December, and didn’t see where this issue was addressed, but as we said, it is possible that we missed it.

If we did, we apologize.

If you could let us know of that resolution we would appreciate it. If, however, there has been no determination as to whether the City complied with the Florida statutes, we respectfully ask that such a determination be made.

It should be stated that we are looking to insure that the City follows the law in the future. We feel it is important that the public knows of the procedures of a public records request and is assured that the statutes are being followed.

For whatever reason, we contend that mistakes were made in filling this request. Those mistakes were contrary to the law and we would like to see two things happen:

1) First and foremost, the City take corrective action to insure that this doesn’t happen again. And…
2) A public statement at a Council meeting saying that mistakes were made as we asserted and that steps are being taken to correct those mistakes.

In light of how our group and Mr. Headley was treated by certain people on the dais, we feel that is an equitable end to incident.

If you feel that the City did follow the statutes, we will move on from there.

Thank you for your time and we look forward to hearing from you.

Respectfully,

A. Afterwit.

Later that afternoon, Lannon responded:

Would need to meet to discuss. Please let me know your availability. Also, what is the first and last name of your attorney. I need to speak with him/her first before I meet with you per Rules Regulating the Florida Bar.

Thanks,
Andrew P. Lannon, Esq., B.C.S
Palm Bay, FL City Attorney

Once again, we have no idea why City Officials are so eager to meet in private other than to keep any conversations out of public view. We would like the transparency and accountability of an actual paper or electronic trail. One would think that the City would want that too as any misrepresentations someone makes against them would be easily dispelled by the written records. In addition, one of our staff member credits his father with a saying that goes “a short pencil beats a long memory every time.

Secondly, it appears that Lannon was under the impression that our staff which has lawyers on it, are representing us legally. They are not. While we think the wording of our email led to that misconception, we dispel it in the second email on January 4, 2018:

Dear Mr. Lannon,

Thank you for your response.

Please allow us to clear up a misconception that we inadvertantly gave you.

We used the term “our attorneys” as they are members of our group. Group members were shown the emails that we have that were not provided by the City and as a group – including the attorneys – we determined that they were not as you charged to be “attorney / client prvileged.”

We are not the clients of the attorneys in our group. They do not offer counsel as to direction we take. They have never filed papers or documents on our behalf. They have never received compensation from the group or anyone in the group.

Therefore, they are not our attorneys for the purpose of any legal actions.

There is no need for you to speak with them.

Secondly, once again you ask for a face to face meeting.

We cannot understand what you wish to discuss at a meeting. We have laid out our position in public and in the previous email.

Without trying to sound too obnoxious, we see no benefit to a meeting where we cannot record or video tape and therefore what is said is not a part of any record. We prefer an email or written trail which better protects both your and our interests.

Frankly Mr. Lannon, at this point in time we ask for a formal response as to why the emails that we requested were not turned over en toto – even if parts were to be redacted.

Once again, thank you for your time.

Respectfully,

A. Afterwit.

The last line is our position and the question we want answered.

Lannon and Holton admitted they withheld emails. By statute (Florida Statutes Chapter 119(1)(e)) they are allowed to redact the contents of emails, but they cannot withhold emails in total. The City has to acknowledge the existence of the emails and may redact what they feel is exempted content.

Lannon responded:

Happy to sit down with all of your group anytime to discuss. Please let me know where and when and bring all of the emails you claim were withheld wrongly.

Thanks,
Andrew P. Lannon, Esq., B.C.S
Palm Bay, FL City Attorney

Once again, there is the call to sit down and discuss this public issue in private. Even though we have repeatedly explained why that would not happen, Lannon keeps trying to say that we should or whatever.

Secondly, despite our continued stating that according to the statutes, the City can redact exempted parts of emails, they still have to acknowledge the existence of the emails and the reason for the redaction.

We aren’t arguing that the City cannot redact or have emails that are exempted from disclosure. Our position, which is backed by the statutes, is that the City has to list the emails they failed to disclose and the reason for failing to disclose each email. The City never disclosed the existence of other emails until asked in a public meeting. If nothing else, the City failed to disclose they were withholding emails when we received the emails. There was no notification as required by statute that there were emails the City was not disclosing.

To illustrate, assuming that the exemption of redacted content is allowable, this image portrays what would be a perfectly legal redacted email:

The City can redact content based on legal exemptions of disclosure, but it still has to provide the fact that an email exists.

We replied to Lannon:

Dear Mr. Lannon,

We are choosing to address your last email by “fisking” it, point by point.

Happy to sit down with all of your group anytime to discuss

Email to you from Thursday, January 4, 2018 1:16:36 PM

“……we see no benefit to a meeting where we cannot record or video tape and therefore what is said is not a part of any record. We prefer an email or written trail which better protects both your and our interests.”

Please let me know where and when

Email to you from Thursday, January 4, 2018 1:16:36 PM

“……we see no benefit to a meeting where we cannot record or video tape and therefore what is said is not a part of any record. We prefer an email or written trail which better protects both your and our interests.”

and bring all of the emails you claim were withheld wrongly.

Email to you from Wednesday, January 3, 2018 2:42:22 AM

“You graciously agreed to meet with our representative to review the emails that we have that were not provided, but that would have divulged the source of the emails and we weren’t and aren’t willing to do that.”

Secondly Mr. Lannon, the issue has gone beyond what we claim was “withheld wrongly.” The issue is that you and Concilman Holton stated in a Council meeting that you had both withheld emails.

We don’t dispute that you can redact (not withhold) emails for any one of the thousands of exemptions under the Florida Statutes. The fact of the matter is that if you are going to withhold the content, you can redact them and state the reason. You cannot withhold the emails themselve and or deny their existance.

Once again, we ask for a formal response as to why the City of Palm Bay by their own admission, failed to provide the emails (even in redacted form) as per the Florida Statutes.

Respectfully,

A. Afterwit.

It was like beating your head against a concrete wall.

It is amazing to us that Lannon is demanding that we give him the emails that are protected under law as source material yet he says he doesn’t have to disclose the existence of emails which is required by statute.

Lannon is demanding that we prove his and Holton’s statements that they withheld emails to be true. It’s astonishing. Lannon and Holton makes a statement to the City Council and to citizens and then they demand that we prove their statements to be true.

Talk about a lack of critical thinking.

But perhaps we should have expected that.

At the bottom of each email we got from Lannon are a series of statements concerning emails themselves:

CONFIDENTIALITY NOTICE:

The information contained in this e-mail is strictly confidential and prepared solely for the use of the intended recipient(s). The copyright of this communication belongs to the City of Palm Bay. If you are not the intended recipient, please do not read, use, disseminate, distribute or copy this message or attachments. If you have received this message in error, please notify the sender immediately and delete this message. Views expressed in this message are those of the individual sender, and are not necessarily the views of the City of Palm Bay City Council.

DISCLAIMER:

Before opening any attachments, please check them for viruses and defects. The sender does not accept liability for any viruses, errors or omissions in the contents of this message or attachment, which arise as a result of email transmission.

PUBLIC RECORDS NOTICE:

All e-mail sent to and received from the City of Palm Bay, including e-mail addresses and content, are subject to the provisions of the Florida Public Records Law, Florida Statute Chapter 119, and may be subject to disclosure.

There is no law that allows for the City to claim ownership or distribution of a document once it is sent. It also seems odd to us that Lannon’s disclaimer says “we own it, but it is public record” which means that the public actually owns the email. (Within legal bounds, of course.)

Lots of lawyers put those disclaimers on emails but as we said, they are unenforceable so it is nothing but an empty threat.

That Lannon would make such an illogical statement and threat is personified in his last email to us in which he writes:

I am one of only 2 attorneys out of the 100,000+ in Florida who is Board certified in both City, County and Local Government Law and Business Litigation. I know this area of law better than 99,999+ attorneys in Florida. I know for a fact I did nothing wrong, and I am never going to give any formal response without the benefit of seeing these emails you allege were withheld. If I am wrong, I shall admit to it promptly upon seeing those emails at our face-to-face meeting but not otherwise.

Let me know when and where all members of your group would like to meet, most especially the attorneys who opined the emails contained no basis for withholding.

Thanks,
Andrew P. Lannon, Esq., B.C.S
Palm Bay, FL City Attorney

First, Lannon’s initial statement of his qualifications is called “big dogging.” In essence, Lannon is making the argument that he knows everything and we know nothing. We should bow down to his “expertise” because he says so.

There is also another word for this: hubris.

It is so bad that Lannon can’t see the fault in his own thinking.

Yes, we are claiming that the City withheld emails that we have in our possession. That’s not the issue.

The issue is that Lannon and Holton both claimed they personally withheld emails. We know they withheld emails not because we have emails that they withheld, but because they both admitted they withheld emails. The law says we have the right to know of the existence of the emails (how many, etc.) The City has to supply redacted emails that fall under the content exemption and not simply say “we want to see the emails that you have.”

In essence, Lannon and Holton seem to be placing the onus on us to prove their statements that they withheld emails. We didn’t hold them down and twist their arms to say they withheld emails. They did that on their own.

Do we have to provide the emails we have or are both Holton and Lannon admitting that their statements were lies to begin with?

It is strange how we have continually said that we recognize that the City has the statutory right to redact emails that contain attorney client information and yet Lannon says we claim they do not. We don’t know how to get past the false and wrongful reading that Lannon has of our position.

Lannon is not willing to admit that the City has a legal obligation to provide the other emails in redacted form – emails that he and Holton have admitted in public exist.

Frankly, Lannon should have stayed on the porch with Holton on this one.

Not only is he and Holton wrong on the merits, the lack of logic and critical thinking is rather appalling.

In short, even big dogs make mistakes.

You might be wondering where our next step will take us.

There are two things to consider. First is that the legal case from which we requested the documents is still working through the legal system. At the end of the cases, the City’s attorney / client privilege goes away and they must disclose the emails they are withholding now. It would be interesting to see whether they disclose the emails that we have as they are somewhat embarrassing. In other words, we have time on our side.

As there is no enrichment to either Holton or Lannon, the State Ethics Committee won’t hear a compliant. However, we believe that the Florida Bar might and we know that the State Attorney General’s Offices handles issues of governments breaking the law. We may turn to that office in the near future.


As this post is hitting on a Friday, and we have written a lot of words this week, we are probably going to take the weekend off or at least cut back somewhat. There are times when we need to stop and smell the roses and this may be one of those times.

We are thinking that there might be a part four of this series and if that is the case, it will drop on Monday.

Until then…..have a great weekend.



One Response to “Palm Bay: City Attorney Andrew Lannon, Porches, And Big Dogs.”

  1. Alice Addertongue says:

    “Government ought to be all outside and no inside. . . . Everybody knows that corruption thrives in secret places, and avoids public places, and we believe it a fair presumption that secrecy means impropriety.” Woodrow Wilson, 1912.

    “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” United States Supreme Court, 1978.

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