Filing # 36731320 E-Filed 01/19/2016 04:16:37 PM

IN THE CIRCUIT COURT, SEVENTH

JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA
CASE NO.:
DIVISION:

CA15-1316
55

ST. JOHNS COUNTY SCHOOL BOARD,

Plaintiff,
v.
JEFFERY M. GRAY
Defendant.
/
PLAINTIFF SCHOOL BOARDS RESPONSE TO DEFENDANT
GRAYS ANTI-SLAPP MOTION FOR SUMMARY JUDGMENT
AND CROSS-MOTION FOR SUMMARY JUDGMENT
RESPONSE
Pursuant to Rule 1.510, Florida Rules of Civil Procedure and Section 768.295,
Florida Statutes (2015), Plaintiff St. Johns County School Board (School Board) responds
to Defendant Jeffery M. Grays (Gray) Verified Motion for Summary Judgment and
Supporting Memorandum of Law. Grays motion alleges that by filing this lawsuit, the
School Board violated Section 768.295, Florida Statutes (2015), which prohibits government
entities from filing strategic lawsuits against public participation, commonly referred to as
SLAPP lawsuits. In response to the motion, the School Board shows:
1.

Grays motion for summary judgment fails to demonstrate that there are no

disputed issues of material fact and that he is entitled to summary judgment as a matter of
law, as required by Rule 1.510.

2.

Procedurally, Grays motion for summary judgment is fatally defective. First,

he has not served an answer, affirmative defenses or a counterclaim pleading that the School
Board violated the Anti-SLAPP statute. Accordingly, there is no predicate in his pleadings
for his motion for summary judgment. Second, neither Grays verified motion nor the single
accompanying affidavit purports to be made on personal knowledge or presents facts as
would be admissible in evidence, as expressly required by Rule 1.510(e). Grays motion
should be summarily denied because of those fundamental deficiencies.
3.

Turning to the merits, Gray has a formidable burden to prevail on his Anti-

SLAPP motion.

Pursuant to Section 768.295(3) and Rule 1.510, Gray must prove by

undisputed fact that the School Board filed a lawsuit against him:
without merit and primarily because [he] has exercised the
constitutional right of free speech in connection with a public
issue or right to peaceably assemble, to instruct representatives
of government, or to petition for a redress of grievances before
the various governmental entities of this state, as protected by
the First Amendment to the United States Constitution and s.5,
Art. I of the State Constitution.
768.295(3), Fla. Stat. (2015) (emphasis added).
4.

As to the first element of his Anti-SLAPP claim, Gray cannot show that the

School Boards lawsuit is without merit. It is clear that Gray continues to disagree with
School Board public records procedures and particularly its designation of the Community
Relations Department (CRD) to respond to his public records requests. However, the
validity of those procedures was the keystone issue in the first public records lawsuit
between the parties, which Gray brought against the School Board in Jeffery Gray v. St.
Johns County School Board, Case No. CA15-1121. Gray voluntarily dismissed that lawsuit
2

with prejudice after the School Board served him with a 57.105 Motion for Sanctions
alleging that his case and, in particular, his interpretation of Section 119.07 (Public Records
Act) was frivolous. The motion put him on notice that the School Board would seek to
recover attorneys fees and costs from him and his attorney unless the lawsuit was withdrawn
within 21 days. (Ex. A)1. Gray dismissed the lawsuit on the 21st day, December 4, 2015.
(Complaint, Ex. D).
5.

Grays dismissal of his lawsuit with prejudice was an adjudication on the

merits of the suit and is res judicata in this case, which involves the identical parties and
issues. W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79,
82 (Fla. 4th DCA 2010). However, Gray is attempting to show that the School Boards new
lawsuit is without merit based on the same claim he litigated in the first case - that the
Districts public records procedures violate the Public Records Act. Because that claim was
adjudicated in the School Boards favor by Grays dismissal of his case with prejudice, Gray
is barred from re-asserting it in support of his motion. Moreover, regardless of the prior
adjudication in the School Boards favor, it is clear that the School Boards public records
procedures are valid and that it is entitled to their injunctive enforcement, as shown below
under Point III.
6.

Secondly, Gray has the additional burden of proving as a matter of undisputed

fact that the School Board filed this lawsuit in retaliation for Grays exercise of First
Amendment rights. Grays verified motion and single supporting affidavit fail to present any
testimony or other facts that would be admissible in evidence as required by Rule 1.510(e),

Exhibits to this Response are designated Ex. __. Exhibits to the Complaint are designated Complaint, Ex.
__.

much less facts that would establish that the School Board filed the lawsuit to squelch
constitutionally protected speech. Conversely, the counter-affidavit attached to this response
establish by direct, competent evidence that the School Board filed the lawsuit for its
avowed, legitimate purpose - to obtain a definitive judicial declaration of the validity of its
public records procedures, to enjoin Gray from continuing to defy them, and also to recover
as damages for malicious prosecution and abuse of process the attorney fees incurred in the
successful defense of Grays frivolous lawsuit, as expressly requested in the complaint.
MEMORANDUM OF THE MATERIAL FACTS AND SUPPORTING LAW
The School Board submits the following memorandum documenting the material
facts of the case and applicable law:
I.

FACTUAL BACKGROUND
The School Board operates the St. Johns County School District, which comprises 38

public schools and 7 public charter schools. The District has over 35,000 students and 4,300
employees. (Ex. B). Dr. Joyner G. Joyner is the Superintendent of the District schools.
Pursuant to Section 1001.51(3), the Superintendent is responsible for maintaining all of the
Districts records, and thus is the ultimate custodian of District records as defined in Section
119.021(5).
A.

Grays History

Gray is a serial public records litigant. As his former attorney Abraham Shakfeh
explained to the Court at the November 25, 2015 hearing in the first lawsuit, Gray is not so
much interested in the records he requests as with public agencies compliance with the
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Public Records Act. When the Court pressed counsel as to whether Gray even wanted the
MSDS records at issue in that case, Mr. Shakfeh candidly admitted:
[Mr. Gray] wanted the records to determine if they were
compliant with the law. He sees himself as sort of a public
records inspector. There is no state watchdog enforcing this.
So he believes on his spare time that he is entitled to make
these requests to make sure that to confirm that people are
complying with the law. And despite him attempting to
educate the School Board, not just with Ms. Lee but also in
emails to Superintendent Joyner, they still do not comply.
(Ex. C at page 42) (emphasis added). It is important to note that Gray was sitting next to
Mr. Shakfeh when he made those representations to the Court. However, it appears that
Gray has since had a change of heart about why he requested the records, attesting in his
verified motion that he requested them because he wanted to know what chemicals school
childres were routinely exposed to while at school.2 (Gray Motion at page 3).
Gray has attempted to leverage his interest in public records compliance into a forprofit enterprise by showing up unannounced at agencies with his video camera (which looks
like a still camera (Ex. D)) surreptitiously running, catching staff off-guard, demanding
records on the spot, and suing if they misstep in responding to his request. In Jeffery Marcus
Gray v. Lutheran Social Services of Northeast Florida, Inc., Case No. 2014-CA-4667, Circuit
Court of Duval County, Gray sued Lutheran Social Services, alleging that its staff failed to
properly handle his public records request. In his Final Order Denying Relief under Public
Records Act dated December 1, 2014, Judge Jack M. Schemer declared that Grays request
in that case was unreasonable and bogus, and that his ambush tactics were a scam
and an unreasonable and flagrant abuse of the statute. (Ex. E at 18, 20). The judge noted
2

However, he requested MSDS sheets on chemicals used at the Maintenance Department, not at schools.

that in 2014 alone, Gray had filed 18 cases in Duval County and Shakfeh had represented
him in 13. (Id. at 8). The judge found that the public records requests in those cases
followed a similar pattern. (Id. at 3). He found that attorney Shakfeh would pay Gray
when he recovered attorneys fees, which he characterized as merely a fee-splitting
arrangement between Gray and Shakfeh. (Id. at 10). Judge Schemer concluded that
Grays public records request was meant to achieve personal financial gain; not a legitimate
request for public records, but rather was an effort to ambush LSS in hopes of
manufacturing an attorneys fee, to be shared with Gray. It was nothing more than a
scam. (Id. at s 11, 18) (emphasis added); (see also Ex. F., transcript of hearing in Lutheran
Social Services). Gray appealed Judge Schemers order to the First District Court of Appeal.
The Court of Appeal affirmed the order on December 16, 2015. (Ex. G).
At the November hearing, attorney Shakfeh assured the Court:
Mr. Gray did learn his lesson from Judge Schemer. He took
his advice [sic] very seriously.
(Ex. C at page 31). However, according to Gray himself, Judge Schemers decision was
based on [my] motivations, and that those motivations shouldnt have even been under
consideration. (Ex. D). He thus doubled down his conviction that Florida public records
law sanctions his ambush and sue tactics, regardless of Judge Schemers order and the
decision of the Court of Appeal to the contrary.
Beginning in 2015, Gray made at least 8 forays to District schools and offices to
secretly videotape employees and make surprise public records requests. At the schools,
Gray would videotape his encounters in violation of the Districts acceptable use policy (Ex.
H at 9) and also Section 934.03(1)(a). District employees reported that they felt Gray was
6

attempting to threaten and intimidate them. Some were anxious and frightened. (Ex. I). In
several instances, Gray caused a disturbance at school when he refused to follow staff
instructions, causing staff to summon law enforcement. (Id.)
Grays public records requests at outlying District schools and offices followed the
pattern that Judge Schemer discerned in Lutheran Social Services. (Ex. E at 3). Grays
actions at the Maintenance Department were particularly similar.3
On October 14, 2015, attorney Shakfeh filed a public records lawsuit against the
School Board based on the incident at the Maintenance Department, in Jeffery Gray v. St.
Johns County School Board, Case No. CA15-1121, in the St. Johns County Circuit Court.
Just as he had in Lutheran Social Services, Gray claimed in his lawsuit against the School
Board that the response to his request for records at the Maintenance Department violated the
Public Records Act and requested an award of attorneys fees. (Complaint, Ex. B). The
School Board responded by filing a motion to dismiss the complaint for failure to state a
cause of action. (Complaint, Ex. C). On November 13, 20154, the School Board served
Grays counsel with a Motion for Sanctions Pursuant to Section 57.105, Florida Statutes,
alleging that Grays lawsuit was frivolous. (Ex. A). More particularly, the 57.105 motion
alleged that there was no factual or legal support for Grays claims that the District was in

Gray (a) showed up in person at the Maintenance Department with no advance notice; (b) before entering, he
videotaped the time on his phone; (c) before entering, he strapped his combination video/still camera around
his neck; (d) he approached a secretary in the reception area and demanded to inspect and photograph records
on the spot; (e) he refused to identify himself; (f) he videotaped his confrontation without the employees
knowledge or consent; (g) according to his attorney, he had no particular interest in the content of the
requested records (Ex. C at page 42); (h) under his fee-splitting arrangement with Mr. Shakfeh, he had a
financial interest in baiting staff into refusing his request; (i) he was not responsive to follow-up efforts by the
District to provide him with the records; and (j) attorney Shakfeh represented him in the resulting lawsuit.
(Complaint at s 4-5).

The allegation in paragraph 11 of the School Boards complaint stating that the motion was served on
October 13, 2015 was a typographical error.

violation of the Public Records Act.

In particular, the motion explained in detail that

contrary to Grays interpretation, Section 119.07 authorizes the custodian of records to

appoint a designee to respond to public records requests and that the statute allows the
District to designate CRD to coordinate the appropriate response to a request to inspect and
copy records on-site pursuant to Section 119.07(3)(a). The motion to dismiss and supporting
memorandum of law also argued the designation issue. (Complaint, Ex. C at 4 of motion
and the 3d paragraph of the memorandum.)
At the November 25 hearing on the motion to dismiss before this Court, counsel for
both parties vigorously debated the validity of the Districts designation of CRD to respond
to Grays requests to inspect and photograph records on-site. (Ex. C at pages 17, 20-24, 2629, 43). Because Gray had served an amended complaint before the hearing, the Court
announced it would deny the motion and requested lawyer Shakfeh to prepare an appropriate
order. (Id. at page 47).
B.

The Decision to File the Instant Lawsuit

Attorney Shakfeh never submitted a proposed order on the motion to dismiss, and,
contrary to Grays verified representation, no such order was entered. (Gray Motion, Ex. B).
Instead, on Friday, December 4, 2015, he filed a notice of dismissal of the lawsuit with
prejudice. (Complaint, Ex. D).

Unfortunately, that did not mark the end of Grays

provocative and antagonistic actions toward the District. On Thursday, December 3, he

showed up in his van at Switzerland Point Middle School and Hickory Creek Elementary
School and drove slowly up and down the Districts private roadway along the perimeter of

the two campuses, over the course of several hours. Concerned school officials reported the
incident to the Sheriffs office. (Complaint, Ex. E).
On the afternoon of December 4, again following his Lutheran Social Services
playbook, Gray showed up unannounced and uninvited at the R. B. Hunt Elementary School
campus. Without checking in at the office, he again accosted ordinary employees about
public records this time, bus drivers.
Late on the afternoon of Friday, December 4, the Superintendent made the decision to
file the lawsuit and issue trespass warnings against Gray. Dr. Joyners affidavit attached to
this response attest that the decision had nothing to do with Grays bus inspection videos (Ex.
I), which had not yet been posted. (Ex. N). The Superintendent did not even know about
the videos and Grays inspection allegations until after the suit was filed. (Ex. I). Rather, it
appeared from Grays conduct at R. B. Hunt that he was still intent on working his Lutheran
Social Services scam against the District. More broadly, it was clear from the December 3
and 4 incidents that Gray was going to continue to defy District rules and procedures,
confront District employees in the field over public records, and disrupt school system
operations.
The Superintendent made the decision to file suit for the perfectly understandable and
legitimate purpose of obtaining the judicial relief requested in the complaint and resolving
the long-standing issues between the District and Gray, once and for all. (Ex. I).
The lawsuit was filed the following Monday, December 7. Although not alleged in
the complaint, the Superintendent also issued the trespass warnings mentioned in Grays
motion on the 7th. (Gray Motion, Ex. D).
9

II.

STANDARD OF REVIEW AND BURDEN OF PROOF

Summary judgment is proper if: (1) there is no material issue of fact; and (2) the

movant is entitled to judgment as a matter of law. Volusia County v. Aberdeen of Ormond

Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). In order to prevail on his Anti-SLAPP motion,
Gray has the burden to demonstrate by undisputed, competent evidence that the School
Boards lawsuit (a) is without merit; and (b) was filed primarily because of his exercise of his
First Amendment rights. In review of Grays motion for summary judgment, the allegations
of the complaint must be accepted as true. White v. Pinellas County, 185 So.2d 468, 471
(Fla. 1966); University Nursing Care Center, Inc. v. First Union Natl Bank, 835 So.2d 1186,
1189 (Fla. 1st DCA 2002) (For purposes of summary judgment, a court is required to treat
the allegations of the complaint as true.); Connell v. Sledge, 306 So.2d 194, 190 (Fla. 1st
DCA 1975).
III.

GRAY HAS FAILED TO SHOW THAT THE SCHOOL BOARDS LAWSUIT IS

WITHOUT MERIT
In an attempt to show the School Boards lawsuit is without merit, Grays motion

reargues his theory that the Superintendents designation of the CRD to handle his public
records requests is a violation of the Public Records Act. (Gray Motion at pages 4, 15-16).
In his view, the Act not only requires a custodian to permit him to inspect and copy
records ( 119.07(1)(a)), and to photograph them where they are kept ( 119.07(3)(a)),
but it also creates a license for him to come upon District property uninvited and
unannounced to demand public records from ordinary employees with no
responsibility for public records or public records requests. He claims that by referring
his requests to CRD, the District has imposed an unlawful condition on the custodians
10

statutory duty to permit inspection and copying, despite the fact that Section 119.07(1)(b)
expressly authorizes the appointment of another official or employee as the custodians
designee to permit the inspection and copying. (Id.). He also contends that the designation
of CRD to coordinate the inspection and photographing of records where they are kept
causes unreasonable delay. (Gray Motion at pages 16-17, 23).
A.

Grays Claim is Barred by Res Judicata

Gray made these exact same claims in the first lawsuit, in Counts I, II and IV of his
Amended Complaint (Ex. K) and at the November 25 hearing. (Ex. C at pages 23-24
(designation unlawful), 26-27 (unreasonable delay), 28-29, and 33 (designation an abdication
of custodians duty)). However, his voluntary dismissal of that lawsuit with prejudice was an
adjudication against him on the merits of his claim that the CRD designation is unlawful.
Accordingly, that adjudication is res judicata and bars Gray from rearguing the claim
in an attempt to show the School Boards lawsuit is without merit.
Res judicata bars a party from re-litigating claims previously decided by a final
adjudication on the merits. W & W Lumber, 35 So.3d at 83. A voluntary dismissal with
prejudice operates as an adjudication on the merits. Id., quoting Capital Bank v. Needle,
596 So.2d 1134, 1136 (Fla. 4th DCA 1992). Res judicata precludes re-litigation of issues
that were actually raised in the prior case, and also every other matter which might with
propriety have been litigated and determined in that action. AMEC Civil, LLC v. Fla. DOT,
41 So.3d 235, 239 (Fla. 1st DCA 2010), quoting Kimbrell v. Paige, 448 So.2d 1009, 1012
(Fla. 1984); Fla. DOR v. Orlowski, 2015 WL 7246304 (Fla. 4th DCA 2015). See generally,
32A Fla. Jur 2d Judgments and Decrees 110.
11

Res judicata applies when the following elements are present:

1) identity in the thing sued for; 2) identity of the cause of
action; 3) identity of the persons and parties of the action; and
4) identity of the quality in the person for or against whom the
claim is made.
W & W Lumber, 35 So.3d at 83.
The requisite identity between Grays lawsuit and this one is present. The parties are
the same, and Grays claim that the Districts designation of CRD to handle his requests
violates the statute (Gray Motion at pages 4-5, 16-17 and 23) is the same one he pled (Ex. K,
Counts I, II and IV) and argued in the first case. (Ex. C at pages 23-24, 26-27, 28-29, 43).
Although Gray has not filed an answer, affirmative defenses or counterclaim, it is clear that
Gray is seeking the same relief a judicial determination that the Districts procedures
violate the statute. Accordingly, res judicata applies and bars Gray from challenging the
validity of the Districts procedures in an attempt to show the School Boards lawsuit is
without merit.
B.

The School Boards Lawsuit Has Merit

It is clear that School Boards Counts One and Two for declaratory and injunctive
relief have merit. As for Count One, Gray cannot deny that there is a serious disagreement
between the parties over the validity of the Districts public records procedure. Gray readily
acknowledges his knowing non-compliance with the [Districts] public records policy, but
insists that he has the right to defy the policy because he feels that it violates the Public
Records Act. (Gray Motion at page 4). On the other hand, the District contends not only
that its procedures are statutorily valid, but that their validity was adjudicated in the first
12

case. Gray cannot credibly deny that there is a bona fide need for a definitive judicial
resolution of that disagreement.
Likewise, the School Boards request for injunctive relief has merit. Surely a school
board is entitled to injunctive relief to enforce its rules against those who knowingly refuse
to comply with them.
Regardless of the application of res judicata, it is clear that the terms of Section
119.07 and the pertinent case law uphold the validity of the procedures the School Board
seeks to affirm and enforce against Gray. No one disputes that Section 119.07(1)(a) requires
employees with custody of a public record to permit it to be inspected and copied. However,
Section 119.07(1)(b) expressly authorizes the designation of other officers or employees to
perform that duty on the custodians behalf:
A custodian of public records or a person having custody of
public records may designate another officer or employee of
the agency to permit the inspection and copying of public
records, but must disclose the identity of the designee to the
person requesting to inspect or copy the public records.
Clearly, subsection (1)(b) authorizes the Superintendent as the ultimate custodian of all
District records to designate specifically named CRD staff5 to permit the inspection and
copying of public records in response to Grays requests. In Times Publishing Company v.
City of Clearwater, 830 So.2d 844 (Fla. 2nd DCA 2002) the court rejected the argument that
a custodian of public records as defined in Section 119.021(5) must personally respond to all
public records requests, rather than referring them to designees. The court held:

Christina Langston, Danielle Cook and Emily Serrano are the named designees. (Complaint, Ex. G).

13

Section 119.021 provides that the custodian is the elected [or

appointed] officer or his or her designee. Nothing in this
provision limits who the elected [or appointed] officer may
designate in order to delegate the task to review requested
records. Moreover, chapter 119 provides no specific procedure
for a government entity to follow in determining whether a
records is public, and if so, whether it is otherwise exempt
from disclosure. At least in the absence of an in camera
review, neither an appellate court nor a trial court is in a
position to engraft specific requirements on individual
governmental entities reviewing public records request when
those requirements are not provided for by statute.
Id. at 848 (emphasis added). See also, Order on Evidentiary Hearing in Grapski v. J. Bernard
Machen, Case No. 01-2005-CA-4005, Circuit Court of Alachua County, Ex. L at 13
([President Machens] executive staff members are his designee responsible for maintaining
public records and responding to public records requests); Informal Fla. AGO to Chris
Smith, 2006 WL 173278 (it is up to the custodian who to designate to respond to public
records requests).
The lesson of the City of Clearwater is that it is the statutory prerogative of the
Superintendent as the ultimate custodian of District records to specify the procedure for
reviewing records to determine whether they are public, and if so, whether they are exempt.
More particularly, it is the Superintendents statutory prerogative to designate Christina
Langston and the other individual CRD staff members to permit the inspection and copying
of the records Gray may request. It is not Grays prerogative to second-guess, overrule or
defy the Superintendents designation.
Importantly, the CRD designation does not interfere with Grays access to District
public records. He can still request them by contacting CRD in person, by email, telephone,

14

fax, text or conventional mail. CRD will arrange for him to inspect, copy or photograph the
records in compliance with the statute.
It is true that the District procedure gives custodians leeway in deciding whether to
respond to a request themselves or to refer it to CRD. (Complaint, Ex. G). Such flexibility is
necessary to allow District employees to respond to routine requests for records. No one can
seriously suggest that it is or should be necessary to contact CRD to obtain a copy of a school
lunch menu, class schedule, master calendar or basketball schedule. However, when faced
with complex or difficult requests, the Superintendent and subordinate District custodians
have the option to refer the request to the specialists at CRD. Because Gray has been
disruptive and litigious in requesting public records from District employees at schools and
in the field, the District requires Gray to make all his public records requests through CRD.
This is well within the discretion of the Superintendent conferred by the statute and District
policy, to assure that Grays requests would be handled by specially trained and experienced
staff instead of random District employees who might otherwise be subjected to what Judge
Schemer described as Grays ambush tactics. This may foil Grays watchdog aspirations
and the opportunity for lawsuits, but it was a logical, practical and perfectly lawful solution
to the problem that Gray created.
There is nothing in the statute that supports Grays theory that he has a license to
walk into a school and demand public records from the first employee he encounters in the
parking lot or the front desk. While the statute requires all persons with legal custody of
public records (as opposed to mere possession; see Mintus v. City of West Palm Beach, 711
So.2d 1359( Fla. 4th DCA 1998)) to permit inspection and copying, it does not guarantee
citizens the right to request records from any particular person, or at any particular place. As
15

recognized in City of Clearwater, the statute leaves those procedural details up to the official
custodian. Surely, even Gray would concede that the statute does not give him the right to
march unannounced into the office of the Superintendent of Schools or the President of the
University of Florida, make his public records request face to face, and require the
Superintendent or President to drop everything, personally review the request, analyze and
resolve any exemption issues, and produce the records then and there. That is the obvious
reason why subsection 1(b) authorizes the appointment of designees to handle requests on
the custodians behalf.
C.

Grays Delay Argument

The School Board recognizes that subsection 3(a) allows citizens to inspect and
photograph documents in the office where they kept. Gray contends that having to make the
request through CRD and having it arrange the on-site inspection would create
unreasonable delay. (Gray Motion at pages 16-17, 23). That is just an excuse for his
willful defiance, and more importantly, on review of his motion, nothing more than
unsubstantiated speculation. If that is a concern, then Gray should comply with the policy,
submit his request to CRD, and seek redress if, in fact, it does cause unreasonable delay in
the production of records at the office where they are kept. However, at this time, there is no
factual predicate before the Court for consideration of that issue.
In the same vein, Gray complains that the designation of CRD does not allow him to
inspect and photograph records contemporaneously with their generation. (Gray Motion at
page 9). The Act does not guarantee him the right to be present at the creation. Rather, it
requires the record to be produced within a reasonable time. 119.07(1)(a), Fla. Stat.
16

(2015). At a minimum, a reasonable time must allow for a qualified designee to review the
request, determine the existence of the records, identify, analyze and resolve any exemption
or confidentiality issues, and produce the records.
Gray defends his ambush tactics as necessary to prevent alteration of records which
he proclaims is commonplace. (Gray Motion at pages 23-24). This claim is unsupported
by any material facts in the record. It is irresponsible and false.
D.

Counts Three and Four for Malicious Prosecution and Abuse of Process

Finally, Gray has not shown that the School Boards claims for malicious prosecution
and abuse of process are without merit. Gray concedes the sufficiency of the School Boards
allegations of malicious prosecution. (Gray Motion at page 20) (Plaintiff succeeds in using
the magic words to support its claim for malicious prosecution). On the element of lack of
probable cause, Gray dismissed his lawsuit with prejudice after being served with a 57.105
motion alleging that the suit was frivolous. That not only satisfies the element that the
lawsuit must have terminated in the School Boards favor, but also is persuasive evidence
that there was no probable cause for filing the suit in the first place. Gray points out that
there can be other reasons to dismiss a lawsuit, but he does not offer one to negate the
inference that the suit was frivolous. The other elements of malicious prosecution are well
pled. In particular, Grays past dealings with not only with the District but also with Duval
County agencies provide ample evidence of malice. So does his filing suit based on the
August Maintenance Department request after publicly stating that he had never had a
problem with obtaining public records from the District. (Complaint, Ex. J).

17

Conversely, Grays motion does not present any competent evidence to show that he
had probable cause to file suit, or that he acted in good faith. His argumentative and
conclusory fulminations are not a substitute for admissible evidence of facts as required by
Rule 1.510(e).
Gray likewise has not demonstrated that the School Boards abuse of process claim is
without merit. Contrary to his arguments, the claim is not based on his filing of the suit,
which purported to seek access to public records in a manner consistent with chapter 119.
Rather, it is based on his attempt thereafter to use the suit for ulterior purposes to perpetrate
the same scam against the District he tried to perpetrate against Lutheran Social Services.
There has been a judicial determination that his practice of using the Public Records Act for
personal financial gain is a flagrant abuse of the statute. There could not be a clearer case of
abuse of the judicial process.
IV.

GRAY HAS FAILED TO PRESENT ANY COMPETENT EVIDENCE TO

SUPPORT HIS CLAIM THAT THE SCHOOL BOARD FILED THIS LAWSUIT
PRIMARILY BECAUSE OF HIS EXERCISE OF HIS CONSTITUTIONAL RIGHT
OF FREE SPEECH
Gray has the burden to prove not only that the School Boards lawsuit is without

merit, but also that the School Board filed it primarily because of his exercise of free speech
or the other listed First Amendment rights. There is no suggestion that the filing of the
lawsuit had anything to do with Grays right to peaceably assemble, instruct representatives
of government or to petition for redress of grievances. Grays theory seems to be that the
School Board filed the suit in retaliation for what he calls newsgathering activities, which
he contends are protected by the First Amendment. (Gray Motion at pages 10, 11, 23-24). It

18

is unclear how he gets from newsgathering, which is conduct, to the constitutional right of
free speech criterion listed in the statute.
A.

Threshold Deficiencies

Grays motion presents no competent evidence whatsoever to support his theory. He

has not filed a verified motion or affidavits made on personal knowledge, attesting to
such facts as would be admissible in evidence, and demonstrating that Gray is competent
to testify to the matters stated therein, all as required by Rule 1.510(e). While Gray verified
his Anti-SLAPP motion, his verification does not purport to be made on personal knowledge,
and his testimony about why suit was filed is nothing more than speculation and selfserving conclusions, utterly unsubstantiated by competent evidence of facts. (Gray Motion at
page 28). Likewise, Grant Sterns affidavit attached as Exhibit A to the motion does not
purport to be made on personal knowledge.

Accordingly, Gray has not offered any

competent supporting evidence that refutes the allegations of the complaint (which must be
taken as true, as shown on page 10 above) or the School Boards affidavit. See, Martins v.
PNC Bank, Natl Assn, 170 So.3d 932 (Fla. 5th DCA 2015) (a trial court should have
disregarded affidavits where there was no statement, direct or indirect, anywhere in the
affidavit that [defendant] has personal knowledge regarding any fact recited); Ballinger v.
Bay Gulf Credit Union, 51 So.3d 528 (Fla. 2nd DCA 2010) (a verified pleading may serve
the same purpose as a supporting affidavit but it must meet the requirements for affidavits
under Rule 1.510(e)). For that reason alone, the motion should be summarily denied.
Indisputably, Gray has presented no direct evidence that the School Board filed suit
for any untoward reason. Indeed, it is clear Gray is not competent to testify to that issue as
19

required by Rule 1.510(e), since he was not privy to the decision to file the suit and can only
speculate why the decision was made. He simply does not attest to any relevant facts and
instead offers only non-sequiturs, argument and unsubstantiated conclusions. For example:
[W]hat purpose could this suit serve than to deter Gray from
exercising his First Amendment rights as a citizen journalist
and parent? This is a blatant SLAPP suit. (Gray Motion at
page 10).
***
[The School Boards allegations that Gray was videotaping
District schools on the day of the Sandy Hook shooting and the
day after the San Bernandino shooting] do nothing more than
serve as a prohibited SLAPP action under Fla. Stat. 768.295.
(Gray Motion at page 19).
***
[Issuing a trespass warning pursuant to Section 810.0975] can
be for no reason than to punish Gray for the exercise of his
First Amendment rights and make the continued exercise
thereof so burdensome, so risk-filled, as to eliminate the
exercise altogether. (Gray Motion at pages 10-12).
***
This exorbitant amount of damages [attorney fees in excess of
$15,000 incurred in the successful defense of the first suit] is
further evidence of Plaintiffs SLAPP intent. (Gray Motion at
page 21.)
***
SJCSBs systemic refusal of the on-site custodian to permit the
inspection and photographing of public records has made the
alteration of public records commonplace. St. Johns County
School Boards apparent solution to keep this unlawful activity
from the light of day is to file SLAPP suits such as this one in
order to prevent disclosure. (Gray Motion at page 7).

20

Grays loose, conclusory (and demonstrably false) allegations are unsubstantiated by

admissible evidence of fact and are insufficient to create an issue of fact, much less to
support summary judgment. K.E.I. Title Ins. Agency, Inc. v. CIT Technology Financing
Services, Inc., 58 So.3d 369 (Fla. 5th DCA 2011); Ramsey v. Home Depot U.S.A., Inc.,
124 So.3d 415, 218 (Fla. 1st DCA 2013); Craven v. TRG-Boynton Beach Ltd., 925 So.2d
476, 480 (Fla. 4th DCA 2006).
B.

The False Bus Investigation Narrative

Gray does make a weak attempt to circumstantially show that the suit was filed
because he was investigating the Districts bus inspection practices. Gray claims that the
lawsuit was instigated by the Channel 4 news story (Ex. M) reporting on Grays allegations
that he had videotaped District bus drivers allegedly failing to properly perform bus
inspections. (Gray Motion at page 3). The story reported that the District had fired back at
Gray by filing the lawsuit. (Ex. M.).
Gray misled Channel 4 and is attempting to mislead this Court with the false narrative
that the School Board filed suit against him because he posted a video accusing the District
of improperly performing bus inspections. In fact, it was the other way around.
The undisputed facts belie Grays claim and his credibility. In the Channel 4 story,
CRD Director Christina Langston was quoted as saying the District was not aware that Gray
was alleging there was a problem with bus inspections until he posted a video this
morning. (Ex. M). Gray neglects to mention that the Channel 4 story was not published
until early in the evening (6:57 PM) of Tuesday, December 8, 2015, after the suit already had
been filed. (Id.). The Superintendent made the decision to file suit late on the afternoon of
21

Friday, December 4, after learning about the latest Gray incidents at Hickory Creek,
Switzerland Point and R. B. Hunt schools. The School Board filed suit and sent Gray the
trespass warnings on Monday, December 7, the day before Gray posted the first critical
bus inspection video (Ex. N), contacted Channel 4 with his false SLAPP narrative and
Channel 4 went with the story. That was 3 days before he posted the other bus inspection
videos - on Thursday, December 10. (Id.).
In a transparent attempt to conceal the real chronology of events, Gray fails to
disclose that none of the bus inspection videos listed on page 24 of his motion, which he
alleges instigated the School Boards suit, were posted until after suit was filed. (Ex. N).
Obviously, the School Board did not file suit against Gray in retaliation for something it did
not yet even know about. What really happened is that Gray posted the video and ran to
Channel 4 in response to being sued and served with trespass warnings the day before.
C.

The Opposing Affidavit

The School Board has filed an opposing affidavit from Dr. Joyner. (Ex. I). Dr. Joyner
attests that the School Board filed the suit to obtain the judicial relief requested in the
complaint. He specifically denies that Grays bus inspection videos had anything to do with
the decision to file suit. While he was aware that Gray had approached bus drivers at R. B.
Hunt on the afternoon of December 4, he thought that was simply another instance of Gray
making an end run around CRD and demanding records from employees in the field, which
had been the main point of contention in the lawsuit Gray dismissed earlier in the day. He
unequivocally denies knowing about any other instances of Gray videotaping bus drivers
prior to filing suit on December 7. (Id.).
22

Dr. Joyners affidavit is uncontradicted and by itself is sufficient to support dismissal

of the Anti-SLAPP claim. All that Gray offers in response is the man-bites-dog argument
that the School Board had no reason to file suit against him except to intimidate him from
exercising First Amendment rights. There is more than a little irony for Gray to claim that
he, serial public records litigant extraordinaire, is intimidated by public records litigation.
Gray does not seem to realize that his provocative, antagonistic and unlawful conduct gave
the School Board good reason and just cause to bring suit against him to obtain the judicial
relief requested in the complaint. After all, it was Gray who repeatedly defied the Districts
public records procedures, harassed its employees and disrupted its operations. It was Gray
who started the litigation by suing the District. It should not come as a surprise that the
School Board would want to finish it by filing suit to resolve the issues he has created.
D.

The Filing of the Lawsuit Did Not Implicate Grays First Amendment Right
of Free Speech

Although his argument is not a model of clarity, Gray seems to be complaining that
the School Board violated the Anti-SLAPP statute by filing a lawsuit seeking to enforce the
requirement that he must submit his public records requests to CRD. For reasons explained
above, this requirement does not violate Grays rights under the Florida Public Records Act
or the Florida Constitution, which guarantee a citizens access to public records. Even if it
did, that would not be a basis for an Anti-SLAPP suit. Section 768.295(3) is concerned
only with meritless lawsuits filed primarily because [the defendant] has exercised the
constitutional right of free speech or other activities protected by the First Amendment to
the United States Constitution and Section 5 of Article I of the State Constitution. Grays
right of access to public records is not a First Amendment right. Accordingly, Grays claim
23

that the District filed suit to unlawfully limit his access to public records is not cognizable
under the Anti-SLAPP statute.
It is likewise clear that the School Boards lawsuit does not implicate Grays First
Amendment right to free speech in any way. The suit addresses Grays conduct, not his
speech, just as Judge Schemers order and the Florida school trespass statutes codified in
Sections 810.097 and 810.0975 address conduct, not speech protected by the First
Amendment. See J.L.S. v. State, 947 So.2d 641 (Fla. 3d DCA 2007) (Section 810.0975 is
designed to primarily regulate conduct (ie, trespass within a school safety zone) rather than
pure speech); A.C. v. State, 538 So.2d 136 (Fla. 3d DCA 1989); J.H. v. State, 625 So.2d
883 (Fla. 1st DCA 1993). See also, Downer v. State, 375 So.2d 840, 844-45 (Fla. 1975.
Gray has not cited any authority suggesting that newsgathering is constitutionallyprotected speech. The general view is that newsgathering does not enjoy the constitutional
protection that extends to free speech. Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (the
First Amendment does not guarantee the press a constitutional right of special access to
information not available to the public generally); Houchins v. KQED, Inc., 438 U.S. 1, 7-8
(1978) (rejecting claim that media have a First Amendment right to government-controlled
sources of information); Smith v. Plati, 258 F.3d 1167, 1177 (10th Cir. 2001) (rejecting
argument that there is a right to newsgathering protected by the First Amendment).
Regardless of Grays interest in school business, his right of free speech is not an
invitation for him to wander school hallways and grounds to interview employees and shoot
video. (Id.). Unlike a public street, sidewalk or park, a school is not an open public forum,
where members of the general public are free to come and go as they please.
24

Perry

Education Assn v. Perry Local Educators Assn, 460 U.S. 37 (1983); Hazelwood School
District v. Kuhlmeier, 984 U.S. 260, 267 (1988). It is clear that during school hours, a school
is a nonpublic forum, which is simply not open to the general public. As the court put it in
May v. Evansfield-Vanderburgh School Corp., 787 F.2d 1105 (7th Cir. 1986):
[A school] is not a public forum. The public is not invited to
use its facilities as a soapbox. The public is not invited in,
period.
As a school is a non-public forum, the general public does not have a
constitutionally-protected right of access to school property. Hannemann v. Southern Door
County School District, 673 F. 3d 746, 755 (7th Cir. 2012); Vukadinovich v. Board of
School Trustees of Michigan City Area Schools, 978 F.2d 403, 407 (7th Cir. 1992); Jones v.
Bayshore Union Free School District, 947 F. Supp. 2d 270, 279 (E.D. N.Y. 2013).
Conversely, the District has a compelling countervailing interest in controlling access
to its schools. School officials have the duty and broad discretion to restrict and control
access in furtherance of safety, security and orderly administration. See Embry v. Lewis,
215 F.3d 884, 889 (8th Cir. 2000) (school officials have broad discretion in restricting
visitors on school property to protect the safety and welfare of school children); see also,
Lovern v. Edwards, 190 F.3d 648, 655 (4th Cir. 1999).
There is strong legislative policy to control access to schools in the interest of
security. See J.L.S. at 947 So.2d at 645 (protection of school children is a compelling
governmental interest). The Jessica Lunsford Act and the Districts even more stringent
background clearance requirements for employees and vendors embodied in Rules 6.104 and

25

7.142 attest to that legislative priority. So do the school trespass statutes, as discussed above,
at pages 24-25.
The fact that Gray claims to have been investigating bus inspection practices does not
change the analysis. In Houchins v. KQED, Inc., 438 U.S. 1 (1978), the Supreme Court
expressly rejected the argument that the right to gather news and the right to receive
information imply that there is a constitutionally-protected special right of access to
government-controlled sources of information. Id. at 7. In a case involving a television
stations suit seeking access to a county jail to inspect and photograph where a prisoners
suicide had occurred, the Court reversed the Circuit Court of Appeals decision granting the
station access for newsgathering purposes. The Court concluded:
Neither the First Amendment nor the Fourteenth Amendment
mandates a right of access to government information or
sources of information within the governments control.
The media have no special right of access to the Alameda
County jail different from or greater than accorded the public
generally.
438 U.S. at 15-16; see also, The Herald Company v. Klepfer, 734 So.2d 93, 100 (2d Cir.
1984) (to claim a value in access to information even information concerning significant
governmental activities, comparable to the value of freedom of expression, is to ignore 200
years of First Amendment jurisprudence); DAmario v. Providence Civic Center Authority,
639 F. Supp. 1538, 1542 (D.R.I. 1986) (The First and Fourteenth Amendments bar
government from interfering in any way with the free press. The Constitution does not,
however, require government to afford the press special access to information not shared by
members of the public generally.).

26

WHEREFORE, pursuant to Rule 1.510, Florida Rules of Civil Procedure and Section
768.295, Florida Statutes (2015), the Plaintiff St. Johns County School Board moves the
Court to deny Defendant Grays Anti-SLAPP motion and ruling that the School Board is
entitled to reasonable attorneys fees as the prevailing party.
PLAINTIFF SCHOOL BOARDS CROSS-MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 1.510, Florida Rules of Civil Procedure and Section 768.295,
Florida Statutes (2015), Plaintiff St. Johns County School Board (School Board) moves for
the entry of an order granting this motion for summary judgment and awarding the School
Board attorneys fees in an amount to be determined, as the prevailing party on Grays AntiSLAPP claim. In support of the motion, the School Board shows that the pleadings and
affidavit on file establish that there is no disputed issue of material fact and that it is entitled
to judgment against Gray on his Anti-SLAPP claim as a matter of law, as shown by the
School Boards Response and Memorandum of Material Fact and Supporting Law above.
The School Board would further show that it has engaged the undersigned attorney to
represent it and is obligated to pay them a reasonable fee pursuant to Section 768.295.
WHEREFORE, Plaintiff St. Johns County School Board moves the Court to enter an
order granting its motion for summary judgment on Defendant Jeffery M. Grays Anti-Slapp
claim and awarding it reasonable attorneys fees as the prevailing party hereon.

27

/s/David M. Delaney
DAVID M. DELANEY
Florida Bar No.: 121060
ddelaney@dellgraham.com
RYAN L. GILBERT
Florida Bar No.: 105931
rgilbert@dellgraham.com
203 NE 1st Street
Gainesville, Florida 32601
(352) 372-4381
and
Frank D. Upchurch III
Florida Bar No. 195211
UPCHURCH, BAILEY AND UPCHURCH, P.A.
Post Office Drawer 3007
St. Augustine, Florida 32085-3007
Telephone No. (904) 829-9066
Facsimile No. (904) 825-4862
Primary email: fdupchurch@ubulaw.com
Secondary email: cindy@ubulaw.com
Firm Email: pleadings@ubulaw.com
Attorneys for St. Johns County School Board

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished
via
email
delivery
to:
Lesley
McKinney,
Esquire,
lmckinney@jacksonvillelawyer.pro, Attorney for Defendant Jeffery M. Gray, this 19th day
of January, 2016.

/s/David M. Delaney
David M. Delaney

28

INDEX TO EXHIBITS
A.

Defendants Motion for Sanctions Pursuant to Section 57.105, Florida Statutes, Jeffery
Gray v. St. Johns County School Board, Seventh Judicial Circuit Case No. CA15-1121

B.

District Facts

C.

11/25/15 hearing transcript, Jeffery Gray v. St. Johns County School Board, Seventh
Judicial Circuit Case No. CA15-1121

D.

St. Augustine Record article, School Board Trades Lawsuits with Local Man, dated
12/26/15

E.

Final Order Denying Relief Under Public Records Act, dated December 1, 2014,
Jeffery Marcus Gray v. Lutheran Social Services of Northeast Florida, Inc., Fourth
Judicial Circuit Case No. 2014-CA-4647-XXXX

F.

Transcript of 10/29/14 proceeding in Lutheran Social Services

G.

Opinion filed 12/16/15, First District Court of Appeal, Jeffery Marcus Gray v. Lutheran
Social Services of Northeast Florida, Inc., Case No. 1D14-5793

H.

Excerpt from St. Johns County School District Acceptable Use Policy

I.

Affidavit of Joseph G. Joyner, Ed.D.

J.

Intentionally Deleted

K.

Amended Complaint, Jeffery Gray v. St. Johns County School Board, Seventh Judicial
Circuit Case No. CA15-1121

L.

Order on Evidentiary Hearing, Charles Grapski v. J. Bernard Machen, Eighth Judicial

Circuit Case No. 01-2005-CA-4005

M.

News4Jax article, Photography Group Raises Questions on School Bus Safety, dated
12/8/15

N.

HonorYourOath YouTube channel excerpts (showing video publication dates)

29