THE CITYS OBSTRUCTION OF CITIZENS ACCESS TO PUBLIC RECORDS

The Florida Constitution says: Every person has 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.
For the past sixteen months, the City of Miami has unreasonably and improperly fought
efforts by citizens to obtain Public Records to which they are legally entitled under Floridas
landmark Public Records Law and Floridas Constitution.
These obstructionist tactics have forced citizens to go to court to secure public records
which has pushed the costs to the taxpayers into the stratosphere.
Now that we have those documents we know the City had good reasons to attempt to hide
them because they raise serious questions about the Citys decisions and decision-making
processes.
The publics problem is Citys deliberate pattern of attempting to frighten away the
public from monitoring its affairs.
The publics opportunity is to vigorously challenge such behavior and hold the City and
its officials accountable for this project and as a lesson for others.
Miami residents of the Venetian Causeway and their homeowner associations were able
to obtain critically important records regarding the proposed commercial development of
Watson Island known as the Flagstone Island Gardens Project only by filing lawsuits against the
City under Floridas Sunshine and Public Records laws.
There are two parallel issues here, both supported throughout the chronology on this site,
with linked documents.
2

The first is that by the Citys delaying the production of documents beyond certain key
dates, the public did not have the information it needed to form an opinion about certain
important matters and inform its elected representatives of their views, let alone conduct
independent and expert analysis to challenge the citys findings, if appropriate.
And it turned out to be very appropriate.
The second is that by the Citys forcing the public into court and a series of hearings and
delayed litigation, it forced the members of the public seeking these documents to spend
enormous amount of personal funds versus the Citys apparently unlimited budget to litigate.
Regarding the first issue, in addition to the contents of what has been found documented
elsewhere on this site, the City of Miamis history of blocking public participation served as an
attempted cover-up of wrong doing by City officials.
For example, on June 7, 2013, Venetian Island resident Stephen Herbits requested the
Citys public records pertaining to the Related Groups proposal to amend the approved plans
for Watson Island. The City ignored his request made under the State Public Records laws for
nearly one month, until he filed a lawsuit on July 2. Within a week of the Courts setting a
hearing, the City produced three CDs of cached emails and a small number of paper documents.
These documents showed that City officials were throughout their period of resistance, working
aggressively behind closed doors with the developer to expand the Watson Island Project by
doubling the amount of retail space, adding more hotel rooms, and other additions, without any
analysis of the impact on traffic, public safety, the environment, or other impacts.
And the Citys plan was to do this without consideration of a new RFP or referendum. The
information, though, generated a groundswell of public opposition, including a resolution by the
3

Miami Beach City Commission opposing the expansion.
1
Within a few weeks, the Related
Group withdrew.
2

As the City was determined to advance the project, however, Herbits and other neighbors
continued to formally request public records.
On another matter, the court on May 8, 2014 ordered the production of documents
requested on September 13, 2013 related to the public use requirement for Watson Island,
holding that the City had improperly asserted they were exempt from disclosure. Unfortunately,
this ruling came two weeks after the State Department of Environmental Protection agreed to
allow the City to proceed with the Flagstone deal by agreeing to waive the requirement that
Watson Island only be used for public purposes.
The City had also been withholding for nearly a year a traffic study supposedly conducted
in the fall of 2013. The City simply never disclosed its existence between November 2013 and
May 2014 despite public records requests asking for traffic studies. It was not until May 13,
2014, when citizens asked the State Cabinet to reject the Citys request for a waiver of the public
purpose requirement, based in part on the Citys failure to conduct a traffic study more current
than 2002, that Assistant City Attorney Alice Bravo disclosed the existence of the 2013 study.
When it was finally produced also because of the pendency of Herbits court case the reasons
the City had withheld it were obvious. The study is fundamentally flawed, containing multiple

1
See, e.g. Andres Viglucci, Its Miami vs. Miami Beach in heated tussle over massive Watson
Island plan, The Miami Herald, July 13, 2013. On July 17, the City of Miami Beach passed a
resolution to authorize the City Manager and City Attorney to take appropriate steps to protect
the citys interests. Andres Viglucci, Miami Beach Commission vows to fight Miamis Watson
Island plan, The Miami Herald, July 21, 2013.
2
Christiana Veiga, Developer backs out of plan for bigger Watson Island Project, The
Miami Herald, August 9, 2013, Exhibit E.

4

deviations from accepted professional standards, as well as several important factual and
analytical discrepancies. It concedes that even without the Flagstone Project existing peak hour
traffic on MacArthur Causeway exceeds the FDOT generalized capacity estimate by 32%.
Worse, the 2013 study failed to evaluate the primary impact points that will be most affected by
the Project the intersection points between MacArthur Causeway and Biscayne Blvd, and
Alton Road.
As is shown in the chronology of the Citys actions, one of the most egregious violations of
law by the City is that it is violating Section 29-B of the City Charter by allowing the developer
to lease the Watson Island land for far less than the fair market value. City Official Henry Torre
on May 5 three days before the vote wrote a memo showing that Fair Market Rent increased
from $1.89 million in 2002 to $7.26 million in 2014. Yet, at their May 8 meeting when
Commissioners approved the project yet again, some commissioners and high-ranking city
officials publicly denied having knowledge of the new appraisals or their results.
The City had withheld this memo from May 5, 2014, until Herbits filed another lawsuit on
August 15, 2014, and the Court ordered the City to produce the past due documents within one
week.
There are many more examples of damage caused by deliberate delays surely a matter for
future litigation.
But beyond the illegalities of withholding the information is the Citys pattern of forcing
every issue into court, costing the citizens more to obtain the documents and the taxpayers the
cost of the Citys defending itself (and spend the staff attorneys own time) than the actual cost
of the fees that they should have paid under the law. This aspect of the Sunshine Laws is critical
because:
5

without the citys having to pay for the litigants expenses, the city has no reason to
obey the Sunshine statutes;
it is a massive disincentive to others to attempt to use the courts to obtain what is
rightly theirs; and
the court process itself is slow and demonstrates therefore a deliberate exacerbating of
the timing problem
To help with the rescue of public participation in keeping government wrongdoing hidden
comes the First Amendment Foundation, Inc. They have filed an amicus brief on behalf of the
citizens who are fighting the city. The brief was filed on behalf of the following:
The Florida Times-Union
The Florida Press Association
The McClatchy Company (owner of the Miami Herald)
The Florida Society of News Editors
The Gannett Co., Inc. and their subsidiaries.
The sordid details of the Citys strategy to keep their wrongdoing secret may be found in a
chronology of the Citys behavior on Public Records on this site. Regardless of how our
residents, business owners and employees feel about development on Watson Island, every one
of us should be outraged by the Citys blatant attempts to prevent the public from learning of
what they are doing behind closed doors.
It is incumbent on us to challenge the City behavior to hold them accountable for wasting
enormous resources and making illegal decisions both in process and in substance. Not only
should the substantive decisions that the City has made during this period be reversed, but the
6

personnel records of those individuals who participated in this charade should be required to
include appropriate notations that could affect their compensation, bonuses and promotions.



IN THE CIRCUIT COURT FOR THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION
STEPHEN HERBITS,
CASE NO.: 13-23128 CA 31

Plaintiff,

vs.

THE CITY OF MIAMI,


Defendant.
_______________________________________________/
ORDER GRANTING WRIT OF MANDAMUS
THIS CAUSE came before the Court on Plaintiffs Motion for Order Enforcing Citys
Obligation to Produce Public Records and Request for Immediate Hearing Under Section
11.011(1), Florida Statutes. The Court, having reviewed the motion, the response, having
considered the arguments of counsel, having conducted an in camera inspection of the records at
issue, and being otherwise fully advised in the premises, hereby finds as follows:

1. In response to a January 14, 2014 public records request made by the Plaintiff, Stephen
Herbits, the Defendant, the City of Miami, asserted that certain documents were exempt
from disclosure pursuant to Florida Statute section 119.071(1)(d). Herbits has moved for
issuance of a writ of mandamus and/or injunctive relief to require the City of Miami to
produce the documents.
2. The documents have been provided to the Court for an in camera inspection.
3. Section 119.071(1)(d) creates an attorney-client privilege exemption from the broad
requirement that government records be made available to the public. See Lightbourne v.
McCollum, 969 So. 2d 326 (Fla. 2007). It exempts:
1. A public record that was prepared by an agency attorney (including an
attorney employed or retained by the agency or employed or retained by
another public officer or agency to protect or represent the interests of the
agency having custody of the record) or prepared at the attorney's express
direction, that reflects a mental impression, conclusion, litigation strategy,
or legal theory of the attorney or the agency, and that was prepared

exclusively for civil or criminal litigation or for adversarial administrative
proceedings, or that was prepared in anticipation of imminent civil or
criminal litigation or imminent adversarial administrative proceedings, is
exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until
the conclusion of the litigation or adversarial administrative proceedings.
For purposes of capital collateral litigation as set forth in s. 27.7001, the
Attorney General's office is entitled to claim this exemption for those
public records prepared for direct appeal as well as for all capital collateral
litigation after direct appeal until execution of sentence or imposition of a
life sentence.
2. This exemption is not waived by the release of such public record to
another public employee or officer of the same agency or any person
consulted by the agency attorney. When asserting the right to withhold a
public record pursuant to this paragraph, the agency shall identify the
potential parties to any such criminal or civil litigation or adversarial
administrative proceedings. If a court finds that the document or other
record has been improperly withheld under this paragraph, the party
seeking access to such document or record shall be awarded reasonable
attorney's fees and costs in addition to any other remedy ordered by the
court.
4. The public records act is to be construed liberally in favor of openness, and all
exemptions from disclosure are to be construed narrowly and limited in their designated
purpose. Lightbourne 969 So. 2d at 332-33 (quoting City of Riviera Beach v.
Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994)).
5. Accordingly, the exemption provided by section 119.071(1)(d) only extends to those
records that contain the attorney's mental impressions, litigation strategy, or legal
theory and are prepared exclusively for litigation or in anticipation of imminent
litigation. Lightbourne 969 So. 2d at 332 (emphasis in original).
6. Imminent means About to occur; impending. AMERICAN HERITAGE COLLEGE
DICTIONARY 679 (3d ed. 1993).
7. The governmental agency must identify the potential parties to imminent litigation, and
has the burden of showing that the requested documents fall within the statutory
requirements of the exemption. See Fla. Stat. 119.071(1)(d)2; Lightbourne 969 So. 2d
at 333.
8. Thus, the question in the instant case is whether the City has met its burden of
demonstrating that the records at issue contain the attorney's mental impressions,
litigation strategy, or legal theory and were prepared exclusively for litigation or in
anticipation of imminent litigation.

9. Based upon a review of the record and the in camera inspection, it does not appear that
any of the documents at issue were prepared in anticipation of imminent litigation.
a. The first document on the Citys privilege log is the Watson Island Title
History. As the title suggests, this is a summary of the title history of the Watson
Island property. The title documents discussed in the summary are included as
attachments to the summary. This document and its attachments were prepared in
order to review ownership of the property. They were not prepared in anticipation
of imminent litigation. Having reviewed the record and the documents submitted
in camera, the Court finds that the City perhaps had these documents prepared for
the possibility of potential litigation, but that is far different than imminent
litigation.
b. The second document on the Citys privilege log is an email dated October 11,
2013, and an attached draft of an engagement letter between the City and the
Holland & Knight law firm. From the terms of the engagement letter itself,
however, the engagement was not for the purpose of imminent litigation, but for
the purpose of reviewing property ownership. Although there was an
understanding that litigation might arise out of ownership issues, by the terms of
the engagement letter, it did not cover any such potential litigation. The Court
finds this document was not prepared in anticipation of imminent litigation.
c. The third document on the Citys privilege log is an email dated October 3, 2013,
and an earlier draft of the same engagement letter. The Court finds this document
also was not prepared in anticipation of imminent litigation.
d. The fourth document on the privilege log is a short email chain dated January 6,
2014 which asks various individuals to send an attorney named Roberto Blanch
an engagement letter and other documents. As this email relates to the
engagement of Mr. Blanch to review ownership property issues, the Court finds
that is was not preparedin anticipation of imminent litigation (again expressly
excluding from the agreement any potential litigation that could arise out of such
issues).
e. The fifth document on the privilege log is an email chain dated January 7, 2014,
which is identical to the January 6
th
chain except that it includes a follow-up thank
you note. The Court finds that this note was not prepared in anticipation of
litigation.
f. The sixth document is another branch of the email chain, this one dated January 8,
2014, in which one of the individuals from the previous chain asked for and
received Mr. Blanchs contact information in order to prepare an engagement
letter for him. As with the other related emails, the Court finds that this was not

prepared in anticipation of imminent litigation, but instead for the purpose of
reviewing property ownership.
g. The seventh document is an email chain dated January 8, 2014, following up the
previous email, and similarly the Court finds that it was not prepared in
anticipation of imminent litigation.
h. The eighth document is another email dated January 8, 2014, attaching a draft of
the engagement letter. From the terms of the draft, it is clear that the purpose of
the engagement letter is for the review of property ownership, and that it was not
prepared in anticipation of imminent litigation, and the letter expressly does not
cover potential litigation that could possibly arise from the matter.
i. The ninth document is an email dated January 9, 2014, from Roberto Blanch,
asking for previously referenced documents. The Court finds that this document
relates to Mr. Blanchs engagement to review property ownership issues, and not
to imminent litigation.
j. The tenth document is another email dated January 9, 2014 from Roberto Blanch,
asking that the previous email be disregarded. The Court finds that this document
was not prepared in anticipation of imminent litigation.
k. The eleventh document is an email dated January 9, 2014, which responds to the
previous email and simply seeks to arrange a meeting between the parties to the
email. As with the other emails in this group, the Court finds that it was not
prepared in anticipation of imminent litigation.
l. The twelfth document is a copy of the second. Again, the Court finds that it was
not prepared in anticipation of imminent litigation.
m. The thirteenth document is an email dated October 18, 2013. It is another draft of
the engagement letter between the City and Holland & Knight. As with the other
versions of the engagement letter, it was prepared in connection with the review
of the ownership of properties, and by its terms did not cover litigation that might
arise out of such review. Accordingly, the Court finds that it was not prepared in
anticipation of imminent litigation.
n. The fourteenth document is another email dated October 18, 2013, with another
draft of the Holland & Knight engagement letter attached. Like the other
versions, this draft was prepared in connection with the review of the ownership
of properties, and by its terms did not cover litigation that might arise out of such
review. The Court finds that it was not prepared in anticipation of imminent
litigation.

o. The fifteenth document is an email dated October 18, 2013, related to the draft of
the engagement letter that was done for the purposes of reviewing property
ownership, and like the letter itself, the Court finds that it was not prepared in
anticipation of imminent litigation.
p. The sixteenth document is an email dated October 21, 2013, with another draft of
the Holland & Knight engagement letter attached. As with the previous version,
this draft was prepared in connection with the review of the ownership of
properties, and by its terms did not cover litigation that might arise out of such
review. Accordingly, the Court finds that it was not prepared in anticipation of
imminent litigation.
q. The seventeenth document
1
is apparently the final draft of the Holland & Knight
engagement letter. As with all the drafts, it is for the purpose of reviewing
ownership of properties, and expressly does not deal with potential future
litigation that could possibly arise out of the matter. It was not prepared in
anticipation of imminent litigation.
r. The eighteenth document is another draft of the engagement letter between the
City and Mr. Blanch, dated January 9, 2014. The purpose of this letter is to
review property ownership and it expressly does not cover any possible litigation
that might arise out of the matter. The Court finds that it was not prepared in
anticipation of imminent litigation.
s. The nineteenth document is a copy of the seventh document, not prepared in
anticipation of imminent litigation.
t. The twentieth document is a copy of the eighth document, not prepared in
anticipation of imminent litigation.
u. The twenty-first document is dated January 24, 2014, and is a draft engagement
letter between the City and the McDonald Hopkins law firm. As with the
engagement letters with other attorneys, this letter was for the purpose of
reviewing property ownership and expressly excluded litigation that might
possibly arise out of the matter from its terms. Accordingly, the Court finds that
it was not prepared in anticipation of imminent litigation.
v. The twenty-second document is a photocopy of a case from Southern Second.
The citation to the case is listed in the privilege log. It does not have any notes,

1
There are actually three copies of this document included in the in camera inspection materials, but they appear to
be identical except that one of them is signed and printed on City of Miami letterhead.

underlining, or highlighting on it. There is no indication that this case was
photocopied in anticipation of imminent litigation.
w. The final document is titled NOTES and discusses submerged land deed issues.
Since the City perceived issues with these land deeds, it is possible that it
anticipated the potential for possible litigation in preparing these notes. However,
there is no indication in the notes, or in the record in general that imminent
litigation prompted the creation of these notes. Accordingly, the Court finds that
it was not prepared in anticipation of imminent litigation.
10. The City has not demonstrated that it prepared any of the documents in anticipation of
imminent litigation. The documents do not meet the requirements of section
119.071(1)(d), so they must be produced. Mandamus is an appropriate remedy to compel
a city's timely production of public records. Poole v. City of Port Orange, 33 So. 3d 739,
741 (Fla. 5th DCA 2010).
Therefore, for the reasons stated herein, it is hereby ORDERED and ADJUDGED that:
1. Plaintiffs request for a writ of mandamus is granted. The City shall furnish the materials
discussed in this order to Plaintiff by close of business on Monday, May 12, 2014..
DONE AND ORDERED in Chambers at Miami-Dade County, Florida, on 05/08/14.



_____________________________
ABBY CYNAMON
CIRCUIT COURT JUDGE

No Further Judicial Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT

The parties served with this Order are indicated in the accompanying 11th Circuit email
confirmation which includes all emails provided by the submitter. The movant shall
IMMEDIATELY serve a true and correct copy of this Order, by mail, facsimile, email or
hand-delivery, to all parties/counsel of record for whom service is not indicated by the
accompanying 11th Circuit confirmation, and file proof of service with the Clerk of
Court.

Signed original order sent electronically to the Clerk of Courts for filing in the Court file.

IN THE DISTRICT COURT OF APPEAL
OF FLORIDA, THIRD DISTRICT

CASE NO. [3D14-20]


STEPHEN HERBITS,
Appellant,

v.

THE CITY OF MIAMI,
Appellee.


BRIEF OF AMICUS CURIAE, FIRST AMENDMENT FOUNDATION, INC.;
MORRIS PUBLISHING GROUP, LLC, d/b/a THE FLORIDA TIMES-UNION;
FLORIDA PRESS ASSOCIATION, INC.; THE MCCLATCHY COMPANY
(OWNER OF THE MIAMI HERALD); The FLORIDA SOCIETY OF NEWS
EDITORS; and GANNETT CO. INC. including FLORIDA TODAY, THE FORT
MYERS NEWS-PRESS, PENSACOLA NEWS JOURNAL, TALLAHASSEE
DEMOCRAT, WTLV-TV, WJXX-TV and WTSP-TV ,
IN SUPPORT OF APPELLANT


On Appeal From a Final Order of the Circuit Court of the Eleventh J udicial
Circuit, in and for Miami-Dade County, Florida, Denying Appellants Motion for
Attorneys Fees and Costs Pursuant to Section 119.12(1), Florida Statutes


HOLLAND & KNIGHT, LLP
George D. Gabel, J r. (FBN 027220)
Timothy J . Conner (FBN 767580)
J ennifer A. Mansfield (FBN 0186724)
50 North Laura Street, Suite 3900
J acksonville, Florida 32202
Telephone: (904) 353-2000
Facsimile: (904) 358-1872
Attorneys for Amici Curiae
i

TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................. ii

TABLE OF AUTHORITIES ....................................................................... iii

I. IDENTITY OF AMICI AND STATEMENT OF INTEREST .................... 1

II. SUMMARY OF THE ARGUMENT ........................................................... 2

III. ARGUMENT ................................................................................................ 4

A. This Court reviews de novo the trial courts conclusion that
the delay was not unjustified .............................................................. 4

B. The City of Miamis Delay Was Unreasonable ................................. 3

1. Unjustified delay in producing records until after a lawsuit
is filed is unlawful delay mandating an award of
attorneys fees under 119.12 ...................................................... 5

2. The City bears the burden of proving its delay in
producing the records was justified .............................................. 8

3. Public Policy Favors Reversal of the Trial Courts Denial
of Attorneys Fees ....................................................................... 13

C. Appellant is Entitled to Recover Reasonable Attorneys Fees
and Costs for the Citys Unjustified Delay ...................................... 15

IV. CONCLUSION ........................................................................................... 15

CERTIFICATE OF SERVICE ................................................................... 17

CERTIFICATE OF TYPEFACE COMPLIANCE .................................... 17



ii

TABLE OF AUTHORITIES
Cases
Althouse v. Palm Beach County Sheriffs Office,
92 So. 3d 899 (Fla. 4th DCA 2012) ................................................................... 10
Barfield v. Town of Eatonville,
675 So. 2d 223 (Fla. 5th DCA 1996) ........................................... 5, 10, 11, 12, 15

Brunson v. Dade County Sch. Bd.,
525 So. 2d 933 (Fla. 3d DCA 1998) ........................................................... 3, 6, 10
Doe v. State,
901 So. 2d 881 (Fla. 4th DCA 2005) .................................................................... 5
Downs v. Austin,
559 So. 2d 246 (Fla. 1st DCA 1990) .................................................................... 6
Florida Patient's Compensation Fund v. Rowe,
472 So.2d 1145 (Fla.1985) ................................................................................... 6
Grapski v. City of Alachua,
31 So. 3d 193 (Fla. DCA 2010) ............................................................................ 5
Hewlings v. Orange County,
87 So. 3d 839 (Fla. 5th DCA 2012) .......................................................... 6, 12-13
Johnson v. Jarvis,
74 So. 3d 168 (Fla. 1st DCA 2011) ...................................................................... 9
Lee v. Board of Trustees, Jacksonville Police & Fire Pension Fund,
113 So. 3d 1010 (Fla. 1st DCA 2013) ................................................................ 15
Lilker v. Suwannee Valley Transit Auth.,
133 So. 3d 654 (Fla. 1st DCA 2014) ............................................................ 6, 7, 8
New York Times Co. v. PHH Mental Health Services, Inc.,
616 So. 2d 27, 29 (Fla. 1993) ............................................................. 3, 5, 6, 8, 13
News and Sun-Sentinel co. v. Palm Beach County,
517 So. 2d 743 (Fla. 4th DCA 1987) .................................................................. 13
iii

Office of the State Attorney v. Gonzalez,
953 So.2d 759 (Fla. 2d DCA 2007) .................................................................... 10
The Promenade DIberville, LLC v. Sundy,
Case No. 1D13-5583, __ So. 3d __, 2014 WL 4242961 (Fla. 1st
DCA Aug. 28, 2014) ........................................................................... 3, 4, 7, 9, 10
Puls v. City of Port St. Lucie,
678 So. 2d 514 (Fla. 4th DCA 1996) .............................................................. 6, 15
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1983) .............................................................................................. 2
State v. McMillan,
38 So. 666 (Fla. 1905) .......................................................................................... 1
Times Pubg Co., Inc. v. City of St. Petersburg,
558 So. 2d 487 (Fla. 2d DCA 1990) ..................................................... 8, 9, 10, 11
Tribune Company v. Cannella,
458 So. 2d 1075, 1078 (Fla. 1984) ................................................................... 7, 8
Weeks v. Golden,
764 So. 2d 633 (Fla. 1st DCA 2000) ............................................................ 10-11
Wisner v. City of Tampa Police Dept.,
601 So. 2d 296 (Fla. 2d DCA 1992) ................................................................... 11

Constitution and Statutes

Article V, section 4(b)(3) of the Florida Constitution ............................................... 6
119.12, Florida Statutes ...................................................................................... 5, 6
Chapter 119, Florida Statutes ..................................................................................... 5

Rules
Rule 9.370, Florida Rules of Civil Procedure ............................................................ 1

iv

Other
Katrina G. Hull, Disappearing Fee Awards and Civil Enforcement of Public
Records Laws, 52 U. Kan. L. Rev. 721, 724 (2004) ......................................... 13










v

Pursuant to Rule 9.370 Florida Rules of Appellate Procedure, the First
Amendment Foundation, Inc.; Morris Publishing Group, LLC, d/b/a The Florida
Times-Union; Florida Press Association, Inc.; The McClatchy Company (owner of
The Miami Herald); The Florida Society of News Editors; Gannett Co. Inc., a news
and information company whose properties include Florida Today, The Fort Myers
News-Press, Pensacola News Journal, Tallahassee Democrat, WTLV-TV,
WJ XX-TV and WTSP-TV (collectively, "Amici"), respectfully submit this brief and
would show the Court as follows:
I. IDENTITY OF AMICI AND STATEMENT OF INTEREST
The Amici are organizations and media outlets devoted to ensuring that the
citizenry's constitutional guarantee of open government is not diluted and that
Florida's government is conducted in the sunshine, subject to the searching view of
the public. The First Amendment Foundation Inc., provides representation,
guidance, and research in First Amendment and freedom of information litigation.
While the Amici are organizations and media outlets, they file this brief for the
benefit of all Floridians whom the constitutional guarantees of open government and
transparency are intended to benefit.
Florida has a long history of requiring that its government operate in the
sunshine. Indeed, as early as 1905, the Florida Supreme Court stressed Floridas
commitment to open government. State v. McMillan, 38 So. 666, 667-68 (Fla.
1

1905). Most people do not obtain information by first hand observation or word of
mouth, but chiefly acquire information through the print and electronic media. In
that sense, the media function as a surrogate for the public at large. Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 572-73 (1983).
The Amici are frequently confronted with the opportunity to report on and
inform the citizenry of what their local governments are doing. In the past, Amici
have had to file their own public records lawsuits in order to enforce their, and the
publics, constitutionally protected right to public records. Timely access to
information through the Public Records Act is critical to Amicis efforts to monitor
adherence to statutory mandates. The Amicis interest in this case is in maintaining
their and the publics access to public records, because the law and public policy are
furthered when any citizen brings a lawsuit to enforce an open government law.
In cases like this one, where a citizen must file a lawsuit in order to receive
access to public records, it should be the unlawful government body, not the citizen
serving the publics interest, that bears the financial burden. Litigation is expensive,
and the public and Amici do not have the financial resources to litigate access to
public records without an award of attorneys fees. If the trial courts order is
affirmed, it will deal an eviscerating blow to public records access for all Florida
citizens.
2

II. SUMMARY OF THE ARGUMENT
Appellant brought this lawsuit alleging the City of Miami (City) violated
the Public Records Act when it failed to respond to or produce records pursuant to a
public records request seeking documents concerning the Watson Island
development. The trial court erred by finding that the City of Miamis delay was
justified. Case law is clear that when an agency fails to produce records until after a
lawsuit is filed, the delay is unreasonable and the requestor is entitled to attorneys
fees for having to bring the lawsuit. See The Promenade DIberville, LLC v. Sundy,
Case No. 1D13-5583, __ So. 3d __, 2014 WL 4242961 (Fla. 1st DCA Aug. 28,
2014). Accordingly, this Court should reaffirm existing precedent that a local
governments unjustified delay in complying with the requests until after a suit was
brought amounts to an unlawful refusal under section 119.12, Florida Statutes, for
which attorneys fees and costs are to be awarded. See, e.g., Brunson v. Dade
County Sch. Bd., 525 So. 2d 933, 934 (Fla. 3d DCA 1998), approved in part and
disapproved in part by New York Times Co. v. PHH Mental Health Services, Inc.,
616 So. 2d 27, 29 (Fla. 1993).
Because the delay was unreasonable, Appellant is entitled to an award of his
attorneys fees. Amici urge the Court to note the considerable public interest served
by the Appellant in bringing the suit and the ultimate effect of the litigation in
unveiling the Citys records. As a result of Appellants lawsuit to seek public
3

records, the public, public officials, and the media investigated the proposed
development and provided input into the Citys decision-making process. Thus, this
public records lawsuit resulted in the opening of information and revealed the inner
workings of local government the precise intent of the statutory and constitutional
rights to open government. Without this litigation, the City may have continued to
conceal the records concerning the Watson Island development. Appellant took on
the financial burden to restore transparency in government on behalf of all the
citizens of Miami. In the absence of this lawsuit, there is no indication in the record
that the documents would have been produced at all, let alone before the City took
action on the subject matter of the requested documents. The Citys delay was
unreasonable and the trial court erred in denying Appellants attorneys fees.
Therefore, Amici respectfully request that this Court enter an Order reversing
the trial courts Order, and holding that the City of Miamis failure to release
documents for 24 days after a records request constitutes an unjustified delay that
amounts to an unlawful refusal to comply with Chapter 119, Florida Statutes, and
that Appellant is entitled to his attorneys fees both in the trial court and this Court.
III. ARGUMENT
A. This Court reviews de novo the trial courts conclusion that the
delay was not unjustified.
The standard of appellate review, as to whether an agency willfully violated
the Public Records Act by unjustifiably delaying production of records until after a
4

lawsuit is filed, is de novo. See The Promenade DIberville, LLC v. Sundy, Case No.
1D13-5583, __ So. 3d __, 2014 WL 4242961 (Fla. 1st DCA Aug. 28, 2014).
B. The City of Miamis Delay Was Unreasonable.
1. Unjustified delay in producing records until after a lawsuit is
filed is an unlawful delay mandating an award of attorneys
fees under 119.12.
Section 119.12, Florida Statutes, is designed to encourage voluntary
compliance with the requirements of Chapter 119. New York Times Co. v. PHH
Mental Health Services, Inc., 616 So. 2d 27, 29 (Fla. 1993) (If public agencies are
required to pay attorneys fees and costs to parties who are wrongfully denied access
to the records of such agencies, then the agencies are less likely to deny proper
requests for documents.); Barfield v. Town of Eatonville, 675 So. 2d 223, 224 (Fla.
5th DCA 1996). Awards of attorneys fees pursuant to 119.12, Florida Statutes,
discourage agencies from unlawfully refusing to comply with the liberal access to
public records afforded to the citizenry of Florida by the Public Records Act and the
Florida Constitution. Barfield, 675 So. 2d at 224. Thus, the attorneys fees provision
is an enforcement mechanism which effectuates the public policy of the Public
Records Act to open public records to allow Floridas citizens to discover and
participate in actions of their government. Doe v. State, 901 So. 2d 881 (Fla. 4th
DCA 2005). Furthermore, statutes enacted for the public benefit should be
interpreted most favorably to the public. Grapski v. City of Alachua, 31 So. 3d 193
5

(Fla. 1st DCA 2010).
Florida courts have construed Chapter 119 as reinforcing the rights set forth
in Article V, section 4(b)(3) of the Florida Constitution, and thus hold that Chapter
119 is to be construed liberally in favor of relief, including the attorneys fees
provision in 119.12. See New York Times Co. v. PHH Mental Health Servs., Inc.,
616 So. 2d 27, 29 (Fla. 1993) (holding the attorneys fees provision is designed to
encourage public agencies to comply with public records law and allow persons
seeking to enforce public records law to pursue their rights); Hewlings v. Orange
County, 87 So. 3d 839, 840 (Fla. 5th DCA 2012) (This section is liberally construed
so as to best enforce access to public records.); Downs v. Austin, 559 So. 2d 246,
247 (Fla. 1st DCA 1990) (Section 119.12, a part of the Act and intended as a tool
for its enforcement, see Florida Patient's Compensation Fund v. Rowe, 472 So.2d
1145, 1148 n. 4 (Fla.1985), should therefore be liberally construed so as to best
enforce the promotion of access to public records.). Without an award of attorneys
fees, citizens seeking enforcement of the their rights to public records simply cannot
afford the high costs of litigation, which in turn discourages enforcement of and
compliance with the public records law.
An unjustified delay in complying with a request for public records amounts
to an unlawful refusal to comply under section 119.12, Florida Statutes. Lilker v.
Suwannee Valley Transit Auth., 133 So. 3d 654, 655 (Fla. 1st DCA 2014); Barfield,
6

675 So. 2d 223 at 224; Puls v. City of Port St. Lucie, 678 So. 2d 514 (Fla. 4th DCA
1996) (per curiam) (reversing and remanding for a determination of whether there
was an unlawful refusal of access to records for purposes of section 119.12, Florida
Statutes).
The only relevant inquiry here is whether the City of Miamis delay was
justified under the facts of this case. Lilker, 133 So. 3d at 655. It has never been
contemplated, in either the statute or case law, that there should be any delay with
access to public records beyond the time necessary to retrieve the requested
documents and make statutorily required redactions. See Tribune Co. v. Cannella,
458 So. 2d 1075, 1078 (Fla. 1984) (The only delay permitted by the Act is the
limited reasonable time allowed the custodian to retrieve the record and delete those
portions of the record the custodian asserts are exempt.).
Delay in making public records available is permissible under very
limited circumstances. A records custodian may delay production to
determine whether the records exist, 119.07(1)(c); if the custodian
believes that some or all of the record is exempt under the Act,
119.07(1)(d)-(e); or if the requesting party fails to remit the
appropriate fees, 119.07(4). Otherwise, [t]he only delay permitted
by the Act is the limited reasonable time allowed the custodian to
retrieve the record and delete those portions of the record the custodian
asserts are exempt. Tribune Co. v. Cannella, 458 So.2d 1075, 1079
(Fla.1984). Unjustified delay in making non-exempt public records
available violates Florida's public records law. Id.

The Promenade DIberville, LLC v. Sundy, Case No. 1D13-5583, __ So. 3d __, 2014
WL 4242961 (Fla. 1st DCA Aug. 28, 2014).
7

Thus, a mere finding that a certain amount of time may be reasonable in the
abstract is contrary to the law; no matter the length of the delay there must be legally
sufficient justification in order for that delay to be lawful. PPH Mental Health
Services, Inc., 616 So. 2d at 30. Furthermore, any automatic delay does not comply
with the law. Tribune Co. v. Cannella, 458 So. 2d at 1079.
The trial court failed to make specific findings of fact to support its conclusion
that the delay here was justified. That, itself, is error. Nonetheless, the facts in the
record are that once the lawsuit was filed and the City started gathering the
documents, they were produced within days. Therefore, a delay of over a month is
simply not justified. Although the City argued that thousands of documents might
require delay in reviewing for necessary exemptions, the actual evidence shows that
the City took mere days to gather and produce the records, including the time it took
(if any) to review the documents for exempt material. Thus, the City failed to
provide evidence that a month was a justified delay. To the contrary, its swift action
in gathering and producing the documents within days is the only evidence in the
record as to the actual rather than theoretical time necessary to comply with the
public records request.
2. The City bears the burden of proving its delay in producing the
records was justified.
The trial court also placed the burden on Appellant to show that the delay was
unjustified. That too was error, as the City has the burden of proving the delay was
8

justified. See Lilker, 133 So. 3d at 655 (the court must determine whether the delay
was justified under the facts of the particular case) (emphasis added); Times Pubg
Co., Inc. v. City of St. Petersburg, 558 So. 2d 487, 493 (Fla. 2d DCA 1990). As
explained in Times Publishing:
In a mandamus action, once it has been determined that the complaint
establishes a prima facie case that the defendants have breached a legal
duty, the court issues an alternative writ. Fla.R.Civ.P. 1.630. The
alternative writ requires the defendants either to perform the neglected
act or to show cause why final judgment in the form of a peremptory
writ should not be rendered. Conner v. Mid-Florida Growers, Inc., 541
So.2d 1252 (Fla. 2d DCA 1989); Fla.R.Civ.P. 1.630(d)(3). Once the
alternative writ here was entered, the White Sox could either move to
quash the writ or file a return. The White Sox filed a return, which
placed upon it the burden to establish material facts sufficient to defeat
the Times' claim. See State v. Haskell, 72 Fla. 176, 72 Fla. 244, 72 So.
651 (1916).

558 So. 2d at 493. It is always the agencys burden to justify the non-production of
public records. See The Promenade DIberville, LLC v. Sundy, Case No. 1D13-5583,
__ So. 3d __, 2014 WL 4242961 (Fla. 1st DCA Aug. 28, 2014) (holding agency
failed to justify its non-production of documents prior to the filing of the lawsuit).
Because there is no dispute that the requested documents are public records,
it was the Citys burden to prove that its delay in producing those public records was
justified. Evidence that the City may have needed time to review documents prior
to production, as opposed to evidence that its actual review took up the entire delay
period, is not legally sufficient to prove that its delay was justified. The trial courts
order essentially finds that a 24 day delay is never unjustified if there are many
9

documents that may need reviewing. Since each case is to be decided on its specific
facts, that conclusion is error. See Johnson v. Jarvis, 74 So. 3d 168, 170-71 (Fla. 1st
DCA 2011). The trial court arrived at that error by applying the wrong standard and
reversing the burden of proof. 558 So. 2d at 493.
The trial courts error is exemplified by the fact that Florida courts have held
that production after a lawsuit is filed is not a justifiable delay. The Promenade
DIberville, LLC v. Sundy, Case No. 1D13-5583, __ So. 3d __, 2014 WL 4242961
(Fla. 1st DCA Aug. 28, 2014) (holding that the case law is clear that unjustifiable
delay to the point of forcing a requester to file an enforcement action is by itself
tantamount to an unlawful refusal to provide public records in violation of the Act.).
See also Brunson, 525 So. 2d at 934 (When considered in the light of the intent of
chapter 119, which has as its purpose the prevention of government agencies from
restricting access to public records, the Board's unjustified delay in complying with
the requests until after a suit was brought amounted to an unlawful refusal under
section 119.12, for which attorney's fees and costs are to be awarded.); Althouse v.
Palm Beach County Sheriffs Office, 92 So. 3d 899, 902 (Fla. 4th DCA 2012) ([T]he
Sheriffs delay in complying with Althouses request until after the filing of his suit
amounted to an unlawful refusal under section 119.12, for which fees and costs are
to be awarded.); Barfield, 675 So. 2d 223 at 224; Office of the State Attorney v.
Gonzalez, 953 So.2d 759, 764 (Fla. 2d DCA 2007) (holding that attorneys fees are
10

awardable when an agency unjustifiably fails to respond to a public record request
by delaying until after the enforcement action has been commenced); Weeks v.
Golden, 764 So. 2d 633, 635 (Fla. 1st DCA 2000) (An unjustified failure to respond
to a public records request until after an action has been commenced to compel
compliance amounts to an unlawful refusal for purposes of section 119.12(1).);
Wisner v. City of Tampa Police Dept., 601 So. 2d 296 (Fla. 2d DCA 1992) (holding
that requestor is entitled to reasonable costs under section 119.12(1), even though
the City subsequently provided Wisner a copy of the polygraph chart, as Wisner
found it necessary to file a civil action against the City to enforce the provisions of
this chapter and the City unlawfully refused to permit the public records to be
copied.). As stated in Barfield:
Application of section 119.12(1) and the relevant case law leads to but
one conclusion here, that the appellant was entitled to recovery of
attorney's fees and costs. The evidence clearly establishes that it was
only after the appellant filed a lawsuit that the documents he had
previously sought by written request to the Town were finally turned
over to him. Indeed, many of the documents were only turned over after
the appellant sought entry of a temporary injunction and a show cause
order was directed to the Town.

The Town's defense, that the delay in production of the records was
caused by either the intentional wrongdoing or ineptitude of its Town
clerk, amounts to an unlawful refusal and is not a valid basis for
denying recovery of attorney's fees and costs under section 119.12(1),
Florida Statutes. The Town's failure to turn over the documents was not
lawful and the appellant is entitled to recovery of his attorney's fees and
costs.

675 So. 2d at 224-25. Thus, the City had the burden to establish material facts
11

sufficient to defeat [Appellants] claim that its delay was unlawful. 558 So. 2d at
493. The trial court erred in placing the burden on Appellant.
This case is similar to Hewlings v. Orange County, 87 So. 3d 839 (Fla. 5th
DCA 2012). In Hewlings, the requestor faxed a public records request for copies of
all records relating to a dangerous dog investigation of her dog. Later that day, the
requestor received a voice mail from the county acknowledging the request. 87 So.
3d at 840. The next day, the requestor faxed another request. Id. One week later,
after receiving no response, her attorney contacted the countys attorney, who said
that a response would go out that day. Three days after that, the requestors attorney
received a faxed letter from the countys attorney stating that the county intended to
comply with the request, and someone would contact the requestor to arrange a time
within the next 14 days for her to examine the documents and designate which she
wanted copied. The requestor responded by letter, explaining that she was
requesting copies of all responsive documents. After receiving no further
communication from the county, the requestor filed suit. Id. The trial court ordered
production within 48 hours. The requestor then moved for attorneys fees, which
the trial court denied. The county maintained fees should be denied because it
responded to the request by voicemail and fax. The trial court agreed and denied
attorneys fees. Id. The Fifth District Court of Appeal reversed.
The Fifth District Court of Appeal held that the pertinent inquiry is not
12

whether the county responded to the request, rather whether it complied with the
request. Hewlings, 87 So. 3d at 841 [T]he mere fact that the County quickly
responded to Hewlings' request was not dispositive of whether the County
unjustifiably delayed in complying with her request.).
The trial courts order was also erroneous to the extent it imposes a
reasonableness standard. As noted by the Fourth District Court of Appeal, prior to
1984, Chapter 119 only provided for an award of attorneys fee when an agencys
refusal was unreasonable. But the statute was amended by the Legislature in order
to broaden and simplify access to public records. News and Sun-Sentinel co. v.
Palm Beach County, 517 So. 2d 743 (Fla. 4th DCA 1987), approved in part and
disapproved in part by PHH Mental Health Services, Inc., 616 So. 2d at 29, 30.
Thus, whether an agencys actions seem reasonable in retrospect is not the issue to
be decided. The issue is whether the agency has proven that is delay was justified
under the circumstances. That is not what the trial court decided, and therefore this
Court should reverse the denial of attorneys fees.
3. Public Policy Favors Reversal of the Trial Courts Denial of
Attorneys Fees
The trial courts holding substantially diminishes the effectiveness of the
Public Records Act and, if adopted by this Court, would have a detrimental effect
on public access for all citizens. Only those with significant private assets could ever
afford to bring a lawsuit to enforce their constitutional and statutory rights to public
13

records, leaving civil enforcement only to a privileged enforcement class. See
Katrina G. Hull, Disappearing Fee Awards and Civil Enforcement of Public Records
Laws, 52 U. Kan. L. Rev. 721, 723 (2004).
Litigation is expensive. Even media corporations cannot afford to sue over
every access issue because costs are high. An individual simply does not have the
financial ability to vindicate his rights in court unless the attorneys fees provision
is enforced to award fees where an agency withhold records until after a lawsuit is
filed.
Awarding attorneys fees against an agency which delays producing records
until after a lawsuit, like the City of Miami did here, will encourage prompt and
voluntary future compliance with the Public Records Act. This is not a case where
the Plaintiff tried a gotcha against the City; rather, he waited a month and had his
attorney communicate with the City in an effort to avoid a lawsuit. The Citys own
emails demonstrate that compliance within two or three days was not only possible
but actually accomplished by the City. On the other hand, affirming the court below
will encourage agencies to withhold records until suit is filed and then fight an award
of attorneys fees. Such a result would be counter to public policy, as expressed by
the Florida Constitution and Chapter 119. Accordingly, this Court should hold that
the failure to respond to Appellants public records request until after a lawsuit was
filed is an unjustified delay.
14


15

C. Appellant is Entitled to Recover Reasonable Attorneys Fees and
Costs for the Citys Unjustified Delay.
If a civil action is filed against an agency to enforce the provisions of Chapter
119, Florida Statutes, and the court determines that an agency unlawfully refused to
permit a public record to be inspected, the court shall assess an award against the
responsible agency, the reasonable cost of enforcement including reasonable
attorneys fees. 119.12, Fla. Stat. An unjustified delay in complying with a request
for public records amounts to an unlawful refusal to comply under section 119.12,
Florida Statutes. Barfield, 675 So. 2d 223 at 224; Puls v. City of Port St. Lucie, 678
So. 2d 514 (Fla. 4th DCA 1996) (per curiam) (reversing and remanding for a
determination of whether there was an unlawful refusal of access to records for
purposes of section 119.12, Florida Statutes).
Therefore, having determined that the delay was unreasonable, attorneys fees
must be awarded, and the only question is to the amount of fees. Lee v. Board of
Trustees, Jacksonville Police & Fire Pension Fund, 113 So. 3d 1010 (Fla. 1st DCA
2013). Accordingly, the Court should reverse the trial courts denial of Appellants
claim for attorneys fees in bringing his lawsuit.
IV. CONCLUSION
For the foregoing reasons, Amicus respectfully requests that this Court enter
an Order reversing the trial courts Order, and holding that the City of Miamis delay
in producing records was unjustified, amounts to an unlawful refusal to comply with
16

Chapter 119, Florida Statutes, and Appellant is entitled to award of attorneys fees
pursuant to 119.12, Florida Statutes.
Respectfully submitted,
HOLLAND & KNIGHT LLP

s/ George D. Gabel, Jr.
George D. Gabel, J r.
Florida Bar No. 027220
Timothy J . Conner
Florida Bar No. 767580
J ennifer A. Mansfield
Florida Bar No. 0186724
50 North Laura Street, Suite 3900
J acksonville, Florida 32202
Telephone: (904) 353-2000
Facsimile: (904) 358-1872

Attorneys for Amici Curiae



17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing has been furnished this
12
th
day of September, 2014, via email to:
Samuel J . Dubbin
Dubbin & Kravetz, LLP
1200 Anastaia Ave. Suite 300
Coral Gables, FL 33134
sdubbin@dubbinkravetz.com

Forrest L. Andrews, J r.
J ohn A. Creco,
Assistant City Attorneys
444 S.W. 2nd Ave.,Suite 945
Miami, FL 33130
flandrewsjr@miamigov.com
jgreco@miamigov.com
s/ George D. Gabel, Jr.
Attorney

CERTIFICATE OF TYPEFACE COMPLIANCE
Counsel for Amici Curiae certifies that this Brief is typed in 14 point
(proportionately spaced) Times New Roman, in compliance with Rule 9.210 of the
Florida Rules of Appellate Procedure.

s/ George D. Gabel, Jr.
Attorney


18