Filing # 40953194 E-Filed 05/02/2016 01:05:38 PM

IN THE COUNTY COURT IN AND FOR

ESCAMBIA COUNTY, FLORIDA
KYLE KOPYTCHAK,

Plaintiff,
vs.

Case No.

2015

Division

CC

002651

EMERALD COAST UTILITIES

AUTHORITY dba ECUA,

Defendant.

FINAL JUDGMENT

At a hearing in open court on April L8,20L6, the parties appeared with counsel.
Plaintiff filed this action seeking a Declaratory Judgment and lnjunctive relief. Plaintiff,
an Escambia County resident and customer of ECUA, made a public records request for
information related to what is commonly known as the back-flow prevention valve. He
clearly and unambiguously requested an estimate of how much it would cost to review
the records. Defendant provided a written "guesstimate" that the agency would
probably require 3-4 hours of time by employees paid between S18.00 to S25.00/hour
to gather the public records requested. Plaintiff replied making it absolutely clear that
he was upset and discouraged by the amount required but he agreed to pay obout
51,00.00 (SS+.OO to $L00.00 per the guesstimate) to reimburse costs incurred by
personnel gathering the public records for his review. He understood and agreed that
copy costs would be an additional expense. lmagine his surprise when presented a bill
and asked to pay nearly S0OO.OO before he could review the public records.
Section 119.07(l-Xa), Florida Statutes requires an agency such as defendant to
"permit the record to be inspected and copied by any person desiring to do so, at any
reasonoble time, under reosonable conditions . . ." An agency holding public records
may charge "a special service charge, which sholl be reosonoble and shall be based on
the cost incurred for such extensive use of information technology resources or the
labor cost of the personnel providing the service . . ." See $119.07(3Xd), Florida
Statutes. (Emphasis added).
There are two primary issues presented to the court. First, was the "cost ECUA
demanded to gather the public records" reasonable as required by 5119.07, Florida
Statutes? Second, should the defendant be required to pay a bill of nearly 5600.00

when he only authorized 554.00-5100.00 and made it clear that he believed $fOO.OO to
be his limited exposure to any expense other than actual records to be copied?

The custodian of public records, here ECUA, is required to make the records
available for review in a reosonoble manner. The court finds that the defendant's
demand for SS9S.05 to review the public records regarding the back-flow preventer
valve to be unreasonable. The court further finds that the defendant's decision to
continue to accrue expenses exceeding the plaintiff's 554.00 - S100.00 limited approval
without first notifying him to be equally unreasonable.
The plaintiff wished to examine the public records which would support the need
for customers to expend significant personal funds to install a "cross-connection
control" device. He specifically and unambiguously asked the defendant to "respond to
particularity those costs" associated with gathering the records, while acknowledging
his responsibility to pay an additional cost for any copies desired. See Defendant's
Exhibit #1. Defendant replied in writing with the "guesstimate" of 3-4 hours at 518.00
to S25.00/hour. See Plaintiff's Exhibit #1 - C. At no time did defendant ever revise the
estimate/guesstimate. Certainly defendant was on notice that plaintiff did not expect to
pay more than about 5L00.00. lt is unconscionable that they continued to accrue nearly
S600.00 in costs without first notifying the customer/plaintiff of the additional
"guesstimate expense." The defendant informed the plaintiff it would take
approximately 3-4 hours to pull the records. ln fact, it took 24 hours. This is not an
insignificant increase in time and expense. At what point are they obligated to let the
plaintiff know that the actual expense was exceeding his expectation and authorization?
Defendant argues they had no obligation to update the amount of time or expense
because they had only provided a "guesstimate." This is not a reasonable position for
the custodian of public records.
Defendant argues that the public records requested are not "held" electronically
and therefore the paper records must be gathered by employees in various
departments or divisions throughout the agency. Defendant also testified that only high
level employees had access to the public records the plaintiff wished to review so the
hourly rate properly reflected the cost. For example, when informed that he would
have to pay $fa.OO to S25.00/hour to employees to gather the public records for his
review, the plaintiff added a request to see the last fifteen invoices reflecting what ECUA
charged others for public record demands. He was obviously disturbed by the
anticipated cost to review "public" records and was looking for a pattern of abuse.
According to the testimony presented, the only person who could gather those invoices
wastheExecutiveAssistanttotheBoardwhocharged52g.65/hourtopull invoices. She

billed four hours for her work in gathering the public records for plaintiff.

lt is

unreasonable in this day and time that mere "invoices" were not easily accessible at a
minimal charge (if any). lnstead, Ms. lverson testified that she had to manually search
through years of paper records to find fifteen invoices. Here the citizen making a simple
public records request to review public records invoices is essentially "punished"
financially because the agency is technologically dated/deficient or denied access if he is
financially unable to pay Szg.0s/hour for access.

of discouraging public record demands.

By charging such an extremely high hourly rate to gather documents, by not having their
records easily accessible through electronic means, the average customer could be kept
from making public records requests because they quite simply cannot offord to review
the records. Being the public agency providing water and sewer services, means also
having the responsibility to make the public records accessible to the reasonable
average person. Requiring nearly S0OO.OO before permitting a customer to review the
public records supporting a high profile, media-covered, new and expensive
requirement of their customers seems unreasonable per se; a violation of the public
ECUA's actions arguably create a means

trust.
The court finds from the testimony presented, exhibits admitted and argument
by counsel, that the defendant's actions were unreasonable and violated 5119.07,
Florida Statutes. The plaintiff should not be required to pay S595.65. He should have
been given an opportunity to withdraw his request or make other arrangements once it
became obvious to ECUA that they could not fulfill his public records request for "about
554.00 to 5100.00." Furthermore, the court finds that it is unreosonoble to require an
individual making a public records request regarding an issue which is current ond
controversiol to pay such an unreasonablely high amount to merely review the public
records. While the court does not reach the issue of whether or not the agency
intended to discourage public record review by failing to make the records easily and
reasonably accessible, certainly they cannot essentially withhold public records from the
public by making it financially difficult if not impossible to have access. lf ECUA elects
not to take advantage of technology to make their public records easily and
inexpensively accessible they should at the very least not attempt to pass the expense
to manually pull the records on to those entitled to access. Therefore it is
ORDERED AND ADJUDGED that the request for SSgs.e5 to gather the public
records in this case was unreasonable and in violation of $119.07, Florida Statutes.
FURTHER ORDERED that the invoice for payment presented by defendant to
plaintiff for gathering the public records in the amount of 5595.65 is unreasonable
and
invalid as a matter of law in violation of g119.07, Florida statutes.

FURTHER ORDERED

the court retains jurisdiction over the issue of attorney's fees

and costs.

DONE AND ORDERED

Escambia County, Florida.

cc

this 30th day of April

Alistair McKenzie, Attorney for Plaintiff

Richard D. Barlow, Attorney for Defendant

J.

20

bers, Pensacola,