Citizens Awareness Found., Inc. v. Wantman Grp., Inc.

• Decision Date: 25 May 2016
• Docket Number: No. 4D15–1760.,4D15–1760.
• Citation: 195 So.3d 396
• Parties: CITIZENS AWARENESS FOUNDATION, INC., Appellant, v. WANTMAN GROUP, INC., Appellee.
• Court: Florida District Court of Appeals

195 So.3d 396

CITIZENS AWARENESS FOUNDATION, INC., Appellant,

v.WANTMAN GROUP, INC., Appellee.

No. 4D15–1760.

District Court of Appeal of Florida, Fourth District.

May 25, 2016.

Daniel Desouza of Desouza Law, P.A., Fort Lauderdale, and Nick Taylor of The O'Boyle Law Firm, Deerfield Beach, for appellant.

Gerald F. Richman and Leora B. Freire of Richman Greer, P.A., West Palm Beach, for appellee.

GROSS

, J.

This case concerns entitlement to attorney's fees in a public records case. The trial court ruled against the party seeking fees. We affirm the circuit court's summary final judgment because there was no unlawful refusal to provide the records, which would have justified an award of attorney's fees.

Wantman Group, Inc. and the South Florida Water Management District entered into a contract in which Wantman agreed to provide consulting services to the District. Article 8.8 of the contract governs public records requests:

The CONSULTANT shall, at its own expense, allow public access to all project documents and materials in accordance with the provisions of Chapter 119, Florida Statutes. If at any time the DISTRICT requests copies of CONSULTANT'S records in response to a public records request, Consultant shall, at its own expense, promptly provide copies of all of its records in whatever format reasonably requested by the District. Should the CONSULTANT assert any exemptions to the requirements of Chapter 119 and related Statutes, the burden of establishing such exemption, by way of injunctive or other relief as provided by law, shall be upon the CONSULTANT. The CONSULTANT shall refer any public records requests for project documents covered by this provision to the DISTRICT and the DISTRICT will handle the request.

The contract named Robin Petzold as the “consultant” and provided a phone number and e-mail address. Significantly, the contract called for Wantman to direct “any public records requests” to the District, an agency familiar with the area.

On April 19, 2014, a public records request was submitted by e-mail to the contract e-mail address, with the additional language “DidTheyReadIt.com” attached at the end of the address. The subject line of the e-mail stated: “This is a public records request,” and it indicated it was sent from “An Onoma.” The body of the e-mail stated:

Custodian of Public Records for Wantman Group, Inc.

Please provide the following records:

Certificate of Insurance referenced on page 6 of 16 of the South Florida Water Management District contract 4600002690.

All responsive records should be delivered to Vendor.Contract.Publishing @Gmail.com. If for some reason Wantman Group, Inc. contends that the requested records are exempt from disclosure please explain with particularity the rational [sic] for such an assertion. Please provide a written estimate of any costs prior to such costs being incurred.

Thank you for your prompt attention to this matter.

VCP–0000–0000–0011.

After the April 19 request went unanswered, on May 8, 2014, appellant Citizens Awareness Foundation, Inc. (“CAFI”) filed a two-count complaint against Wantman to enforce Florida's public records act. CAFI alleged that under the terms of the contract between Wantman and the District, the District delegated the duty to create and maintain certain records to Wantman. Count I was for unlawful withholding of electronic records, and Count II was for unlawful withholding of public records due to an unreasonable delay. CAFI specifically asked the court to enter an order declaring Wantman to be in breach of its duty to permit access to public records, compelling Wantman to provide access to such records, and awarding CAFI attorney's fees and costs, pursuant to section 119.12, Florida Statutes (2014)

.

Wantman answered on June 4, 2014, denying that it ever received a public records request. However, Wantman asserted that it had “voluntarily provided” the requested records.

Wantman moved for summary judgment, arguing that it was not subject to the public records law and, even if it was, it did not wrongfully refuse to produce the requested document. The e-mail request appeared to be spam; it was not until the filing of the lawsuit that Wantman learned that the e-mail was a legitimate records request. Shortly after the lawsuit was filed, Wantman voluntarily provided the requested document to CAFI. Attached to the motion was David Wantman's affidavit, swearing that he “believed the request was illegitimate and spam.” Wantman also attached an affidavit of the District's Bureau Chief swearing that Wantman is an independent contractor without the authority to act on behalf of the District. Finally, Wantman attached a copy of the e-mail request and a copy of the letter producing the requested document, dated May 29, 2014.

CAFI opposed Wantman's summary judgment motion and cross-moved for summary judgment. To its motion, CAFI attached its responses to Wantman's statement of uncontested facts, a copy of the contract between Wantman and the District, an advisory legal opinion, a copy of the e-mail request, and a copy of Wantman's interrogatory responses.

After a hearing, the circuit court granted Wantman's motion and entered summary judgment in its favor. In its detailed written order, the court concluded that the record was not “sufficiently crystallized” to determine whether Wantman was subject to the public records law. The court assumed “arguendo” that Wantman was subject to the law and continued on to consider whether Wantman unlawfully refused the request. The court heavily relied on a first district case, Consumer Rights, LLC v. Union Cty., 159 So.3d 882 (Fla. 1st DCA 2015)

, finding it was “analogous with the instant case in all material respects.”

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)

.

The public records law provides that “[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.” § 119.07(1)(a), Fla. Stat. (2014)

.

A custodian of public records ... must acknowledge requests to inspect or copy records promptly and respond to such requests in good faith. A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed.

§ 119.07(1)(c), Fla. Stat

.

If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees.

§ 119.12, Fla. Stat

. (emphasis added). “The statutory purpose is to encourage voluntary compliance with Florida's public records law, which gives effect to the state's policy ‘that all state, county, and municipal records shall be open for personal inspection by any person.’ ” Office of State Attorney for Thirteenth Judicial Circuit of Fla. v. Gonzalez, 953 So.2d 759, 763 (Fla. 2d DCA 2007) (quoting § 119.01(1), Fla. Stat. (2002) ).

Section 119.12

provides for attorney's fees if the court determines that the failure to provide records in response to a request amounted to an unlawful refusal. “By its terms, this section places several conditions on the right to an award of fees. The court must determine that the agency has ‘refused’ to provide the records and the refusal must be ‘unlawful.’ ” Consumer Rights, 159 So.3d at 885. As the second district explained:

[A]ttorney's fees are awardable for unlawful refusal to provide public records under two circumstances: first, when a court determines that the reason proffered as a basis to deny a public records request is improper, and second, when the agency unjustifiably fails to respond to a public records request by delaying until after the enforcement action has been commenced.

Gonzalez, 953 So.2d at 764

.

“Unlawful refusal under section 119.12

includes not only affirmative refusal to produce records, but also unjustified delay in producing them.” Yasir v. Forman, 149 So.3d 107, 108 (Fla. 4th DCA 2014) (quoting Lilker v. Suwannee Valley Transit Auth., 133 So.3d 654, 655–56 (Fla. 1st DCA 2014) ). “Where delay is at issue, as here, the court must determine whether the delay was justified under the facts of the particular case.” Lilker, 133 So.3d at 655. It is only an “[u]njustified delay in making nonexempt public records available [that] violates Florida's public records law.” Promenade D'Iberville, LLC v. Sundy, 145 So.3d 980, 983 (Fla. 1st DCA 2014).

We agree with the circuit court that this case is controlled by Consumer Rights.

Consumer Rights, like this case, involved a curious e-mail request for records that did not trigger an immediate response. There, the appellant made a public records request from the e-mail address “ask4records@gmail.com” to the county at “UCBOCC@windstream.net,” “an email address posted on the county's website and not associated with a particular county employee.” 159 So.3d at 883

. The request was made on behalf of an unidentified “Florida company” and was submitted by an unnamed agent of the company. Id. Other than the e-mail address, “the request did not contain any information as to how the county might contact the agent or the corporation.” Id.

Four months after sending the request, and not receiving the requested documents, the appellant sued the county, seeking “injunctive relief, a writ of mandamus and an award of attorney fees.” Id. at 884

. The county provided all of the records, thus narrowing the issues to injunctive relief and attorney's fees. Id. After an evidentiary hearing, the...