Martin E. O'Boyle & Asset Enhancement, Inc. v. Town of Gulf Stream

• Decision Date: 24 October 2018
• Docket Number: No. 4D17-2725,4D17-2725
• Citation: 257 So.3d 1036
• Parties: Martin E. O'BOYLE and Asset Enhancement, Inc., Appellants, v. TOWN OF GULF STREAM, Scott Morgan, John C. Randolph, Robert A. Sweetapple, and Joanne O'Connor, Appellees.
• Court: Florida District Court of Appeals

257 So.3d 1036

Martin E. O'BOYLE and Asset Enhancement, Inc., Appellants,
v.
TOWN OF GULF STREAM, Scott Morgan, John C. Randolph, Robert A. Sweetapple, and Joanne O'Connor, Appellees.

No. 4D17-2725

District Court of Appeal of Florida, Fourth District.

[October 24, 2018]

Robert Rivas of Sachs Sax Caplan, P.L., Boca Raton, (withdrawn as counsel after filing brief), and Jonathan R. O'Boyle of The O'Boyle Law Firm, P.C., Deerfield Beach, for appellants.

Hudson C. Gill and Jeffrey L. Hochman of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Town of Gulf Stream, Scott Morgan, John C. Randolph, and Joanne O'Connor.

Therese A. Savona and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for appellee Robert A. Sweetapple.

Klingensmith, J.

Appellants Martin E. O'Boyle and Asset Enhancement, Inc., ("Asset") appeal the trial court's dismissal of their Complaint to Enforce Florida's Sunshine and Public Records Laws and for Declaratory and Injunctive Relief against the Town of Gulf Stream ("the Town") and other affiliated individuals (collectively, "appellees").¹ We find the trial court properly dismissed the Sunshine Law claims, as well as the claims arising from alleged public meeting violations under Chapter 286, Florida Statutes, and affirm on those issues without further comment. However, we reverse the dismissal of appellants' claims under the Public Records Act, and remand for further proceedings.

In their complaint, Asset and O'Boyle alleged separate Public Records Act violations regarding two public records requests: (1) for copies of bills and payments sent to the Town for services rendered by the Town's attorney; and (2) for copies of text messages sent or received by the Town's Mayor since the time of his appointment. Asset alleged that the Town produced illegitimately redacted copies of the bills and payments. In another claim, O'Boyle asserted that the Town produced "a cherry picked" selection of texts which painted O'Boyle "in a negative light." After another records request that produced additional, previously unseen texts, O'Boyle insisted that the initial release was incomplete and that the Town and Mayor deliberately concealed records from the public.

Appellants alleged that the Town violated Article I, section 24 of the Florida Constitution and Chapter 119, Florida Statutes ("the Public Records Act" or "the Act"). They requested the trial court order the Town and others to allow the inspection, copying, and photographing of the requested records after a hearing held pursuant to section 119.11, Florida Statutes (2017). They then filed a Motion for Mandatory In-Camera Inspection of Record asking that the court review the redacted legal bills to determine if they fell within the "work product" exception of the Public Records Act, as the Town claimed. A week later, the Town turned over the bills and payment records at issue without any redactions.

Appellees each filed a motion to dismiss, and the trial court held a hearing on the parties' motions. The court dismissed the complaint and granted ten days for amendment. Instead of amending, appellants requested

257 So.3d 1040

that a final judgment be entered, and the trial court obliged.

"A motion to dismiss tests whether the plaintiff has stated a cause of action." Bell v. Indian River Mem'l Hosp. , 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). An appeal of a trial court's ruling on a motion to dismiss is an issue of law subject to de novo review. See id. The trial court's decision regarding a motion to dismiss is limited to a consideration of the allegations within the four corners of the complaint, and such allegations must be viewed in the light most favorable to the non-moving party. See id. Likewise, "[t]he determination of whether something is a public record is a question of law subject to de novo review and is determined on a case-by-case basis." Bent v. State , 46 So.3d 1047, 1049 (Fla. 4th DCA 2010) ; accord State v. City of Clearwater , 863 So.2d 149, 151 (Fla. 2003) ; Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir. , 840 So.2d 1008, 1013 (Fla. 2003).

The right of access to public records is a "cornerstone of our political culture," Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee , 189 So.3d 120, 124 (Fla. 2016) (further citation omitted); therefore, the Public Records Act "must be liberally construed in favor of access, and all exemptions must be limited to their stated purpose." Palm Beach Cty. Sheriff's Office v. Sun-Sentinel Co., LLC , 226 So.3d 969, 972 (Fla. 4th DCA 2017).

" Article I, Section 24(a) of the Florida Constitution grants ‘[e]very person ... 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.’ " Id. (alterations in original). The Act "implements this important constitutional tenet, and declares: ‘It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.’ " Id. (quoting § 119.01(1), Fla. Stat. (2017) ); accord Rasier-DC, LLC v. B & L Serv., Inc. , 237 So.3d 374, 376 (Fla. 4th DCA 2018). "Public custodians must allow a requested record to be inspected and copied by ‘any person desiring to do so, at any reasonable time, [and] under reasonable conditions.’ " Id. (alterations in original) (quoting § 119.07(1)(a), Fla. Stat. (2016) ).

To set forth a cause of action under the Act, a party must "prove they made a specific request for public records, the City received it, the requested public records exist, and the City improperly refused to produce them in a timely manner." Grapski v. City of Alachua , 31 So.3d 193, 196 (Fla. 1st DCA 2010). "Public records" include "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency." § 119.011(12), Fla. Stat. (2017) ; accord Braddy v. State , 219 So.3d 803, 820 (Fla. 2017).

In line with these authorities, we consider the requests for the text messages and the attorney bills and payments separately.

Text Messages as Public Records

This is an action against a municipality to obtain records that, while potentially related to the Town's public business, are in the exclusive control of one of their elected officials. An elected official's use of a...