Jeffrey A. Siegmeister, State Attorney for the Third Judicial Circuit of Florida v. L. J. Johnson , 240 So. 3d 70 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-992
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JEFFREY A. SIEGMEISTER, State
Attorney for the Third Judicial
Circuit of Florida,
Appellant,
v.
L.J. JOHNSON,
Appellee.
_____________________________
On appeal from the Circuit Court for Columbia County.
Wesley R. Douglas, Judge.
February 20, 2018
OSTERHAUS, J.
Jeffrey A. Siegmeister, the State Attorney for the Third
Judicial Circuit of Florida, appeals the final judgment entered for
L.J. Johnson in a public records case. Mr. Johnson’s attorney
submitted a public records request to see and copy the state
attorney’s case file in a closed matter involving Mr. Johnson.
Former State Attorney Robert L. “Skip” Jarvis, Jr., reviewed the
file and acceded to the request within a week. He offered to make
the records available at his main office in Live Oak where he had
reviewed them. But his letter acceding to the request took another
week to be delivered to Mr. Johnson’s attorney in Lake City. Due
to the delay, Mr. Johnson promptly sued State Attorney Jarvis
claiming an unlawful refusal to provide the records under the
Public Records Act, chapter 119, Florida Statutes (2010).
The trial court ultimately held an evidentiary hearing and
agreed with Mr. Johnson and awarded costs and attorneys’ fees.
The court based its finding of an unlawful delay principally upon
the fact that State Attorney Jarvis’s letter required Mr. Johnson’s
attorney to travel twenty-five miles to Live Oak to inspect and copy
the records, instead of offering to make the records available at his
local courthouse in Lake City. State Attorney Siegmeister, who
succeeded Mr. Jarvis, appealed. We reverse and conclude that
State Attorney Jarvis did not violate Florida’s public records law
by making the requested records available for inspection and
copying at the main office of the State Attorney for the Third
Judicial Circuit, instead of at an office closer to the requester’s
home.
I.
This appeal follows an earlier remand in Johnson v. Jarvis, 74
So. 3d 168 (Fla. 1st DCA 2011). There, we reversed the trial court’s
dismissal of Johnson’s chapter 119, public records complaint and
remanded for an evidentiary hearing on the issue of whether there
was an unreasonable delay in producing the requested records. Id.
at 170-71.
After remand, Kevin K. Carson, Mr. Johnson’s attorney,
testified at the hearing that he met with an Assistant State
Attorney in Lake City, Florida, on January 26, 2011, to learn
whether Mr. Johnson would be criminally charged as a result of an
incident in which his firearm discharged at a local store. Mr.
Carson was told at the meeting that the State wouldn’t be filing
charges, whereupon Mr. Carson made a public records request to
inspect and copy the State Attorney’s investigative file. The ASA
responded by recommending that Mr. Carson write out his specific
request, which he did, in his own name. He addressed the request
to the “Records Custodian, State Attorney, Third Judicial
[Circuit],” stating: “Please make available for inspection and
copying all public records relating to [Johnson case]. This should
include all information requested in my discovery request.”
2
The ASA told Mr. Carson that his request would be forwarded
to State Attorney Jarvis in Live Oak. State Attorney Jarvis’s job
included being the public records custodian for the office. The
office’s public records policy provided that public records matters
would be handled in the main State Attorney’s office for the Third
Judicial Circuit in Live Oak:
All requests to inspect or copy case files, active or
inactive, shall be directed to the State Attorney. The
State Attorney shall promptly review the case file to
[e]nsure that there is no disclosure of active criminal
intelligence information or criminal investigative
information as defined in [c]hapter 119, Florida
Statu[t]es, or other exempted documents such as autopsy
reports or work product. Such information and
documents shall be placed in a separate envelope, sealed,
and marked as “exempt documents.” In order to [e]nsure
that exempt materials and documents are protected and
that the State Attorney’s obligations under the statute
have been met, all public record requests shall be complied
with at the main office of the State Attorney located at 100
S.E. Court Street in Live Oak, Florida.
(Emphasis added).
After making the request, Mr. Carson stated that he checked
his mail every day thereafter, but didn’t receive a response from
State Attorney Jarvis until two weeks later, on February 9, 2011.
The letter, dated February 2, 2011, informed Mr. Carson that the
file would be made available at his convenience at the State
Attorney’s office in Live Oak. Upon receiving the letter, Mr. Carson
did not make arrangements to inspect the file, but a week later his
client Mr. Johnson filed a public records lawsuit. 1
1 An earlier motion to dismiss raised the issue of whether Mr.
Johnson could file a public records lawsuit arising from a request
filed solely in the name of Mr. Carson. This issue has evidently
vanished from the case, though it isn’t completely clear why Mr.
Johnson, instead of Mr. Carson, filed this lawsuit.
3
Following the evidentiary hearing, the trial court issued final
judgment for Mr. Johnson on the basis of an unjustified delay in
State Attorney Jarvis’s response to Mr. Carson’s public records
request. The court noted that it didn’t decide the issue based on
the delayed delivery of the letter, which it considered de minimis
and reasonable. But, instead, the unjustified delay arose from the
State Attorney’s decision to make the records available for
inspection and copying in Live Oak, instead of in Lake City. The
court awarded Mr. Johnson his attorneys’ fees and costs under
§ 119.12, Florida Statutes, including a 1.5 fee multiplier
corresponding to the hours spent by Mr. Carson and another
attorney litigating the case. The current State Attorney for the
Third Judicial Circuit, Mr. Siegmeister, then appealed.
II.
The issue in this appeal is whether the State Attorney
unreasonably delayed producing the records requested by Mr.
Carson. The parties don’t dispute the material facts involving the
time it took the State Attorney’s response to be delivered to Mr.
Carson, nor do they dispute that the response made the records
available in Live Oak, instead of Lake City. We review de novo the
trial court’s conclusion that these circumstances amounted to an
unlawful refusal to provide the records under Florida’s Public
Records Act. § 119.12, Fla. Stat. (2010); Althouse v. Palm Beach
Cty. Sheriff’s Office, 92 So. 3d 899, 901 (Fla. 4th DCA 2012),
disapproved on other grounds, Bd. of Trs., Jacksonville Police &
Fire Pension Fund v. Lee, 189 So. 3d 120, 123 (Fla. 2016).
The Florida Constitution provides to every 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,” except with respect to certain exempted records. Art. I,
§ 24(a), Fla. Const. This right is codified in chapter 119, Florida
Statutes, the “Public Records Act.” The Public Records Act
describes Florida’s policy that all state, county, and municipal
records are open for personal inspection and copying by any
person. § 119.01(1), Fla. Stat. (2010). Accordingly, “[p]roviding
access to public records is a duty of each agency.” Id. Every person
with custody of a public record must allow the record “to be
inspected and copied by any person desiring to do so, at any
4
reasonable time, under reasonable conditions, and under
supervision by the custodian of the public records.” § 119.07(1)(a),
Fla. Stat. (2010). “A custodian of public records and his or her
designee must acknowledge requests to inspect or copy records
promptly and respond to such requests in good faith.”
§ 119.07(1)(c), Fla. Stat. (2010). Section 119.12, Florida Statutes
(2010), provides for reasonable costs and attorney fees if a court
determines that an agency “unlawfully refused” to permit a public
record to be inspected or copied.
Violations of the Public Records Act encompass “not only
affirmative refusal to produce records, but also unjustified delay in
producing them.” Lilker v. Suwannee Valley Transit Auth., 133 So.
3d 654, 655-56 (Fla. 1st DCA 2014); Promenade D’Iberville, LLC v.
Sundy, 145 So. 3d 980, 983 (Fla. 1st DCA 2014). But “a delay does
not in and of itself create liability under section 119.12.” Consumer
Rights, LLC v. Union Cty, Fla., 159 So. 3d 882, 885 (Fla. 1st DCA
2015). “[R]easonable” delay is allowed. See Johnson, 74 So. 3d at
170-71 (remanding to determine “whether the delay was
reasonable under the facts of this case”). Once a request to inspect
public records is made, records custodians must respond promptly
and in good faith, see § 119.07(1), determining, for instance, if they
possess the records, retrieving the records, assessing whether
exemptions apply, deleting those portions of the record believed to
be exempt, notifying the requester, and making the non-exempt
records available. See Tribune Co. v. Cannella, 458 So. 2d 1075,
1078 (Fla. 1984) (stating that the Public Records Act
“contemplates . . . the reasonable custodial delay necessary to
retrieve a record and review and excise exempt material”). Where
the delays aren’t justified, however, the Public Records Act holds
officials accountable.
Turning to this case, we agree with the trial court that the
two-week period it took for a letter to be delivered from State
Attorney Jarvis in response to Mr. Carson’s request did not by
itself breach the requirement to respond promptly and in good
faith. The evidence indicated that only one week passed from the
day Mr. Carson requested to inspect and copy the state attorney’s
file in Lake City to the day State Attorney Jarvis approved the
request. During that week, the relevant file was sent from the
assistant state attorney (ASA) in Lake City to the State Attorney’s
5
main office in Live Oak. State Attorney Jarvis then had to review
the file for exemptions. The ASA couldn’t have, for instance, simply
handed over the records on the spot when Mr. Carson requested
them in Lake City. Id. at 1077 (noting that “[t]o literally place the
records on the table would be unrealistic”). The Act and office
policy required that it be reviewed for exempt information by the
public records custodian (who also was responsible for supervising
the record inspection and copying process). See § 119.07(1)(a).
Within a week of receiving the request, State Attorney Jarvis
drafted a letter on February 2, 2011, approving Mr. Carson’s
request and making the records available to him. After drafting
the approval letter, an administrative snafu or postal service delay
caused the approval letter’s delivery to be delayed for a few days.
Mr. Carson didn’t receive the approval letter in his mailbox until
five business days after State Attorney Jarvis drafted it, on
February 9, 2011.
These circumstances don’t violate the Public Records Act. The
Act demands prompt attention and a reasonable response time, not
the quickest-possible response. A few business days’ delay in the
delivery of mail is unremarkable. See, e.g., Fla. R. Civ. P. 1.090(e)
(adding 5 days to the prescribed period for service by mail). There
is no indication here that State Attorney Jarvis intentionally or
unjustifiably delayed responding for these days. See Cannella, 458
So. 2d at 1078-79 (finding an intentional policy to delay public
records responses to be impermissible under the Act). And even if
optimal delivery efficiency had been achieved, it would have saved
just a few days, which the trial court rightly found to be “de
minimis and reasonable” under the circumstances. See Molter v.
State, 892 So. 2d 1115, 1119 (2d DCA 2004) (noting that the law
does not concern itself with trifles); see also Walton Cty. v. Stop the
Beach Renourishment, Inc., 998 So. 2d 1102, 1118 (Fla. 2008)
(same). 2
2 The delivery delay here didn’t come close to approaching the
length of delay of cases where courts have found an unlawful
refusal to provide public records. See, e.g., Promenade D’Iberville,
145 So. 3d at 982-83 (sixty-three days); Office of State Att’y for
Thirteenth Jud. Cir. of Fla. v. Gonzalez, 953 So. 2d 759, 765 (Fla.
2d DCA 2007) (more than ninety days). Also, unlike in Grapski v.
6
Where our analysis diverges from the judgment below is in its
conclusion that the State Attorney violated the Public Records Act
by making the records available at the main Third Judicial Circuit
State Attorney’s office in Live Oak, instead of in Lake City. The
trial court concluded that making Mr. Carson drive twenty-five
miles from Lake City to Live Oak to inspect and copy the records
amounted to an unjustifiable delay in violation of the Public
Records Act. The Act requires “[e]very person who has custody of
a public record [to] permit the record to be inspected and copied at
any reasonable time, under reasonable conditions, and under
supervision by the custodian of the public records.” § 119.07(1)(a),
Fla. Stat. The Act does not define “reasonable” as requiring
government officials to move records from where they are being
maintained to a different place convenient to the requester. Nor do
other cases support this argument. See Roesch v. State, 633 So. 2d
1, 2 (Fla. 1993) (holding that it would be unreasonable to require
state attorneys to send their original files to prisons throughout
the state every time an indigent defendant demanded it, and that
a prisoner was in the “same position as anyone else seeking public
records . . . who cannot afford the trip to personally examine the
records”); Campbell v. State, 593 So. 2d 1148, 1149-50 (Fla. 1st
DCA 1992) (same). By making the records available at his main
office in Live Oak, where they had been reviewed for exemptions
pending Mr. Carson’s inspection, State Attorney Jarvis satisfied
his legal obligation. His office was a reasonable place to make the
State Attorney’s records available in the Third Circuit, even if Mr.
Carson had to drive some twenty-five miles to view them. 3
City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010), there is no
evidence that the state attorney’s response was delayed for
strategic reasons. This case also does not involve a situation like
in Hewlings v. Orange County, 87 So. 3d 839, 841 (Fla. 5th DCA
2012), where an official responded quickly in writing that they
would comply with a request, but then delayed in actually
complying with the request for forty-five days.
3 The Third Judicial Circuit encompasses seven counties, with
Live Oak, located in Suwannee County, situated close to the center
of the circuit.
7
Under these circumstances, we cannot conclude that State
Attorney Jarvis violated the Public Records Act, or unlawfully
refused to permit a public record to be inspected or copied under
the Act. 4
III.
For these reasons, the final judgment, as well as the order
awarding Appellee’s costs and attorneys’ fees, are reversed.
REVERSED.
WOLF and KELSEY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Arthur I. Jacobs, Richard J. Scholz, and Douglas A. Wyler of
Jacobs Scholz & Assoc., LLC, Fernandina Beach, for Appellant.
Kevin K. Carson, Lake City, and Joseph W. Little, Gainesville, for
Appellee.
4 We note that Mr. Carson had another avenue for receiving
copies of the documents more quickly. He could have had the State
Attorney’s office copy and mail the records pursuant to their policy,
instead of asking to inspect them in person. But, according to the
final judgment, “Mr. Carson made no effort (1) to contact the Office
of the State Attorney to inspect the records, (2) to request that the
records be sent via mail to him directly, or (3) to request that the
records be transported to the Lake City office for inspection.”
8