DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL E. JACKSON,
Appellant,
v.
CITY OF SOUTH BAY, FLORIDA, SOUTH BAY CANVASSING BOARD,
PALM BEACH COUNTY CANVASSING BOARD, WENDY SARTORY
LINK, IN HER OFFICIAL CAPACITY AS SUPERVISOR OF ELECTIONS,
PALM BEACH COUNTY, FLORIDA, and ESTHER E. BERRY,
Appellees.
No. 4D21-3503
[February 15, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Scott R. Kerner, Judge; L.T. Case No. 50-2020-CA-004756-
XXXX-MB.
Jennifer A. Winegardner of Rayboun Winegardner PLLC, Tallahassee,
and Leonard M. Collins of GrayRobinson, P.A., Tallahassee, for appellant.
David K. Markarian, Jessica R. Glickman, and Juanita Solis of The
Markarian Group, Palm Beach Gardens, for appellees Wendy Sartory Link,
in her official capacity as Supervisor of Elections, Palm Beach County,
Florida, Palm Beach County Canvassing Board, and South Bay
Canvassing Board.
Pamela C. Marsh and Virginia M. Hamrick for First Amendment
Foundation, Tallahassee, Amicus Curiae on behalf of appellant.
LEVINE, J.
Michael Jackson appeals a final judgment finding that the Palm Beach
County Canvassing Board and the Palm Beach County Supervisor of
Elections (“appellees”) did not violate Florida’s Sunshine Law or Public
Records Act and therefore Jackson was not entitled to attorney’s fees. As
to the Public Records Act, we affirm on all issues. However, we find the
delay in the production of the March 13 meeting minutes was a violation
of the Sunshine Law. As to this issue, we reverse.
Jackson ran for South Bay City Commissioner in the March 17, 2020
municipal election and lost by one vote. On April 24, 2020, Jackson issued
a public records request, requesting copies of the canvassing board
meeting minutes pertaining to the March 17 election. Jackson then filed
a complaint contesting the election results. Jackson later amended his
complaint to allege violations of Florida’s Sunshine Law and Florida’s
Public Records Act and sought attorney’s fees under both statutes.
All of the meeting minutes, except for the March 13, 2020 minutes,
were produced before a deadline suggested by Jackson’s counsel. At the
time of Jackson’s records request, appellees did not realize a canvassing
board meeting had occurred on March 13. Appellees’ calendars did not
contain an entry for that date. Upon receiving notes indicating a
canvassing board meeting had occurred on March 13, appellees tried to
access data from the laptop of the person responsible for taking the
minutes, but the laptop was broken. The minutes were then retrieved from
the minute-taker’s email and immediately produced upon discovery to
Jackson on September 18, 2020.
The trial court found Jackson’s election contest untimely. That finding
is not challenged on appeal. The trial court also found no violation of the
Sunshine Law or Public Records Act and therefore no entitlement to
attorney’s fees.
Specifically, the trial court found that Jackson’s public records request
occurred during a “busy election” in the “throes of a pandemic” with stay-
at home orders in effect and that appellees acted in good faith in
assembling and producing the records. The trial court concluded no
violation of the Sunshine Law occurred because there was “no evidence—
particularly under the extraordinary circumstances of the day—from
which the Court can conclude, using ‘common sense or principles of logic’
that the meeting minutes were neither ‘promptly recorded’ nor ‘open to
public inspection.’” The trial court also concluded no Public Records Act
violation occurred because appellees did not “unlawfully refuse[]” a public
records request. The trial court found that appellees produced all of the
meeting minutes, except for the March 13 minutes, before “an agreed
production date.” Finally, the trial court found that appellees were
“unaware” of the March 13 minutes and that those minutes were promptly
produced upon discovery in September 2020.
A. Public Records Act
On appeal, Jackson argues that appellees’ unreasonable delay in the
production of meeting minutes violated the Public Records Act.
2
A trial court’s factual findings involving an alleged Public Records Act
violation are reviewed for competent substantial evidence, while its
interpretation of the law is reviewed de novo. Nat’l Council on Comp. Ins.
v. Fee,
219 So. 3d 172, 177 (Fla. 1st DCA 2017); see also Sarasota Citizens
for Responsible Gov’t v. City of Sarasota,
48 So. 3d 755, 761 (Fla. 2010).
“Whether a governmental entity acted in ‘good faith’ in the manner in
which it responded to a request for disclosure of public records is
necessarily a question for the court to decide based on the circumstances
of a case.” Consumer Rights, LLC v. Union Cnty., Fla.,
159 So. 3d 882, 885
(Fla. 1st DCA 2015). “Where delay is at issue . . . the court must determine
whether the delay was justified under the facts of the particular case.”
Citizens Awareness Found., Inc. v. Wantman Grp., Inc.,
195 So. 3d 396,
399 (Fla. 4th DCA 2016) (citation omitted).
Florida’s Constitution provides: “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 . . . .” Art. I, § 24(a), Fla. Const. The Public Records
Act also guarantees a right of access to public records. § 119.01(1), Fla.
Stat. (2021). Pursuant to the act, a records custodian must respond to
public records requests “in good faith.” § 119.07(1)(c), Fla. Stat. (2021).
The court shall award attorney’s fees where an “agency unlawfully refused
to permit a public record to be inspected . . . .” § 119.12(1)(a), Fla. Stat.
(2021). “Unlawful refusal under section 119.12 includes not only
affirmative refusal to produce records, but also unjustified delay in
producing them.” Citizens Awareness Found.,
195 So. 3d at 399 (citation
omitted).
The trial court did not err in finding no violation of the Public Records
Act. The trial court made a factual determination, after an evidentiary
hearing, that appellees produced all of the meeting minutes at issue,
except for the March 13 minutes, one day before “an agreed production
date” of June 4. This factual finding is entitled to deference because it is
supported by competent substantial evidence in the record. Fee,
219 So.
3d at 177. Because appellees produced those minutes before an agreed
upon deadline, Jackson cannot now complain that he should have
received those minutes earlier. Additionally, the discovery of the March
13 minutes, and their prompt production upon discovery, was the result
of a “good faith response.” “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. The delay in production
of the March 13 minutes did not amount to an “unlawful refusal”; rather
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the delay was justified under the circumstances of this particular case.
See § 119.12(1)(a), Fla. Stat. (providing for attorney’s fees where an “agency
unlawfully refused to permit a public record to be inspected”); Consumer
Rights,
159 So. 3d at 885 (finding that a four-month delay in providing
records was not “the functional equivalent of an unlawful refusal” because
the delay was caused by concerns regarding the authenticity of the
requestor’s email). 1
B. Sunshine Law
Jackson also argues that appellees violated the Sunshine Law by failing
to promptly record and make available for public inspection meeting
minutes from March 13.
A trial court’s factual findings involving an alleged Sunshine Law
violation are reviewed for competent substantial evidence, while its
interpretation of the law is reviewed de novo. Fee,
219 So. 3d at 177; see
also Sarasota Citizens for Responsible Gov’t,
48 So. 3d at 761.
Section 286.011(2), Florida Statutes (2021), states: “The minutes of a
meeting of any such board or commission of any such state agency or
authority shall be promptly recorded, and such records shall be open to
public inspection.” Additionally, “the court shall assess a reasonable
attorney’s fee” where an action is filed “to enforce the provisions of this
section . . . and the court determines that the defendant or defendants to
such action acted in violation of this section . . . .” § 286.011(4), Fla. Stat.
(2021).
In interpreting a statute, the starting point of analysis is the actual
statutory language. United Auto. Ins. Co. v. Chironex Enters., Inc.,
352 So.
3d 341, 344 (Fla. 4th DCA 2022) (citation omitted). When a statute is
unambiguous, a court need not resort to other rules of statutory
construction.
Id.
1 Jackson also claims a Public Records Act violation due to the destruction of
handwritten meeting notes. This issue is not preserved because it was not
addressed in the final judgment and Jackson did not move for rehearing
challenging the trial court’s lack of findings concerning the handwritten notes.
See Fla. R. Civ. P. 1.530(a) (“To preserve for appeal a challenge to the sufficiency
of a trial court’s findings in the final judgment, a party must raise that issue in a
motion for rehearing under this rule.”); In re Amends. to Fla. R. Civ. P. 1.530,
346
So. 3d 1161, 1162 (Fla. 2022) (recognizing that the amendment to rule 1.530
clarified existing law).
4
“Few, if any, governmental boards or agencies deliberately attempt to
circumvent the government in the sunshine law.” Town of Palm Beach v.
Gradison,
296 So. 2d 473, 476 (Fla. 1974). “Mere showing that the
government in the sunshine law has been violated constitutes an
irreparable public injury . . . .”
Id. at 477. “The statute should be
construed so as to frustrate all evasive devices.”
Id.
The trial court erred in finding no Sunshine Law violation as to the
March 13 meeting minutes. Under section 286.011, meeting minutes
“shall be promptly recorded” and “shall be open to public inspection.” The
March 13 meeting minutes clearly were not open to public inspection
where appellees were “unaware” of their existence, as stated by the trial
court. Jackson requested the minutes on April 24, but they were not
produced until September 18, nearly five months later.
The trial court cited the “busy election,” the pandemic, and appellees’
good faith conduct as justification for the delay in the production of the
March 13 minutes. However, none of these factors excuse compliance with
section 286.011. The use of the word “shall” in section 286.011 requires
mandatory compliance. See DeGregorio v. Balkwill,
853 So. 2d 371, 374
(Fla. 2003). Additionally, section 286.011, unlike the Public Records Act,
does not have a good faith exception. See § 119.07(1)(c), Fla. Stat. (stating
that public records custodian must respond “in good faith” to requests to
inspect or copy records). Further, there is no pandemic related exception
to the constitution. See E.A.C. v. State,
324 So. 3d 499, 509 (Fla. 4th DCA
2021) (Levine, C.J., concurring). Indeed, Executive Order 20-69, which
was issued on March 20, 2020 in response to the pandemic, expressly
recognized that the Sunshine Law remained in effect: “This Executive
Order does not waive any other requirement under the Florida
Constitution and ‘Florida’s Government in the Sunshine Laws,’ including
Chapter 286, Florida Statutes.” 2
Because the trial court erred in finding no violation of the Sunshine
Law with respect to the March 13 meeting minutes, we reverse as to this
issue. We remand for the trial court to determine a reasonable amount of
attorney’s fees and costs for the Sunshine Law violation related only to the
March 13 meeting minutes. See Fla. Patient’s Comp. Fund v. Rowe, 472
2 Jackson also claims a Sunshine Law violation for the failure to produce minutes
from an April 1, 2020 meeting. That issue is not preserved because it was not
addressed in the final judgment and Jackson did not move for rehearing
challenging the lack of findings concerning the April 1 audit. See Fla. R. Civ. P.
1.530(a); In re Amends. to Fla. R. Civ. P. 1.530, 346 So. 3d at 1162.
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So. 2d 1145, 1151 (Fla. 1985) (recognizing that attorney’s fees are
awardable only on successful claims). We affirm as to all of the other
remaining issues.
Affirmed in part, reversed in part, and remanded with instructions.
MAY and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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