Schweickert v. Citrus County Florida Board , 2016 Fla. App. LEXIS 9381 ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
ROBERT A. SCHWEICKERT, JR.,
Appellant,
v. Case No. 5D15-3007
CITRUS COUNTY FLORIDA BOARD,
ETC., ET AL.,
Appellees.
________________________________/
Opinion filed June 17, 2016
Appeal from the Circuit Court
for Citrus County,
Richard A. Howard, Judge.
Jonathan D. Kaney, Jr., of Kaney & Olivari,
Ormond Beach, for Appellant.
Michael, J. Roper, and Dale A. Scott, of Bell
& Roper, P.A., Orlando, for Appellees.
EDWARDS, J.
Robert A. Schweickert, Jr. (“Appellant”) argues that the trial court erred in
dismissing with prejudice his amended complaint to enforce public records law on the
ground that the case is moot. Appellant contends that, even though the Citrus County
Board of County Commissioners (“the Board”) produced the records after the complaint
was filed, the trial court erred in dismissing the complaint because an issue remained as
to his entitlement to attorney’s fees. We agree and remand for the trial court to determine
and award reasonable fees and costs to Appellant.
On June 2, 2014, Brad Thorpe, the County Administrator of the Board, sent a
formal letter of complaint (“complaint letter”) to the Board regarding County Commissioner
Scott Adams’ allegedly insulting, unprofessional, and demeaning behavior directed at
Thorpe and other county employees. The complaint letter alleged that Adams’ behavior
resulted in a hostile work environment and forced many senior staff members to resign
from their positions.
The complaint letter contained six examples of Adams’ allegedly inappropriate
behavior: (i) Adams threatened and harassed building officials with regard to a building
permit; (ii) Adams failed to follow proper county protocol by contacting various state
agencies to ask for investigations of county issues on the basis of rumor and innuendo;
(iii) Adams verbally abused staff members and communicated with staff members in a
demeaning and unprofessional manner; (iv) Adams authored letters of no confidence
without any proof or documentation; (v) Adams disrespected county staff and government
employees; and (vi) Adams received several warning letters advising him that he was
creating a hostile work environment and that he was failing to follow proper protocol when
communicating with staff members. Thorpe attached supporting documentation to the
complaint.
On June 17, 2014, the Board hired Dorothy F. Green, a private attorney from
Orlando, to investigate the charges made in Thorpe’s complaint. On September 11, 2014,
Appellant, the publisher of an internet newspaper entitled Groundhog News, submitted to
Green a public records request, requesting the following:
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letter listed many examples of alleged abusive behavior that would be inappropriate for
one in Adams’ position, the complaint did not assert any form of discrimination based
upon race, color, religion, sex, national origin, handicap or marital status. “The Public
Records Act is to be liberally construed in favor of open government, and exemptions
from disclosure are to be construed narrowly so they are limited to their stated purpose.”
Seminole Cty. v. Wood, 512 So. 2d 1000, 1002 (Fla. 5th DCA 1987) (citations omitted).
Adopting the Board’s proposed “wait and see” approach in this case is not justified by the
language of section 119.071(2)(g)1. In sum, the delay in providing the requested public
records was unlawful because the exemption does not apply.
We reverse the decision of the trial court and remand the case for determination
and award of reasonable costs and attorney’s fees to Appellant.
REVERSED AND REMANDED
WALLIS and LAMBERT, JJ., concur.
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the petition for mandamus required a response from the Board. The court indicated that
leave would be granted if Appellant chose to amend his action for declaratory relief. On
the following day, Appellant filed his amended complaint to enforce public records law,
which requested the court to declare that the Board unlawfully denied his request, and
which sought an award of attorney’s fees and costs.
The Board moved to dismiss the amended complaint on several grounds, including
the assertion that Appellant’s claim was moot because Appellant had already received
Green’s report. The trial court granted the Board’s motion and dismissed Appellant’s
amended complaint with prejudice, finding that it was moot and thus did not state a cause
of action. In its order, the court specified that, other than Appellant’s attempt to seek
attorney’s fees, there was no practical need to determine whether the documents initially
withheld by Green were exempt under section 119.071(2)(g)1.
“An issue is moot when the controversy has been so fully resolved that a judicial
determination can have no actual effect.” Godwin v. State, 593 So. 2d 211, 212 (Fla.
1992) (citing Dehoff v. Imeson, 15 So. 2d 258, 259 (Fla. 1943)). “A case is ‘moot’ when
it presents no actual controversy or when the issues have ceased to exist. A moot case
generally will be dismissed.” Id. (citing Black’s Law Dictionary 1008 (6th ed. 1900)).
“Mootness does not destroy an appellate court’s jurisdiction . . . when the questions raised
are of general importance or are likely to recur” or if “collateral legal consequences that
affect the rights of a party flow from the issue to be determined.” Id. (alteration in original)
(citing Holly v. Auld, 450 So. 2d 217, 218 n.1 (Fla. 1984); Keezel v. State, 358 So. 2d 247,
248-49 (Fla. 5th DCA 1978)). Appellant contends that his case is not moot because of
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the collateral legal consequences flowing from the underlying public records case, i.e.,
his alleged right to attorney’s fees.
In Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th DCA 2002), plaintiff
“submitted a public records request to the Orange County Building Department seeking
information regarding procedures which must be followed for demolition of a building.”
811 So. 2d at 858. When plaintiff received the records, the County did not include a copy
of the Unsafe Building and Abatement Code because it did not have any extra copies of
the Code for distribution and federal law prevented the County from making a copy of the
Code for plaintiff. Id. Plaintiff filed a mandamus petition, requesting a copy of the Code
and additionally sought attorney’s fees. Id. “The day before [Orange County’s answer]
was due, [it] wrote [plaintiff] that it had recently purchased extra copies of the Code from
the publisher and, based upon his previous request, [plaintiff] could purchase a copy at
cost.” Id. Orange County then moved to dismiss. Id. The trial court dismissed the
mandamus petition as moot on the ground that plaintiff had received a copy of the Code
he requested. Id.
This court reversed and concluded that, “although the production of the Code
rendered moot [plaintiff’s] request for the Code, it did not render moot his request for
[attorney’s] fees” under section 119.12, Florida Statutes (1999). Id. at 859. Section
119.12 provides that, if a plaintiff files an action to enforce the provisions of Chapter 119
and “the court determines that [the] agency unlawfully refused to permit a public record
to be inspected or copied, the court shall assess and award . . . the reasonable costs of
enforcement including reasonable attorneys’ fees.” § 119.12, Fla. Stat. (2014). “The
purpose underlying [section 119.12] is to encourage public agencies to voluntarily comply
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with the requirements of Chapter 119, thereby ensuring that the state’s general policy is
effectuated.” Mazer, 811 So. 2d at 860 (citation omitted) (quoting Barfield v. Town of
Eatonville, 675 So. 2d 223, 224 (Fla. 5th DCA 1996)). “An unjustified delay in complying
with a public records request amounts to an unlawful refusal under” the section. Id.
(citation omitted) (quoting Barfield, 675 So. 2d at 224).
In Mazer, this court held that plaintiff’s case was not rendered moot because the
trial court did not make a determination as to whether Orange County’s withholding of the
record until after the suit was filed was unlawful. Id. The case was remanded “for further
proceedings to determine whether [plaintiff was] entitled to fees pursuant to section
119.12, Florida Statutes.” Id.; see also Puls v. City of Port St. Lucie, 678 So. 2d 514, 514
(Fla. 4th DCA 1996) (“Production of the records after the lawsuit was filed did not moot
the issues raised in the complaint. We remand for an evidentiary hearing on the issue of
whether, under the facts of this case, there was an unlawful refusal of access to the
records within the meaning of section 119.12(1), Florida Statutes (1995).”). We agree
that Appellant’s case was not rendered moot simply because the Board produced the
requested documents after the filing of the initial complaint, but prior to filing the amended
complaint.
The Board asks us to uphold the dismissal with prejudice of the amended
complaint under the “tipsy coachman” doctrine which “allows an appellate court to affirm
a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is
any basis which would support the judgment in the record.”’ Robertson v. State, 829 So.
2d 901, 906 (Fla. 2002) (footnote omitted) (quoting Dade Cty. Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)). The Board argues that Green was justified
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in initially withholding the documents claiming they were exempt from immediate
production under section 119.071(2)(g)1. The section provides as follows:
All complaints and other records in the custody of any
agency which relate to a complaint of discrimination relating
to race, color, religion, sex, national origin, age, handicap, or
marital status in connection with hiring practices, position
classifications, salary, benefits, discipline, discharge,
employee performance, evaluation, or other related activities
are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Constitution until a finding is made relating to probable cause,
the investigation of the complaint becomes inactive, or the
complaint or other record is made part of the official record of
any hearing or court proceeding.
§ 119.071(2)(g)1., Fla. Stat. (2014). The Board argues that, since Thorpe’s complaint
purported that Adams’ alleged misconduct created a “hostile work environment,” Green
might have discovered or generated records during her investigation which related to
discrimination based upon race, color, religion, sex, national origin, handicap or marital
status, and would, thus, be exempt under section 119.071(2)(g)1. Accordingly, the Board
asserts that Green’s delay in providing the records until the investigation was completed
was not an unlawful refusal to permit inspection of public records which would subject the
Board to payment of Appellant’s attorney’s fees and costs under section 119.12. In
essence, the Board urges that we adopt a “wait and see” policy which would exempt
immediate inspection of public records if the scope of the investigation might lead to the
discovery or creation of exempt documents.
Before we dispose of the Board’s tipsy coachman argument, we note that both
parties agreed and requested this court to rule as a matter of law as to whether the section
119.071(2)(g)1. exemption applies to the case at hand. We reject the Board’s argument
that section 119.071(2)(g)1. applied to Thorpe’s complaint. Although Thorpe’s complaint
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letter listed many examples of alleged abusive behavior that would be inappropriate for
one in Adams’ position, the complaint did not assert any form of discrimination based
upon race, color, religion, sex, national origin, handicap or marital status. “The Public
Records Act is to be liberally construed in favor of open government, and exemptions
from disclosure are to be construed narrowly so they are limited to their stated purpose.”
Seminole Cty. v. Wood, 512 So. 2d 1000, 1002 (Fla. 5th DCA 1987) (citations omitted).
Adopting the Board’s proposed “wait and see” approach in this case is not justified by the
language of section 119.071(2)(g)1. In sum, the delay in providing the requested public
records was unlawful because the exemption does not apply.
We reverse the decision of the trial court and remand the case for determination
and award of reasonable costs and attorney’s fees to Appellant.
REVERSED AND REMANDED
WALLIS and LAMBERT, JJ., concur.
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