Citizens Awareness Foundation, Inc. v. Wantman Group, Inc. , 2016 Fla. App. LEXIS 7970 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CITIZENS AWARENESS FOUNDATION, INC.,
Appellant,
v.
WANTMAN GROUP, INC.,
Appellee.
No. 4D15-1760
[May 25, 2016]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Meenu Sasser, Judge; L.T. Case No. 2014-CA-00577I AI.
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
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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).
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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.
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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 non-
exempt 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 trial court
“concluded that the delay in providing the records was not tantamount to
an unlawful refusal and that the plaintiff was not therefore entitled to an
award of attorney fees.” Id. In explaining the trial court’s analysis, the
First District emphasized the finding by the trial court “that the county
had not acted in bad faith by failing to provide the records sooner.” Id. The
trial court reasoned that the records request was “‘intentionally designed
to appear to be deceptive’ . . . based on the testimony of a county official
who explained that he did not respond to the records request immediately
because it appeared to constitute ‘phishing.’” Id.
On review, citing section 119.07(1)(c), the First District determined that
“[t]he public records law imposes a duty of good faith on public officers
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who are charged with the responsibility of complying with the law.” Id. at
885. And “[w]hether a governmental entity acted in ‘good faith’ . . . is
necessarily a question for the court to decide based on the circumstances
of a case.” Id.
Looking closely at the actual e-mail request, the court noted that it “was
made by an unnamed agent for an undisclosed company and it was sent
to the county from an e-mail address that did not appear to be the address
of a person.” Id. at 886. As Judge Padovano observed,
The email from the sender could have contained a virus. It
might have been a computer-generated message sent out from
a computer-created email account. The sender might have
intended to initiate a series of electronic communications that
would have caused the disclosure of exempt materials or
created difficulties for the county’s information technology
officers
. . . But the delay in this case could have been avoided
altogether if the plaintiff had just given the county a phone
number or some other contact information that could be
associated with a person. In that event, the county could have
simply contacted the plaintiff to verify that the email was
authentic.
Id. Finally, the court rejected the appellant’s argument that the county
could have written to him at the e-mail address provided in the request.
Id. The court explained that such an argument “plainly reads too much
into the obligations created by the public records law” because section
119.07 “is a right that can only be exercised by a ‘person.’” Id. “We know
of no law that requires a governmental entity to provide public records to
a generic e-mail address, at least not until such time as it is made clear
that the address belongs to a person.” Id.
Consumer Rights concluded by noting that the records were provided to
the appellant once authenticity was verified. Id. “We have no reason to
believe that the county would not have provided the records much sooner
had it been able to verify the authenticity of the plaintiff’s email and thus
we have no reason to question to [sic] trial court’s conclusion that the
county acted in good faith.” Id. Therefore, “the delay in responding to the
email was not tantamount to a refusal and . . . the trial court correctly
denied the plaintiff’s request for attorney fees.” Id. at 886-87.
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As in Consumer Rights, the delay in providing the records in this case
was not so “unjustifiable” that it amounted to an “unlawful refusal” to
provide the record. Id. at 885. The request was made in a “suspicious
email that could not be easily verified,” from an undisclosed sender. There
was no indication that the e-mail request was made on behalf of a person
or company. The e-mail did not contain any information about how to
contact the person or corporation making the request. There was an
incorrectly spelled word in the e-mail, which is one of the markers of spam.
This is the type of e-mail that is filtered out as spam by many businesses,
along with requests for assistance in moving money out of Nigerian banks.
The e-mail was directed to an independent contractor and not a
governmental agency familiar with fielding public records requests.
Appellant waited merely 18 days, without any further inquiry, and then
filed suit, claiming a right to attorney’s fees. We agree with the analysis of
Judge Sasser:
[T]he email was sent
to robin.petzold@xxxxxxx.com.didtheyreadit.com. Neither the
underlying contract nor [Wantman’s] website identifies Robin
Petzold (or anyone else) as a custodian of public records.
Further, the “didtheyreadit.com” extension rendered the email
address one not recognized by [Wantman’s] computer
network. For these reasons the Request itself was one that
“would lead anyone familiar with the perils of email
communication to exercise caution, if not to disregard the
communication entirely.” Consumer Rights, [159 So. 3d at
886].
The undisputed evidence in this case also confirms that
[Wantman] acted in good faith and that its delay in responding
was attributable to the suspicious nature of the email.
[Wantman] has presented unrebutted affidavit testimony that
it believed the Request to be illegitimate and spam and for that
reason did not respond to it.
We conclude that there was no “unlawful refusal” to provide public
records. 1 The public records law should not be applied in a way that
encourages the manufacture of public records requests designed to obtain
no response, for the purpose of generating attorney’s fees.
1Because we affirm the circuit court on these grounds, we do not reach the issue
of whether Wantman was subject to the public records law.
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CAFI relies heavily on Chandler v. City of Greenacres, 140 So. 3d 1080
(Fla. 4th DCA 2014), but that case primarily concerns the issue of
standing, not whether there was an “unlawful refusal” of a public records
request that gave rise to an entitlement to attorney’s fees.
In Chandler, the circuit court denied the petitioner’s petition for writ of
mandamus to compel production of public records “finding that the
petition failed to show appellant’s standing to bring the action.” Id. at
1082. The records request was an e-mail sent to the City from
“leo.namesxxx@xxxxx.” Id. This Court noted that “[a]lthough the attached
e-mail did not include a person’s name, the body of the e-mail used the
pronouns ‘I’ and ‘me.’” Id. The appellant had sent three other e-mails to
city employees requesting documents from the same e-mail address. Id.
The city clerk responded to the e-mails notifying the sender that they must
fill out a form on the city’s web page in order to obtain such documents.
Id. When no form was filled out, and the same sender e-mailed again
requesting the same documents, the city clerk again directed the sender
to the online form. Id.
After a month of no response, the petitioner filed a petition for writ of
mandamus, demanding production of the records and also seeking
attorney’s fees and costs under the public records law. Id. The city moved
to dismiss “arguing that appellant lacked standing to bring the petition
because it did not allege that appellant was a ‘stakeholder in interest.’” Id.
On appeal, this Court held that appellant had standing to bring the action.
Id.
The portion of Chandler on which CAFI urges this Court to focus
provides:
We agree with the Attorney General that ‘[a] person requesting
access to or copies of public records, therefore, may not be
required to disclose his [or her] name, address, telephone
number or the like to the custodian, unless the custodian is
required by law to obtain this information prior to releasing
the records.’
Id. at 1084 (alterations in original) (quoting Op. Attorney Gen. Fla. 92-38
(1992)). We concluded that “the city could not properly condition
disclosure of the public records, to the then-anonymous requester on
filling out the city’s form and giving an ‘address or other identifiable source
for payment of the associated costs.’” Id. at 1085. “Requiring appellant to
provide further identifying information prior to disclosure could have a
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chilling effect on access to public records and is not required by the Public
Records Act.” Id.
The focus of Chandler was that anonymous requests for public records
were permissible. The case had nothing to do with whether a violation of
the Public Records Act had occurred and the propriety of awarding
attorney’s fees. There is a difference between allowing anonymous public
records requests and evaluating an agency’s response when such requests
are justifiably handled with caution.
We also distinguish the recent case of Board of Trustees v. Lee, 2016
WL 1458515 (Fla. Apr. 14, 2016), where the Florida Supreme Court held
that a prevailing party is entitled to statutory attorney’s fees when an
agency unlawfully refused to permit the inspection or copying of a record
which is a violation of the Public Records Act. In that case, the trial court
found a violation of section 119.07. Id. at *2. The denial of fees in this
case was based on the conclusion that there was no “unlawful refusal” by
an agency so there was no violation of the Public Records Act that triggered
entitlement to statutory attorney’s fees.
Affirmed.
STEVENSON and FORST, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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