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Shall or May? Florida's Public Record Law Hangs On By One Word

The Florida Capitol building in Tallahassee. (Stephen Nakatani/Creative Commons)
The Florida Capitol building in Tallahassee. (Stephen Nakatani/Creative Commons)

The town of Gulf Stream, known for its protected pine trees and coastal views along State Road A1A in Palm Beach County, is ground zero for a statewide public records battle.

A feud between town officials and a local businessman exemplifies the battle in existing public records laws that some lawmakers are using as reason to introduce legislation that some say has the potential to irreparably harm Florida's Sunshine Law, while others argue is needed to stop the abuse.

Florida legislators are drafting bills that aim to end, as one lawmaker calls it, the "cottage industry" of using public records laws for profit.

If these proposed bills are passed and signed into law, they could change open government laws by potentially placing a burden upon private citizens seeking access to public records.

Currently, attorneys' fees are awarded to plaintiffs who win lawsuits fighting for access to records of government agencies. The law states judges "shall" order agencies to cover attorneys' fees.

Sen. Rene Garcia of Miami introduced SB 1220 last year aiming to stop lawyers and individuals from inundating municipalities with public records requests. The bill proposed a change to the wording in Chapter 119 of the Florida statutes from judges "shall" award attorneys' fees to "may." It was the companion bill for then Rep. Greg Steube, R-Sarasota, now Sen. Steube's, HB 1021.

While it seemed this change would solve the claimed abuse of the law and prevent municipalities like Gulf Stream from having to pay to fight such public records requests, Barbara Petersen, the president of the First Amendment Foundation, argued the opposite — that it would harm the ability of citizens to challenge public records violations.

Petersen and the Foundation were able to reach a compromise on the language in Garcia's SB 1220, but after it was passed by the Senate, it died in the House. Steube and the Foundation could not reach a compromise on the attorneys' fees provision language in HB 1021, but the bill died in the House State Affairs Committee.

However, Steube is trying again this year.

Steube has filed SB 80 in an effort to accomplish the same thing. There is currently no House companion bill.

On  Feb. 7, SB 80 passed its first legislative hurdle, the committee on Governmental Oversight and Accountability. During the hearing, 18 people and organizations announced opposition to Steube's bill, including Rich Templin, the legislative and political director for the AFL-CIO.

"It's actually a very select group of people abusing the system. This provision penalizes everybody," Templin told the committee.

Steube argued attorneys will still take on public records cases even though fees won't be guaranteed anymore.

"If you have a decent case, a lawyer will take it," he said. "I don't think our tax dollars should be going to a cottage industry of lawyers."

SB 80 goes beyond leaving the attorneys' fees provision up to a judge's discretion. It also stipulates, in an amendment added by Steube, that a court could award attorneys' fees against a requestor if the lawsuit was found to have been filed in bad faith. It also requires a court to award attorneys' fees if the requestor can show, by a preponderance of evidence, that the agency intentionally violated the law.

Petersen and the foundation maintain this change in the law would make filing such a request unaffordable for the average citizen.

"Without that attorney fee provision, we don't have a mechanism of enforcement," Petersen said.

The Dispute That Started It All

The dispute that sparked this legislative battle began in 2013. Gulf Stream's zoning and planning board and town commission rejected a request made by a resident who wanted to renovate the front of his 1980's house with new windows and a pediment, a classical Greek architectural relief sculpture.

Martin, or Marty, O'Boyle Sr. said the commission disliked the proposed designs because they were too large.

Frustrated with the decisionO'Boyle commissioned an artist to paint his house with a political cartoon depicting the town's vice mayor leading the mayor to town hall on a donkey. The painting was a satirical nod to a historic political cartoon.

He also had a rainbow painted on his garage door, meant to mimic the one painted in Topeka, Kansas, across from the Westboro Baptists church in 2013. Another one, of Alice In Wonderland characters, pokes fun at the mayor and town manager of the time.

The paintings were a way for O'Boyle to pay "homage to current events and U.S. history," according to Jonathan O'Boyle, Marty O'Boyle son. "The cartoons had a purpose behind them and drove the town absolutely crazy," he said.

Marty O'Boyle makes his living as the president of Commerce Group, a commercial real estate development group. Jonathan O'Boyle is an attorney in Deerfield Beach practicing real estate and construction law, along with public records cases. 

Marty O'Boyle said the zoning board had no reason to reject his proposed modifications to his house, so he requested public records to try to determine whether the board consistently interpreted the code the same way.

The dispute led to a code enforcement hearing, a settlement agreement and a full apology from the town to Marty O'Boyle, which he insisted on.

"They put me through hell," Marty O'Boyle said.

However, the disagreements between Marty O'Boyle and the town of Gulf Stream were far from over.

The Citizen's Awareness Foundation 

Marty O'Boyle started the Citizen's Awareness Foundation in January 2014 with the intention of educating Floridians and agencies about Chapter 119, Florida's public records law, which states, "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."

In 2015, the town accused the foundation of using Chapter 119 to obtain profit from Gulf Stream through Jonathan O'Boyle's law firm.

Gulf Stream fought back with a class-action Racketeer Influenced Corrupt Organizations (RICO) suit against Marty O'Boyle, seven other individuals, and 12 corporations, including Jonathan O'Boyle's law firm.

The 48-page complaint was thrown out by a federal judge in West Palm Beach later that year.

The foundation made more public records requests than the town of Gulf Stream could keep up with, according to Gulf Stream's attorney Robert Sweetapple. When the town could not complete each request within the law's "reasonable amount of time," as mandated by Chapter 119, Jonathan O'Boyle's law firm would file a lawsuit.

The totality of the public records requests submitted to the town of Gulf Stream is documented in a Feb. 18, 2016, litigation report compiled by Sweetapple:
GulfStream Litigation Report 2-18-17 by wuftnews on Scribd

He said he's seen the "victimization" of the town from the hundreds of public records requests filed for the purpose of generating litigation.

"Some 400 requests were followed by approximately 16 lawsuits" by Marty O'Boyle,  Sweetapple said. The amount of requests were too much for the small staff at Gulf Stream's Town Hall to facilitate, resulting in two clerks quitting, according to Sweetapple. That's why he said he supports Sen. Steube's SB 80.

"I'm hoping to expose this activity. ... He's left a trail like a slug," Sweetapple said of Marty O'Boyle.

Marty O'Boyle said he too supports SB 80 because each of his records requests have purpose behind them and are not predatory.

Self-proclaimed Florida public records advocate Joel Chandler was hired to be the executive director of the foundation in 2014. He claimed that he filed between 400 and 500 public records violation lawsuits to Florida agencies in a five-month period, doing so based on a weekly quota put in place by Marty O'Boyle.

Chandler said he was given a $120,000 a year salary with health insurance and a new car with the initial understanding that his position was for educational purposes.

Marty O'Boyle disputes there was ever a quota. Chandler left the foundation later that same year.

Chandler said Marty O'Boyle went from being, "charming at first, to a really vicious guy. He would use litigation as a weapon."

In response, Marty O'Boyle wrote, "Unlike Joel Chandler, I make Records Requests to 'obtain records.' I sue when the Governmental Agency plays 'Hide The Ball!'"

Though Chandler left the foundation over what he called "philosophical differences" with Marty O'Boyle, highlighted in the affidavit included in the litigation report, he continues to file public records requests and lawsuits in counties throughout the state. To critics, he claims he doesn't make any money.

"Yeah, I have a lot of public records lawsuits. ... If people are looking for public records violations, so what. I eek out a living."

Gulf Stream resident Chris O'Hare, a retired landscape architect and sculptor, said he took advice from Chandler about a dispute he had with the town's police. The advice led him to make public records requests for police reports and emails — and then file a series of lawsuits. He said he was inspired by the political cartoons painted on Marty O'Boyle's house. O'Hare was also among the individuals named in the dismissed RICO lawsuit with Marty O'Boyle in 2015.

O'Hare describes filing requests and lawsuits as something that makes him feel "somewhat like a crusader" for public records law in Florida, and a way to hold agencies accountable.

"The only way I could get information led to more records requests. Records is a free speech issue," O'Hare said.

O'Hare still has cases pending. Jonathan O'Boyle's law firm has handled a few of the suits O'Hare filed, according to Jonathan O'Boyle.

One thing O'Hare can agree on with Marty O'Boyle, Chandler and lawmakers like Sen. Steube, however, is that Florida needs a better method of enforcing claims of violations of public records laws.

"It's not what I think the legislature intended it to be," O'Hare said of Chapter 119.

Since the lawsuits began, Gulf Stream has spent money to update its computer systems to better handle public records requests, Sweetapple said. Now, requests can be made on the town's website.

While the town has not paid Marty O'Boyle anything for pubic records violations, there is still one case pending. The town has paid settlement money to him for other types suits such as the home renovation dispute, as well as a dispute over removed campaign signs when he ran for town commissioner in 2014.

The First Amendment Foundation's Goal

The missing piece of Florida's public records law is this idea of a better enforcement mechanism, Petersen said. She hopes the legislature will consider either expanding the Attorney General's office to be able to review public records access complaints before court, or create an independent mechanism for this type of review.

Petersen feels it may not solve the problem entirely, but will alleviate some of the issues associated with loopholes in Florida's broad Sunshine Law.

"Give us something other than court," she said.

Petersen said predatory public records requesters want to "get paid to go away."

Petersen argued the bottom line is citizens should not be required to pay attorneys’ fees in public records cases or the majority of citizens' access to public records will be harmed.

"What the Citizens Awareness Foundation was attempting to do was laudable. ... The emphasis on education suddenly got turned into a lot of litigation," Petersen said. "If what you want to do is educate people, don't sue them."

The First Amendment Foundation has reached a compromise with Steube and the Florida League of Cities on SB 80.

The agreed-upon amendment to the bill still requires a court to award attorneys' fees if it finds an agency violated Chapter 119 and the requestor provided written notice of the request to the records custodian five days before filing suit.

The amendment restricts a court from awarding attorneys' fees if it finds the request or lawsuit was filed for an "improper purpose," defined as primarily to harass the agency, cause violation of Chapter 119, or was frivolous. The court must limit payments by an agency to only reasonable court costs and attorneys' fees directly attributable to the violation of Chapter 119.

The future of SB 80 is now up to a vote. The Judiciary committee passed it unanimously in an afternoon meeting today. With its last step before a floor vote out of the way, Florida Senators will vote whether to pass it onto the House in the coming weeks.

Caitie is a reporter for WUFT News and can be contacted by calling 352-392-6397 or emailing news@wuft.org.