Judge rules for Gulf Stream in battle over public records lawsuits

Palm Beach County Circuit Judge Thomas Barkdull III, Photo by Bruce R. Bennett

Palm Beach Post by Jane Musgrave

May 9, 2017

In what may become a powerful weapon for governments to use to block people from filing frivolous public records lawsuits, a Palm Beach County judge this week said he will consider imposing sanctions against a Gulf Stream man who has buried the tiny town with hundreds of requests for information.

Turning a lawsuit Christopher O’Hare filed against the oceanfront town against him, Circuit Judge Thomas Barkdull ruled that O’Hare acted in bad faith when he filed as many as 60 public records requests a day and then sued Gulf Stream when it couldn’t keep up with his demands.

“O’Hare’s conduct in this case was clearly intended to inappropriately manufacture public records requests in order to generate public records litigation and attorney’s fees,” Barkdull wrote in an 18-page decision.

Instead of having any true desire for information, O’Hare used the state’s public records laws to inundate the town with “gotcha type requests,” Barkdull wrote. O’Hare’s intent was to “harass and intimidate the town’s employees to generate litigation and fees,” the judge said.

Attorney Robert Sweetapple, who represents the town in dozens of lawsuits filed by O’Hare and fellow Gulf Stream resident Martin O’Boyle, applauded Barkdull’s decision. It marks the first time a Florida judge has ruled that a person acted in bad faith in a public records lawsuit and therefore could be forced to reimburse the government for its attorneys’ fees, Sweetapple said. In O’Hare’s case, the bill could exceed $20,000, he said.

“I suspect there’s going to be a lot of happiness and relief in the government sector that sooner or later judges are going to put a stop to these scammers who are ripping off government,” Sweetapple said.

Governments are already celebrating an amendment the Florida Legislature made to the state’s public records law before leaving Tallahassee Monday. The bill (SB 80) headed for Gov. Rick Scott’s desk would give judges the flexibility to decide whether those who file public records lawsuits against government agencies are entitled to recover their court costs and attorneys’ fees. Currently, judges have no discretion. The law requires governments to pay if a judge finds they wrongfully withheld public records .

“Unfortunately, there are attorneys who have made careers of sabotaging public records laws,” said Craigin Mosteller, a spokeswoman for the Florida Association of Counties. “They have made their livings on the backs of taxpayers.”

Buft O’Hare said he isn’t in that camp. The recently-passed bill, along with Barkdull’s ruling, will have a chilling effect on those who want information from tax-funded agencies, he said.

“I feel like I have an obligation to appeal,” he said. “I think (Barkdull’s decision) will hurt record-requesters throughout the state.”

Contrary to Barkdull’s assessment, O’Hare said his requests for information from Gulf Stream were legitimate. While Barkdull blasted him for his practice of making multiple requests a day, O’Hare likened it to getting dozens of books on a single trip to a public library. Sometimes, he said, he saved up his requests and made them all at one time.

But evidence presented during a two-day trial in December showed Gulf Stream did its best to respond to the hundreds of requests flooding in from O’Hare, O’Boyle and others, Barkdull said. The town hired more workers. It updated its computer system. Faced with lawsuits for not responding quickly, its legal bills soared from $6,000 to as much as $79,000 a month, the judge wrote.

And after workers spent hours researching O’Hare’s requests, he “routinely refused to pay for the production of the records he sought,” Barkdull wrote. When the overburdened staff didn’t respond quickly enough, he sued the town 12 times.

Attorney Jonathan O’Boyle, who has represented O’Hare and his father, Martin O’Boyle, in similar lawsuits, predicted that Barkdull’s ruling would be reversed by an appeals court. Numerous judges have rejected the notion that people can be accused of acting in bad faith for filing public records lawsuits, he said.

Sweetapple previously failed to persuade a federal judge that Gulf Stream could sue O’Boyle and O’Hare for violating the federal racketeering act.

Still, O’Boyle acknowledged, Barkdull’s decision was an interesting one. “It is certainly earth-shattering to some degree,” he said. [READ MORE]

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