The public records lawsuit filed by journalist Gina Edwards that challenges high fees charged by Collier Clerk of Courts Dwight Brock is headed to trial June 3.
Brock has forced the trial at taxpayers’ expense by seeking to overturn Collier Circuit Judge Fred Hardt’s March ruling in favor of Edwards, who publishes the digital newspaper Naples City Desk at WatchdogCity.com.
Hardt, in a March 26 ruling, found that Naples City Desk owes $2 for scanned electronic public records produced on 2 CDs, as opposed to the $556, or $1 per page Brock charged Edwards.
“Judge Hardt gave a win to the public when he stood up for affordable access to public records,” Edwards said. “Now, the Clerk is costing taxpayers an enormous amount of money with a trial in which he hopes to set precedent with a high-fee policy that thwarts transparency in government and harms the public’s right to know. We filed the lawsuit because we believe the Clerk has charged an illegal fee that harms the public and other journalists.”
The broader context of the lawsuit is a challenge by Naples City Desk to Brock’s contention that he can charge up to $1 per page for any document in his possession — hard copy or electronic — under the statute for court clerks, Florida Statute 28.24.
How many people Brock may have overcharged over the years is unknown but a win at trial by Naples City Desk could pave the way for lower fees for the public and press seeking access to county and financial records held by Brock.
The lawsuit filed by Edwards’ Naples City Desk asserts that the public records sought by Edwards were county government records created in Brock’s role as clerk and accountant to the Board of County Commissioners — not court records.
According to the Government in the Sunshine Manual and two attorney general opinions, public records created by a Clerk in that role must follow the fees in the public records law, which says the cost to citizens for public records is 15 cents a page for printed paper copies or the actual cost of duplication for electronic public records, for example the cost of a CD.
In January, Brock’s Office charged Edwards only $2 for 2 CDs that contained hundreds of pages of audit work papers created by Brock’s office in January — prior to her publication of stories about Brock’s audit of the non-profit organization founded by his former political opponent.
After Edwards published critical stories on Feb. 11, Brock charged $556, for 556 pages for electronic records on 2 CDs. Brock did not answer a letter protesting the fees by Edwards and Naples City Desk filed suit on Feb. 25.
Following an emergency hearing before Judge Hardt, Brock produced the requested documents on the CDs and agreed to suspend charges until the outcome of the court case.
Edwards requested a scanned electronic copy of a July 18 email attachment of a draft report submitted to Brock’s office by a consultant in the audit involving Brock’s 2012 political challenger and any mark-ups or written correspondence by Brock’s staff in response. She also requested a scanned electronic copy of Brock’s Internal Audit Department Policies and Procedures manual or similar document.
The 350 pages of public records related to the July 18 email attachment included — 6 draft reports by the consultant Clifton Larson Allen and more than a dozen emails — that weren’t previously turned over to Edwards. Brock’s office did not produce the public records in response to an earlier public records request and told Edwards in a Jan. 29 email that she had been provided all of the Clerk’s public records related to the Clifton Larson Allen work.
The documents showed even deeper involvement by Brock and his staff in the consultant’s work, contradicting Brock’s public statement that he stayed out of the “independent audit” by Clifton Larson Allen to avoid the appearance of impropriety of auditing his 2012 political opponent, John Barlow.
The audit policy manual obtained in the public records lawsuit revealed that Brock’s Finance Director Crystal Kinzel is also the Director of Internal Audit, a structure that Naples City Desk reported violates widely adopted Government Auditing Standards and is criticized by academic and industry experts.
Brock has denied abusing his authority to exact political payback and said anyone accepting taxpayer money should expect intense scrutiny from his office. He has declined repeated interview requests from Naples City Desk and to answer written questions since January. (See previous in-depth Naples City Desk coverage and recent letters to federal law enforcement by lawyers for H.O.M.E. and a letter by Brock to the federal housing inspector general)
In the public records lawsuit, Brock argues that as Clerk he is allowed to charge up to $1 per page for any records in his possession.
Judge Hardt found that the same statute governing court clerks requires clerks to charge fees in keeping with the public records law for electronic records stored in a database.
“The legislature recognized that the cost incurred by the Clerk to provide copies of public records stored in an electronic format would be substantially less than the cost of making photographic (hard) copies of public records,” Judge Hardt wrote.
“This determination is entirely consistent with the public records policy of this State as mandated by Article I, Section 24 of the Florida Constitution and as articulated by our legislature in Section 119.01(1):
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 challenging Hardt’s ruling, Brock wants Naples City Desk to prove at a trial that a “scanned copy” of a document is an “electronic copy of information contained in a computer database.”
The nation’s largest professional association of electronic journalists, the Radio Television Digital News Association, offered a letter in support of the lawsuit filed by Edwards.
“RTDNA believes in fair and affordable access to public information, as required by Florida statute. We believe the $556 total cost charged for these records by your office is clearly outside both the intent and the actual definition of the law,” RTDNA Chair elect Amy Tardiff of WGCU in Fort Myers wrote.
Editorials by the Fort Myers News-Press and Naples Daily News have offered support for the lower fees as has the Naples Press Club Board, of which Edwards is a member, and also the Florida Association of Licensed Investigators.
Edwards’ attorney, Ryan Witmer of the O’Boyle Law Firm, filed a motion for summary judgment that seeks to avoid a trial and argues that Hardt can rule on the law. A judge must find there is no material fact in dispute to grant a summary judgment.
Brock is represented by attorneys Steve Blount, of the firm Blount Law, and Anthony Pires, of the firm Woodward, Pires & Lombardo.
In seeking a trial, Brock asserts that scanned copies of the requested documents did not exist until Edwards made her request and once created, the scanned copies did not exist in the Clerk’s computer database. In court filings, Brock said his audit department’s policies and procedures only existed as 206 pages of hard copies in a binder.
Included on some of the 206 pages are notations including what appear to be computer drive locations and file names like this one on page 6 “Q:\IA Policy and Procedure\Current Policies & Procedures\Internal Audit Policies\FAP #3-01 – Internal Audit Policy .doc 9/18/2013”.
Witmer also argued that even the statute governing clerks, Florida Statute 28.24(28), requires court clerks to comply with the public records act when providing an “electronic copy of information contained in a computer database.”
Witmer also argued that “If the records already existed in an electronic medium when the request was made, the Defendant had a duty to provide the records electronically for the actual cost of duplication. If however, the records did not exist electronically, the Defendant was not required to produce electronic records, but by electing to do so was required to charge a fee in accordance with § 119.”