Collier Circuit Judge Fred Hardt issued a split decision that strikes down in-part the high public records fee policy of Collier Clerk of Courts Dwight Brock that journalist Gina Edwards challenged in a civil lawsuit.
Hardt’s ruling, issued late Monday, says Brock can only charge $1, not the $350 he charged Edwards for electronic emails that were stored in a computer database.
However, Hardt ruled that Brock can charge up to $1 per page for the policy manual of his Internal Audit Department, which Brock asserted at trial only existed in a hard paper form with signed pages before Edwards made a public records request for a scanned copy of it. Edwards will have to pay $206 for a copy of that government document.
“Judge Hardt’s ruling deals a blow to the Clerk’s contention that he can charge $1 per page for any public record he wants to, and we believe this ruling opens affordable access for the public because the vast majority of public records kept by the Clerk are electronic records stored in databases,” attorney Ryan Witmer, who represents Edwards, said.
“However, we are disappointed that Judge Hardt did not agree with us that the audit policy manual is a government document that’s subject to the lower rate under the public records law. Fundamentally, we believe that government transparency is harmed by a policy that allows an elected official to charge $1 per page for records that reveal how he conducts himself in public office. As it stands, it’s at the discretion of the Clerk whether he puts documents in a database or not. The high rate for documents not in a database is a burden on citizens seeking to exercise their constitutional right to know the conduct of government.”
On Tuesday, Brock filed a motion to appeal.
Brock forced a trial in early June at taxpayers’ expense by seeking to overturn Judge Hardt’s March 26 ruling in favor of Edwards that found that Edwards owed $2 for scanned electronic public records produced on 2 CDs, as opposed to the $556, or $1 per page Brock charged Edwards, who publishes the digital newspaper Naples City Desk at WatchdogCity.com.
Brock subsequently challenged Judge Hardt’s ruling and asserted that Naples City Desk had to prove at a trial that a “scanned copy” of a document is an “electronic copy of information contained in a computer database.”
Brock’s Finance Director Crystal Kinzel testified at trial that the Internal Audit Policy manual that she signs off on only existed in paper form in a binder in her office prior to Edwards’ Feb. 7, 2014 public records request.
Brock, represented by attorneys Steve Blount and Anthony Pires, contended 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.
Judge Hardt found that the same statute governing court clerks, also requires under Section 28.24 (28) that clerks charge fees in keeping with the public records law for electronic records stored in a database.
Judge Hardt found that emails requested by Edwards were electronic copies of information stored in a computer database.
Judge Hardt agreed with Brock, however, that the Clerk statute applies for fees.
The lawsuit filed by Edwards’ Naples City Desk asserted 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, which is compiled by the Attorney General’s Office, 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.
The issue over whether county records held by a clerk should be charged at the lower rate was a matter of “first impression” before Judge Hardt, meaning a case had not specifically settled the issue.
“Under Section 28.24 the clerk’s obligation to serve as the county auditor is an ‘other specified duty,’” Judge Hardt wrote in his ruling. “In other words, the fees authorized in Section 28.24 apply not only to the clerk in his or her capacity as an arm of the court, but also to the other mandated duties of the clerk, including his or her duties as the county auditor.”
Section 28.24 (5)(a) provides that “the clerk shall charge a fee which ‘may not exceed’ $1 per page ‘for making copies by photographic process of any instrument in the public records consisting of pages of not more than 14 inches by 8.5 inches,’” Judge Hardt ruled.
Hardt applied a liberal interpretation of the word “instrument” based on the case WFTV v. Wilken in his ruling finding that: “The term ‘instrument’ is not limited to recorded documents. Rather it is ‘anything reduced to writing or a document of a formal or solemn character.’”
Hardt found in his ruling that the audit policy manual requested by Edwards was a “document of a formal or solemn character” that is “made in connection with the transaction of official business by an agency” and that scanning it constituted a “photographic process.”
Hardt noted in his ruling that the statute governing court clerks doesn’t require Brock to charge $1 per page for certain records.
“It is worth noting that while the Clerk is obligated to charge for services rendered under Section 28.24, the charges ‘may not exceed’ those specified in that Section,” Judge Hardt wrote. “In other words, the Clerk may elect to charge a lesser fee that accurately reflects the actual cost of reproduction.”
Of more than two dozen of the 67 county Clerks in Florida contacted by Naples City Desk about their fee policy, only two besides Brock said they charge $1 a page for county government records. The rest said they charge in accordance with the public records law, or 15 cents per page for printed copies or the actual cost of duplication for electronic records.
In January, Brock’s Office charged Edwards only $2 for 2 CDs that contained hundreds of pages of scanned audit work papers created by Brock’s office in January — prior to her publication of critical stories about Brock’s audit of the charity founded by his 2012 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 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 interview requests from Naples City Desk and to answer written questions since January. (See previous in-depth Naples City Desk coverage and letters to federal law enforcement by lawyers for H.O.M.E. and a letter by Brock to the federal housing inspector general) 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 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.
In seeking a trial, Brock asserted 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.
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.”
However, Kinzel testified that the official copy signed by her was kept in a binder in her office.
Witmer had 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.”