By Steve Plunkett
A circuit judge has rejected a public records lawsuit against Gulf Stream after an attorney for the town mounted a defense that accused the plaintiff, town resident Chris O’Hare, of “bad faith.”
“There seems to be a national awareness that Florida and now other jurisdictions that have liberal public records rights are in fact ripe and becoming the source of abuse for lawyers and individuals to just generate litigation to obtain attorney’s fees,” outside lawyer Robert Sweetapple told town commissioners at their monthly meeting Jan. 13.
The case was about “very important public policy,” Circuit Judge Thomas Barkdull III said in a 90-minute hearing Jan. 12.
“This was clearly a bad faith attempt and gotcha request, and an attempt to generate litigation and fees, which is inappropriate,” the judge said in rejecting O’Hare’s claim.
At issue was O’Hare’s request — made after business hours May 14, 2014, a Wednesday — for “all records in any way related to any correspondence between Jones-Foster on behalf of the town and Martin O’Boyle and created or received during the period of time from March 1, 2014, through to the moment you receive this request.”
Jones, Foster, Johnston & Stubbs PA is Town Attorney John “Skip” Randolph’s firm, with about 40 lawyers in its West Palm Beach office. O’Boyle began flooding the town with public records requests in spring 2013 after he was refused variances for work on his Hidden Harbour home.
The flood of requests soon turned into a tsunami, trapping the town in a years-long battle.
In this case, the records O’Hare wanted “include but are not limited to notes, memos, letters, emails, phone logs, phone messages, photos, files, folders, labels, sketches, drawings, layouts, plans, invoices, statements, reports, correspondence, reference material, minutes, audio, video, manuals, drafts and any other record in any way responsive to this request.”
The town answered him that Friday, saying it was “working on a large number of incoming public records requests” and would use “its very best efforts to respond to you in a reasonable amount of time.”
O’Hare filed suit 46 days after he made his request, on July 1, 2014, asking a judge to declare the town was making an “illegal withholding” of the records and seeking attorney fees.
“After more than 45 days following plaintiff’s original request, defendant still has yet to produce the records requested,” said O’Hare’s lawsuit, filed by the O’Boyle Law Firm, which O’Boyle’s son Jonathan heads.
But Barkdull said Gulf Stream was coping not only with records requests but also with creating new parking regulations, deciding what to do about signs on a candidate’s vehicle, fighting a number of lawsuits and holding an election. The town, he said, made “a good faith effort” to answer a “voluminous” request that was “not clearly worded.”
Barkdull also said O’Hare was “angry with his past dealings with the town” and that his suit was “clearly intended to harass and intimidate the employees of the town.”
The judge decided O’Hare deserved nothing and the town could ask that he pay its attorney’s fees. Before his ruling, a municipality that successfully defended itself against a public records dispute still had to pay its own legal bill.
Barkdull anticipated O’Hare’s appealing his decision to the 4th District Court of Appeal. “I look forward to reading the 4th DCA’s opinion after it comes out on this case,” Barkdull said.
O’Hare promised as much during the public comment portion of the commission meeting before Sweetapple spoke.
“I disagree with the ruling. So do my attorneys, and of course we’ll appeal that. My attorneys seem to think that it’s very ripe to go all the way to the Supreme Court because of the issues raised,” said O’Hare, who stepped outside the commission chamber during Sweetapple’s presentation.
Barkdull also ruled in favor of the town in two other public records lawsuits.
O’Hare began asking Gulf Stream for public records in 2013. From late August through December that year, he made more than 400 requests, Sweetapple has said. Together, he and Martin O’Boyle have filed more than 2,000 requests and dozens of lawsuits.
The May 14, 2014, request was one of 10 O’Hare made that day which resulted in seven lawsuits, Sweetapple said.