By Steve Plunkett
Town resident Chris O’Hare’s “bad faith conduct” in seeking hundreds of public records may leave him liable for Gulf Stream’s hefty legal bill and even sanctions, a circuit judge has ruled.
In a case O’Hare filed against the town, Judge Thomas Barkdull III said Gulf Stream did not unjustifiably delay its response to a public records request from O’Hare and his conduct bars the relief he sought, namely the records plus his own attorney’s fees.
O’Hare’s conduct “was clearly intended to inappropriately manufacture public records requests in order to generate public records litigation and attorney’s fees,” Barkdull wrote in a final judgment May 8.
What’s more, Barkdull wrote, “Having had the opportunity to observe O’Hare at trial, the court further concludes that O’Hare intended to harass and intimidate the town’s employees to generate litigation and fees with ‘gotcha’ type requests.”
And, Barkdull wrote, “To that extent, he was successful.”
In Tallahassee, meanwhile, Gov. Rick Scott signed a bill into law last month giving judges discretion over whether to award attorney’s fees when someone successfully sues a government agency for improperly withholding records. Before, legal fees were automatic.
“We fully expected it to be signed, actually last year instead of this year,” said former Gulf Stream Vice Mayor Robert Ganger, who testified during the 2016 legislative session on the burdens small towns face. “It was a long haul, but I’m hopeful that people will say that’s the right thing to do.”
Gulf Stream used its hurricane reserve fund and had to raise taxes 40 percent to pay its legal bills, Ganger told state lawmakers.
The Florida League of Cities supported the law; open-government advocates opposed it.
The issue in the O’Hare case was a request he made after Town Hall closed for the day May 14, 2014, 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.
Gulf Stream answered O’Hare within two days, 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.”
The judge noted that O’Hare did not advise the town that he wanted the request handled ahead of 10 other requests he made that day.
O’Hare filed suit 46 days after he made his request, a day longer than the statutory requirement, asking Barkdull to declare the town was making an “illegal withholding” of the records and seeking attorney fees.
In January, after a four-day nonjury trial, Robert Sweetapple, Gulf Stream’s outside counsel, told town commissioners the judge sided with them. In Barkdull’s final order, the judge invited Gulf Stream to ask that O’Hare pay its legal bill and also be sanctioned.
At the same meeting, O’Hare told commissioners he disagreed with the ruling. “So do my attorneys, and of course we’ll appeal that,” he said.
Before Barkdull’s ruling, a municipality that successfully defended itself against a public records dispute still had to pay its own legal bill.
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 said. Together, he and fellow resident O’Boyle have filed more than 2,000 requests and dozens of lawsuits.
The 10 requests O’Hare made May 14, 2014, led to seven lawsuits, Sweetapple said.
Gulf Stream’s legal bills soared from $3,000 a month to as much as $79,000 a month fighting the lawsuits, the town told Barkdull. It bought new computer programs and a server to handle all the public records requests and hired an attorney full time in Town Hall to help manage the cases.
O’Hare launched his barrage of public records requests after he experienced what he described as “a series of retaliations” and “fictitious code enforcements” from the town beginning in 2012, Barkdull wrote.
O’Hare, who lives in Place Au Soleil, also had an “ongoing dispute” with the town regarding him parking his boat on what he understood to be publicly accessible waters in a canal west of Mayor Scott Morgan’s house.