Florida Appeal Court to hear oral arguments in Watchdog City journalists’ public records lawsuit challenging fees by Collier Clerk Brock

Brock concedes journalist's initial suit correct in new public records policy posted online, but has spent $67,000 in tax dollars on legal bills to fight over $556 bill

News Release – Florida’s Second District Court of Appeal will hear oral arguments in the appellate case brought by Collier Clerk of Courts Dwight Brock against Watchdog City journalist Gina Edwards.

Brock appealed after Edwards won favorable rulings two times in the trial court in her public records lawsuit protesting the high fees charged to her by Brock’s office for county government records. Edwards filed suit based on two Attorney General opinions and Florida’s Government in the Sunshine Manual which says Clerks are required to charge lower fees under Florida’s public records law for county government records. Brock contends that he is governed only by the Clerk’s statute and can charge $1 per page for any document in his possession, including for electronic records.

A favorable ruling for Edwards at the appellate level will benefit all Floridians by holding Clerks around the state to the lower fee schedule under the public records law, F.S. 119.

A win by Brock could raise public records fees on members of the public and journalists around the state — by six fold and more — by allowing Clerks to charge significantly higher rates for county government records, whether in paper or electronic format.

“We’re gratified that the Second DCA considers this case important and has agreed to hear oral arguments,” Edwards said in a statement. Oral arguments will be held before the Second District Court of Appeal justices on May 6 at the Stetson University College of Law in Tampa. The court’s oral arguments can be viewed by the public live-streamed online on the courts web site at http://www.2dca.org/OralArgumentCalendar/oa-streaming.shtml beginning at 9:30 a.m.

Collier Circuit Judge Fred Hardt issued a split ruling after a trial in June, finding that Edwards owed only $1, the cost of a CD, for 350 pages of electronic emails of Brock’s staff under the public records law, but that she owed $206 for a 206 page audit policy manual, which Brock’s employee testified only existed in a paper format when Edwards requested it.

Although Brock has spent more than $67,000 on legal fees to fight Edwards, according to the Naples Daily News, Brock now agrees with Edwards’ original lawsuit that county records held by his office are required by law to be charged at the lower rates in keeping with Florida’s public records law, Florida Statute 119.

Court papers filed earlier this month before Florida’s Second District Court of Appeal by attorneys for journalist Edwards make note of the fact that Clerk Brock concedes in his office’s Feb. 19, 2015 public records policy posted on his web site that county government records he holds are subject to the Florida public records law, Florida Statute 119.

In other words, Brock has conceded that Edwards’ assertion in her original lawsuit was correct. Before filing the lawsuit in February 2014, Edwards urged Brock to reconsider his stance and abide by the lower fee schedule under the public records law. At least two dozen Clerks surveyed by Edwards’ news outlet, Naples City Desk that publishes at watchdogcity.com, said they charge the lower fees under the public records law for county government records.

Brock appealed in June after Edwards received a favorable verdict at trial.

Naples Daily News columnist Brent Batten reported that Brock had spent $67,000 on legal fees to fight Edwards’ lawsuit as of the end of December, a tab which doesn’t include subsequent work in 2015 on the case.

After earlier charging Edwards $2 for 2 CDs with hundreds of pages of documents on them, Brock charged Edwards $556 for 556 pages on 2 CDs after she published stories critical of Brock in February 2014.

“Public records belong to the people and taxpayers have already paid the salaries of the government employees who produced them,” Edwards said in a statement. “When government trumps up fees to thwart transparency then democracy loses. The cost of secrecy is high.”

Since June, Brock has threatened to charge Edwards retroactively $1 a page for electronic public records she has requested if he is successful on appeal, even though Edwards won at the trial level regarding electronic records. For example, Brock threatened to charge Edwards retroactively $1,538 for 1,538 pages of electronic emails by Brock’s staff that she obtained in a public records request in November related to a controversial banking contract.

Edwards reported in November that Brock switched custody of the county’s investment portfolio without a vote of county commissioners and in violation of a county contract. Collier Commissioner Georgia Hiller had accused Brock of illegally steering the county’s lucrative banking services contract to the bank founded by Florida Sen. Garrett Richter (R-Naples), First Florida Integrity Bank. Brock and Richter have denied wrongdoing.

In response to a December public records request by Edwards for historical performance records of the county’s $600 million cash and investment portfolio managed by Brock, he produced the records in February but refused to provide electronic records and spreadsheets requested by Edwards.

Courts have found that electronic records are public record under the law and investment records under the law for the county’s portfolio are required to be held for 10 years. Brock charged Edwards for “extensive” staff time totaling $139.14 for investment portfolio monthly reports for October 2004 to October 2009. Extensive staff time charges are allowed under the public records law, F.S. 119.

However, Brock charged Edwards for $46 of staff time for review of electronic records, but refused to provide Edwards with electronic records. Brock also charged Edwards $69.38 for two different staff members to count the pages of her records on two separate times. (See itemized invoice)

Brock said he reserved the right to charge Edwards $554 retroactively for the 554 pages of county government investment portfolio reports on top of the staff charges if he is successful on appeal. On the invoice from Brock's office it states: "$554 due for copies (not to be collected until after court ruling)." 

Edwards paid the fee “under protest” for the paper copy investment records because Brock refused to provide the electronic versions of the public records requested.

Edwards’ attorneys filed their latest response in the appeal earlier in March. In that response, attorneys for Edwards assert that Brock violated appellate procedure with “malicious statements” and improper arguments and mischaracterizations in its appellate court filings in an attempt to malign Edwards.

“Brock cannot make a profit or generate revenue when fulfilling records requests. Yet, on the face of the transaction, Brock would receive a windfall if he was entitled to charge $1.00 per page of information sought, regardless of the format in which it is delivered as here where 556 pages were scanned to a cd. Moreover, Ms. Edwards would be required to overpay by 556 times the actual cost for a compact disk, which its imputed actual cost is $1.00. Again, and without question, when acting in his capacity as ex officio clerk to the Board of County Commissioners, Brock is limited by statute to charging 15 cents per page for paper copies. The Internal Audit manual is not a court record, and as discussed above, it is not an instrument. Thus, the Clerk in the instant case significantly overcharged Ms. Edwards for the compact disk and for copies of the emails. Accordingly, the trial court erred when it held that the $1.00 per page charge in §28.24(5)(a) applied to the Manual when it was produced electronically,” attorneys for Edwards state in their court filings.

In preparation for the trial, Edwards attorney asked in a discovery request for a public records log referenced by Brock spokesman Robert St. Cyr. On the morning of the trial, Brock’s attorney texted a photograph of a dry erase board with public records requests on it. How much Brock has charged others couldn’t be determined by Edwards’ attorneys before trial.

Edwards is represented by attorneys Marrett Hanna, Ryan Witmer and Giovani Mesa, who is with the O’Boyle law firm. Hanna and Witmer were previously with the firm.

Contact: Gina Edwards at ginavossedwards@gmail.com or by phone at 239-293-3640.