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Florida Appeal Court: Watchdog City Journalist wins public records fee lawsuit

City Desk Naples-Marco Island, Florida
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Gina Edwards
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Appeal Court: Watchdog City journalist wins public records fee lawsuit; Journalist thanks lawyers; Florida Press Club honors Watchdog City with top statewide First Amendment Award

News Release, Jan. 16, 2016 – Florida’s Second District Court of Appeal on Friday sided with Watchdog City journalist Gina Edwards, who successfully sued Clerk of Courts Dwight Brock in a public records lawsuit that challenged high fees Brock charged her for electronic public records.

Naples City Desk - News and In-depth coverage in Naples and Collier County

See the Public Records Lawsuit Court Files with filings from both sides

Oral Arguement before Second District Court of Appeal

Judge Hardt's Ruling After Trial

 

“I am deeply grateful to my attorneys, Ryan Witmer, Giovani Mesa and Marrett Hanna, who pursued this case on my behalf and defended me in Brock’s appeal. Their hard work helped me do my job as a journalist and they defended the public’s right to affordable and fair access to the people’s records. Unfortunately, Brock, by his actions, has cost the taxpayers an extraordinary amount of money.”

-- Watchdog City Journalist Gina Edwards, owner of Naples City Desk

  

Ryan Witmer

Ryan Witmer, First Amendment attorney for Watchdog City journalist Gina Edwards

Attorneys Giovani Mesa and Marrett Hanna prepare to argue appeal on behalf of Edwards before Florida Second District Court of Appeal

 

Collier Circuit Judge Fred Hardt

Collier Circuit Judge Fred Hardt

Gina Edwards

Journalist Gina Edwards

Dwight Brock

Clerk of Courts Dwight Brock

 

Edwards said: “I am also grateful for the expertise and assistance of Barbara Petersen at the First Amendment Foundation, public records activist Joel Chandler and retired Naples Daily News editor Phil Lewis; concerned citizen and database expert Frank Dolik; retired news executive Alan Horton; Amy Tardiff, news director of WGCU and past chair of the Radio, TV and Digital News Association who wrote letters and publicized the case to members; Brent Batten, Naples Daily News columnist, who asked the Clerk tough questions about the fees he charged and the expense to taxpayers to defend his policy in repeated columns; editors at the Fort Myers News-Press who aggressively defended me their editorial page; Carole Greene and Rhona Saunders and the leadership of the Naples Press Club who expressed public support and attended the public records trial; and citizens, sources and friends too numerous to mention, especially those who helped organize a Town Hall Forum to raise awareness about public records access.” 

Related Naples City Desk Stories:

Docs turned over in public records lawsuit show deeper involvement by Brock, staff in audit

More than 300 pages of key documents surface after Brock’s office said all public records turned over

Public records lawsuit docs: Brock’s Audit Department structure violates government auditing standards

Two hats equal conflict: Brock’s Finance director signs off on hundreds of millions in payments, also serves as Internal Audit chief

Related In-depth Story:

Elected auditor Brock sics law enforcement on 2012 political challenger over housing grant; Naples City Desk investigation: Internal documents show Brock allegations false, misleading 

Appraisals reviewed by Brocks own staff 2 years ago document construction Brock says not proven  

Excerpt from Editorial by News-Press

"Apparently, Collier County Clerk of Court believes he has the right to violate public records laws and charge exorbitant fees for documents because he does not like the tactics of an investigative reporter. It is wrong, vindictive and hurts anyone's ability to fairly gain access to a public record. And it breaks the law.

Clerk of Court Dwight Brock has lost once in court and is once again challenging a judge's decision striking down the $556 tab he wanted to charge investigative reporter Gina Edwards. We urge that any future court decisions also support the circuit court judge's ruling. Brock must abide by the law and not take his anger out on Edwards ...

It was Edwards' legal right to get the electronic information for the cost of a CD. It is also the right of anyone who seeks similar records. " 

See letter of support from the national Radio Television Digital News Association

 Naples Daily News Columnist Brent Batten questions fees charged to Edwards

Naples Press Club Carole Greene: How much is a fair price for access to records?

Brent Batten: Brock's legal invoices leave questions unanswered

Brent Batten: Brock spent at least $67K on lawyers fighting journalist's suit

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Please consider subscribing to Naples City Desk and tell your friends. Gina Edwards is counting on grassroots subscription support from people like you to fund her reporting.

Edwards is a national award-winning reporter with more than 10 years experience at a newspaper. She co-founded WatchdogCity.com to help journalists - and citizens - who want to see public service reporting survive and thrive in their communities.

View Naples City Desk on your tablet, PC or phone.

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Brock appealed after Edwards won favorable rulings two times in the trial court —including after a June 2014 trial demanded by Brock. Brock charged Edwards $350 for 350 pages of electronic copies of emails. Collier Circuit Judge Fred Hardt ruled that Brock could only charge Edwards $1, the cost of the CD. Hardt ruled that Brock could charge Edwards up to $206 for a 206-page audit policy manual, which Brock’s Finance Director testified only existed in paper format when Edwards requested it.

The appeal court, after hearing oral arguments on May 6, 2015, affirmed Judge Hardt’s June 2014 decision without issuing a written opinion.

Brock leveled the $1 per page fee for electronic copies of public records after Edwards wrote investigative stories critical of Brock and his conduct of an audit of his former political challenger. Weeks before publication, Brock had charged Edwards $1 for a CD containing hundreds of pages of documents.

“I am deeply grateful to my attorneys, Ryan Witmer, Giovani Mesa and Marrett Hanna, who pursued this case on my behalf and defended me in Brock’s appeal. Their hard work helped me do my job as a journalist and they defended the public’s right to affordable and fair access to the people’s records. Unfortunately, Brock, by his actions, has cost the taxpayers an extraordinary amount of money.”

Edwards said the appellate affirmation will benefit citizens because it will ensure that Brock must follow the public records law fees in Florida statute 119 for electronic records, especially for the vast and critical electronic data he keeps about the county's finances and spending.

Naples Daily News columnist Brent Batten reported that Brock had spent more than $67,000 on legal fees as of December 2014, an amount that didn’t capture appeal work in 2015. Edwards is not entitled to seek damages from Brock under the law, but she is allowed to receive attorneys’ fees because she had to file a suit to uphold her civil rights as a citizen.

Brock contended 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.

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

During the pendency of the appeal, Brock threatened to charge Edwards hundreds of dollars in fees retroactively if he won, including more than $1,500 for roughly 1500 pages of electronic copies of public record emails she requested in ongoing reporting about county government finances and a controversial banking contract that Brock gave to the bank founded by Naples’ sitting state senator, Garrett Richter.

The Florida Press Club recognized Edwards' reporting at Watchdog City and her efforts to open public records access with a top statewide First Amendment award in November 2015. She was also honored with a second place award in 2014 and the Florida Society of Professional Journalists honored Watchdog CIty with a second place First Amendment award in 2014.

The 350 pages of electronic public records obtained by Edwards after filing the lawsuit provided evidence that contradicted Brock's public statement that he stayed out of a so-called “independent audit” by Clifton Larson Allen to avoid the appearance of impropriety of auditing his 2012 political opponent, John Barlow.  Brock’s office didn’t produce the public records in response to an earlier public records request by Edwards and told her in an email that she had been provided all of the records.

The audit policy manual obtained by Edwards in the public records lawsuit revealed that Brock’s Finance Director, Crystal Kinzel, was 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.

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 agreed 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 by Edwards' attorneys 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 conceded that Edwards’ assertion in her original lawsuit was correct, even though he continued to pursue the appeal. 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 and electronic records.

“Public records belong to the people,” Edwards said in a statement. “When an elected official trumps up fees to thwart transparency then democracy loses. The cost of secrecy is high. Judge Hardt gave a win to the public by recognizing the importance of affordable public records access.”

Judge Hardt's ruling opened the door for Edwards to request electronic public records held by Brock related to the county's finances and investments. 

SEE STORIES:

Naples City Desk exclusive: No evidence Clerk’s money manager over $600 million portfolio has had annual evaluation since 2007

Clerk Brock & Sen. Richter signed deal to transfer county’s $600 million to firm with no BCC vote

County Manager, County Attorney didn’t know Brock switched custody of county's $600 million against contract with BCC, without vote

In response to a December 2014 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 two months later in February 2015 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)," referring to the appellate court. 

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 2015. In that response, attorneys for Edwards asserted that Brock violated appellate procedure with “malicious statements” and improper arguments and mischaracterizations in its appellate court filings in an attempt to malign Edwards.

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.

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


 

Extra ... 

Public Business ... if you can afford it

Edwards inquired about the Clerk's policy for charges for electronic public records prior to publication of investigative stories she did about Brock's audit of the charity founded by his former political challenger John Barlow, who ran against Brock in 2012. The response from Brock's spokesman, Robert St.Cyr, says the charge for electronic records is $1 for a CD or free if emailed, which is in keeping with Florida's public record law, Florida Statute 119. Another Brock staffer said the first hour of staff time is free. After Edwards published critical stories, and followed up to ask for public records not turned over and apparently withheld by Brock, Brock's office said the Clerk follows the Clerk's statute and the charge was $1 per page, even for records stored electronically on a compact disc and not on a printed page. 

Staff charges by Brock to journalist Edwards

When Edwards requested monthly reports to show the historical performance of the $600 million county investment portfolio managed by Brock in December 2014, Brock used the public records law, F.S. 119 to charge Edwards $139.16 for "extensive use" of staff time, which is allowed under the law. However, Brock charged Edwards for $46.16 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 public records on two separate times.  On the invoice below Brock states "$554 due for copies (not to be collected until after court ruling)." 

Edwards paid the staff fee for the paper copy investment reports produced by Brock but noted that she "paid under protest" because Brock refused to provide the electronic versions of the public reports that she requested.

 

 


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