How To Get A Court Order To Stop A Flat Fee From Being Charged In Florida

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1 MICHAEL BARFIELD, IN THE CIRCUIT COURT OF THE TWELFTH CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA Plaintiff, Case No.: IMMEDIATE HEARING v. REQUESTED PURSUANT TO Fla. Stat (2009) BERNADETTE DIPINO, in her capacity as the Chief of Police for the Sarasota Police Department, and the CITY OF SARASOTA, a Florida municipality, Defendants. / VERIFIED COMPLAINT TO ENFORCE FLORIDA S PUBLIC RECORDS ACT AND FOR INJUNCTIVE AND DECLARATORY JUDGMENT Plaintiff, MICHAEL BARFIELD (hereinafter referred to as Barfield ), by and through his undersigned counsel, sues BERNADETE DIPINO, ( Chief DiPino ), in her capacity as Chief of Police of the Sarasota Police Department, ( SPD ) and the CITY OF SARASOTA, a Florida municipality ( the City ) (collectively the Defendants ), and alleges as follows: Introduction This is an action seeking declaratory relief for violations of the Florida Public Records Act by SPD, an agency of the City of Sarasota, Florida. Plaintiff contends that SPD has an administrative policy to overcharge for access to public records by charging $5 for a CD or DVD disk even the actual cost of reproducing public records on a disk is less than 25 cents. The agency s policy is to make a profit from having to comply with public records requests to discourage citizens from making such requests. This policy violates the Public Records Act because an agency may only charge the actual costs incurred in reproducing public records.

2 General Allegations Common to All Counts 1. This action concerns violations of Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (the Public Records Act ) by the Defendants. The Public Records Act violations arise out of a Fee Schedule ( Fee Schedule ) approved by the City Manager, City Clerk and City Attorney (the Charter Officers ) and the Records Manager on or about July 23, 2013, on which Chief DiPino has relied to charge an illegal and excessive flat fee (hereinafter Flat Fee ) in connection with responding to requests for public records by Florida citizens, including Barfield. 2. This action seeks declaratory, injunctive and monetary relief. 3. Barfield specifically seeks an order declaring the Fee Schedule invalid to the extent that it approves the imposition of an automatic Flat Fee that is illegal under the Public Records Act, enjoining the Chief DiPino from continuing to impose such illegal Flat Fee, and awarding Barfield his attorney's fees and costs. Additionally, Barfield requests that this matter be expedited pursuant to Section , Florida Statutes. Jurisdiction and Venue 4. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution and Section , Florida Statutes. 5. This Court has personal jurisdiction over the City because it is a Florida municipality and public agency with offices and agents in Sarasota County. 6. This Court has personal jurisdiction over Chief DiPino, because she is the Chief of Police in the City of Sarasota, Florida, is a public official and, upon information and belief, a resident of Sarasota County. 2

3 7. Venue is appropriate in Sarasota County because Chief DiPino and the City have offices for the transaction of their customary business in Sarasota County and the causes of action accrued in Sarasota County. The Parties 8. Barfield is a Florida citizen who resides in Sarasota County. 9. Barfield is a person as that term is used in the Public Records Act. See Fla. Stat (1)(a). 10. The City of Sarasota is a municipal corporation in Sarasota, Florida, and a public agency that provides access to public records in Sarasota County, Florida. The City is an agency subject to the Public Records Act. See Fla. Stat (2). 11. Chief DiPino is the Chief of Police for the Sarasota Police Department ( SPD ), an administrative agency of the City and, in that capacity, is the custodian of public records for the Sarasota Police Department. See Fla. Stat (1)(a). 12. Chief DiPino has a duty to permit the inspection, examination, and copying of the public records of the SPD by any person desiring to do so, at a reasonable time, under reasonable conditions, and for reasonable costs. See Fla. Stat ; Art. I, 24, Fla. Const. 13. The Charter Officers, through the authority set forth in the Charter of the City of Sarasota, are responsible for the enactment of Administrative Regulations and for approving the Fee Schedule under consideration in this case. 14. All conditions precedent to this action have occurred or have been excused or waived. 3

4 Factual Background Florida s Public Records Act 15. The right of access to public records applies to any public body, officer, or employee of the state... Fla. Const. Art. I, 24; see also Fla. Stat (2). 16. SPD, as an agency under Section (2), Florida Statutes, has an obligation to provide access to any non-exempt and non-confidential public records upon request in accordance with Section , Florida Statutes. 17. As the Chief of Police for SPD, Chief DiPino has an obligation to provide access to any non-exempt and non-confidential public records upon request in accordance with Section , Florida Statutes. 18. Further, Article I, Section 24 of the Florida Constitution sets forth a constitutional right of access to any public record made or received in connection with the official business of any public body, officer or employee of the state, or persons acting on their behalf, unless the public record has been exempted by law pursuant to the constitutional provision or specifically made confidential by the Constitution. See Fla. Const. Art. I, The Public Records Act provides that the records custodian shall furnish a copy of public records upon payment of the fee prescribed by law. If no fee is prescribed by law, an agency is allowed to charge up to 15 cents per one-sided copy for copies that are 14" x 8 1/2" or less. See Fla. Stat (4)(a). Municipal ordinances do not constitute laws for purposes of this section. See Op. Att y Gen. Fla (1984). 20. If the nature and volume of the records to be copied requires extensive use of information technology resources or extensive clerical or supervisory assistance, or both, the agency may charge a reasonable service charge based on the actual cost incurred. See Fla. Stat (4)(d). The imposition of such a service charge, however, is dependent on the nature or 4

5 volume of the records requested, not on the cost to either develop or maintain the records or database system. Id. See also Op. Att y Gen. Fla (1999). 21. A determination of whether the nature or volume of the public records requires such extensive assistance must be made on a case-by-case basis, such that a special service charge may not be routinely imposed. See, e.g., Op. Att y Gen. Fla (2000); Op. Att y Gen. Fla (1984). 22. Chapter 119 represents a legislative scheme that seeks to control the subject of public records at all levels of government. The Florida Legislature has preempted local law with respect to the fees and charges that may be imposed on those who seek access to public records. Consequently, while a municipality may enact an ordinance establishing a set fee for duplication of public records, it may do so only if the fee reflects the actual cost of duplication as defined in the Public Records Act. See Op. Att y Gen. Fla (1985). As noted above, the actual cost of duplication includes only the cost of the material and supplies used to duplicate the record, but does not include the labor costs or overhead costs associated with such duplication. Fla. Stat (1)(a). 23. Importantly, the provision of access to public records is a statutory duty imposed by the Legislature on all records custodians and should not generally be considered a revenuegenerating operation See Op. Att y Gen. Fla (1985). Accordingly, absent specific statutory authority, agencies are not permitted to impose any such fee or charge or to render the furnishing of such records or copies thereof as a revenue-generating operation. Id. 5

6 Fee Schedule Approving Improper Fees for Public Records 24. On or about July 23, 2013, the Charter Officers approved an Administrative Regulation for Procedures for Public Records Requests No. 042-A (the Regulation ). See Exhibit 1, attached hereto. 25. The Regulation contains a Fee Schedule (the Fee Schedule ) pertaining to the costs for the production of public records. 26. The Fee Schedule purports to authorize any agency within the City, including SPD, to impose certain automatic fees relative to the production of public records including, without limitation, a $5.00 Flat Fee for DVD or CD data disks. 27. Upon information and belief, since the Regulation was adopted, SPD and the City repeatedly has charged and collected, and continues to charge and collect, an automatic $5.00 Flat Fee to persons requesting copies of public records in which the records are reproduced on a DVD or CD disk. 28. Upon information and belief, the Flat Fee is automatically charged in response to requests for any public records that are reproduced on a DVD or CD disk and has no relation to either the costs of duplication (which are separately reflected in the copying charges authorized by the Fee Schedule) or the actual amount of time needed to respond to the particular requests. This belief is based on statements made by representatives of the City and from fees collected in the past for public records reproduced on DVD or CD disks in response to requests made under the Public Records Act by Barfield. 29. To the extent that the Regulation and Fee Schedule approve the imposition of the automatic Flat Fee on requestors of public records, they directly conflict with the Public Records Act, under which [t]he provision of access to public records is a statutory duty imposed by the 6

7 Legislature upon all records custodians and should not generally be considered a revenuegenerating operation. Op. Att y Gen. Fla (1984). 30. Indeed, the Florida Attorney General previously has issued a written opinion stating that records custodians may not charge fees in excess of the costs authorized by the Public Records Act, whether that is the actual cost of duplication or, under appropriate circumstances, the special service charge for the use of information technology resources. Op. Att y Gen. Fla See also Op. Att y Gen. Fla Excessive Charges Imposed on Barfield 31. On October 9, 2015, Barfield made a written request to Chief DiPino for records in the possession of SPD relating to videos for body cameras worn by officers during an interim trial period. See Exhibit 2, attached hereto ( the records request ). 32. On October 15, 2014, SPD responded to the records request and attached an invoice cost sheet totaling $18, SPD itemized the charges by asserting that $16, was for more than 458 hours in time it would take a supervisor to review the request at the rate of $35 per hour. An additional $2,275 was listed as a charge for 455 DVD disks at the rate of $5.00 each. See Exhibit 3, attached hereto. 33. SPD does not pay $5.00 for each DVD disk. On information and belief, SPD pays less than.20 cents for each DVD disk. 34. SPD seeks to profit from making public records available by a margin in excess of 10,000 percent over and above its actual costs of duplication under the policy established in the Regulation. 35. On or about February 23, 2015, Barfield again requested the records. However, on February 25, 2015, SPD reiterated its position and stated that Barfield would need to pay half of 7

8 the itemized costs in advance in order to obtain access to public records. See Exhibit 4, attached hereto. 36. In addition, agents and representatives of SPD and the City made written comments on or about March 3, 2015, in which they reiterated that a portion of the itemized costs were for the Flat Fee for DVD disks to reproduce the requested records. 37. Barfield has not remitted payment for the unlawful Flat Fee and has not received the requested public records. 38. Barfield has retained the undersigned counsel in this matter. Count I Declaratory Relief Requested (Invalid Regulation and Fee Schedule) 39. Barfield incorporates the allegations contained in paragraphs 1 through The Public Records Act does not authorize an automatic flat fee for responding to or fulfilling Public Records Act requests that exceeds the actual cost of duplication. 41. The Flat Fee purportedly authorized by the Regulation and Fee Schedule for fulfilling requests for reproduction of public records to a DVD or CD violates the Public Records Act and the Article I, Section 24 of the Florida Constitution. 42. To the extent that the Regulation approves the impermissible Flat Fee set forth above and as set out in the Fee Schedule, the Regulation violates the Public Records Act and the Article I, Section 24 of the Florida Constitution. 43. A dispute has arisen between Barfield and Defendants regarding these matters and Barfield requests that this Court determine the rights and obligations of Barfield as well as the Defendants. 8

9 Count II Injunctive Relief Requested (Imposition of Improper Fees) 44. Barfield incorporates the allegations contained in paragraphs 1 through The Public Records Act does not authorize an automatic flat fee for responding to or fulfilling Public Records Act requests that exceeds the actual cost of duplication. 46. The Flat Fee purportedly authorized by the Regulation and Fee Schedule for fulfilling requests for reproduction of public records to a DVD or CD violates the Public Records Act and the Article I, Section 24 of the Florida Constitution. 47. To the extent that the Regulation approves the impermissible Flat Fee set forth above and as set out in the Fee Schedule, the Regulation violates the Public Records Act and the Article I, Section 24 of the Florida Constitution. 48. Upon information and belief, the City and Chief DiPino have charged and collected, and continues to charge and collect, improper fees for responding to public records requests for the reproduction of public records to a DVD or CD. 49. The Defendants imposition of such an impermissible Flat Fee as a condition of receiving copies of public records constitutes a denial of access to public records. 50. The Defendants denial of access to public records is unlawful under Sections (1) and (1)(a), Florida Statutes, and Article I, Section 24 of the Florida Constitution. injury. 51. Violations of Section , Florida Statutes constitute an irreparable public 52. Barfield has a clear legal right to insist upon the performance of the Defendants duty to permit inspection and copying of public records without charging illegal or improper fees in violation of the Public Records Act. 9

10 53. Barfield has no adequate remedy at law. Attorneys Fees 54. The Public Records Act provides that [i]f a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys fees. See Fla. Stat Expedited Hearing 55. Section , Florida Statutes, provides that courts are to set immediate hearings in actions to enforce the provisions of the Public Records Act and are to give such cases priority over other pending cases. Salvador v. Fennelly, 593 So. 2d 1091, 1094 (Fla. 4th DCA 1992) (recognizing the importance of the statutory provision for immediate hearings in Public Records Act cases because time can be an important element in the right of access to public records ). 56. Therefore, Barfield requests an immediate hearing and that this case be given priority over other pending cases. Relief Requested WHEREFORE, Barfield requests that this Court: (a) (b) Set an immediate hearing pursuant to Section , Florida Statutes; Declare that the Regulation and Fee Schedule are unconstitutional and unlawful under Article I, Section 24 of the Florida Constitution and Chapter 119, Florida Statutes (2009), to the extent that they approve the imposition of illegal and unauthorized fees for reproducing public records subject to the Public Records Act on a DVD or CD disk; 10

11 (c) Enjoin the Defendants from continuing its practice under the Regulation of charging such illegal and unauthorized fees for responding to requests for records subject to the Public Records Act; (d) Order the Defendants to produce the requested records upon proper invoice of, and payment for, the statutorily authorized duplication charges of $.15 per page; (e) Award Barfield his reasonable attorneys fees, costs, and expenses incurred in this action, as provided in Section , Florida Statutes; and (f) Grant such further relief as the Court deems proper. VERIFICATION STATE OF FLORIDA COUNTY OF SARASOTA BEFORE ME, the undersigned authority, personally appeared Michael Barfield, who, being first duly identified and sworn, deposes and says that that paragraphs 31 through 32, and 35 through 38 of this VERIFIED COMPLAINT are based on his actual personal knowledge, that this entire VERIFIED COMPLAINT is based on records and information available to him, and that are true and correct to the best of his knowledge, information, and belief. He who is personally known to me/has produced as identification. By: Name: Michael Barfield Date: Printed/Typed Name: Eric Rossi Notary Public-State of Florida Commission Number: Expires: (SEAL) 11

12 Dated March 4, Respectfully submitted, /s/ Andrea Flynn Mogensen ANDREA FLYNN MOGENSEN, Esquire The Law Office of Andrea Flynn Mogensen, P.A. 200 South Washington Boulevard, Suite 7 Sarasota FL Telephone: Fax: Florida Bar No amogensen@sunshinelitigation.com Attorney for Plaintiff 12

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19 3/4/2015 SarasotaCriminalLawyer.com Mail Public records request To: Stephen Moyer; Corinne Stannish Subject: Fwd: Additional records request Please ensure we reply to this request. Thank you. Chief DiPino Begin forwarded message: From: Date: October 9, 2014 at 17:17:54 EDT To: Bernadette DiPino Subject: Additional records request Reply To: Chief: We talked a few months back about body cameras. I know the department used them on a trial basis last year. Can you please provide me with any records relating to their use last year, including any stored video/audio? Thanks. Michael Barfield Legal Consultant Law Office of Andrea Flynn Mogensen, P.A. 200 S. Washington Blvd., Suite 7 Sarasota, FL (941) (office) (941) (direct) THINK BEFORE YOU PRINT IMPORTANT NOTICE Please be advised that I am not an attorney and not authorized to render any legal advice or recommendation. This message, together with any attachments, is intended only for the addressee. It may contain information which is legally privileged, confidential and exempt from disclosure. If you are not the intended recipient, you are hereby notified that any disclosure, copying, distribution, use, or any action or reliance on this communication is strictly prohibited. If you have received this e mail in error, please notify the sender immediately by telephone (941) or by return e mail and delete the message, along with any attachments. 2/3

20 3/4/2015 SarasotaCriminalLawyer.com Mail Public records request Tax Advice Disclosure: To ensure compliance with requirements imposed by the IRS under Circular 230, we inform you that any U.S. federal tax advice contained in this communication (including any attachments), unless otherwise specifically stated, was not intended or written to be used, and cannot be used, for the purpose of (1) avoiding penalties under the Internal Revenue Code or (2) promoting, marketing or recommending to another party any matters addressed herein. Please consider the environment before printing this e mail. Under Florida law, e mail addresses are public records. If you do not want your e mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. E mail messages sent or received by City of Sarasota officials and employees in connection with official City business are public records subject to disclosure under the Florida Public Records Act. Under Florida law, e mail addresses are public records. If you do not want your e mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by phone or in writing. E mail messages sent or received by City of Sarasota officials and employees in connection with official City business are public records subject to disclosure under the Florida Public Records Act. Invoice Cost Sheet for PR Body Cameras.pdf 73K 3/3

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24 3/4/2015 SarasotaCriminalLawyer.com Mail Public Records Request with official City business are public records subject to disclosure under the Florida Public Records Act. Previous Request and Estimate.pdf 173K 2/2