Governments resist citizens on public records
Monday, May 28, 2018 at 7:30 pm John Kennedy GateHouse Capital Bureau @JKennedyReport

TALLAHASSEE — A long-running clash between state water managers and a celebrated environmental activist is heightening tension over aggressive tactics used by Florida governments pushing back against citizens seeking public records.

The battle also is putting Florida at the forefront of a rising trend.

Instead of turning over requests for records, a growing number of cities, school boards and other government agencies across the nation are suing people seeking documents — forcing them to decide whether it’s worth fighting for their request in court — at their own expense.

Legislation to outlaw this tactic cleared the Florida House this year, but failed in the Senate.

“It’s a form of harassment,” said Frank LoMonte, director of the Brechner Center for Freedom of Information, at the University of Florida.

“People can just seek a public record and find themselves suddenly dragged into court. They weren’t expecting that,” he added.

A fierce fight in Martin County has alarmed many government watchdogs.

Maggy Hurchalla, a former Martin County commissioner and sister of late U.S. Attorney General Janet Reno, is appealing a $4.4 million judgment against her by a jury earlier this year, which found she used her influence as a conservationist to disparage a mining company’s project — sending critical emails to commissioners.

The verdict capped a five-year struggle marked by charges of public records violations involving two commissioners and a former commissioner.

It also led to an $18 million settlement for the mining company, Lake Point, from Martin County and the South Florida Water Management District.

Now, a related clash has emerged over public records requests for transcripts of the closed-door district meeting that preceded the costly legal settlement with Lake Point.

When the Everglades Law Center requested a record of what was said during the meeting, district lawyers sued the nonprofit, and threatened to subpoena Hurchalla and 16 citizens who made similar demands.

After a judge sided with water managers who refused to turn over transcripts, the records case — like the multi-million-dollar judgement against Hurchalla — is headed to the Fourth District Court of Appeal.

“We didn’t sue them. They sued us. All we did was ask for records,” said Lisa Interlandi, an attorney with the Everglades Law Center.

“All any of these people did was ask for records,” she added. “It’s very chilling. It’s like a move to chill people from requesting records.”

Attorneys for the South Florida Water Management District defended their action, saying the records request was basically a nuisance, designed to make the district pay the legal fees of Hurchalla and others if the documents were not surrendered quickly.

UF’s LoMonte said such fights over public records should not be occurring.

Government agencies generally know what constitutes a public record and should not sue the requester to have a judge determine whether they should turn over documents, he said.

The lawsuits usually ask judges to rule that the records sought should not be released. Advocates say the lawsuits are aimed at blunting the release of information that might be embarrassing, or politically harmful to elected officials.

Sometimes, it’s just bullying, critics said.

“It’s a legal tactic that puts the requester on the defensive,” LoMonte said.

Barbara Petersen, president of the Florida media-backed First Amendment Foundation, said she was disappointed to hear governments testify before the Legislature in support of the approach.

“It’s a very aggressive move by cities and counties against their citizens,” Petersen said. “We’ve been seeing an uptick in these cases across the country, and it’s a very bad trend.”

Even if agencies are ultimately required to make the records public, they often will not have to pay the requester’s legal bills.

Legislation sponsored earlier this year by Rep. Ray Rodrigues, R-Estero, and Sen. Keith Perry, R-Gainesville, would have prohibited governments from filing lawsuits against those seeking public records.

The measure (HB 273, SB 750) was approved by the House 108-0, but died in the Senate Judiciary Committee, after the Florida League of Cities raised concerns about the measure’s potential sweep.

Casey Cook, the league’s senior legislative advocate, said there are few instances of Florida governments using a lawsuit as a stall or harassment tactic.

But he said there are occasions when there is a dispute about whether a record is public, or shielded under an exemption or privacy laws. It may take a judge to sort out, Cook said.

“It is an approach that has proved useful in certain circumstances,” Cook said of the lawsuits.

Cook said that following the Pulse nightclub shooting in 2016, the city of Orlando needed a judge to determine which records should be made public to media outlets after receiving conflicting demands to withhold records as part of the FBI’s criminal investigation.

While freedom-of-information advocates acknowledge that the lawsuit approach is not frequently deployed, they say it’s a legal strategy threatens the public’s right to know.

Among the earliest examples in Florida was a 2009 Hallandale Beach case where a blogger, Mike Butler, was sued by the city when he sought access to Mayor Joy Cooper’s email sent from a private server under the subject line “Mayor Cooper’s Update.”

Butler wanted a list of recipients for the email, but was denied by a judge who ruled that was not a public document.

Butler has since been elected to the Hallandale Beach City Commission. Cooper was suspended by Gov. Rick Scott in January on public corruption charges after being caught in an FBI sting.

In a separate matter, Cooper also is denying the conclusion of a Broward County Inspector General’s report that she violated the state’s open government laws by attending 26 meetings that had no public notice.

“The whole public records law is getting twisted and it’s becoming fashionable for cities to sue those seeking records,” said Sarasota attorney Andrea Mogensen, who settled in 2008 with the city of Venice following a long open government fight involving deleted emails and secret meetings.

“Governments are not supposed to be in the business of figuring out how not to disclose,” Mogensen said. “The government doesn’t own these records. The people do.”

Everglades hero hit with $4.3 million judgment in billionaire’s lawsuit
Palm Beach Post, by Kimberly Miller,  February 19, 2018

It was a showdown with Florida flair — a Martin County business with billionaire backing versus a 77-year-old environmentalist with a constitution as tough as Dade County Pine.

For eight days, the case of mining company Lake Point Restoration against storied Everglades protector Maggy Hurchalla played out in front of a jury.

Was their conflict that of a company wronged by a conservationist’s influence over public officials, or a well-heeled entrepreneur with a grudge and the money to satisfy it in a prolonged legal rumble?

On Wednesday, the six-member jury sided with Lake Point, charging Hurchalla with interfering in an agreement between the company and Martin County, and levying a $4.3 million judgment against her.

Stuart environmentalist Maggy Hurchalla stands behind Florida Oceanographic Society Executive Director Mark Perry on January 16, 2015. (Richard Graulich / The Palm Beach Post)

Hurchalla, a former Martin County commissioner and sister to the late U.S. Attorney General Janet Reno, said she will appeal.
“I’m disappointed,” she said leaving the courtroom. “I think the judge made some very bad rulings of law.”

For Lake Point, the ruling is a third victory in a 5-year court battle that cowed the South Florida Water Management District and Martin County, both of which settled related cases with Lake Point in 2017. The district’s settlement, approved in August, promises to buy 50,000 tons of rubble annually from Lake Point’s mine in western Martin County for 15 years. After 50 years, the district gets the mined land for water treatment and storage ponds.

Martin County agreed to pay $12 million for a non-appraised, 400-acre piece of land it doesn’t want and write an apology to Lake Point principals, including George Lindemann Jr., a one-time Wellington resident and heir to a cell phone and cable TV fortune.

Lake Point’s attorney, Ethan Loeb, said $22 million in damages was done to the company in a labyrinthine story line that accuses Hurchalla of lying to Martin County commissioners about the destruction of wetlands in an effort to kill a 2009 agreement that allowed for the mining as part of a public works project with the water management district.

Stockpiling of rock and supply bonds had to be posted to convince buyers of Lake Point’s viability during strife with Martin County commissioners that Loeb accused Hurchalla of starting.

With $12 million from Martin County, a deal with the district that Loeb said is valued at $6 million, and the $4.3 million from Hurchalla — the debt is settled.Stockpiling of rock and supply bonds had to be posted to convince buyers of Lake Point’s viability during strife with Martin County commissioners that Loeb accused Hurchalla of starting.

But Hurchalla doesn’t have $4.3 million, and Loeb said it wasn’t just about the money.

“The only person here refusing to accept responsibility for what she did is sitting right over there,” Loeb said during his closing arguments gesturing toward Hurchalla. “She was on a mission to stop this project and gratuitously harm business.”

Hurchalla maintained through the trial that she was exercising her first amendment right to free speech, contacting her elected officials with concerns about a project that was getting attention after the company made a pitch in 2011 to convey water from reservoirs on its land to a drought-stricken West Palm Beach — a move that was not part of the agreement.

The emails, sent to commissioners’ personal and government accounts, were the subject of public records violation lawsuit against Martin County that Lake Point won a year ago, receiving $371,801 in legal fees.

Two Martin County commissioners and a former commissioner are facing charges related to violating open records laws in relation to the Lake Point case.

“You must decide if sending emails to county commissioners was a proper method of exercising Mrs. Hurchalla’s right to free speech,” said Hurchalla’s attorney, Virginia Sherlock, who emphasized that Hurchalla is a private citizen not responsible for keeping Martin County officials in compliance with open records laws. “There is not a single shred of evidence that Maggy acted out of malice or ill will toward Lake Point.”

The Lake Point saga dates to 2008 when the company bought about 2,200 acres in far western Martin County near Lake Okeechobee that was slated for a polo community. The purchase price was a $47.7 million. The current total market value for tax purposes is about $23.6 million, according to the Martin County property appraiser.

When the housing market crashed, the horse community was canned, and Lake Point came up with a plan to mine the land and then donate the holes after 20 years to the South Florida Water Management District for storage and treatment areas for Lake Okeechobee overflow. It became a public works project.

To make the mining more palatable, and get approval to pull rip-rap from property that once grew sugarcane, Martin County was courted by the district officials and Lindemann to join an agreement that would allow the mining. The selling point was that Lake O water would be diverted from the fragile St. Lucie Estuary. Martin County also would get a public park out of the deal.

While Lake Point has pursued the case against Hurchalla since 2013, Loeb said the company never wanted for it to go all the way to litigation.

“We always wanted her to retract her statements,” Loeb said.

Hurchalla has been steadfast in defending her comments to commissioners and her claims that wetlands were destroyed.

Last week, 19th Judicial Circuit Judge William Roby, who oversaw the trial, said if she would just apologize to Lake Point, they would likely drop the case, she said.

In a closed-door meeting with Hurchalla and her attorneys, Roby showed her an apology letter he had drafted and urged her to sign it.

She refused.

“If I lost or gave up, I didn’t see how any resident could feel safe telling their county commissioners that they questioned a contract or a developer’s proposal,” Hurchalla said in a written account of the meeting. “I told Judge Roby I appreciated his kindness in trying to help me but I felt that the principle was too important to walk away.”

Leaving the courtroom Wednesday, Loeb said the jury sent a message.

“You can’t lie, that’s the message, you’re not allowed to lie,” Loeb said.

How a government agency is trying to stop residents demanding records
Palm Beach Post, by Kimberly Miller,  March 23, 2018 

The public steward of South Florida’s water supply is taking extreme measures to keep secret the reasons behind a multimillion-dollar settlement while embroiling more than a dozen unwitting citizens in a battle over public records.

South Florida Water Management District officials hired two private legal teams with taxpayer money to fight the release of a transcript from an August meeting regarding a 50-year deal with the billionaire-backed mining company Lake Point Restoration.

The months-long litigious affair began with a simple public records request under Florida’s decades-old Sunshine Law — a statute heralded nationwide as a tool to keep governments honest.

Instead of a traditional response of yes or no, the district sued the non-profit organization that made the request. The lawsuit triggered a cascade of identical demands from disgruntled soccer moms, retirees, activists and the titan of Treasure Coast environmentalism, Maggy Hurchalla.

Related: Powerhouse cast embroiled in Florida tale of taxpayer loss.

Now the district wants the non-profit agency and Hurchalla to hand over all of their Lake Point-related communications and personal emails to and from the 16 other residents who requested the same documents. The idea is to find out if they were trying to trick the district into a violation of the Sunshine Law rather than simply trying to hold the agency accountable.

First Amendment experts call the district’s threat to subpoena the communications of private citizens bullying — an overreach by a public agency using taxpayer dollars to cow the public from digging deeper. If Hurchalla and the non-profit agency don’t turn over the documents, the district said in court papers it would slap all the other citizens with a subpoena demanding all communications between themselves and “anyone else” that relate in any way to their Lake Point request.

“They are trying to scare the pants off people,” said Barbara Petersen, president of Florida’s First Amendment Foundation. “Why someone makes a public records request and the purpose of the request is none of the government’s business, so they are just doing this to intimidate people.”

Water management attorney Brian Accardo disagrees. He said the legal maneuver is a push to protect the district from nefarious public records requests made solely to initiate court action and force the district to pay attorneys fees for the other side.

“This onslaught of requests may have been to cause the district to slip up in how it handles records, or maybe we would miss a request, or perhaps it was just to start a queue of folks who are attempting to collect fees in the event the court were to ultimately rule we were to turn over the records,” Accardo said during a March 8 district board meeting.

The requests focus on the transcripts of closed-door meetings held by the district to discuss Lake Point litigation. State law allows closed meetings as long as transcripts are kept and made publicly available upon the conclusion of the litigation.

The district released four transcripts, some of them dating back years, but held on to a fifth, claiming it wasn’t public because the only thing discussed was mediation and the mediated settlement agreement. Florida law allows mediations to remain confidential in some circumstances.

That meeting, on Aug. 23, led to a change in the district’s legal position: Afterward, the district dropped its fight against the mining concern and agreed to settle.

“In light of the exhaustive briefings and detailed discussions that we just went through in the attorney-client session, I certainly am confident if we went forward with trial we would have a good chance of prevailing,” board Vice Chairman Jim Moran said publicly after the closed Aug. 23 meeting. “But when you take into consideration the potential ramifications of that and what’s in the best interest of the taxpayer and district, I think it’s in our best interest to accept this agreement.”

More assertive district

The public records fight through mid-February has cost the district about $76,000 in fees to private law firms, a small amount but a noteworthy expense for a district that has been in cost-cutting mode since Gov. Rick Scott took office in 2011.Under Scott, who appoints district board members, sharp cuts resulted in layoffs and, in 2015, the ousting of the district’s executive director over a slight property tax increase. In his place, the district hired Pete Antonacci, the governor’s former counsel, who took a more aggressive stand against critics.

In public statements and emails, the district challenged environmentalists’ requests and went on the attack to condemn a federal agency, a scientist for a watchdog organization and activists.

Antonacci left in July, appointed to head Enterprise Florida. His replacement, Ernie Marks, came on three weeks before the Aug. 23 settlement with Lake Point.

Related: Criminal charges rare in public records violations.

Hurchalla’s attorney, Virginia Sherlock, called the district’s push to turn over communications regarding Lake Point a “disgraceful path of harassing and intimidating private citizens.”

Sherlock said it’s particularly concerning considering Lake Point won a $4.4 million judgment against Hurchalla in February based on emails she sent to Martin County commissioners about the project.

“The subpoena for communications appears to be a thinly veiled attempt by the district to assist the operators of the Lake Point rock-mining operation in setting up future litigation against citizens who may have expressed objections or concerns about the project,” Sherlock wrote in a March 6 court filing. Lake Point has piggybacked on the district’s request for Hurchalla’s emails.

Accardo said he’s just putting Hurchalla on notice that she “needs to play this one straight, as 16 other people can be called upon to provide information regarding” her motives.

The legal drama is likely escalated by the rancorous history between the water management district, Martin County, Hurchalla and Lake Point, which is co-owned by the deep-pocketed George Lindemann Jr., an heir to a cellphone and cable TV fortune.
PALM BEACH POST STAFF WRITERLake Point Restoration near Port Mayaca. (Allen Eyestone / The Palm Beach Post)

Lindemann, a former Wellington resident and one-time Olympic equestrian hopeful, remains dogged by a 1996 prison sentence of 33 months for hiring a hit man to electrocute his show horse for insurance money. It is a history that resurfaced in 2016 as district board members discussed getting out of a contract with Lake Point penned nearly eight years earlier.

“They are, you know, they’re not the most trustworthy folks,” an attorney said about Lake Point in an August 2016 meeting, according to one of the transcripts turned over by the district. “I mean, the principal of Lake Point, he has a criminal record right? If you all didn’t know, he had been convicted of insurance fraud for killing his horse.”

A Lindemann spokeswoman defended him, saying the conviction was more than 20 years ago and he has since helped environmental efforts. Last year, he donated 1,000 acres worth $8.27 million in Tennessee to be part of the Great Eastern hiking trail. The Tennessee Wildlife Federation named Lindemann conservationist of the year in May.

50,000 tons of rubble

In 2008, Lake Point Partners paid $47.7 million for about 2,200 acres in far western Martin County that had been slated for a polo community.

When the housing market crashed, the horse community was canned, and Lake Point came up with a plan to mine the land and donate the holes after 20 years to the water district for storage and treatment areas for Lake Okeechobee overflow.

To make the mining more palatable, and get approval to pull rubble from property that once grew sugar cane, Martin County was courted to join an agreement that would allow the mining. The selling point was that Lake O water would be diverted from the fragile St. Lucie Estuary, where it can cause harmful algae to grow. Martin County also would get a public park out of the deal.

The deal went sour, in part, after concerns were raised about the project by Hurchalla. Lake Point sued the district and Martin County in 2013. It also sued Hurchalla, sister to former U.S. Attorney General Janet Reno, saying she sent misleading emails about the project to Martin County commissioners that caused the company millions of dollars in losses.

A bitter five-year legal fight ensued.
In an April 2017 meeting, the district’s attorney told board members Lake Point was “out for vengeance” and that it wanted to “punish governments that wronged them.” He said Lake Point wanted the lengthy legal machinations “to be painful.”

Four months later, after the Aug. 23 closed-door session, the district begrudgingly accepted a settlement that forces it to buy 50,000 tons of rubble annually from Lake Point for 15 years, and extends Lake Point’s hold on the land from 20 to 50 years.

The settlement seemed an “abrupt change in position” to Everglades Law Center attorney Lisa Interlandi. She filed the initial public records request on Oct. 4 for transcripts of the district’s closed sessions concerning Lake Point.

State law requires public bodies to provide public records unless they can cite an exemption in Florida law that allows them to withhold the records. If denied, the person making the request can sue.

But the district didn’t do that. Accardo said it wanted to be proactive, filing the lawsuit against the Everglades Law Center so a judge would decide whether the records should be released, and both sides would pay their own court costs.

Frank LoMonte, professor and director of The Brechner Center for Freedom of Information at the University of Florida, said it’s a bad precedent to set.

“It’s not better to be on the offense because they are spending the public’s money,” LoMonte said. “You are running up the public’s tab unnecessarily when you could just wait and see if you get sued.”

Judge favors district

Two months later, Hurchalla made the same records request as the Everglades Law Center. In court documents, the district said her request was made for “improper purposes” and asked that she pay its attorneys’ fees and costs.

Between Dec. 19 and Dec. 21, another 16 nearly identical requests came in.

The district released four transcripts of Lake Point-related attorney-client sessions in January. But the district claims the Aug. 23 meeting held immediately before the settlement vote is not a public record because the entire transcript is “confidential mediation communication.”

LoMonte doesn’t buy it.

“You don’t just get to label something a mediation,” LoMonte said. “If they are literally saying the closed session is actual mediation, there’s no way it should be exempt.”

But Circuit Court Judge William Roby sided with the district in a March 6 hearing, agreeing the meeting was exempt from public records law.

Marcy LaHart, the attorney for the Everglades Law Center, plans to appeal.

“The proposition that the citizens are never allowed to know the basis that the water management district accepted this settlement on is absurd,” LaHart said. “It is contrary to Florida’s long history requiring transparency of their government officials.”

The district is not seeking attorneys’ fees from the 16 individuals who made the public records request after Hurchalla’s and they have not been added as defendants to the litigation. But the district still wants their private communications with Hurchalla and the Everglades Law Center.

The district also is demanding Everglades Law Center’s membership list, including all contact information for members, and any communication between the center and its members regarding the Lake Point lawsuit.

The reason the district wants the communications is tied to a 2017 amendment to Florida’s Sunshine Law. The amendment says if a judge decides public records are being requested for a frivolous purpose, or to cause an agency to violate the law, the person who made the request can be forced to pay attorneys fees.

Before that, the law required public agencies to cover attorneys’ fees if it was found to have not properly turned over the records. Local governments complained unscrupulous groups had turned the Sunshine Law into a profitable business model based on attorneys’ fees.

Who wants to know

Petersen, of the First Amendment Foundation, doubts the citizens who made the Lake Point-related requests did so to cheat the district.

“There is nothing frivolous about the requests, they are just trying to get the record,” she said.

Paul Laura, chairman of the Treasure Coast Democratic Environmental Caucus, is one of the people who requested the public records. He said he doesn’t trust the district and is concerned it is “hiding” the transcript from the Aug. 23 meeting.

Laura was unaware his emails were the subject of a legal request, but said there has been “very little, if any” communication about Lake Point with Hurchalla or the Everglades Law Center.

Stuart resident Laurence Key said his records request was a copy of Laura’s. He made it because the previous requests had been “stonewalled by our fine public servants.”

Kathleen Saigh, of Palm City, pointed to Stuart resident Laurie Prim as the motivator of her request.

Prim said she may be responsible for some of the requests because she tries to educate friends about environmental issues and often suggests they use her template when communicating with public officials.

“My motivation is that I am really, truly furious that big-monied companies are railroading our small town,” said Prim, of Stuart. “I have no agenda. I’m just a mom who is not afraid to speak out.”