Breaking News: Watchdog City reporter wins public records lawsuit against Clerk of Courts Dwight Brock

Press Release -- Collier Circuit Judge Fred Hardt strikes down $556 public records fee as illegal; Hardt says Brock can charge $2 for the cost of two CDs for the electronic records.

"The judge has vindicated that my client's civil rights were being violated because of the exorbitant fees demanded by Brock," said attorney Ryan Witmer, who represents Watchdog City co-founder and investigative reporter Gina Edwards.

“The Clerk is not allowed to charge a fee for electronic records beyond the actual cost of duplication,” Witmer said. “This encourages access and benefits the public. Today when we have so much available electronically, the public should benefit with easier and cheaper access.”

Edwards, who publishes the digital publication Naples City Desk on watchdogcity.com, said Judge Hardt’s ruling could have important implications.

"We applaud Judge Hardt for this ruling which is important for defending the public's right to know statewide," Edwards said.

Brock had argued in court filings that as Clerk of Courts he is subject to Florida statute 28.24 and that he is allowed to charge up to $1 per page for records in his possession.

Naples City Desk argued that under Florida Statute 28.24 (28), electronic records held by clerks are specifically subject to the fee provisions of the Florida public records act. Judge Hardt agreed.

Judge Hardt wrote: "Under the facts in this case there is no conflict between Chapter 28 which governs the Clerk and Chapter 119 which governs access to public records. For documents stored in an electronic format, the Legislature has mandated that the authorized fee which may be charged by the Clerk for downloading the data on a computer disk may not exceed the cost of the disk. The cost of a computer disk does not exceed $1.00.

To the extent any conflict does exist between Section 28.24 and Section 119.07, these statutory provisions must be construed in para materia to harmonize and reconcile the two statutes to preserve the force and effect of each. Unruh v. State, 669 SO.2d 242, 245 (Fla. 1996). It is the duty of the courts to favor a construction that gives meaning to each statute. Oldham v. Rooks, 361 SO.2d 140, 143 (Fla. 1978).

In adopting Section 28.24(28) the legislature recognized that the cost incurred by the Clerk to provide copies of public records stored in an electronic format would be substantially less than the cost of making photographic (hard) copies of public records.

This determination is entirely consistent with the public records policy of this State as mandated by Article I, Section 24 of the Florida Constitution and as articulated by our legislature in Section 119.01(1):

It is the policy of this State that all state, county and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency.”

Naples City Desk also argued that the records in question were created as part of the clerk’s role as clerk and accountant to the Board of County Commissioners and therefore were not judicial records like those described under 28.24. Hardt didn’t address that issue.

Previously, Brock’s office communicated that the typical policy for obtaining electronic copies of county public records from his office is that the first two hours of staff time to copy electronic public records is free for members of the public, and the charge for the CD containing the records is $1.

Brock’s Office charged Naples City Desk only $2 for 2 CDs that contained hundreds of pages of audit work papers created by Brock’s Office in January — prior to publication of stories about Brock’s audit of the non-profit organization founded by his former political opponent.

After Edwards published critical stories on Feb. 11, Brock charged $556, for 556 pages for electronic records on 2 CDs, saying as Clerk he is allowed to charge $1 per page for all records in his possession. Edwards filed the lawsuit challenging the fees on Feb. 25.

At an emergency hearing on March 4, Brock agreed to turn over to Edwards at no charge the public records that are the subject of the lawsuit until Hardt ruled on the fee issue.

Edwards had requested an electronic scanned copy of Brock’s audit policy and procedures manual, and a scanned electronic copy of an email attachment referenced of a consultant’s report and the response by Brock’s staff to that document.

Of the 556 pages, 350 of those were email exchanges and drafts of a consultant's report that were sent by email to Brock's staff.

Court Filings: 

Judge Hardt's order

Watchdog City reporter's memo of law

Watchdog City reporter Gina Edwards memo of law for fees in accordance with F.S. 119

Brock Memo of Law 1

Brock Memo of Law 2

View the lawsuit

See related stories 

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

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

Support for Public Records Lawsuit

The nation’s largest professional association of electronic journalists, the Radio Television Digital News Association, offered a letter in support of the lawsuit filed by Watchdog City journalist Gina Edwards to obtain public records from the Collier Clerk of Courts.

 
“RTDNA believes in fair and affordable access to public information, as required by Florida statute.  We believe the $556 total cost charged for these records by your office is clearly outside both the intent and the actual definition of the law.”

View the RTDNA letter 

Naples Daily News Columnist Brent Batten writes about Watchdog City reporter's lawsuit

Background about the lawsuit

Watchdog City Press reporter files public records lawsuit against Clerk of Courts Dwight Brock challenging $556 illegal and retaliatory fee

Naples, Fla. — Watchdog City Press reporter Gina Edwards filed a lawsuit on Feb. 25 to defend the public’s right to know by challenging a $556 illegal and retaliatory fee for electronic public records charged to her by Clerk of Courts Dwight Brock following publication of her investigative stories.

“The fees imposed by the Clerk of Court for these county records significantly harms the public’s right to know about government actions in Collier County, and they need to be challenged in court,” said Edwards, who is the owner of Naples City Desk, a digital newspaper that publishes at WatchdogCity.com.

“This new fee policy for electronic county records appears to be retaliatory in nature, illegal, and an arbitrary exercise of power by Brock,” Edwards said. “The Clerk can’t impose one rate for citizens and members of the press he likes and another rate for citizens and members of the press who he doesn’t like.”

Naples City Desk is represented by attorney and public records advocate Ryan Witmer of the O’Boyle Law Firm.

“Public records fee issues are at the front lines of the battle to protect citizens’ rights to have fair and equitable access to public records under the law,” Witmer said. “Increasingly, we’re seeing public officials throw up high fees in an effort to deter citizens and journalists and throw off scrutiny of government actions. Brock’s actions clearly violate Edwards’ rights as a citizen and as a journalist seeking to obtain these county records.”

Naples Press Club President Carole Greene offered a statement of support: "Transparency in government is vital to the American system, and journalists play an important part in defending the public's right to know.   The Naples Press Club supports the efforts by Watchdog City journalist Gina Edwards to legally challenge these allegedly illegal public records fees and hold the Clerk of Courts of Collier County accountable."

Brock’s office charged a $556 fee in response to Edwards' Feb. 7 public records request for an electronic scanned copy of Brock’s audit policy and procedures manual, and for a scanned electronic copy of an email attachment referenced in a consultant’s report and the response by Brock’s staff to that document.

The documents sought by Edwards are not judicial records nor are they official records. Rather they are county records created pursuant to the Clerk’s role as ex officio clerk, accountant and auditor to the Board of County Commissioners pursuant to F.S. 125.17.

Brock imposed a $1 per page fee for the non-court and non-official records on Naples City Desk on Feb. 14, following the news organization’s press coverage critical of Brock’s Office published on Feb. 11.

Florida’s Government in the Sunshine Manual, on pages 167 and 168, specifically states that a Clerk of Courts cannot charge $1 a page for non-court and non-official records. The Sunshine Manual further references two Attorney General Opinions that prohibit this fee. The attorney general opinions are AGO 85-80 and AGO 94-60.

The Florida public records law, F.S. 119, sets forth copying charges for paper county documents at 15 cents a page, but it’s questionable whether Brock has the authority to impose even 15 cents per page for the electronic records sought by Naples City Desk.

Previously, Brock’s office communicated that the typical policy for obtaining electronic copies of county public records from his office is that the first two hours of staff time to copy electronic public records is free for members of the public, and the charge for the CD containing the records is $1.

Brock’s Office charged Naples City Desk only $2 for 2 CDs that contained hundreds of pages of audit work papers created by Brock’s Office in the past month — prior to publication of stories about Brock’s audit of the non-profit organization founded by his former political opponent.

(See Edwards’ Naples City Desk stories on WatchdogCity.com: “Appraisals reviewed by Brock’s own staff 2 years ago document construction Brock says not proven” and “Elected auditor Brock sics law enforcement on 2012 political challenger over housing grant and Naples City Desk Investigation: Brock allegations false, misleading.”)

Naples City Desk urged Brock to reconsider the fee policy and to publish the audit policy and procedures manual for his office online so that any member of the public can access it for free.

Brock did not respond to Edwards’ Feb. request to reduce the fees.

About Gina Edwards: Gina Edwards is an investigative reporter and co-founder of Watchdog City.com. Watchdog City is a cutting edge new journalism platform that supports the creation and production of new voices of journalism by providing journalists with the technology to sell their stories directly to the public via digital subscriptions and single story sales.  

When news consumers buy stories on Watchdog City or subscribe to a journalist’s digital News Hub, the money goes right to the journalist who produced the work. Journalists set their own prices. News consumers’ grassroots subscription support helps put journalists back on the beat.

Watchdog City Press journalists go through a credentialing process and pledge to uphold a strict Code of Ethics to protect the credibility and journalistic integrity of their work.

Watchdog City beta launched its subscription platform in late 2013 that allows journalists to launch News Hubs, or digital publications and video shows. Naples City Desk, owned by Edwards, is the first News Hub to launch. Watchdog City is currently taking applications from journalists to launch additional News Hubs.

A national award-winning investigative reporter, Edwards specializes in reporting on financial crime and public corruption. The Florida Press Club recognized Edwards with a special First Place Freedom of Information Award in November 2013 for Edwards’ for her work to open public records related to Florida’s pension fund investments in on-going investigation, “Secret Deals, Public Money” available at WatchdogCity.com

Edwards has received honors from numerous journalism organizations including a top national prize from Investigative Reporters and Editors for her public corruption investigation of the Stadium Naples scandal at the Naples Daily News. She has also received awards for investigative and beat coverage from the Society of Professional Journalists, Florida Press Club and the Florida Society of Newspaper Editors.

About Ryan Witmer and the O’Boyle Law Firm: The O’Boyle Law Firm is an interstate law firm with the Florida Branch in Deerfield Beach, Florida.  The Law Firm specializes in Public Records Law and Free Speech.  Witmer is one of Florida’s rising stars in the field of public records law.  He attended Drexel Law School and interned with the public defender’s offices of both Philadelphia, Pennsylvania and Camden, New Jersey.  Witmer also took an interest in the First Amendment which naturally led him to the area of public records.  His penchant for protecting the rights of others has driven him down the path of advocating for journalists, the citizenry at-large, and the democratic process. 

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Dateline: Naples, Fla., March 27, 2014

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