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Getting the public records:

The back story

Following an interview of Clerk of Courts Dwight Brock on Jan. 17, this reporter made a public records request to inspect the H.O.M.E. audit work papers, or the supporting background files, of the work. These papers become public record after an audit is officially released, which Brock did at the Jan. 14 Commission meeting.

After allowing an initial inspection of 5 binders of H.O.M.E. audit work papers on Jan. 22, Brock’s Community Outreach Director Robert St. Cyr ended the inspection after 3.5 hours and refused to allow this reporter to get paper copies of certain documents that day.

The next day, he then sought to delay further access to the set of documents to the following week. This reporter, in an email, protested the delayed access to the public records, including the ones paper clipped for copies the day before, saying the audit work papers were of keen interest to the public and press. St. Cyr said most of the pages marked for copy were already available as scanned versions.

Late that day, Brock’s office provided a CD for $1 and said all the pages this reporter had marked during inspection were included as scanned documents. This reporter was told by Senior Internal Auditor Ron Dortch that the office policy is that for scanned documents, the first two hours of staff time are free and that the office also charges a $1 cost for the CD.

The next day, Brock’s office agreed to provide more than 1,000 pages of scanned electronic documents on a CD, for a charge of $1, and represented in an email that all 5 binders of documents were included, so no further physical inspection of the binders by this reporter was needed.

As required by Brock, this reporter emailed interview questions in writing that day, including a question about a Clifton Larson Allen meeting memo that described Finance Director Crystal Kinzel directing the consultant to include houses that were paid for entirely with private funds into profit calculations. This reporter had snapped a picture of the document with a smart phone at the initial document inspection and attached the photo to the questions.

Late that day, a Friday, when this reporter picked up the CD from Brock’s office, the two binders of Clifton Larson Allen documents were missing. Three days later Brock’s staff emailed more than 460 pages of Clifton Larson Allen documents and said the documents weren’t included as promised because there was a miscommunication among staff.

Two days later, on Jan. 29, Brock’s staff had not answered any of the follow-up questions that St. Cyr asked to be submitted in writing.

“You have all of the Clerk’s public records related to the H.O.M.E audit, including the work done by the independent CPA firm Clifton Larson Allen… In summary, we believe the H.O.M.E. audits reports and work papers speak for themselves and do not warrant further comment from the Clerk,” St. Cyr wrote in an email.

One of the questions asked about how much the consultant’s report had cost. In the absence of a response, this reporter made a public records request for a copy of checks paid to Clifton Larson Allen.

In response, St. Cyr said: “If the public records you have requested are available in an electronic format, and it requires minimal staff time to burn a CD, or to send an attachment via email, the charge is $1.00/ CD.” He subsequently sent a scanned copy of the check.

This reporter remembered noticing a significant number of appraisal reports showing remodeling in the audit work papers and marking them for copies at the initial document inspection on Jan. 22. Later when Brock’s office provided scanned electronic documents, including supposedly all the files, the appraisal reports showing the remodeled houses weren’t there, except for two of them.

This reporter asked about the missing appraisals in a Feb. 4 email and also asked why H.O.M.E.’s original grant application wasn’t included in the scanned documents provided because the application was in the original binders inspected. St.Cyr then sent a copy of the H.O.M.E. grant application by email.

A spokesman for Brock’s office said no one had tampered with the audit work paper binders or removed appraisal reports. This reporter re-inspected the binders on Feb. 6 and didn’t find the appraisals. At that time Brock’s office produced six binders for review, including an extra binder with 2008 documents including heated correspondence between Kinzel and Barlow. This reporter told Brock’s office that she remembered reviewing the appraisal documents in the binders, but that she had no definitive proof they were there.

An attorney for H.O.M.E. subsequently provided copies of the appraisal reports for the houses at this Naples City Desk reporter’s request.

The appraisal reports included photos of the houses that showed extensive remodeling work and written notes of the appraiser documenting the remodeling — contradicting Brock’s public allegations that he couldn’t substantiate that $410,000 in remodeling work billed by H.O.M.E.’s contractor was done. In the original set of audit work papers produced by Brock’s office a handwritten note by Brock’s internal auditor documents that she had reviewed the appraisals for the remodeled houses for her 2012 audit, which closed without major findings.

This reporter followed up with Brock’s office on Feb. 7 to request a scanned copy of a July 17 draft report by Clifton Larson Allen that was referenced in the audit work papers but not provided in response to the original public records request. A scanned copy of Brock’s audit policies and procedures were also requested at that time. This reporter also asked if there were additional documents that reflected why the decision was made to re-open the audit because there were no documents in the files from Brock’s staff requesting that the H.O.M.E. audit be re-opened. Brock’s office did not respond to that question nor to questions about his audit department including a question as to whether Kinzel was the Internal Audit Director.

Naples City Desk published stories on Feb. 11 and Brock’s office later sought to charge $556, or $1 per page, for scanned electronic public records on 2 CDs on Feb. 13. Naples City Desk asked Brock to reconsider the fee, saying the documents sought were not court records, but county records created in Brock’s role as clerk and accountant to the Board of County Commissioners. According to the 2013 Government-in-the-Sunshine Manual (p. 167), two attorney general opinions have found that the Clerk of Courts must charge the rate in line with the public records act for these type of records, or 15 cents for printed pages or the actual cost of duplication for electronic records.

Brock’s office sent a “2nd Notice” email about the fees and responded by asking if this reporter was refusing to pay.  

Naples City Desk filed a public records lawsuit against Brock on Feb. 25. challenging the fees.

In response to the lawsuit, Brock contended that as Clerk of Courts he is not subject to the fee provisions of the Florida public records law and that the statute governing court clerks enables him to charge up to $1 per page for any documents in his possession.

Brock has broad responsibilities as Clerk for not only keeping court records, officials records like deeds and mortgages and liens, but also for serving as accountant and custodian of all county money and holding all the county’s financial records.

Naples City Desk contended that Brock can only charge the actual cost of duplication for electronic records and that the records in question are county records produced pursuant to his role as clerk and accountant to the board of county commissioners. Those records should be available to the public for 15 cents a page for printed copies or for the actual cost of duplication for electronic records, which is typically the cost of a CD.

Naples City Desk requested an emergency hearing to so as not to slow down reporting and obtain the records without delay. Brock agreed to provide the 556 pages of electronic documents and suspend charges until the court decided an appropriate fee.

Approximately 300 pages of the records include 6 more report drafts from Clifton Larson Allen, raising questions as to why these weren’t produced in response to the original Jan. 17 public records request. The pages also contradict Brock’s office in the Jan. 29 email that said: “You have all of the Clerk’s public records related to the H.O.M.E audit, including the work done by the independent CPA firm Clifton Larson Allen.”

In a March 26 ruling, Collier Circuit Judge Fred Hardt struck down the $556 fee and said Brock could charge $2, or the cost of two CDs, for the electronic records. Hardt ruled that even the statute governing court clerks cited by Brock requires a clerk to comply with the public records act fee schedule for documents in an electronic database.

Brock challenged Hardt’s ruling in court filings on April 7, saying that the scanned documents did not exist in an electronic database and that this reporter should be required to prove at a trial that a “scanned copy” of a document is an “electronic copy of information contained in a computer database.”

In addition, Brock asserts in court papers that the 206 pages of audit policies and procedures “only existed in hard paper form and not in any electronic format at the time that Edwards made her request.”

Many of the pages are dated in 2013. Naples City Desk has argued in court papers that if the records already existed in an electronic medium when the request was made, then Brock’s office had a duty to provide the records electronically for the actual cost of duplication. If the records did not exist electronically, then Brock was not required to produce electronic records, but by electing to do so his office was required to charge a fee in line with the public records law governing electronic records.

Judge Hardt granted Brock’s request for a trial and has set a date for May 27.

— Gina Edwards

For Naples City Desk 

H.O.M.E. —

The background

Housing Opportunities Made for Everyone Inc., or H.O.M.E., was formed by retired CEO John Barlow as a charity that bought 13 foreclosed houses, mostly in Golden GateCity, and remodeled and sold 12 of them to low-income families.

In 2008, H.O.M.E. received a one-time federal grant for $427,000 and used all of the money to purchase 7 houses. H.O.M.E. put up private money, most of it personally financed by Barlow, to buy the rest of the houses and remodel them.

H.O.M.E. also was awarded $194,000 in state grants. Of that money, $150,000 went to CollierCounty, which paid contractors directly for some remodeling work.

H.O.M.E. closed down in 2010 when the recession and a larger federal affordable housing program made it obsolete.

After closing an audit of H.O.M.E. in February 2012 without significant findings, Brock re-opened an audit in April 2013 during a tense exchange when political rival Commissioner Fred Coyle accused Brock of conducting a lax audit of $540,000 paid by Collier County to a political ally Jerry Blocker as part of a legal settlement over a controversial zoning dispute involving Blocker's migrant farm worker trailer park.

Barlow ran unsuccessfully against Brock for Clerk of Courts in 2012.

In January, Brock said publicly that he planned to ask law enforcement to investigate H.O.M.E. He said he couldn’t substantiate that $410,000 in construction remodeling work was done, that H.O.M.E. had violated its contract by providing $427,000 in down payment assistance to low-income buyers, that H.O.M.E. failed to pay back $75,000 in program profits it owes and that volunteer board members had conflicts of interest.

Barlow and his attorneys say Brock has abused his office to exact political payback by publicly trumping up false and malicious allegations against H.O.M.E. and its volunteer board members.

H.O.M.E’s board included Commissioner Georgia Hiller’s 2010 political opponent, Gina Downs, and high-profile business leaders from the Naples Area Chamber of Commerce including Julie Schmelzle and Russell Budd, and construction firm owner Mel Engel.

And Barlow’s attorney, Jeff Fridkin, said harassment of H.O.M.E. by Brock’s office began shortly after Downs ran against Hiller in 2010.

Brock says he’s not engaging in witch hunts and that anyone receiving taxpayer money should expect significant scrutiny by his office. Brock said he stayed out of the process to avoid the appearance of impropriety of auditing a past political opponent. But internal documents reviewed by Naples City Desk showed Brock’s staff had significant input and influence over the report by Clifton Larson Allen, which was hired in a consulting role, not as an auditor. Auditors have much stricter standards for independence.

A Naples City Desk analysis of more than 65 deeds, mortgages, and notes, and a review  of hundreds of pages of documents submitted to Brock’s office by H.O.M.E., building permits and other public records shows that Brock made misleading allegations and omissions about H.O.M.E. Key allegations weren’t corroborated by the findings of Brock’s audit staff in a broad-based February 2012 audit.

Among the Naples City Desk findings:

■ Brock accused Boran Craig Barber & Engel, the general contractor for the rehab work, of submitting $410,000 in bills for work that couldn’t be substantiated with proof, and Brock said his office had little to go on to corroborate the work on the houses was done.

Internal documents show that at least two years ago Brock’s own audit staff reviewed appraisal reports with photographs and appraisers notes that document extensive remodeling work on the houses and didn’t challenge the bills then;

■ Brock failed to tell commissioners and the public that H.O.M.E. gave Collier County the $427,000 in notes on the loans in 2011 – which means H.O.M.E. paid back Collier County 5 times more in program profits than the $75,000 Brock accused the charity of skipping out on; Internal documents show Brock’s consultant Clifton Larson Allen wouldn’t agree with Brock that the down payment assistance was a grant violation.

■ Brock and Finance Director Kinzel refused to acknowledge that H.O.M.E. put up significant private money for the program, including that H.O.M.E. used all private money to buy 6 of 13 houses. Kinzel misrepresented to consultant Clifton Larson Allen that H.O.M.E. used profits on federal money to buy more houses for the program, internal documents show. She also directed the consultant to add two houses that received no federal grant money to program profit calculations. Because the federal money made up less than one third of the total charity program, H.O.M.E.’s net pro-rated profits were below the $25,000 threshold federal officials deem negligible, two county analysts earlier opined.

After holding a press conference in late February, H.O.M.E. released its own audit in March that said the charity, which closed down in 2010, properly spent and accounted for all its $622,000 in federal and state grant money and complied with its grant contracts with CollierCounty. 

Brock declined to grant interviews or answer questions in writing from Naples City Desk after Naples City Desk was provided access to internal work papers of his audit department beginning on Jan. 22. Kinzel has also not responded to written questions about her work, including questions about her misrepresentations of the amount of private money that H.O.M.E. put toward buying the houses.