Journalist’s public records lawsuit against Collier Clerk in hands of judge following trial

By Charlie Whitehead

Naples City Desk

The public records lawsuit between journalist Gina Edwards and Collier County Clerk of Courts Dwight Brock is in the hands of Circuit Judge Fred Hardt following a trial that ended early Wednesday.

The case amounts to a dispute over how much Brock can charge for public records. It stems from a $556 bill his office gave to Edwards, owner of the digital newspaper Naples City Desk, that publishes on WatchdogCity.com, for two computer discs containing emails and a copy of an internal audit policies and procedures manual.

The attorneys agreed there are two issues awaiting the judge’s ruling. There were in reality two public records requests, one for written correspondence related to an audit of a non-profit housing group headed by Brock’s 2012 election opponent and another for Brock’s Internal Audit Department policies and procedures manual.

Edwards claims the amount of the bill violates Florida law, specifically by exceeding the amount Brock is allowed to charge for county government public records. She says she previously received computer discs containing over 1,000 pages of records at a cost of one dollar per disc.

There are actually two laws. Florida Statute Section 28.24 establishes the fees the clerk can charge. Statute Section 119 establishes fees for public records. In his initial ruling, Hardt said the two must work in concert, that they are not in conflict and that together they support a charge totaling the cost of the discs.

The request at issue produced two discs. One contained 350 pages of emails for which Brock wanted a dollar a page. The other contained the 206 pages of audit policies and procedures – again at one dollar per page.

Hardt found for Edwards in March, ordering a fee of $1 dollar per disc. Brock appealed, asking for an evidentiary hearing and bench trial.

In the uncomfortable position of telling the judge he was wrong and explaining how is attorney Steven Blount representing Brock. In fact Blount and attorney Tony Pires are both representing Brock – both at $250 taxpayer dollars per hour.

Blount argued Hardt was wrong in his initial ruling, saying Florida law allows a Clerk in possession of public records to charge as much as $1 per page. Brock’s employees printed out the 350 pages of emails, scanned them, and then moved the scanned copies to disc.

Ryan Witmer, Edwards’ attorney, argued it is what the requestor receives that controls cost, not how the agency chooses to handle it. Testimony was that the emails were printed solely for the convenience of the employee handling them, and that they could have been loaded directly from the clerk’s database onto a disc.

Hardt, who said it’s his habit to ask his own questions, weighed in on that one himself.

“If the clerk didn’t have to do that why should the person making the request have to pay?” the judge asked.

Blount said that question leans on a distinction he doesn’t believe exists – the difference between a printed copy and an electronic copy.

“The clerk’s position is paper or no paper doesn’t matter,” Blount said. “Plaintiff can’t point to a single case or a single line in (the statute) that says ‘paper’. It says ‘copies’.”

As for the audit manual, Witmer admitted that’s a tougher argument. He said that once the manual was scanned and placed on disc it should have been handed over for the cost of the disc. When Hardt asked he agreed that if the clerk had simply copied the manual and handed it over he could have charged as much as a dollar per page under the 28.24 statute.

However, Witmer contends that the records are county government records, not court records, and therefore subject to the public records statute, 119. Under Florida Statute 119, the county records would be 15 cents per printed page or the cost of the disc for electronic records.

Blount repeatedly claimed Witmer was making a distinction that doesn’t exist.

Witmer said he didn’t put Edwards on the stand because he didn’t want the case to be about Edwards’ reporting and Brock’s reaction to it.

“I didn’t want to cloud the issue,” Witmer said. “I didn’t want it to be a spectacle of Gina and her reporting on the clerk.”

In fact Edwards’ stories on Brock’s handling of an audit was at the root of the public records requests. She claims earlier requests were filled at a cost of one dollar for each computer disc.

Brock’s audit of Housing Opportunities Made for Everyone (H.O.M.E.), the non-profit headed by 2012 election opponent John Barlow, accused it of misusing federal funds. Edwards’ reporting questioned the audit, claiming “Brock sics law enforcement on 2012 political challenger” and calling Brock’s allegations “false, misleading.”

Edwards stopped short of accusing Brock of retaliation, saying other media have reported that they have also been charged $1 per page for county records in the past.

“I think what became clear during the case is the clerk does not have a consistent and transparent policy on how to charge,” she said. “That leaves the door open for retaliation against me or any other citizen.”

Both the Naples Daily News and the Fort Myers News-Press have editorialized on Edwards’ behalf. Neither has joined in the suit. The nation’s largest organization of broadcast journalists — the Radio, Television and Digital News Association — also has published a letter of support of Edwards.

Judge Hardt will accept proposed orders from both attorneys. He gave no time frame for his ruling, but noted assignment changes would remove the case from his desk if it’s not done by July 1.

Edwards public records request of Feb. 7, 2014

See related stories:

►H.O.M.E. lawyers ask federal law enforcement to investigate Brock, others for abuse of power

Fed scrutiny needed so other charities aren’t harmed by unfair audits, HUD grants admin, H.O.M.E. says

►Brock: Federal housing officials not satisfied that 2008 H.O.M.E. grant was properly accounted for 

►St. Matthew’s House: Fed grants that take 11 months for Collier Clerk to reimburse aren’t worth it

►Activists from 20 churches: Collier Clerk’s excess red tape holding up fed money for homeless, needy

February 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" 

►"Appraisals reviewed by Brock's own staff 2 years ago document construction Brock says not proven"

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Dateline: Naples, Fla., June 3, 2014