The Fourth District Court of Appeal has issued an opinion in favor of a Gulf Stream resident who had sought to obtain the town mayor's text message conversations along with unredacted bills sent to the city by outside counsel.

The appellate court reversed a Palm Beach Circuit Court's order to dismiss a complaint by plaintiff Martin O'Boyle, who accused Gulf Stream Mayor Scott Morgan of violating the Florida Constitution and Public Records Act.

The underlying suit also named the town as a defendant, as well as attorneys John Randolph, Robert Sweetapple and Joanne O'Connor, who all serve as outside counsel to Gulf Stream, a town in Palm Beach County.

O'Boyle is the founder of the Citizen's Awareness Foundation, a group that claims to be dedicated to educating constituents on the availability of Florida public records. He has previously been accused by city officials of running a grift to collect attorney fees through frivolous public information requests.

The feud has generated headlines. In March 2017, for instance, NPR affilliate WUFT reported O'Boyle and his son Jonathan, who also served as his father's appellate attorney, have been locked in a battle with Gulf Stream city officials since 2013, when the town rejected O'Boyle's home renovation application. Earlier, in September 2016, the Palm Beach Post had reported Gulf Stream filed a RICO complaint against O'Boyle alleging he and his son had engaged in a conspiracy to profiteer through Chapter 119 of the Florida statutes.

The complaint asserted that O'Boyle's son would file complaints once agencies were overwhelmed by the Citizen's Awareness Foundation's voluminous record requests and unable to respond to each one properly. News reports indicate O'Boyle's records requests were so excessive that state legislation has been drafted directly in response.

Private Devices Used for Public Business

Now, the Fourth DCA has weighed in on the feud. It found Palm Beach Circuit Judge David E. French properly dismissed O'Boyle's Sunshine Law claims, as well as allegations the town violated Chapter 286 of the Florida statutes.

But the unanimous opinion, authored by Judge Mark Klingensmith and released Oct. 24, held that the lower court erred in dismissing claims under the Public Records Act.

The plaintiff had alleged the mayor and town “cherry picked” and “deliberately concealed” the texts shared through a records request. But Klingensmith cited a Florida Supreme Court ruling establishing that ” 'private' or 'personal' e-mails 'simply fall outside the current definition of public records,' ” and that the “ determination of whether something is a public record is a question of law subject to de novo review and is determined on a case-by-case basis.”

Read the opinion: 

“To comply with the dictates of the act, the governmental entity must proceed as it relates to text messaging no differently than it would when responding to a request for written documents and other public records in the entity's possession — such as emails — by reviewing each record, determining if some or all are exempted from production, and disclosing the unprotected records to the requester,” Klingensmith wrote.

The ruling also noted that if public officials use text messages to conduct official government business, “a process must be available to offer the public a way to obtain those records and resolve disputes about the extent of compliance.”

The opinion also found the Public Records Act would be undermined if public data stored on private devices were exempt from records requests.

“We acknowledge that the public's statutory right to public records does not extinguish an individual's constitutional and statutory rights in private information. But we do not read Article I, section 24 or the Public Records Act as a zero-sum choice between personal liberty and government accountability,” Klingensmith wrote. “Accordingly, the Town's reasons for its lack of disclosure, whether for reasons related to relevancy, the application of possible privileges, or otherwise, necessitates a judicial review of the available communications to identify those which are subject to disclosure and any defenses to allegations of noncompliance.”

The appellate panel then instructed the trial court to perform an in camera, or private, review of all the mayor's text exchanges since he assumed office to see which are public records. It also ordered the lower court to determine whether the plaintiffs are entitled to legal fees and court costs.

David Weinstein of Hinshaw & Culbertson. Courtesy photo

In analyzing the ruling, Miami-based attorney and Hinshaw & Culbertson partner David S. Weinstein told the Daily Business Review that the circuit court must now determine whether the delivery of the redacted bills was proper, and in the event they were not, what fees ought to be awarded to the prevailing party.

“The issue that remains is whether or not there are going to be any costs associated with this,” said Weinstein, who is not involved in the litigation.

Neither O'Boyle's nor Gulf Stream's counsel responded to requests for comment by press time.

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