Sunny state turned cloudy: A Boca Raton lawsuit illustrates ‘erosion’ of Florida’s public records law

The South Florida Sun Sentinel recognizes Sunshine Week March 10-16, and is sharing this story with news outlets across the state through the Florida Society of News Editors. FSNE started Sunshine Sunday in 2002 to inform Floridians of their rights to public records and issues surrounding access to them.

Attorney Robert Sweetapple, a veteran of dozens of jury trials and battles with Florida city governments, was suspicious.

He had filed a request under Florida’s famously robust public records law for communications among Boca Raton city officials about his client’s plan for a luxurious house on a beach where sea turtles made their nests.

He suspected the city, where hostility to the project ran high, didn’t turn everything over to him. And after two lawsuits and years of litigation, a judge ruled Feb. 1 that Sweetapple was right, finding that Boca Raton had failed to produce key documents proving to be “damning to the city.”

Sweetapple’s client, Azure Development LLC, may not have been the most sympathetic victim of government stonewalling: A builder planning to construct an ultramodern multimillion-dollar house with a four-car garage, rooftop pool and glass elevator on one of the city’s last undeveloped stretches of coast, over community opposition.

But the company’s courtroom victory, which took nearly five years and cost more than $1 million in legal fees, illustrated a weak link in what had been regarded as a model state open-records law: A person requesting records has to trust the government to do a thorough and honest job searching for them, a gap that can allow agencies to get away with holding back records.

“Do I believe it was intentional? Absolutely,” Sweetapple said in an interview with the South Florida Sun Sentinel in his Boca Raton office overlooking Federal Highway.

“This is how you undermine the Sunshine Law. This is how you undermine the records act; this is how you undermine open government. That was the most offensive thing about this.”

Florida’s Sunshine Law requires government meetings and documents to be open to the public, unless the law carves out a specific exemption. Although the law is most frequently used by lawyers, journalists, political candidates and others with a professional interest in obtaining records, it is available to one and all.

But while making a public records request is something anyone in Florida can do, hiring a team of lawyers to make sure the government fulfills the request is not.

Government agencies routinely do shoddy public records searches, experts say, failing to provide members of the public what they are entitled to under the law. But unlike most members of the public, who lack the money or time to take on the government, Sweetapple’s client could afford a court fight to prove the City of Boca Raton had withheld documents.

The case comes at a time when poor compliance and a growing list of exemptions have emerged as serious problems, diminishing the strength of Florida’s once-exemplary open-records law, said David Cuillier, director of the Brechner Center’s Freedom of Information Project at the University of Florida.

“It’s really withered over the years, more exemptions being passed left and right, agencies figuring out how to game the system,” he said. “It used to be a really sunny state, but now it’s pretty cloudy.”

Not enough tools exist to enforce public records laws, he said, not just in Florida but throughout the United States, a deficiency allowing government agencies to flout the law without fear of consequences.

“A big reason for that is there’s not the punishment that should be there,” he said. “If you didn’t have to worry about getting speeding tickets, how fast do you drive on I-75? Probably pretty fast, if there was no concern about getting caught and punished and getting a ticket. Well, that’s how it is in government.”

Trying to build a mansion on the beach

The Boca Raton fight began in the fall of 2016, when Azure Development applied for permission to build on a piece of sandy property on the ocean side of State Road A1A, the main street of Florida’s east coast beach towns. A variance was necessary because the land, located at 2600 N. Ocean Blvd., stood outside the city’s coastal control line, meaning construction there would ordinarily be banned to prevent environmental harm, such as beach erosion or obstacles to sea turtle nesting.

Anticipating a struggle over a project that wasn’t particularly popular, Sweetapple requested records from the city. He wanted to see what scientific evidence they planned to present on the impact to sea turtles and other environmental issues. And sensing strong public pressure on the city, he asked for emails, texts and other communications among City Council members and members of the city’s Environmental Advisory Board to see whether they had pre-judged the issue.

The environmental board recommended denial of a variance for the project, which then headed to the Boca Raton City Council for approval or denial.

Any evidence that city officials had made their decisions in advance could be valuable to Sweetapple’s client because land-use decisions require the City Council to operate in a quasi-judicial manner by impartially weighing the evidence and applying the law.

But Sweetapple’s public records request to the city produced disappointing results. Although he received a huge trove of documents, more than 500,000 pages, he knew the city left out some records — because he had obtained them by other means.

He wrote to the city, saying, “In reviewing the documents produced by the City, it is apparent that a number of responsive public records have not been provided.”

He pointed to a post on NextDoor.com by City Council Member Andrea O’Rourke that appeared to be critical of his client’s project, and to similar statements in emails from Council Member Jeremy Rodgers and Mayor Scott Singer.

As he engaged in back-and-forth with the city over records, the City Council met to consider Azure’s application. On Feb. 26, 2019, the City Council, which included current mayor Scott Singer, unanimously denied Azure’s request for this variance, claiming the developer’s proposal did not meet the conditions.

“The applicant has not established any special condition that would justify such a large project with such demonstrated insensitivity to its natural environment,” Brandon Schaad, the city’s development services director, said during the meeting.

More than a dozen residents at the meeting pleaded with the council to deny the petition, expressing concerns about erosion, hurricane damage, harm to sea turtle habitat, disruption of a portion of Boca Raton’s last undeveloped coast, and a precedent for other developers to build along the beach, too.

“Beaches are a public resource and should be held in the public trust. As human activities and development in coastal areas increase, the need for preservation of beaches becomes ever more apparent,” Emily Gentile, the president of the Beach Condo Association of Boca Raton and Highland Beach, told the council. “Hazards occur when naturally dynamic coastal processes encounter human development and when humans interfere.”

About three weeks later, Azure filed suit, claiming the city had done an inadequate records search and offering several examples of records the city had failed to provide.

What was in the missing records?

Even though Azure had asked for communications about the project on council members’ private devices, for example, it took the city clerk 10 months from the time of the request to even ask council members for them. And the city clerk never asked members of the Environmental Advisory Board for any of their communications, but simply told Sweetapple that there had been no communications on official city accounts — a useless response because EAB members, who are all volunteers, didn’t have city accounts.

The lawsuit led to years of legal back-and-forth, with subpoenas, depositions and other court action — all expensive and time-consuming activities beyond the reach of the average person who might feel they got shortchanged in a public records request.

Finally, this year, Azure won. Palm Beach County Circuit Judge Donald Hafele wrote on Feb. 1 that the city failed to take basic steps to fulfill the records request, such as obtaining records from city officials’ private communications devices.

He noted that City Clerk Mary Siddons “knew that any responsive EAB communications would be located on those private devices. And she confirmed that such communications, if about official City business, were the City’s official records as to which the Clerk is the custodian. Yet Ms. Siddons admittedly never asked about the location or type of devices EAB members were using, their social media accounts, cell phone numbers or email addresses used to conduct City business.”

Among the records produced in the lawsuit was a Facebook Messenger conversation involving then-Deputy Mayor Jeremy Rodgers in which he says, “I’m of course going to continue going NO on 2500 and likely NO on 2600” and “Yeah I’d expect it to be a no unless there is absolutely no legal way we can vote no on it.and even then..prob still a no. we don’t need any more big private residences on our beach, our beaches makes us special.”

Although the judge said he wasn’t accusing the city of deliberately withholding the records, he said, “the Court finds that 42 documents were produced after the lawsuit was filed and that a reasonable finder of fact could determine that the late produced and non-produced records were damning to the City at a time when the City was going through a significant amount of turmoil and which could have led to further embarrassment.”

The “turmoil” the judge referred to was the 2018 arrest of former Boca Mayor Susan Haynie on corruption charges. She pleaded guilty to two misdemeanor charges for voting to approve projects from two of Boca’s largest landowners without disclosing her financial ties to them.

The City of Boca Raton declined to comment to the Sun Sentinel for this article about the lawsuit because the case remains active, but court documents illustrate the city’s responses as the case progressed.

In its arguments to the judge, the city said it did its best to fulfill a massive records request that fell within the top 1% of requests ever received “in terms of scope.”

The city considered its efforts to fulfill Azure’s requests “extraordinary” and “Herculean,” with city employees spending about 1,000 hours working on it.

“The entire effort has been shown to be a tremendous waste of time and of both governmental and judicial resources,” the city stated in court documents from October.

The city contended that “a mere handful of responsive records” produced after the lawsuit was filed should not merit a violation of public records law, especially because the law “does not require perfection.”

In other words, the city believed Azure was trying prove the city was at fault rather than acquire records. But a requester’s motivations should not matter, said Bobby Block, executive director of the First Amendment Foundation, a Florida group that focuses on free speech and free press issues.

“Your agenda, your motivation, is irrelevant. The law says you have a right to see the records. You don’t even have to give your name,” he said.

Ultimately, Azure used the communications from its records requests to get the City Council’s rejection of the variance revoked in court by showing that two council members had pre-judged the question.

The public records case is continuing as Azure’s lawyers seek more city records. The company has submitted a revised plan for the house, making it smaller, reconfiguring it to protect the dune and making other changes to respond to environmental concerns. The company has said it’s open to the city buying out the land to stop the project, an option the city had previously rejected as too expensive.

Your right to annoy officials with records requests

Many elected officials increasingly see records requests as “onerous,” “meddlesome” and “dangerous,” Block said.

“Sometimes they know they’re coloring outside the line, and the records would reflect this, and they don’t want those records released because they know it could give them problems,” he said. “Sometimes the cities don’t staff their records offices sufficiently.”

In the past 10 to 15 years, public records laws have experienced a “steady erosion and degradation,” Block said, while bureaucrats’ attitudes toward them have also declined.

Entities used to err on the side of disclosure when it came to the release of records, Block said, but now, records are more likely to be withheld because of the belief that the requestor may have an agenda.

“The fact of the matter is that’s a complete lack of understanding of the law,” he said.

Fulfilling public records requests is part of conducting government business, which is important for people to remember if they feel they are “bugging” a records custodian.

“You are expressing your constitutional rights as a Floridian,” he said.