by Ricardo L. Gilmore, Esq., Shareholder, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in FAHROgram, July/August 2014
I sent many of you a memo concerning a public records request you may have received from firstname.lastname@example.org that asked for email addresses and a copy of the minutes of your last board meeting. I also discussed this during FAHRO’s recent Executive Directors’ Forum in St. Petersburg. In this article I want to revisit this matter for those who may not have received the memo or did not attend the Forum, because I think it is that important. I also want to update you with some new information.
The reason I became aware of this matter is because several of you asked my opinion concerning responding to this request. First, I indicated that whether or not it was spam or a phishing attempt was irrelevant. The request came as an email and looked like the type of mail that is usually spam. In fact, some executive directors or presidents/CEOs indicated that it was or may have been caught in their spam filters. I indicated during the Forum that this may have been done on purpose. Since it was couched as a public records request, no matter how it looked or how you got it, it needed to be treated as such. Timely response to these requests is always merited.
Second, I suggested some strategies for responding to this type of request. The request for board minutes was clearly a matter of public record and should always be produced in a timely manner. If you’ve had a recent board meeting and the minutes have not yet been finalized, I suggest that you provide the last meeting’s finalized minutes. An explanation of what you are supplying is a courtesy; it is not required as you respond to the request.
Third, it was unclear what email addresses were being requested by the emailed request. Based on the experience of two of your colleagues, Rob Rogers and Debbie Johnson, executive directors of the Manatee County Housing Authority and the Pinellas County Housing Authority, respectively, I recommended that only copies of email addresses of employees of your housing authorities be provided, as a PDF document. It was hoped that using a PDF format would avoid the email addresses being lifted from your response and pasted into future emails for spam purposes. I also recommended that when the email information was provided, you indicate you were providing the email addresses pursuant to the public records request and if additional information was needed the requestor should contact you to so indicate. As you know, if any of you did not have such a list of employee email addresses, you did not have to create one to respond to this request pursuant to Florida public records laws. However, in this instance, for reasons stated below, I did recommend creating a list in a PDF format if you did not have one.
The recommendations made above allowed for compliance with the public records request in a timely manner and forced the requestor to provide further clarification, if the requestor so desired. In fact, the requestor did respond to Rob and Debbie that the information provided was sufficient. Receiving this response also meant that the request was real and not spam.
I also indicated that I had confirmed that this exact same public records request had gone to other governmental agencies in Florida, not just housing authorities. It was my supposition that this was an effort by the requestor to send the public records request to as many governmental entities as possible, disguised as spam, and to identify those governmental entities that did not comply. Upon noncompliance the requestor would have grounds for litigation and ultimately attorney’s fees. Again, this was simply my supposition at the time.
After the Forum, thanks to Corey Mathews and Susan Christophel, executive director of Columbia County Housing Authority, my supposition was confirmed. Susan sent a newspaper article from the Union County Times concerning a public records lawsuit brought against Union County about this very request. The lawsuit named the Florida company behind this request as Consumer Rights LLC located in Lake City, Florida, and managed by attorney Robert Earl Case, Jr. After the initial request, the clerk of the court for Union County indicated that the county had no further contact or follow-up from the requestor until it was slapped with a noncompliance lawsuit. The clerk said that because “It was very, very, very odd … it was thought to be an attempt to hack or a phishing scam or one of those dozens of attempts to somehow create problems … in some way, shape or form … which is why it was disregarded.”
On May 21, 2014, Circuit Judge Stanley H. Griffis III ruled against the requestor and awarded no attorney’s fees or costs. His ruling was based on the facts that 1) the request was not directed to the proper custodian of records for the county, but to a generic email address, 2) it seemed to be an attempt at phishing and 3) the requestor failed to establish that the county refused to produce the records requested.
Let’s all take note of the favorable result of this lawsuit, which most likely was brought only to place the plaintiff in a position to recover fees and costs. By the way, the day the county’s attorney contacted the requestor after the lawsuit was filed, the requestor offered to settle out of court for $4,800. Luckily, the county refused! But let’s all take every public records request seriously.
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