Dunn State's Response to Intervenor Florida Times Union and First Coast News

8/13/2019 Dunn State's Response to Intervenor Florida Times Union and First Coast News

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IN THE CIRCUIT COURT IN AND FOR THE FOURTH JUDICIAL CIRCUIT IN AND FOR

DUVAL COUNTY, FLORIDA

STATE OF FLORIDA CASE NO: 16-2012-CF-011572-AXXX-MA

DIVISION: CR-I

v.

MICHAEL DUNN

Defendant

MORRIS PUBLISHING GROUP, LLC, d/b/aTHE FLORIDA TIMES UNION

MULTIMEDIA HOLDINGS CORPORATION andGANNETT RIVER STATES PUBLISHING

CORPORATION d/b/a WTLV/WJXX First Coast News

Intervenors

_______________________/

STATES RESPONSE TO INTERVENORSEMERGENCY MOTION FOR WRIT OF

MANDAMUS, FOR MANDATORY RELIEF TO COMPEL PERFORMANCE OF MINISTERIAL

ACTS, FOR ATTORNEYS FEES AND FOR IMMEDIATE HEARING

COMES NOW, the State of Florida, by and through the undersigned

counsel, and files this response to the Intervenorsemergency motion

for writ of mandamus as follows:

(1) The Intervenorsmotion is directed to more than 185 hoursof jail phone calls. 1

1A more detailed procedural history of public record production was setforth in the States response to Intervenors January 7, 2014 and

January 9, 2014 motions filed in this Court. Additionally, the Statesemail stream regarding public records, including the jail phone calls,was attached.


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(2) In its motion, the Intervenors assert, among other things,that the State is in blatant disregard of this Courts order and of

the orders of the First District Court of Appeal. The motion also

contains an unwarranted and untrue personal attack on the elected

State Attorney of this circuit. Such hyperbole is unprofessional,

takes away from the potential persuasiveness of the Intervenors

motion and is completely inappropriate in any pleading filed before

any court in this State.

(3) Even so, in making a claim the State has failed to complywith both this courts and the First District Courts order, the

Intervenors simply ignore the fact that both this court and the First

District Court of Appeal have determined that the Intervenors must pay

costs of production in accord with Section 119.07(4), Florida

Statutes. Indeed, in the First Districts Order of January 17, 2014

order, the Court explicitly wrote: This order does not modify

petitioners requirement to comply with necessary payment and other

administrative requirements provided in Chapter 119. (First DCA

January 17, 2014 order).

(4) In October 2013, the State offered the followingexplanation to the media as to the costs to fulfill any request for

Dunns jail phone calls:

In order to review and redact witness information (and

potentially other protected information bank #s, ssn#),we estimate it will take Jessie 1.5 x the # of hours of

calls to listen and redact any information revealing the

identity of a witness pursuant to the Courts Order. We

also estimate it will take me .5 hours x the # of calls to

review to make sure all confidential information was

captured and redact any missed information. While we are

extremely fortunate to have someone that makes only $10.94

an hour (1) have the understanding needed to understand the


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public records law and application of that to the records,

and (2) have the knowledge and skill to run a program to

redact audio to. Nevertheless, my review is required to

ensure that full compliance with the court order is

achieved. It is not a simple listen for social security

number. As always, any costs invoiced will only be the

actual cost to the agency to complete the request.

Therefore, below is how we calculate the estimate:

Take the # of hours of calls, multiply that total times

1, multiply that times 10.94, THEN

Take the # of hours of calls, multiply that total times

, multiply that times 35.61, and add the two totals

together.

For example: here is how we determined the estimate for

all the calls. The total time of all jail calls: 185.8

hours:

(185.8 x 1.5) x 10.94 = $ 3048.98

(185.8 x .5) x 35.61 = $ 3308.16

Total estimate: $6,357.142

(5) To date, neither the Intervenors nor anyone else for thatmatter has paid the deposit.3

(6) Although implicitly acknowledging the State responded toinquiries about the jail phone calls and that the Intervenors have not

paid the deposit, the Intervenors submit that no such deposit, or even

2 The state offered to split the costs as well between any requestorsso as to reduce cost assignable to each requestor. Additionally,while in October, the names of witnesses were not a public recordbased on a protective order of this Court, the time to review andredact will not be affected by the fact that witness names are nolonger protected by this Courts previous order. Each phone callmust be reviewed and remaining confidential and exempt informationredacted (confessions, bank account numbers, social security numbers,etc). Any monies from the deposit not expended will be refunded.

3 Intervenors claim that on January 24, 2014, it contacted arepresentative of the state and offered to pay for a copy of therecorded conversations. (page 5, para 12) Although Intervenors donot directly say so, such an assertion implies the State is requiredto turn over the discs without redacting any confidential and exemptinformation that may be on the recordings. Intervenor is mistaken.Indeed, the State is obligated by law not to release confidentialinformation. Chapter 119.10 Florida Statutes.


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any payment at all, is necessary because the telephone calls have

already been reviewed for public records purposes. Intervenors point

to the transcript from the November 7, 2013 chambers conference before

with this court in alleged support of this claim. However, a close

look at the transcript does not support Intervenors allegations. In

pertinent part, the colloquy went like this:

Court: So have you gone through all 180 hours of these calls?

Ms. Difranza: No, we havent

Ms. Corey: She hasnt. We have.

Ms. DiFranza: You mean for public records?

Court: Actually both. So you have for discovery purposes--

Ms. Corey: Yes, sir.

..

Court: But you guys have not started looking at it in terms of

Ms. Corey: Redaction, correct.

---

(7) While Intervenors claim the initial part of this colloquyshows the State had reviewed and redacted the tapes by November 7,

2013, a plain and common sense reading of the colloquy shows to the

contrary. What actually occurred is that the State Attorney answered

Yes, sir in response to the Courts inquiry about the States review

of the phone calls for discovery purposes. Shortly thereafter, Ms.

Corey made clear that this Office had not started looking at the

recordings in terms of redaction because no advance payment had been

received. (Intervenors Appendix A, page 22-23).


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(8) And while it is true that the State has reviewed the callsfor potential use at trial, logically an entirely different review

process, the State has not begun to review and redact Dunns jail

phone calls to comply with any public records requests. This is so

because no Intervenor has tendered the requisite deposit so as to

require the state to do so.

(9) Requiring a deposit before an agency is obligated to beginwork on a labor intensive public records request is logical. If it

were otherwise, an agency, at taxpayers expense, would be required to

expend hundreds or even thousands of clerical and supervisory man

hourswith no assurance the requestor would reimburse the taxpayers for

the amount of expended resources.

(10) Requiring a deposit is not only logical, it is supported bycase law. Indeed, it is now well-established that custodians of

public records may require a deposit before beginning work on a public

records request. See 119.07(4)(a)1., Florida Statute (2013); Board of

County Com'rs of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA

2008); AGO 05-28; Lozman v. City of Riviera Beach, 995 So.2d 1027

(Fla. 4th DCA 2008)(recognizing that policy of requiring an advance

deposit seems prudent given legislature's determination that taxpayers

should not shoulder the entire expense of responding to an extensive

request for public records.); Malone v. City of Satellite Beach, No

94-10557-CA-D (Fla. Cir. Ct. Brevard Co. December 15, 1995), per

curiam affirmed, 687 So. 2d 252 (Fla. 5th DCA 1997)(noting that a

citys requirement of an advance deposit was contemplated by the

Public Records Act and concluding that the city was authorized to


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require the payment of an advance deposit under the facts of this case

before proceeding with the effort and cost of preparing the voluminous

copies requested by the plaintiff. ).

(11) Both this court and the First District Court of Appeal havedetermined that Dunns jail phone calls are now a public record

because they have been tendered in discovery. Both this court and the

First District Court of Appeal have determined the Intervenor(s) must

pay the requisite fees so that the taxpayer will not shoulder the

expense of the Intervenors public records request.

(12) Because the Intervenor has not met the condition precedentto require this Office to even begin its public records review of

Dunns jail phone calls to redact confidential and exempt information,

the Intervenors motion for writ of mandamus, as well as all other

requested relief, is not well founded and should be denied. 4

Respectfully submitted,

ANGELA B. COREYSTATE ATTORNEY

/s/ Meredith Charbula

____________________

MEREDITH CHARBULAFla. Bar #0708399Office of the State Attorney220 East Bay StreetJacksonville, Florida 32257

(904) 630-1212, Ext. 3127 (Phone)(904) 630-7025 (Fax)[email protected](Email)

4 In any event, an action to compel is inappropriate because such amotion would lie only if Intervenor had tendered the required depositand this Office failed to comply with the request within a reasonableamount of time.
mailto:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing response has been

furnished by email to George Gabel at [email protected], counsel

for The Florida Times Union, Cory C. Strolla, [email protected]

counsel for the defendant, and Edward L. Birk, Esq., counsel for WJXT,

Channel 4 [email protected] on this 27th day of January 2014.

/s/ Meredith Charbula

________________________

Meredith CharbulaAssistant State Attorney

Cc:

Judge Healey ([email protected])
mailto:[email protected]:[email protected]:[email protected]:[email protected]

Documents

Dunn State's Response to Intervenor Florida Times Union and First Coast News