Lake Shore Hosp Auth Threw the Dice, 1st DCA Upheld Public Records Law & Public's Rights
The inside story of the LSHA decision to appeal: Part I
Posted November 3, 2015 09:45 pm
COLUMBIA COUNTY, FL – On July 8, 2015, the 1st District Court of Appeal (DCA) ruled against the Lake Shore Hospital Authority and Jackson P. "Jack" Berry, the Authority's Custodian of Records, in a lawsuit brought by your reporter, the publisher of the Columbia County Observer. Mr. Berry's failure to comply with the Florida Constitution and the Florida Public Records Law cost the Authority's insurance company an estimated $300,000 in legal fees, which does not include the Authority's out of pocket expenses, which were well over $10,000.
The DCA found that Mr. Berry refused to follow the law by setting an arbitrary time to inspect public records; building in an automatic delay; and not providing copies of records after your reporter agreed to pay for copies of them.
On October 15, 2015, Columbia County/Lake City's hometown newspaper, the Lake City Reporter (LCR), wrote a one-sided article regarding the lawsuit. Your reporter asked the publisher, Todd Wilson, and editor for a retraction of clearly bogus information in the article. The newspaper did not respond. In 2010, when Mr. Berry applied for his job, as the then part-time Authority Manager, Todd Wilson gave Mr. Berry a personal reference.
The lawsuit was filed in 2013 by Kris Robinson of Robinson, Kennon & Kendron, P.A.
After a series of recusals of Lake City judges, all of whom apparently had relationships with past Republican leader Berry, Judge William F. Williams, III of Suwannee County was assigned the case.
In October of 2013, Kris Robinson brought in Robert Earl "Bobby" Case, Jr. to represent your reporter in the public records dispute with the Lake Shore Hospital Authority and Jack Berry.
When asked why he brought Mr. Case onboard, Mr. Robinson explained, "Bobby Case is a friend, and one of the preeminent public record attorneys in Florida. I brought him into the case because I knew this was a public record issue of great importance - not just locally, but statewide."
On May 27, 2014, Bobby Case filed a motion for summary judgment on behalf of your reporter.
On July 2, 2014, Janice Merrill of Marshall, Dennehey, Warner, Coleman & Goggin of Orlando filed a motion for summary judgment on behalf of the Lake Shore Hospital Authority and Jack Berry.
A summary judgment motion is a motion filed with the court when a party believes there are no material issues of fact in dispute. The party making the motion asks the Court to decide the case based on the merits and the law. The decision is made without a trial, however, the parties may request a hearing to present their motions to the court and answer any questions of the judge.
Judge Williams (File Photo)
On July 25, 2014, both parties presented their motions to the Court.
On August 26, 2014, Judge Williams granted your reporter's motion for summary judgment, finding that the Lake Shore Hospital Authority and Jack Berry violated the law. Judge Williams wrote: "The Court finds, as a matter of law, that Defendant's responses to Lilker's public records requests for "the plans" and "the budgets" were not lawful and were an unlawful refusal to permit public records to be inspected or copied as meant in Section 119.12 of the Florida Statutes."
Board Chair, Waseem Khan
On October 13, 2014, the Lake Shore Hospital Authority went into an executive session for the purpose of deciding whether or not to appeal Judge Williams' decision.
An executive session allows the Board to meet out of the "sunshine" behind closed doors to discuss litigation and legal strategy. The law requires that a transcript be made of the proceeding and made public at the conclusion of the litigation.
Rather than asking those waiting to see the Board enter back into session to have a seat in the Authority's waiting room, Berry called his enforcement squad, the LCPD and had everybody thrown into the street. (Lake Shore Hosp Auth: Berry Calls Cops - Again LCPD: "They can kick out whoever they want.")
Attorney Janice Merrill
During the executive session Attorney Merrill presented the Board with various scenarios and possible outcomes of an appeal.
Ms. Merrill told the Board, "They [DCA] can determine that because this was an order granting a motion for summary judgment that they feel there is an issue of fact."
Ms. Merrill didn't dispute and litigate any facts in the court during the summary judgement arguments.
If issues of [material] fact are not preserved in the lower court, the Appeals court will not address any new issues on appeal. During oral argument at the DCA, the court rejected that there were any disputed issues of fact.
Ms. Merrill suggested that the Board could settle and reduce its exposure to the legal fees to that point.
Board member Janet Creel asked about the settlement, "If we settle with these people, are we opening a huge can of worms?
Jack Berry answered, "You sure are."
In June 2013, Manager Berry instituted an unapproved public records access policy that required 24 hours notice to inspect a public record and limited the inspection time to 8:30 to 9:30 a.m. every day.
Attorney Merrill explained, "If the First DCA decides to issue a written opinion on the merits as opposed to just affirming it or take an easy way out and say well we think there's an issue of fact and send you back to the trial court for further ruling, this will be a case of first impression as to whether a public entity is allowed to have that schedule."
Berry Lied to the Board
Manager Berry told the Board, "Well, let me tell you what he [your reporter] tries to do. He tries to come at the most absolutely inconvenient time he can possibly put on you."
That was not true.
Ms. Creel said, "I think we need to look forward. I don't think we need to negotiate in any form with him."
Board member Marc Vann was concerned about who was going to pay the legal bill.
Ms. Creel said, "... he's not in it for the money."
Mr. Vann was still concerned about the attorney's fees. He asked how much he thought it would cost up to the present time.
Attorney Merrill said, "I think they'd be looking probably from somewhere between 20 to 30 thousand dollars.
Mr. Vann continued, "And that's a good round number to work with. So we're talking about take a chance on 20 to 30 or take a chance on 60."
Board member Chancy said, "I'll take a chance on 60 and file the appeal... I'm just fed up with him."
Sometime later, Ms. Creel said if the Board settled, "it would be opening a door to a new lawsuit."
Board member Steven Douglas recommended expanding the 8:30 to 9:30 am window to four hours.
Attorney Merrill told the Board: "I don't think it's the one hour. I think it's the mere establishment of the schedule, which is what they argue is unreasonable under Chapter 119. So while we might be able to resolve the claim with Lilker with your suggestion, it doesn't prevent the next citizen from challenging the four-hour window."
Manager Berry opined that Judge Williams didn't rule on the law, but on an "Attorney General's Opinion."
Manager Berry complained about records inspection, the Authority sign-in sheet (which is not protected), and a purported violation of HIPAA if anyone saw a name on the sheet, for which he thought the Authority would be liable. The sign in sheet has nothing to do with HIPAA.
Chairman Khan wanted to know why the "judge didn't look at that."
Board member claims judge not qualified, other don't disagree
Ms. Creel said, "He [Judge Williams] was sitting in a position he wasn't really qualified to be in."
Board member Koby Adams, Representative Elizabeth Porter's Chief of Staff, added, "Used to [do] evictions and car crashes."
Manager Berry added, "And traffic tickets."
As the session drew to a close, Attorney Merrill was asked one final time what she thought.
Mr. Murphy said, "You're sitting in the hot seat."
Attorney Merrill responded, "I guess to me this just really seems like a got you; that Mr. Lilker and Ms. Lemley* just make public records requests — public records requests after requests to try to trip you up and to try to be a thorn in your side... I think you should be able to set a reasonable time. That's my personal opinion on this. I think the approach to appeal it is very reasonable to push back and to try to set some boundaries; otherwise, I don't know what the future holds for you."
Long time Authority Attorney Feagle agreed. "I never thought this would be a summary judgment for the plaintiff [your reporter]. I thought there was a chance it would be a summary judgment for the defendant, but never for the plaintiff.
* Ms. Lemley was not part of the lawsuit. The majority of records requested by your reporter were the information that the Authority Board members used during their board meetings, information which many agencies publish to their websites before public meetings.
The executive session ended. Board member Marc Vann came out to the street to call in the remaining members of the public and the press that were evicted from the building during the closed session
The Board voted to appeal 5-1, with Board member Vann dissenting.
The next stop for the lawsuit was the 1st District Court of Appeals. The judges were not convinced by any of the Authority's arguments and the Summary Judgment Order of Judge William F. Williams, III, was upheld.
The cost to the taxpayer's and Zurich Insurance was estimated to be over $300,000.
On Friday, Attorney Robert Earl "Bobby" Case, Jr. addresses the Lake City Reporter article and the importance of the lawsuit for the citizens of Florida.