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Date of Issue: February 13, 2008

Arguments conclude in fee hearing

A judge has heard both sides in The Islander’s quest for attorneys fees in a public information dispute with the city of Bradenton Beach.

A hearing on the matter concluded Feb. 8 with Manatee County Circuit Court Judge Edward Nicholas promising to issue a written order as soon as possible.

The Islander, which took the city to court on claims that it violated Florida’s public records and open meetings statutes, is now asking the city to pay its legal costs.

The city, in turn, has filed a motion seeking to recover legal costs from the newspaper. Nicholas last week also pledged to rule soon on the newspaper’s response that the city is not entitled to recover its fees.

The dispute between the two parties dates back to last winter, when it became public that city officials were investigating sexual harassment allegations made by one city employee against another.

As the investigation got under way, both employees were placed on administrative leave. In short time, Ed McAdam, the employee facing the allegations, resigned before any determination in the investigation could be made. The city commission accepted McAdam’s resignation at an emergency meeting.

The situation prompted requests for public records from Islander publisher Bonner Joy and news editor Paul Roat, which were unmet for months.

The situation also raised questions at the newspaper about whether the harassment complaint and investigation were conducted in accordance with Florida’s Government-in-the-Sunshine Laws. The commission accepted McAdam’s resignation without any discussion.

With scant records provided and denials from the city that failed to cite the required exemption, a law suit followed - and months of legal wrangling that resulted in attorneys fees on both sides in excess of $50,000.

In November 2007, Manatee County Circuit Court Judge Peter Dubensky issued an order “granting in part and denying in part” the newspaper’s complaint.

The newspaper made four counts against the city, naming then-Mayor John Chappie as the defendant:

  • Count one, an action seeking mandamus relief to compel the mayor to comply with the Government-in-the-Sunshine Law.
  • Count two, seeking injunctive and declaratory relief to enjoin the city from engaging in any further violation of the Sunshine Law and a declaration that the mayor’s actions in this case were illegal and unconstitutional.
  • Count three, seeking mandamus relief to compel the city to furnish requested records.
  • Count four, an action for injunctive and declaratory relief to enjoin the city from future violations of the public records act.

In regards to count one, Dubensky said, “The Islander has not met its burden in showing that a Sunshine violation occurred.” Based on that finding, he denied count two.

In regards to count three, the judge focused on records held by city attorney Ricinda Perry that were provided for his review, but not publicly released. He found these records, which consisted largely of notes from the investigation, “not a public record.”

On count four, Dubensky found that the city withheld three related documents long after the newspaper’s freedom-of-information request filed March 7, 2007, and without properly citing an exemption to withhold the papers.

The Islander saw victory in Dubensky’s declaration that the city improperly withheld documents.

“We did prove what we were saying all along, which was that the public records act was violated by the city,” said Islander attorney Kendra Presswood, also the newspaper publisher’s daughter.

Presswood noted that all four counts sought the release of public records, but each count sought a differing form of relief.

Meanwhile, the city took relief in the judge’s decision not to grant the relief sought by the newspaper and finding a lack of evidence to show a violation of the Sunshine Law.

Attorney Kevin Hennessy, representing the city, said the newspaper prevailed on a “narrow issue” and secured “three little documents.”

With both sides citing victories, the attorneys returned to the courtroom to fight over paying their legal fees and costs associated with the case.

First up, The Islander presented its arguments to recover fees and costs. A hearing began Jan. 8 and resumed Feb. 8.

Presswood argued that the newspaper pursued the public records and Sunshine claims in the best interests of the citizenzry and that her fees were fair and reasonable.

Hennessyargued that the newspaper is only entitled to a tiny fraction of the fees and costs requested - less than $5,000.

“As we indicated at the outset, the newspaper is entitled to some fees, but nowhere near the amount sought,” Hennessy said.

Hennessy said the newspaper did not prevail on the Sunshine Law aspects of the case and had obtained the only public records to be released by June 27, 2007. Thus, the city should not pay the newspaper’s costs after that date.

“The fees are only available up to the point where the documents were turned over,” he claimed.

He continued, “The plaintiff did go forward with other claims, but all of those were rejected, along with the plaintiff’s desire to seek some injunctive relief.”

Hennessy’s argument was supported by his witness, local attorney Charles Johnson, who said fees in the case should be awarded associated with enforcement of the law and success on the claims.

“The date is significant,” Johnson said, referring to June 27. “She filed a lawsuit to receive certain documents. As of June 27, the city produced all the documents it was required to produce.... The city had satisfied all its legal obligations by June 27.”

Presswood countered that the newspaper pursued the case after the release of the documents on June 27 because it seemed probable more documents existed, because the city continued to maintain that it had not improperly withheld documents and because the judge had not made a ruling in the case. In fact, she said, Dubensky did not find that the city had released all the required records on June 27. His decision on that matter was not known until his ruling in November.

“We had every reason to believe there were other records,” Presswood said, reminding Nicholas of the initial delays and stalling on the city’s part. “And the only way to determine that was to ask the court to look at it.”

Presswood’s witness, local attorney Richard Groff, testified that the newspaper’s efforts to determine whether additional records should be made available after June 27 was not unreasonable.

“I believe that the measure of success in a public records case is pressing it to revelation,” he said, adding, “I don’t think the statute is intended to produce a winner or loser.”

At the conclusion of last week’s hearing, Nicholas said he would review the arguments and make a ruling.

He also said he would review and rule on Presswood’s motion that the city of Bradenton Beach is not entitled to recover fees and costs in the case.

Presswood pointed out the state’s Chapter 119 public records laws deny any recovery for the agency sued for public records, whether the pursuit is successful or not.

“I’ll enter my written orders just as soon as I reasonably can,” the judge said as he prepared to leave the courtroom in Bradenton. The hearing, scheduled to last two hours on Feb. 8, had lasted four hours.

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