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Date of Issue: April 28, 2010

Emergency hearing short, direct

Michael Barfield

Attorney Valerie Fernandez

Commissioner Harry Stoltzfus

Both sides could claim victory in an emergency hearing in Manatee Circuit Court April 21 requested by attorney Valerie Fernandez in a public records request against Anna Maria Commissioner Harry Stoltzfus and planning and zoning board member Jim Conoly.

Conoly was excused from the case. Stoltzfus did not have to surrender his computer. Fernandez obtained a court order against Stoltzfus.

Fernandez, on behalf of public records consultant Michael Barfield — both retained by Pine Avenue Restoration LLC — sought the emergency hearing to ask Judge Stephen Dakan to seize Stoltzfus’ computer to ensure that any e-mails relating to public business that might still be on the computer are not deleted.

After nearly 90 minutes of testimony and legal wrangling, Dakan said he didn’t have enough time that day to hear both sides and grant Fernandez what she requested.

His authority over the case was only for that day, he said.

Instead of seizing the computer, Dakan issued a court order directing Stoltzfus not to “transfer custody of the computer” or “alter or delete or dispose” of any information on the computer until directed by the court.

Fernandez was prepared to introduce a computer expert to testify how e-mails could inadvertently be deleted by continued use of a computer. But Dakan said that if Fernandez proceeded, he would have to allow attorney Richard Harrison, representing Stoltzfus, time to gather his own expert witness, and that wasn’t going to happen that day.

Dakan said his understanding was that this was a case of preserving records, not seizing a computer.

“This is serious business,” the judge said, and the “facts are in dispute.”

Fernandez said she wanted the computer seized because Stoltzfus has a history of deleting e-mails.

Also, on several occasions Stoltzfus delivered requested e-mails to Anna Maria city clerk Alice Baird and told her that “this should do it,” only to come back another day with more e-mails, she said.

On March 10, Barfield had sent a public records request to Stoltzfus and Conoly requesting copies of the e-mails on their private computers that pertained to city business.

Fernandez said Stoltzfus did not deliver his e-mails in a timely manner and Barfield had to make several subsequent records requests to Stoltzfus after March 10. Fernandez told Dakan she also was concerned that continued use of Stoltzfus’ personal computer could result in deletion of relevant e-mails contained on the hard drive that have not yet been submitted as public records.

Harrison argued that his client submitted e-mails about public business to Baird in a timely manner and that the city has no policy or definition of “a timely manner.”

He further claimed Barfield had not shown up April 21 when requested to appear for a deposition and that Fernandez was stalling for time. Harrison also disputed the need for an emergency hearing to preserve any public records.

Dakan had to leave the hearing in mid-session to hear a jury verdict in another courtroom.

The 30-minute break put the hearing behind schedule, and Dakan said he was not going to be able to issue a full ruling in the time remaining, and he had authority over the case only for that day.

“You have done nothing wrong, and I apologize,” Dakan told Fernandez.

Harrison said his client would accept a ruling that Stoltzfus had to adhere to the requirements of the Florida statute on preserving public records. Stoltzfus planned to do that anyway, Harrison indicated.

“We want to preserve the records,” Harrison said.

Fernandez reluctantly agreed, and Dakan said he would make it a signed order.

Dakan said that if Stoltzfus violated any part of the court order, he could be charged with contempt.

After the hearing, Barfield said he considered the ruling a victory. “The court put Stoltzfus on notice not to delete any further e-mails or face a contempt charge,” he said.

Fernandez said she had no plans to seek another emergency hearing but she and her client are considering other options.

Harrison said the decision was a win for his client. “Any time the other side doesn’t get what they want, it’s a victory,” he said.

“We have no problems” with the court’s order, he added. “We were going to do that anyway. What they were asking for was extreme.”

Hearing on unknown topic

Attorney Ricinda Perry, representing Pine Avenue Restoration LLC, said she has a hearing in the Manatee County Circuit Court scheduled for 3 p.m. to 3:15 p.m. Friday, May 7, but the subject has not yet been announced.