in the circuit court of the ninth judicial circuit in … · 3/1/2019 · 1240 (fla. 1st dca 2001)...

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

KNIGHT NEWS, INC. (“KNI”),

Petitioner,

vs. Case No. 2019-CA-000925

THE UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES (“UCF”),

Respondent. /

UCF’S STATUS HEARING BRIEF AND SUR-REPLY IN SUPPORT

OF UCF’S RESPONSE TO ALTERNATIVE WRIT OF MANDAMUS

Respondent UCF respectfully submits this status hearing brief and sur-reply in

support of UCF’s Response to Alternative Writ of Mandamus, dated February 7, 2019.

SUMMARY OF ARGUMENT

The Alternative Writ of Mandamus gave UCF two options: either (1) disclose to

KNI the public records described in the Alternative Writ which may be responsive to

KNI’s September 25, 2018 request; or (2) show cause why that relief should not be

granted. Ex. 1 at 2, ¶ 1. UCF chose the first option and timely produced all records

described in the Alternative Writ, plus additional records that were not. UCF did not

elect to show cause why the records should not be produced, either based on an

exemption or otherwise.

KNI does not identify any allegedly responsive documents that UCF has failed to

produce. “Mandamus is an extraordinary writ and discretionary remedy and should not

be granted when it will achieve no beneficial result such as when the act sought to be

compelled has been performed.” City of Winter Garden v. Norflor Constr. Corp., 396 So.

Filing # 85725076 E-Filed 03/01/2019 11:54:35 AM

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2d 865, 866 (Fla. 5th DCA 1981) (emphasis added). See also Montgomery v. Dep't of

Health & Rehab. Servs., 468 So. 2d 1014, 1016 (Fla. 1st DCA 1985) (noting that an

issue becomes moot “where, by a change of circumstances prior to the appellate

decision, an intervening event makes it impossible for the court to grant a party any

effectual relief.”).

UCF has fully performed the act sought to be compelled, and KNI has not shown

that a live controversy still exists in relation to UCF’s production of records pursuant to

the Alternative Writ. Indeed, KNI’s proposed Writ of Mandamus requests the Court to

make the following finding: “Having reviewed these filings, the Court finds an evidentiary

hearing is unnecessary.” Ex. 2 at 3 ¶ 8.

The only remaining live controversy between the parties is whether KNI is

entitled to an award of attorney’s fees. UCF respectfully requests the Court to render

an Order discharging the Alternative Writ of Mandamus and setting a hearing on UCF’s

pending motion to strike KNI’s alleged claim for attorney’s fees.

LEGAL STANDARD & BURDEN OF PROOF

In a public-records action, a plaintiff must plead and prove four elements: (1) the

plaintiff made a specific request for public records; (2) the agency received the request;

(3) the requested public records exist; and (4) the agency improperly refused to produce

the records in a timely manner. O’Boyle v. Town of Gulf Stream, 257 So. 3d 1036, 1040

(Fla. 4th DCA 2018) (emphases added); Grapski v. City of Alachua, 31 So. 3d 193, 196

(Fla. 1st DCA 2010).

If the agency asserts a public-records exemption, then it bears a limited burden

to demonstrate the applicability of the exemption. Rameses, Inc. v. Demings, 29 So. 3d

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418, 421 (Fla. 5th DCA 2010). UCF asserts no exemption here, and KNI bears the

burden to prove the elements of its claim. Cf. Times Publ’g Co. v. City of Clearwater,

830 So. 2d 844, 846 n.2 (Fla. 2d DCA 2002) (explaining that the requestor bore the

burden “to prove that what it seeks meets the definition of a public record,” while

recognizing that agencies bear the burden to prove that an exemption applies).

LEGAL ARGUMENT

I. UCF produced all documents described in the Alternative Writ.

Despite the ominous insinuations and the accusations of bad faith littering its

Reply, KNI does not contend that UCF has failed to produce the documents described

in the Alternative Writ. As a result, the dispute between the parties as to UCF’s

production has been “so fully resolved that a judicial determination can have no actual

effect.” Mazer v. Orange Cty., 811 So. 2d 857, 859 (Fla. 5th DCA 2002) (quoting

Godwin v. State., 593 So. 2d 211 (Fla. 1992)).

a. KNI does not identify any records that UCF has not produced pursuant to the Alternative Writ.

KNI does not identify any public records that UCF has not already produced.

KNI’s Reply goes to great lengths to explain why it believes it was entitled to the

documents that UCF produced pursuant to the Alternative Writ, but cannot allege that

any records have been withheld. KNI has not even plausibly asserted that any

“requested public records exist” which UCF has not produced. O’Boyle, 257 So. 3d at

1040 (quoting Grapski, 31 So. 3d at 196). KNI cannot, therefore, establish the essential

elements of its request for peremptory mandamus relief.

KNI attempts to manufacture a dispute by alleging that UCF produced an

incomplete audio recording. See Reply ¶¶ 10, 20, 43. To be clear, KNI did not request

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the entire recording of all Board of Trustees meetings, or the full recording of any such

meetings during which Colbourn Hall was discussed. Its sole request was for

documents sufficient to demonstrate whether “someone” from UCF’s General Counsel’s

office attended the meeting at which the Colbourn Hall funding was approved. Pet. Ex.

1-A. UCF responded to this request.

KNI does not and cannot explain why the recording is legally deficient. The

recording captures part of an April 3, 2014, meeting of the UCF Board of Trustees

Finance and Facilities Committee, during which a member of UCF’s General Counsel’s

office spoke. The recording therefore answers the question that KNI asks in its Reply:

whether anyone from the UCF General Counsel’s office attended that committee

meeting. See, e.g., Reply ¶¶ 10–11, 13.

KNI’s hypotheticals and uncorroborated accusations do not establish that UCF

has withheld any responsive public records from KNI. See Braddy v. State, 219 So. 3d

803, 822 (Fla. 2017) (rejecting constitutional challenge to Public Records Act when

defendant’s request for additional records was “speculative” and “nothing more than a

fishing expedition,” and therefore no denial of access to public records occurred);

Garcia v. State, 949 So. 2d 980, 986 (Fla. 2006) (holding that defendant failed to prove

that agency improperly withheld public records when the existence of additional

documents was “pure conjecture” and that “a defendant’s mere speculation about the

existence of unproduced records” does not establish a public records violation).

UCF has no burden to prove a negative—that no further records exist. Nor does

UCF have an obligation to provide a sworn explanation of its production, despite KNI’s

unsupported suggestion to the contrary. See Reply ¶¶ 25–26. And because it has not

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invoked any exemptions to the Public Records Act, UCF need not prove the applicability

of an exemption. UCF’s obligation was to produce the records described in the

Alternative Writ, and it timely satisfied that obligation.

b. No live controversy remains between the parties as to UCF’s production pursuant to the Alternative Writ.

No documents remain to be produced by UCF, and as explained in UCF’s Motion

to Strike Petitioner KNI’s Claim for Attorney’s Fees (filed February 7, 2019), KNI is not

entitled to an award of attorney’s fees.

The Fifth DCA has previously considered mootness in public-records actions in

which agencies produced public records after litigation was filed. In Mazer, the Court

concluded that the production of records after the commencement of litigation mooted a

request for public records, but not the requestor’s pending claim for attorney’s fees. 811

So. 2d at 859. It explained that a moot case will not be dismissed where “collateral legal

consequences flow from the issues to be resolved that may affect the rights of a party,”

and that, because the untimely production of records might have entitled the requestor

to attorney’s fees, the requestor’s right to fees was a collateral legal consequence that

required resolution and precluded complete dismissal. Id. at 859-60.

The Fifth DCA’s decisions in Schweickert v. Citrus County Florida Board, 193 So.

3d 1075 (Fla. 5th DCA 2016), and Cookston v. Office of Public Defender, 204 So. 3d

480 (Fla. 5th DCA 2016), reached the same conclusion, remanding solely because the

issue of attorney’s fee entitlement remained.

Together, these cases hold that (1) when all requested records have been

produced, the public-records request becomes moot, and (2) if a viable claim for

attorney’s fees remains, then the entire case is not yet moot, because the fee claim—

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the collateral legal consequence of the initial dispute—must still be resolved. Here, the

case is moot because the requested records have been produced and no viable fee

claim remains.

KNI implausibly argues that once an alternative writ issues, a mandamus

proceeding can never become moot. That argument flies in the face of the fundamental

principle that courts can adjudicate only live controversies. See Ferreiro v. Phila. Indem.

Ins. Co., 928 So. 2d 374, 377 (Fla. 3d DCA 2006) (“To satisfy the requirement of

standing, the plaintiff must show that a case or controversy exists . . . , and that such

case or controversy continues from the commencement through the existence of the

litigation.”).

Mandamus is a prospective remedy; it commands an agency to take action in the

future. It is an “extraordinary remedy”; the petitioner “must establish the existence of a

clear legal right to the performance of a clear legal duty by a public officer and that no

other legal remedies are available.” Randall v. Fla. Dep’t of Law Enf’t, 791 So. 2d 1238,

1240 (Fla. 1st DCA 2001) (internal marks omitted). In accord with this black-letter rule,

the Supreme Court dismissed a mandamus proceeding as moot after the issuance of an

alternative writ in State ex rel. Davis v. Milledge, 88 So. 2d 909, 909 (Fla. 1956).

KNI cites no authority supporting its attempt to flip bedrock principles of standing

and mootness on their heads. KNI relies on Bal Harbour Village v. State ex rel. Giblin,

299 So. 2d 611, 618 (Fla. 3d DCA 1974), for the proposition that mootness is

determined at the time the alternative writ issues, but Bal Harbour is not on point.

Bal Harbour and the case that it cites—City Council of City of North Miami Beach

v. Trebor Construction Corp., 277 So. 2d 852 (Fla. 3d DCA 1973)—support the

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proposition that the building code in effect when litigation is filed controls, regardless of

whether the building code might have been different either (1) when the building permit

application was first filed; or (2) when the final judgment was entered. See Lee Harbour

Pres., LLC, 795 So. 2d 181, 182 (Fla. 3d DCA 2001) (“Trebor applies that principle

holding that building code laws are applied as they existed at the time plaintiff filed

suit.”). Whether this principle is still viable is dubious, but in any event it is inapplicable

here.

This case is not an action for a building permit, and there was no change in the

law either during the development of the facts that underlie this litigation, or after this

litigation was filed. See also City Council of City of N. Miami Beach v. Trebor Constr.

Corp., 296 So. 2d 490, 491 (Fla. 1974) (concluding that two DCAs had both applied the

building code in effect when suit was filed, and therefore finding no conflict between the

districts and no jurisdiction to review the decisions). And when Bal Harbour concluded

that the law in effect when the alternative writ issued controls, it merely concluded that

the law in effect at the outset of the litigation controls. Cf. City of West Palm Beach v.

Knuutila, 183 So. 2d 881, 882 (Fla. 4th DCA 1966) (explaining that the alternative writ—

not the petition—serves as the petitioner’s complaint). Bal Harbour is inapposite and

certainly does not imply that a case cannot cease to be a live controversy, in whole or in

part, after an alternative writ issues.

This Court’s Alternative Writ gave UCF the option to produce responsive records

within ten days, or to show cause why a peremptory writ of mandamus should not issue.

UCF produced all responsive records within ten days. Therefore, in accordance with the

plain terms of the Court’s Alternative Writ, a peremptory writ should not issue.

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c. KNI’s claims for declaratory and injunctive relief are moot for the same reasons as its request for mandamus relief.

KNI’s requests for a declaration and injunction rise and fall with UCF’s alleged

refusal to produce the public records that KNI requested. See Pet. at 18. But no

documents remain to be produced, and “[n]either mandamus nor injunctive relief is

available to require the performance of a futile act.” Migliore v. City of Lauderhill, 415

So. 2d 62, 65 (Fla. 4th DCA 1982).

Any declaration or injunction issued by this Court would be useless and have no

practical effect. Santa Rosa Cty. v. Admin. Comm’n, Div. of Admin. Hrgs., 661 So. 2d

1190, 1193 (Fla. 1995) (“[A]bsent a bona fide need for a declaration based on present,

ascertainable facts, the circuit court lacks jurisdiction to render declaratory relief. . . .

Florida courts will not render, in the form of a declaratory judgment, what amounts to an

advisory opinion at the instance of parties who show merely the possibility of legal injury

on the basis of a hypothetical state of facts which have not arisen and are only

contingent, uncertain, and rest in the future.” (internal marks omitted)).

Florida law prohibits such ineffective relief. “It is the function of a judicial tribunal

to decide actual controversies by a judgment which can be carried into effect, and not to

give opinions on moot questions, or to declare principles or rules of law which cannot

affect the matter in issue.” Apthorp v. Detzner, 162 So. 3d 236, 241 (Fla. 1st DCA 2016)

(quoting Montgomery, 468 So. 2d at 1016–17). The only remaining live controversy

between the parties is whether KNI is entitled to an award of attorney’s fees.

WHEREFORE, UCF respectfully requests the Court to render an Order

discharging the Alternative Writ of Mandamus and setting a hearing on UCF’s pending

motion to strike KNI’s alleged claim for attorney’s fees.

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Respectfully submitted this 1st day of March, 2019.

/s/ Richard E. MitchellRICHARD E. MITCHELL, ESQ. Florida Bar No.: 0168092 [email protected] [email protected] ANDY BARDOS, ESQ. Florida Bar No.: 822671 [email protected] [email protected] GRAYROBINSON, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 (32802-3068) Orlando, Florida 32801 (407) 843-8880 Telephone (407) 244-5690 Facsimile Lead Trial Counsel for UCF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 1st day of March, 2019, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic filing to all registered users.

/s/ Richard E. MitchellRichard E. Mitchell, Esq. GrayRobinson, P.A.

EXHIBIT “1”

EXHIBIT “2”

1

Maryann Hamby

From: Justin Hemlepp <[email protected]>

Sent: Tuesday, February 19, 2019 3:00 PM

To: [email protected]

Cc: Richard ("Rick") E. Mitchell, Esq.; Andy Bardos; Knight News Sales

Subject: Re: 19-CA-925-O > Proposed order, etc.

Attachments: 20190219 Proposed Writ of Mandamus.docx

This message originated outside of GrayRobinson.

Attached proposed order in MS-Word. Sorry. Thanks. -jh

-- Justin S. Hemlepp, Esq. Attorney

J.S. Hemlepp, P.A.Phone: (813) 438-6103 E-mail: [email protected]

This communication may be privileged and confidential and is intended only for the person(s) to whom it is directed. It may contain information that is sensitive, private and covered by various legal privileges. If you have received this by mistake, please do not read it or copy it. Please delete it immediately and notify the sender at the address and telephone number indicated (including your e-mail address so that we may correct any erroneous information we may have). We do not provide legal advice over the internet or in e-mails, nor will we agree to represent a party through e-mail.

From: Justin Hemlepp Sent: Tuesday, February 19, 2019 2:49 PM To: [email protected]: Richard (Rick) E. Mitchell, Esq.; Andy Bardos; Knight News Sales Subject: 19-CA-925-O > Proposed order, etc.

Mrs. Shorten:

Per our conversation this morning, I have attached and will have hand delivered ASAP tomorrow the attached cover letter and:

- Knight News’s February 18, 2019 Reply to Response to Writ of Mandamus and Motion to Strike - Notice of Filing and Amended Declaration of Sean Lavin (Exhibit 4 to above filing) - Proposed Writ of Mandamus and Partial Final Judgment (in MS-Word)

Please let me know if I can be of further assistance. Thank you. Best: -jh -- Justin S. Hemlepp, Esq. Attorney

J.S. Hemlepp, P.A.Phone: (813) 438-6103 E-mail: [email protected]

2

This communication may be privileged and confidential and is intended only for the person(s) to whom it is directed. It may contain information that is sensitive, private and covered by various legal privileges. If you have received this by mistake, please do not read it or copy it. Please delete it immediately and notify the sender at the address and telephone number indicated (including your e-mail address so that we may correct any erroneous information we may have). We do not provide legal advice over the internet or in e-mails, nor will we agree to represent a party through e-mail.

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

CIVIL DIVISION

KNIGHT NEWS, INC., Petitioner,

v.

THE UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, Respondent. /

Case No: 19-CA-925-O

WRIT OF MANDAMUS AND PARTIAL FINAL JUDGMENT

THIS MATTER, having come before the Court on Respondent THE UNIVERSITY OF

CENTRAL FLORIDA BOARD OF TRUSTEES (“UCF”) February 7, 2019 Response to

Alternative Writ of Mandamus and Motion to Strike Knight News’s Claim for Attorney’s Fees,

and Knight News’s February 18, 2019 Reply to Response to Alternative Writ and Motion to

Strike. After reviewing the file and otherwise being advised in the premises, this Court finds that:

1. Knight News filed its Petition for Writ of Mandamus and Complaint to Enforce the

Public Records Act (“Petition”) on January 23, 2019.

2. This Court on January 28, 2019 entered an Alternative Writ of Mandamus finding that the

Petition stated a prima facie claim for relief under the Public Records Act, Ch. 119, Fla. Stat.,

and incorporating the Petition by reference.

3. This Court made the following findings of fact in the Alternative Writ of Mandamus:

a) Knight News made a lawful request on September 25, 2018 to (“UCF'), for "any

public record identifying whether someone from the general counsel's office was

present during the board of trustees meeting where Trevor Colbourn Hall funding

was approved, as well as the facilities committee meeting where it was favorably

recommended." Knight News also sought "all UCF VP calendars . . . from two

weeks before and after the date the BOT approved Trevor Colbourn Hall funding."

b) UCF responded "[T]here are no responsive documents" concerning the request for

records that would show whether anyone from the Office of General counsel

attended the meetings in question. However, UCF on January 18, 2019 released

online public records that Knight News alleged were responsive to Knight News's

September 25, 2018 request as well as an investigative report that references other

public records not released online that may be responsive to the request.

c) UCF did produce some requested calendars, but none from Vice President Scott

Cole, UCF's general counsel, from two weeks before and after the date the UCF

Board of Trustees approved Trevor Colbourn Hall funding.

4. The Court therefore ordered UCF to either disclose to Knight News the public records

described below which may be responsive to Knight News's September 25, 2018 request or show

cause why that relief should not be granted:

a) Audio recording of the April 3, 2014 Finance and Facilities Committee meeting;

b) Minutes, if any, of the May 22, 2014 Board of Trustees meeting;

c) Audio recording, if any, of the May 22, 2014 Board of Trustees meeting;

d) Video recording, if any, of the May 22, 2014 Board of Trustees meeting;

e) Calendar entries, if any, from Vice President Scott Cole from two weeks before

and after the date the Board of Trustees approved Trevor Colbourn Hall funding;

and

f) Any other public records in UCF's custody that are responsive to Knight News's

September 25, 2018 public records request.

5. UCF on January 25, 2019, before the Alternative Writ was entered but after suit was filed,

disclosed to Knight News agendas and minutes from the Board of Trustees and Finance and

Facilities Committee.

6. UCF on January 29, 2019 disclosed to Knight News an audio recording of the April 3,

2014 Finance and Facilities Committee meeting. The recording cuts off before the meeting’s

conclusion. UCF offered no explanation, sworn or otherwise, for the incomplete recording.

7. On February 7, 2019, UCF filed an unsworn Response to the Alternative Writ of

Mandamus and a Motion to Strike Knight News’s claim for attorneys’ fees. Attached to UCF’s

response were several public records. UCF also disclosed other public records to Knight News,

and Knight News filed those records with the Court attached to its February 18, 2019 Reply to

Response to Writ of Mandamus and Motion to Strike.

8. Having reviewed these filings, the Court finds an evidentiary hearing is unnecessary. See

Holcomb v. Dept. of Corrections, 609 So. 2d 751, 753 (1992).

9. The Court also finds that some of the public records disclosed by UCF are responsive to

Knight News’s September 28, 2018 public records request. Those records are:

a) Minutes of the April 3, 2014 Finance and Facilities Committee meeting;

b) An excerpt of Vice President Scott Cole’s 2014 calendar;

c) Several excerpts from the 2014 calendars of other employees of the Office of

General Counsel;

d) An attendance sign-in sheet from the May 22, 2014 Board of Trustees meeting; and

e) The audio recording of the April 3, 2014 Finance and Facilities Committee meeting.

10. Accordingly, UCF’s September 28, 2018 denial that public records responsive to Knight

News’s request existed is an unlawful refusal to disclose records pursuant to the Public Records

Act. Ch. 119, Fla. Stat.

11. Notice of Knight News’s public records request was in writing and sent to a UCF records

custodian more than five days before filing suit, in accordance with Section 119.12, Florida

Statutes. The statute does not provide an opportunity to cure unlawful refusals to disclose public

records. Knight News therefore had no duty to submit a second written notice of the request

before filing suit or seeking an award of attorneys’ fees.

12. Having made the above findings of fact, the Court need not address Knight News’s

challenge to the constitutionality of Section 119.12, Florida Statutes, as amended in 2017.

It is therefore ORDERED AND ADJUDGED

A. Knight News’s Petition for Writ of Mandamus is GRANTED;

B. UCF shall within 48 hours disclose to Knight News any outstanding or incomplete

public records, if any, that are responsive to Knight News’s September 25, 2018 records

request and/or submit an affidavit or declaration under oath confirming that all

responsive records in UCF’s custody or control have been disclosed;

C. UCF’s Motion to Strike Knight News’s Claim for Attorneys’ Fees is DENIED;

D. Knight News’s request for an award of reasonable attorneys’ fees and costs pursuant to

Section 119.12, Florida Statutes, is GRANTED;

E. This Court reserves jurisdiction to award such reasonable fees and costs upon proper

motion by Knight News.

DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this the

____ day of February, 2019.

__________________________________ Lisa T. Munyon Circuit Judge

Conformed copies to: Justin S. Hemlepp, Esq. - [email protected] Rick Mitchell, Esq. – [email protected] Andy Bardos, Esq. – [email protected] Wells, Esq. – [email protected]

in the circuit court of the ninth judicial circuit in … · 3/1/2019 · 1240 (fla. 1st dca 2001)...

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