ECUA Public Records Judgment

8/17/2019 ECUA Public Records Judgment

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IN

THE

COUNTY

COURT

IN AND FOR

ESCAMBIA COUNTY,

FLORIDA

KYLE

KOPYTCHAK,

EMERALD

COAST

UTILITIES

AUTHORITY dba

ECUA,

Defendant.

Plaintiff,

vs.

Case

No.

Division

2015

CC

002651

5

FINAL JUDGMENT

At

a hearing

in

open

court

on

April

L8,20L6,

the

parties

appeared with

counsel.

Plaintiff

filed

this action

seeking

a

Declaratory Judgment

and lnjunctive

relief. Plaintiff,

an Escambia

County

resident

and

customer of

ECUA,

made

a

public

records

request for

information

related

to what

is

commonly

known

as the

back-flow

prevention

valve.

He

clearly

and

unambiguously

requested

an

estimate of

how

much

it would cost to

review

the

records.

Defendant

provided

a written guesstimate that the

agency

would

probably

require 3-4 hours

of time

by employees

paid

between

S18.00

to

S25.00/hour

to

gather

the

public

records

requested.

Plaintiff

replied

making

it absolutely

clear that

he

was

upset

and

discouraged

by

the

amount required

but

he

agreed

to

pay

obout

51,00.00

(SS+.OO

to

$L00.00

per

the

guesstimate)

to

reimburse costs

incurred

by

personnel

gathering

the

public

records

for his review. He understood and agreed

that

copy

costs would be

an additional expense.

lmagine his

surprise

when

presented

a

bill

and asked to

pay

nearly

S0OO.OO

before

he

could

review

the

public

records.

Section

119.07(l-Xa), Florida

Statutes

requires

an agency

such as defendant

to

permit

the

record

to

be inspected and copied by any

person

desiring

to

do

so, at any

reasonoble

time,

under

reosonable

conditions .

. .

An

agency

holding

public

records

may charge

a

special

service charge, which

sholl be

reosonoble

and shall be

based

on

the

cost incurred

for

such extensive use

of

information technology

resources

or

the

labor cost of the

personnel providing

the

service . .

.

See

$119.07(3Xd),

Florida

Statutes.

(Emphasis

added).

There

are

two

primary

issues

presented

to the

court. First, was

the

cost

ECUA

demanded

to

gather

the

public

records

reasonable

as required by

5119.07,

Florida

Statutes?

Second,

should the

defendant be

required

to

pay

a bill of nearly

5600.00

Filing # 40953194 E-Filed 05/02/2016 01:05:38 PM


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when

he

only authorized

554.00-5100.00

and made

it

clear

that

he

believed

$fOO.OO

to

be

his limited exposure

to

any

expense other

than

actual records to be copied?

The

custodian

of

public

records,

here ECUA, is required to

make

the

records

available

for

review

in

a

reosonoble

manner.

The

court finds

that the

defendant's

demand

for

SS9S.05

to

review

the

public

records regarding

the

back-flow

preventer

valve

to be

unreasonable. The

court further

finds

that the defendant's

decision

to

continue

to accrue expenses exceeding the

plaintiff's

554.00

-

S100.00

limited

approval

without first

notifying

him

to

be equally unreasonable.

The

plaintiff

wished

to examine the

public

records which

would

support

the

need

for

customers

to

expend significant

personal

funds

to

install

a

cross-connection

control device.

He

specifically and unambiguously asked the

defendant

to

respond

to

particularity

those

costs

associated

with

gathering

the records,

while acknowledging

his responsibility

to

pay

an additional

cost

for

any copies

desired.

See Defendant's

Exhibit #1.

Defendant replied in

writing

with

the

guesstimate

of

3-4

hours

at

518.00

to

S25.00/hour.

See

Plaintiff's

Exhibit

#1

-

C.

At no

time

did defendant ever

revise

the

estimate/guesstimate.

Certainly

defendant

was

on

notice that

plaintiff

did not

expect

to

pay

more

than about

5L00.00.

lt is unconscionable that

they continued

to accrue nearly

S600.00

in

costs

without first

notifying

the

customer/plaintiff

of the

additional

guesstimate

expense. The

defendant informed

the

plaintiff

it would

take

approximately

3-4

hours to

pull

the

records. ln fact,

it

took 24

hours. This is

not

an

insignificant increase in

time

and

expense. At

what

point

are

they

obligated

to

let the

plaintiff

know

that the

actual expense was exceeding

his

expectation and authorization?

Defendant argues they

had no obligation

to

update

the

amount

of time or expense

because

they

had

only

provided

a

guesstimate.

This

is

not

a

reasonable

position

for

the

custodian of

public

records.

Defendant

argues that the

public

records requested

are

not

held

electronically

and

therefore the

paper

records

must be

gathered

by

employees

in

various

departments or

divisions

throughout

the agency.

Defendant

also testified that

only high

level

employees

had

access

to

the

public

records

the

plaintiff

wished

to

review

so the

hourly

rate

properly

reflected

the

cost.

For

example,

when informed

that

he

would

have

to

pay

$fa.OO

to

S25.00/hour

to

employees

to

gather

the

public

records

for

his

review, the

plaintiff

added

a

request

to

see the last

fifteen

invoices reflecting

what ECUA

charged

others for

public

record

demands.

He was

obviously disturbed

by the

anticipated cost to review

public

records

and

was looking

for

a

pattern

of abuse.

According

to the testimony

presented,

the

only

person

who

could

gather

those

invoices

wastheExecutiveAssistanttotheBoardwhocharged52g.65/hourtopull

invoices.

She

billed four hours for her work in

gathering

the

public

records for

plaintiff.

lt

is


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unreasonable

in this

day

and

time that

mere

invoices

were not

easily accessible

at a

minimal

charge

(if

any).

lnstead, Ms. lverson

testified that

she had

to

manually search

through

years

of

paper

records

to

find

fifteen

invoices.

Here

the

citizen

making a simple

public

records request to

review

public

records invoices

is

essentially

punished

financially because

the

agency

is

technologically

dated/deficient

or

denied access

if he

is

financially unable to

pay

Szg.0s/hour

for access.

ECUA's

actions arguably create a

means

of

discouraging

public

record

demands.

By

charging such an

extremely high

hourly

rate to

gather

documents,

by

not having their

records

easily

accessible

through electronic

means, the average

customer could

be kept

from making

public

records

requests

because

they

quite

simply cannot offord

to review

the records.

Being

the

public

agency

providing

water

and sewer

services, means also

having

the

responsibility

to

make

the

public

records

accessible

to the

reasonable

average

person.

Requiring nearly

S0OO.OO

before

permitting

a customer to

review

the

public

records supporting

a

high

profile,

media-covered,

new and

expensive

requirement of

their customers

seems

unreasonable

per

se;

a violation of

the

public

trust.

The

court

finds

from the testimony

presented,

exhibits

admitted

and argument

by

counsel,

that

the

defendant's

actions

were unreasonable

and violated

5119.07,

Florida

Statutes.

The

plaintiff

should

not

be required to

pay

S595.65.

He

should

have

been

given

an opportunity

to withdraw his request or make other arrangements

once

it

became obvious to

ECUA

that

they could not

fulfill

his

public

records request

for

about

554.00

to

5100.00.

Furthermore,

the

court finds

that

it is unreosonoble

to

require

an

individual

making

a

public

records request

regarding

an issue

which

is current

ond

controversiol to

pay

such

an unreasonablely

high

amount

to

merely review

the

public

records.

While

the court

does

not

reach the

issue

of

whether

or not the

agency

intended

to

discourage

public

record

review by

failing

to make

the records

easily

and

reasonably

accessible,

certainly they

cannot

essentially

withhold

public

records

from

the

public

by making

it financially

difficult if

not impossible

to have

access.

lf

ECUA

elects

not

to take

advantage

of

technology

to make

their

public

records

easily

and

inexpensively

accessible

they

should

at the very

least

not

attempt

to

pass

the

expense

to manually

pull

the records

on to

those

entitled

to

access.

Therefore

it

is

ORDERED

AND

ADJUDGED

that

the

request

for

SSgs.e5

to

gather

the

public

records

in

this

case was

unreasonable

and in

violation

of

$119.07,

Florida

Statutes.

FURTHER

ORDERED

that

the invoice

for

payment

presented

by

defendant

to

plaintiff

for

gathering

the

public

records

in

the amount

of

5595.65

is

unreasonable

and

invalid

as

a matter

of

law

in

violation

of

g119.07,

Florida

statutes.


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FURTHER

ORDERED

the court

retains

jurisdiction

over

the

issue

of attorney's

fees

and

costs.

DONE

AND

ORDERED

this

30th

day

of

April 20

bers, Pensacola,

Escambia

County,

Florida.

cc

J. Alistair

McKenzie,

Attorney

for

Plaintiff

Richard D. Barlow,

Attorney

for Defendant

ECUA Public Records Judgment

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