The run of bad luck in court for environmentalist Maggy Hurchalla and her team continued Wednesday when the Fourth District Court of Appeal in West Palm Beach concluded Circuit Judge William Roby properly excluded the mediation meeting from Hurchalla's public records request for the South Florida Water Management District's shade meeting transcripts.
The ruling is likely a crushing blow for the Hurchalla team, now responsible for all court costs and attorney fees in the case under a new Florida law written to prevent "frivolous" public records requests of state agencies.
The case centered around a confidential mediation meeting Aug. 23, 2017, by members of the SFWMD governing board and their attorneys to settle the Lake Point Restoration project lawsuit. Hurchalla and her attorney, Virginia Sherlock, attorney and former Martin County Commissioner Donna Melzer, and attorney Richard Grosso of the Everglades Law Center had submitted several requests for the meeting transcript. They were denied, and they subsequently sued under the public records law.
The three-judge panel's review concluded that Martin County's Judge Roby was correct in his interpretation of Florida statutes, that mediation communications are excluded from Florida public records law.
Roby had denied access to the transcript of the mediation meeting in January 2018, after the District, which agreed to around $6 million in concessions to Lake Point, and Martin County, which agreed to pay Lake Point $12 million in damages, settled Lake Point's lawsuit for breach of contract.
Lake Point went on to court against Hurchalla for interfering in those contracts and was awarded $4.4 million in damages by a jury in February 2018, a ruling upheld by the appeals court.
The appellate court, which also denied Hurchalla's, Melzer's and Grosso's motion for Lake Point to pay their attorney fees, reversed the lower court's ruling in order to allow further review, however, stating that Roby had erred in not reviewing the SFWMD transcript himself first to determine “if redactions of claimed mediation communications are appropriate.”
Public Records Laws at Center of Controversy … Again
Public records requests have been at the center of the Lake Point case since 2013, as the rock mining/water restoration project sought evidence in its case against Hurchalla for interfering in agreements with SFWMD and Martin County.
In Lake Point's civil lawsuit, the county was sanctioned $502,000 for failing to fulfill Lake Point's multiple public records requests for more than a year, but criminal charges against the three commissioners directly involved later fizzled.
The state attorney's office recently dropped charges against former commissioners Anne Scott and Ed Fielding for violating public records laws after they failed to get a conviction of Commissioner Sarah Heard, who claimed that her public records had been destroyed through a hacking of her Yahoo account.
The public records requests initiated by the Everglades Law Center, Hurchalla and Melzer, as well as 17 Martin County residents, all sought a copy of one specific meeting transcript, the Aug. 23, 2017 mediation meeting among the South Florida Water Management District officials and its lawyers regarding the District's settlement of Lake Point lawsuit in 2013.
As soon as the District's board approved the terms -- immediately after the executive session Aug. 23 ended -- the settlement agreement was made public, raising the ire of some critics for giving Lake Point an additional 30 years on its 20-year contract to mine rock and other concessions.
The Law Center challenged the circuit court's ruling in January, taking the question before the 4th District Court of Appeal in April 2018. They asked if the state's Chapter 44 mediation laws take precedence over its Chapter 119 public records laws. They also cite Chapter 286 statutes that govern shade meetings by public agencies, which state that transcripts must be made public after litigation ends -- including those of mediation meetings.
The appellate judges ruled that mediation is excluded, and now the case awaits Roby's review to determine if the disputed transcript is, indeed, a mediation meeting.
Another Lawsuit on Hold?
The District had filed a separate lawsuit against Melzer asking for the court's review based on a new law that hit Florida's books in July 2017 designed to protect public agencies from “frivolous” public records requests or those made “with improper purposes.”
If a civil action is filed now against a public agency for failing to respond to a public records request, the agency can be protected from the court costs and attorney fees of the requestors by showing the court that the request was frivolous or made with “improper purposes.”
The District asked the court to award them attorney fees and costs should the District prevail in court under the new amendment to Chapter 119. The District did not drop its lawsuit after Melzer appealed the circuit court's ruling to the appellate court.
Frivolous Public Records Requests in 2018?
Here is a 2018 timeline, the most active period of the case:
Jan. 19: Donna Melzer files a petition for a writ of mandamus in Palm Beach County, demanding that the South Florida Water Management District release all five meeting transcripts within 48 hours, including the one held back due to its mediation status, and that she should be awarded costs and attorney fees. The court denied her petition. She asked for a re-hearing on the issue, which the Palm Beach County Court also denied.
Jan. 24: The Martin County circuit court grants the Water Management District permission to resubmit its motion for declaratory relief, which would reflect the updated circumstances, and add its affirmative defenses in response to the Law Center's demand to force the District to hand over the transcripts.
Feb. 20: Maggy Hurchalla files a motion to have Roby disqualified in the SFWMD v. Everglades Law Center case over the public records requests, charging him with bias. Roby denied her motion Feb.22.
Feb. 27: The District gives notice to the Law Center and Hurchalla that if they filed no objection, the District was prepared to send subpoenas to all 17 citizens to ask for copies of any and all correspondence with the Law Center and/or Hurchalla and/or any other party regarding the SFWMD meeting transcripts that were the subject of their public records requests.
March 6: The court denies the Law Center's petition that would force the District to hand over the Aug. 23 transcript in answer to public records requests.
March 22: Roby quotes a portion of Chapter 44 of the Florida Statutes in his ruling: "All written communication in a mediation proceeding other than an executed settlement agreement shall be exempt from the requirements of Chapter 119." Said Roby, “I may not like the law, but I have to follow the law.”
He ordered that any transcripts of the District's mediation meetings that took place from April 4, 2017, when he ordered all parties to mediation, and Jan. 11, 2018, when global mediation was reached among all parties, would be exempt from public records laws. He ordered that the transcript of his ruling be filed for public viewing in the case's court docket.
April 19: The Law Center appealed the circuit court's decision to the 4th District Court of Appeal.
April 24: The SFWMD suspends its case in Martin County against Melzer to await the decision of the appellate court in the Law Center's case. If the District prevails, it announced at the time, the District will ask for its attorney fees and costs from Melzer, Hurchalla and the Everglades Law Center under the new amendment to Chapter 119 regarding frivolous public records requests.
Barbara Clowdus is editor and publisher of Martin County Currents newspaper.