STATE’S RESPONSE TO INTERVENORS’ EMERGENCY MOTION FOR WRIT OF MANDAMUS, FOR MANDATORY RELIEF TO COMPEL PERFORMANCE OF MINISTERIAL ACTS, FOR ATTORNEY’S FEES AND FOR IMMEDIATE HEARING COMES NOW, the State of Florida, by and through the undersigned counsel, and files this response to the Intervenors’ emergency motion for writ of mandamus as follows: (1) The Intervenors’ motion is directed to more than 185 hours

of jail phone calls.

A more detailed procedural history of public record production was set forth in the State’s response to Intervenor’s January 7, 2014 and January 9, 2014 motions filed in this Court. Additionally, the State’s email stream regarding public records, including the jail phone calls, was attached. 1


In its motion, the Intervenors assert, among other things,

that the State is in “blatant disregard” of this Court’s order and of the orders of the First District Court of Appeal. The motion also

contains an unwarranted and untrue personal attack on the elected State takes Attorney away of this the circuit. Such hyperbole is unprofessional, Intervenors’






motion and is completely inappropriate in any pleading filed before any court in this State. (3) with both Even so, in making a claim the State has failed to comply this court’s and the First District Court’s order, the

Intervenors simply ignore the fact that both this court and the First District Court of Appeal have determined that the Intervenors must pay costs of production in accord with Section 119.07(4), Florida

Statutes. order, the

Indeed, in the First District’s Order of January 17, 2014 Court explicitly wrote: “This order does not modify

petitioner’s requirement to comply with necessary payment and other administrative requirements provided in Chapter 119.” (First DCA

January 17, 2014 order). (4) In October 2013, the State offered the following

explanation to the media as to the costs to fulfill any request for Dunn’s jail phone calls: In order to review and redact witness information (and potentially other protected information – bank #s, ssn#), we estimate it will take Jessie 1.5 x the # of hours of calls to listen and redact any information revealing the identity of a witness pursuant to the Court’s Order. We also estimate it will take me .5 hours x the # of calls to review to make sure all confidential information was captured and redact any missed information. While we are extremely fortunate to have someone that makes only $10.94 an hour (1) have the understanding needed to understand the 2

public records law and application of that to the records, and (2) have the knowledge and skill to run a program to redact audio to. Nevertheless, my review is required to ensure that full compliance with the court order is achieved. It is not a simple – listen for social security number. As always, any costs invoiced will only be the actual cost to the agency to complete the request. Therefore, below is how we calculate the Take the # of hours of calls, multiply 1½, multiply that times 10.94, THEN Take the # of hours of calls, multiply ½, multiply that times 35.61, and add together. estimate: that total times that total times the two totals

For example: here is how we determined the estimate for all the calls. The total time of all jail calls: 185.8 hours: (185.8 x 1.5) x 10.94 = $ 3048.98 (185.8 x .5) x 35.61 = $ 3308.16 Total estimate: $6,357.142 (5) To date, neither the Intervenors nor anyone else for that

matter has paid the deposit.3 (6) Although implicitly acknowledging the State responded to

inquiries about the jail phone calls and that the Intervenors have not paid the deposit, the Intervenors submit that no such deposit, or even

The state offered to split the costs as well between any requestors so as to reduce cost assignable to each requestor. Additionally, while in October, the names of witnesses were not a public record based on a protective order of this Court, the time to review and redact will not be affected by the fact that witness names are no longer protected by this Court’s previous order. Each phone call must be reviewed and remaining confidential and exempt information redacted (confessions, bank account numbers, social security numbers, etc). Any monies from the deposit not expended will be refunded.

Intervenors claim that on January 24, 2014, it contacted a representative of the state and offered to pay for a copy of the recorded conversations. (page 5, para 12) Although Intervenors do not directly say so, such an assertion implies the State is required to turn over the discs without redacting any confidential and exempt information that may be on the recordings. Intervenor is mistaken. Indeed, the State is obligated by law not to release confidential information. Chapter 119.10 Florida Statutes. 3

any payment at all, is necessary because the telephone calls have already been reviewed for public records purposes. Intervenors point

to the transcript from the November 7, 2013 chambers conference before with this court in alleged support of this claim. However, a close In

look at the transcript does not support Intervenors’ allegations. pertinent part, the colloquy went like this: Court: So have you gone through all 180 hours of these calls? No, we haven’t – We have.

Ms. Difranza: Ms. Corey:

She hasn’t.

Ms. DiFranza: Court:

You mean for public records? So you have for discovery purposes--

Actually both. Yes, sir.

Ms. Corey: ….. Court:

But you guys have not started looking at it in terms of— Redaction, correct.

Ms. Corey: --(7)

While Intervenors claim the initial part of this colloquy

shows the State had reviewed and redacted the tapes by November 7, 2013, a plain and common sense reading of the colloquy shows to the contrary. What actually occurred is that the State Attorney answered

“Yes, sir” in response to the Court’s inquiry about the State’s review of the phone calls for discovery purposes. Shortly thereafter, Ms.

Corey made clear that this Office had not started looking at the recordings in terms of redaction because no advance payment had been received. (Intervenors’ Appendix A, page 22-23).



And while it is true that the State has reviewed the calls

for potential use at trial, logically an entirely different review process, the State has not begun to review and redact Dunn’s jail phone calls to comply with any public records requests. This is so

because no Intervenor has tendered the requisite deposit so as to require the state to do so. (9) Requiring a deposit before an agency is obligated to begin If it

work on a labor intensive public records request is logical.

were otherwise, an agency, at taxpayer’s expense, would be required to expend hundreds or even thousands of clerical and supervisory man hours with no assurance the requestor would reimburse the taxpayers for the amount of expended resources. (10) case law. Requiring a deposit is not only logical, it is supported by Indeed, it is now well-established that custodians of

public records may require a deposit before beginning work on a public records request. See 119.07(4)(a)1., Florida Statute (2013); Board of County Com'rs of Highlands County v. Colby, 976 So. 2d 31 (Fla. 2d DCA 2008); AGO 05-28; Lozman v. City of Riviera Beach, 995 So.2d 1027 (Fla. 4th DCA 2008)(recognizing that policy of requiring an advance deposit seems prudent given legislature's determination that taxpayers should not shoulder the entire expense of responding to an extensive request for public records.); Malone v. City of Satellite Beach, No 94-10557-CA-D (Fla. Cir. Ct. Brevard Co. December 15, 1995), per

curiam affirmed, 687 So. 2d 252 (Fla. 5th DCA 1997)(noting that a city’s requirement of an advance deposit was contemplated by the

Public Records Act and concluding that the city “was authorized to 5

require the payment of an advance deposit under the facts of this case before proceeding with the effort and cost of preparing the voluminous copies requested by the plaintiff.” ). (11) determined Both this court and the First District Court of Appeal have that Dunn’s jail phone calls are now a public record

because they have been tendered in discovery. Both this court and the First District Court of Appeal have determined the Intervenor(s) must pay the requisite fees so that the taxpayer will not shoulder the expense of the Intervenor’s public records request. (12) Because the Intervenor has not met the condition precedent

to require this Office to even begin its public records review of Dunn’s jail phone calls to redact confidential and exempt information, the Intervenor’s motion for writ of mandamus, as well as all other requested relief, is not well founded and should be denied. Respectfully submitted, ANGELA B. COREY STATE ATTORNEY /s/ Meredith Charbula ____________________ MEREDITH CHARBULA Fla. Bar #0708399 Office of the State Attorney 220 East Bay Street Jacksonville, Florida 32257 (904) 630-1212, Ext. 3127 (Phone) (904) 630-7025 (Fax) (Email)


In any event, an action to compel is inappropriate because such a motion would lie only if Intervenor had tendered the required deposit and this Office failed to comply with the request within a reasonable amount of time. 6


I HEREBY CERTIFY that a copy of the foregoing response has been furnished by email to George Gabel at, counsel for The Florida Times Union, Cory C. Strolla, counsel for the defendant, and Edward L. Birk, Esq., counsel for WJXT, Channel 4 at on this 27th day of January 2014.

/s/ Meredith Charbula ________________________ Meredith Charbula Assistant State Attorney

Cc: Judge Healey (


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