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Filing # 81112941 E-Filed 11/21/2018 11:28:48 AM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA Case No.: 2018-034893 STEVEN MIRO Plaintiff, Expedited Treatment v. Required by Statute CITY OF MIAMI & JOE CAROLLO Defendants. / PLAINTIFF'S MOTION TO DECLARE PLAINTIFF THE PREVAILING PARTY NTITLING HIM TO FEES AND COSTS Plaintiff Steven Miro hereby files his Motion to Declare the Plaintiff the Prevailing Party Entitling Him to Fees and Costs (the “Motion”) 1, This lawsuit was filed under the Public Records Act (the “Act”) to compel compliance with the production of documents, Initially the City was the only defendant. No responsive documents were produced prior to the lawsuit. The lawsuit itself was filed 11 weeks after the PPR was made in writing and only after repeated emails to the City requesting the documents. No explanation for the delay was ever provided prior to the filing of this lawsuit. 2. Once this lawsuit was filed, the City asserted for the first time that Carollo personally, not the City, was the proper defendant and custodian of the requested documents, and that it was incumbent upon the Plaintiff to sue Carollo personally. The City asserted (and provided evidence) that Carollo was not cooperating with the PRR and the City suggested an order be entered, or at least that it be made clear that an order would be entered, that would allow it to convince Carollo to cooperate with the PRR. Carollo was reluctantly added by the Plaintiff as a co-defendant in light of the City’s defense. KAPLAN YOUNG & MOLL PARRON, 600 Brckll Avenus, Suit 171, Miani, Hide 39131, 308 330.6090 3. After this lawsuit was filed on October 15, 2018, the City searched for and produced several text messages responsive to the PRR (request number 1). (Presumably the Defendants have now produced all responsive documents to this request number 1, although they have not clearly stated as such). There is no way to know what text messages were deleted prior to Carollo kowing they were the subject of a PRR. 4, After this lawsuit was filed on October 15, 2018, the City conducted a search on or about November 2, 2018 for responsive emails to the PRR (request number 2). Carollo’s chief of staff, Richard Blom, executed an affidavit on or around November 2, 2018 indicating that the search was conducted on November 2, 2018. There is no way to know what emails were deleted prior to Carollo knowing they were the subject of a PRR. 5. After this lawsuit was filed on October 15, 2018, the City indicated that there were no responsive documents to item 3 on the PRR. Carollo apparently made his own PRR on the City in June 2018, but the City (for reasons never explained) never conducted any search or production in response to Carollo’s PRR. 6. It took the filing of this lawsuit for the City to search for and produce the requested public records. To be clear, they City never even searched for the documents until this lawsuit was filed 11 weeks after the PRR was made in writing to the City 7. Asa matter of law, Plaintiff “prevailed” within the meaning of the Act because it took the filing of this lawsuit to force the City to minimally comply with its statutory obligations (In light of the City’s tenuous argument that Carollo is the custodian of the records, itis not even clear if the City has in fact fully complied with its statutory obligations because no one knows what documents were deleted). KAPLAN YOUNG & MOLL PARRON, 600 Brickell Avent, Suite 1715, Miami, Horida 33131, 305 330.6050 8 “Ifa | action is filed against an agency to enforce the provisions of this chapter, the court shall assess and award the reasonable costs of enforcement, including reasonable attomey fees, against the responsible agency if the court determines that: (a) The agency unlawfully refused to permit a public record to be inspected or copied; ....” § 119.12(1) (emphasis added), The use of the word “shall” makes fees mandatory. 9. Attomey fees are available to a prevailing plaintiff in a PRR lawsuit in either of ‘two scenarios: This brief survey of the case law suggests that attorney's fees are awardable for unlawful refusal to provide public records under two circumstances: first ines that the nen a court deters reason proffered as basis deny a public records request is improper, and second, when the agency unjustifial fails to ‘respond to a public records request by delaying until after the enforcement action has been commenced. Office of the State Atorney for the Thirteenth Judicial Circuit of Florida v. Gonzalez, 953 So. 24 759, 764 (Fla, 2d DCA 2007). Only one of those scenarios need apply, but here both apply 10. Both scenarios apply here. First, the City’s proffered reason at the first two hearings in this matter was “we can’t” do the search because the City is not the custodian of record, This explanation or objection was never made prior to the filing of the lawsuit; it was an after-the-fact excuse that was made for the first time at the first hearing in this action, (In fact, prior to filing suit, the City was asked in writing if it was going to take the position that Carollo’s Hotmail account and his text messages were not public records of the City, but the City never responded at all to that inquiry and instead kept stalling). Also, as explained in the memorandum of law concerning custodianship, this is legally baseless. ‘The City is the custodian of records. And more importantly, in the end, the City did! conduct the search by having Carollo’s chief of staff Richard Blom conduct a search of Carollo’s private Hotmail account for responsive 3 KAPLAN YOUNG & MOLL PARRON; 60 Brickell Avenue Suite 71 koma i Miami, Hlrda 3131, 305.330.6090