KNIGHT RIDDER, INC., AS PUBLISHER OF THE MIAMI HERALD, APPELLANT,
v.
DADE AVIATION CONSULTANTS, A JOINT VENTURE, APPELLEE
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Knight Ridder (Miami Herald) sued Dade Aviation Consultants for refusing to produce public records regarding lobbyist payments. The court had previously affirmed an order requiring disclosure, but now reverses the trial court's denial of attorney's fees and costs, finding the agency's refusal was unlawful and made in bad faith.
The court reversed the trial court's denial of attorney's fees and costs, holding that Dade Aviation Consultants could not have maintained a reasonable or good faith belief in its position to withhold the records. The agency's pattern of raising 'flimsy and transparent' excuses, combined with its deliberate withholding of facts from its legal counsel, demonstrated bad faith rather than good faith.
[1] Entitlement to attorney's fees under public records statutes is based on whether the agency had a reasonable or good faith belief in the soundness of its position in refu…
[2] An agency's belief in the soundness of its refusal to produce public records is not reasonable or in good faith when based on an opinion of counsel that was not provided…
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Join FLexlaw to unlock all legal intelligence“Entitlement to fees under the statute is based upon whether the public entity had a 'reasonable' or 'good faith' belief in the soundness of its position in refusing production.”
Establishes the legal standard for awarding attorney's fees in public records cases
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Join FLexlaw to unlock all legal intelligenceDade Aviation Consultants initially refused to produce public records showing payments to lobbyists, claiming various grounds for withholding the info…
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SCHWARTZ, Chief Judge.
In Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302 (Fla. 3d DCA 2001), we affirmed an order requiring Dade Aviation Consultants to produce public records of payments to its lobbyists to the Miami Herald. The trial court, however, denied the Herald costs and reasonable attorney’s fees claimed under section 119.12(1), Florida Statutes (2000),1 on the ground that the agency had not “unlawfully” declined initially to produce the materials. The Herald appeals and we reverse.
Entitlement to fees under the statute is based upon whether the public entity had a “reasonable” or “good faith” belief in the soundness of its position in refusing production. See New York Times Co. v. PHH Mental Health Services, Inc., 616 So. 2d 27 (Fla.1993); Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997); Harold v. Orange County, 668 So. 2d 1010 (Fla. 5th DCA 1996). We have no doubt that the trial court abused its discretion in determining that Aviation Consultants actually did or reasonably could have maintained any such position. The record shows directly to the contrary.
Although it had long recognized its obligations under Chapter 119 by providing indistinguishable records to the media on numerous occasions without objection, it attempted to withhold what it apparently regarded as the embarrassing information involved here, by raising — both before and during the litigation and in both the trial court and this one — one flimsy and indeed transparent excuse after another in defense of its position: a pattern of conduct which amounted to the very definition of stonewalling.
The correctness of our holding is perhaps best demonstrated by the fact that the factor upon which the appellee most heavily relies completely belies its position. Specifically, the primary, if not the only, basis for its claim of good faith is an opinion of “independent” counsel it secured to support its claim. The opinion, however, cannot serve this purpose because no “full and complete disclosure” of the operative facts upon which its legal conclusions depended was ever made to counsel. See Glass v. Parrish, 51 So. 2d 717 (Fla.1951); Adler v. Segal, 108 So. 2d 773 (Fla. 3d DCA 1959), cert. denied, 113 So. 2d 834 (Fla.1959); Williams v. Confidential Credit Corp., 114 So. 2d 718 (Fla. 3d DCA 1959); Paulk v. Buczynski, 106 So. 2d 100 (Fla. 2d DCA 1958). Indeed, it misled counsel by withholding, only for example, the actual agreement between the consultants and the lobbyists which demonstrated that their duties were in fact not related to any private function, as counsel opined. See Dade Aviation Consultants, 800 So. 2d at 302. Thus, in this, and in many other respects as well, the opinion was based on assertions known to Aviation Consultants to be contrary to the actual facts. In these circumstances, we apply the rule that attempts such as this to create a false basis for one’s legal position not only do not demonstrate good faith, see United States v. Condon, 132 F. 3d 653 (11th Cir.1998), cert. denied, 523 U.S. 1088, 118 S.Ct. 1547, 140 L.Ed.2d 694 (1998), but provide affirmative evidence of actual criminal responsibility. Douglas v. State, 89 So. 2d 659 (Fla.1956); Walker v. State, 495 So. 2d 1240 (Fla. 5th DCA 1986); Brown v. State, 391 So. 2d 729 (Fla. 3d DCA 1980); 2 Wigmore, Evidence § 278 (Chadbourn rev.1979).
The order under review is reversed and the cause remanded with directions to make an appropriate award of attorney’s fees and costs.
Reversed.
. 119.12 Attorney’s fees.—
(1) If a civil action is filed against an agency to enforce the provisions of this chapter and if the court determines that such agency unlawfully refused to permit a public record to be inspected, examined, or copied, the court shall assess and award, against the agency responsible, the reasonable costs of enforcement including reasonable attorneys' fees.
Cases With Similar Vibessemantic neighbors from the corpus
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Bd. OF Trs. v. LEE, 189 So. 3d 120 (Fla. 2016)…. See Althouse v. Palm Beach Cty. Sheriff’s Office, 92 So. 3d 899, 902 (Fla. 4th DCA 2012); Greater Orlando Aviation Auth. v. Nejame, Lafay, Jancha, Vara, Barker, 4 So. 3d 41, 43 (Fla. 5th DCA 2009); Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So. 2d 1268, 1269 (Fla. 3d DCA 2002). We have jurisdiction to resolve this conflict. See art. V, § 3(b)(3), Fla. Const.1 In accordance with ease law liberally construing the Public Records Act in favor of open access to public records, the reasonable statutory…
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Althouse v. Palm Beach Cnty. Sheriff's Off., 92 So. 3d 899 (Fla. 4th DCA 2012)…a person is entitled to fees and costs under section 119.12, is a matter of law reviewed de novo and, per the statute, depends on whether the agency’s refusal was lawful.1 Instructive in this case is Knight Ridder Inc. v. Dade Aviation Consultants, 808 So. 2d 1268, 1270 (Fla. 3d DCA 2002), which provides that “[ejntitlement to fees under the statute is based upon whether the public entity had a ‘reasonable’ or ‘good faith’ belief in the soundness of its position in refusing production.” [*902] In the instant…
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Greater Orlando Aviation Auth. v. Nejame, 4 So. 3d 41 (Fla. 5th DCA 2009)…from production. 49 C.F.R. § 26.67(a)(2)(v). Finally, we deny Nejame, Lafay’s request for attorney’s fees as we conclude that GOAA did not act unreasonably or in bad faith in refusing production. See Knight Ridder, Inc. v. Dade Aviation Consultants, 808 So. 2d 1268 (Fla. 3d DCA 2002); WFSH of Niceville v. City of Niceville, 422 So. 2d 980 (Fla. 1st DCA 1982). AFFIRMED in part; REVERSED in part; and REMANDED. GRIFFIN and COHEN, JJ., concur. . Though styled as a complaint for injunctive relief, substantively…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- Glass v. Parrish, 51 So.2d 717 (Fla. 1951)
- Mervin Brown v. State, 391 So. 2d 729 (Fla. 3d DCA 1980)
- The NEW York Times Co. v. PHH Mental Health Servs., Inc., 616 So. 2d 27 (Fla. 1993)
- Mel Adler v. Zeke Segal, 108 So. 2d 773 (Fla. 3d DCA 1959)
- United States v. Condon, 132 F.3d 653 (11th Cir. 1998)
- Emmett v. State, 89 So. 2d 659 (Fla. 1956)
- Stanfield v. Salvation Army, 695 So. 2d 501 (Fla. 5th DCA 1997)
- Williams v. Confidential Credit Corp., 114 So. 2d 718 (Fla. 3d DCA 1959)
- Paulk v. Buczynski, 106 So. 2d 100 (Fla. 2d DCA 1958)
- Walker v. State, 495 So. 2d 1240 (Fla. 5th DCA 1986)