Two Florida legislators proposed bills this week in the state Senate and House that would amend the public records laws to protect private companies doing business with state agencies. Open records advocates say the bills as written would impede access to public records.
The legislation, filed by state Sen. Wilton Simpson and Rep. Halsey Beshears, follows a Florida Center for Investigative Reporting story on a nonprofit foundation and a law firm that allegedly engaged in a predatory practice of filing numerous public records requests against public and private agencies and then suing for non-compliance with those requests. The foundation has since suspended operations as the Florida Bar investigates members of the law firm.
“The Florida Center for Investigative Reporting (FCIR) uncovered details about these cases that are deeply troubling,” Sen. Simpson stated in a press release announcing the bills. “[A]cross Florida, individuals are approaching some of these businesses to make public records requests for only one purpose: creating confusion for the business owners that leads to frivolous lawsuits to obtain cash settlements.”
FCIR found more than 140 lawsuits filed in 27 counties by the Citizens Awareness Foundation and sister organization Our Public Records LLC. Lawyers from the O’Boyle Law Firm, which shares the same address as the foundation, were used in all of the lawsuits FCIR reviewed.
South Florida millionaire Martin O’Boyle founded the Citizens Awareness Foundation in January 2014. He also loaned his son Jonathan, a Pennsylvania lawyer not licensed in Florida, $400,000 to start the O’Boyle Law Firm a few weeks later. Both entities were housed in the office of Martin O’Boyle’s real estate development firm in Deerfield Beach.
Joel Chandler, the foundation’s executive director, quit six months into the job, saying he had concerns that coordination between the law firm and the foundation was unethical and possibly illegal.
Court records and internal communications reviewed by FCIR, along with interviews with Chandler, indicated there was pressure on the foundation to generate lawsuits for the law firm exclusively. The foundation’s board is made up of employees from the O’Boyle Law Firm and Martin O’Boyle’s development company.
The lawsuits took advantage of a year-old change to the state’s open records law stipulating that private businesses contracting with public agencies must provide their records for public inspection. Many businesses were unaware of this change. Chandler said he objected to the tactics used, but maintained that the records requests he filed that resulted in lawsuits were nonetheless lawful.
The Citizens Awareness Foundation filed so many lawsuits against private engineering and road-building companies that industry associations sent warnings to members.
“This bill protects the citizen’s right to know, while also protecting contractors from bad actors scamming the system to line their own pockets,” Beth Rawlins, president of the nonprofit Florida Business Watch, was quoted in Simpson’s press release as saying.
But Barbara Petersen, president of the Tallahassee-based First Amendment Foundation and an FCIR board member, thinks the proposed legislation limits access too severely.
“We have some concerns with the bill as drafted,” Petersen said. “We met with Sen. Simpson to discuss our concerns and we hope that we can find some middle ground.”
Petersen’s main objections involve requirements that a certified letter be sent five days before filing a lawsuit and proving that a vendor willfully did not comply with a records request.
Many open records advocates feared the Citizens Awareness Foundation controversy would give opponents an excuse to weaken Florida’s strong open records laws.
Meanwhile, the Florida Bar confirmed to FCIR that it is investigating several lawyers in the O’Boyle Law Firm. Jonathan O’Boyle is not licensed to practice law in Florida but can perform certain activities under supervision of a licensed Florida lawyer. According to Chandler, O’Boyle may have violated those restrictions.
A representative with the Florida Bar contacted FCIR and asked if a reporter would comply with a subpoena in their investigation. FCIR said the journalist would not comply, citing a policy of not allowing reporters to testify under oath.
Martin O’Boyle, who originally declined to speak with FCIR on the advice of his attorney, contacted the news organization after the story was published. He denied that the foundation was designed to profit from the lawsuits, and said the law firm had not made back the $400,000 he loaned his son to start it. He said his son did not violate Florida Bar rules.
“This is a good kid,” O’Boyle said. “He has said to me many times, ‘Dad, all I want to do is be a public records lawyer.’ That’s where his heart is.”
But because of the investigation, he said, there’s the possibility he won’t be able to practice in Florida. “Joel has taken that from him,” O’Boyle said.
O’Boyle also objected to Chandler’s assertion that the Citizens Awareness Foundation had to meet a specific lawsuit quota for the O’Boyle Law Firm. Foundation board member Denise DeMartini sent Chandler an email in April 2014 that read: “I am in the law meeting now and have been told that you have only provided eight new cases for this week. We were expecting a minimum of 25 a week.”
DeMartini told FCIR that she was simply responding to numbers Chandler had promised he would provide, but that there was no quota.
Chandler disputed this. “The intent of the email is clear on its face,” he said. “There was the expectation that I produce 100 lawsuits a month exclusively for the O’Boyle Law Firm.” It was one of the main reasons he quit, he said.
Following FCIR’s story, Citizens Awareness Foundation has stopped filing new lawsuits and funding has been suspended, according to Martin O’Boyle and DeMartini.
“With everything that’s going on, things have slowed down quite a bit,” DeMartini said. “We are re-evaluating what our future is going to be.”