A new scam: Public records shakedown
Bills filed to prevent more abuses
Strapping a video camera around his neck, Jeffrey Marcus Gray entered the offices of Lutheran Social Services of Northeast Florida on June 16, and secretly recorded conversations with employees. The room was where people in need of housing or mental health services or those suffering from AIDS waited for help.
The self-described “civil rights activist” said he only wanted to document his request for public records, and when Gray claimed he was denied those public records, he filed a lawsuit against the nonprofit corporation two weeks later, on July 1.
But Fourth Circuit Judge Jack M. Schemer called Gray’s actions “a baiting gesture meant to achieve personal financial gain; not a legitimate request for public records,” and “nothing more than a scam.”
According to Judge Schemer’s December 1 Final Order Denying Relief Under Public Records Act, Gray has been a plaintiff in 18 separate 2014 lawsuits involving public records requests in Duval County.
Abraham Shakfeh of Tampa, “is one of the lawyers that files these suits on behalf of Gray,” and Shakfeh pays Gray when he recovers attorneys’ fees in these cases, according to the judge’s order that also detailed that Shakfeh “has filed approximately 13 lawsuits seeking public records on behalf of Gray.”
The Florida Center for Investigative Reporting, a nonprofit news organization, found more than 140 lawsuits filed in 27 counties by the Citizens Awareness Foundation and sister organization Our Public Records LLC.
According to the FCIR, lawyers from the O’Boyle Law Firm, sharing the same address as the foundation, were used in all of the lawsuits reviewed. South Florida millionaire Martin O’Boyle founded the Citizens Awareness Foundation in January 2014, and loaned his son, Jonathan, a Pennsylvania lawyer not licensed in Florida, $400,000 to start the O’Boyle law firm a few weeks later, according to the FCIR. Both entities were housed in the office of Martin O’Boyle’s real estate development firm in Deerfield Beach.
The Florida Bar is investigating members of the law firm, and the foundation has since suspended operations.
The lawsuits took advantage of confusion surrounding a year-old change to Florida’s public records law requiring that private businesses contracting with public agencies must provide their records for public inspection. The predatory practice involved filing numerous public records requests against public and private agencies, and then suing for noncompliance with those requests.
In reaction to news of the public records shakedowns of business owners who contract with state and local governments, Sen. Wilton Simpson, R-Trilby, and Rep. Halsey Beshears, R-Monticello, filed Senate Bill 224 and House Bill 163.
“Many Florida business owners contract with and perform services for public agencies,” Simpson said. “Over the summer, I learned that across 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.”
Simpson called details uncovered by the FCIR “deeply troubling.”
“I am an unwavering supporter of comprehensive public access laws, so citizens can hold their government accountable,” Simpson said. “In these cases, though, it is clear that the rights of private citizens and hardworking business owners are being trampled by some unscrupulous people bent on getting rich off a new scam.”
In the case of Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc., according to the judge’s order, Gray asked to inspect and photograph the general insurance policy of LSS. When referred to a second employee, he asked for proof of insurance required by the contract with the Department of Children and Families Services. That employee said he believed that document was not subject to disclosure according to Chapter 119, Florida’s Public Records Act, and Gray should get it from DCF. The contract in question is that Lutheran Social Services would provide youth services to refugees living in Duval County.
Gray left the office without providing contact information, and he testified that he wanted “anonymity.” The next contact Lutheran Social Services had with Gray was when he filed the lawsuit on July 1.
“Oddly, Gray did not identify in his initial complaint the documents that he claimed were denied him,” Judge Schemer wrote in his order.
“At a preliminary hearing held September 1, 2014, Shakfeh, with Gray beside him, was unsure whether or not his client wanted more than what had already been provided to him. Nevertheless, LSS offered and the court ordered Shakfeh and Gray an opportunity to inspect documents.
“The means to request public records under Chapter 119, Florida Statutes, utilized by Gray were unreasonable and a flagrant abuse of the statute. Gray, in an effort to ambush LSS, purposely denied LSS any advance or written notice of his demands, purposely failed to provide any contact information, and purposely appeared on a busy work day in hopes of manufacturing an attorneys’ fee, to be shared with Gray. It was nothing more than a scam.”
Said Rep. Beshears: “In each case that I’ve reviewed, government agencies have the records that are being requested. Instead of simply asking the records custodian at the state agency, spam-like emails are sent or even worse, intimidating individuals wearing cameras go onto private property and make demands of office staff that have had no training in our public records laws.”
Said Beth Rawlins, president of Florida Business Watch, a nonprofit trade association for government contractors: “Such abuses have cost businesses and taxpayers hundreds of thousands of dollars; money that should have been spent providing services to citizens. This bill protects the citizen’s right to know, while also protecting contractors from bad actors scamming the system to line their own pockets.”
The proposed legislation requires a party filing action to “provide written notice of the public records request, including a statement that the contractor has not complied with the request, by certified mail to the public agency’s custodian of public records at least five business days before filing the action, and provide such notices to the contractor if the contractor is a named party in the action.”
Barbara Petersen, president of the First Amendment Foundation, who is an FCIR board member, expressed concerns to the FCIR that the proposed legislation may limit access to public records too severely. Her main objections are that a certified letter must be sent five days before filing a lawsuit and proving that a vendor willfully did not comply with a records request.