Saturday, July 02, 2016
School Board Attacks Open Records Requester
St. Johns County School Board is continuing its legal attack upon records requester Jeffrey Marcus Gray. The Fool Board is wrong.
Left to right; Andrew Morgan, ex-Commissioner ERROL JONES and defense attorney PATRICK THOMAS CANAN, Esq. during JONES' jury trial.
Wealthy personal injury and criminal defense lawyer PATRICK "DUCKS" CANAN is St. Johns County School Board Chairman, a putative Democrat but in reality an undercover Republican who goes along with School Superintendent JOSEPH JOYNER on nearly everything, including suppressing Open Records requests, ignoring construction anticompetitive practices and not reporting them to antitrust enforcement officials and denying teacher raises.
St. Johns County School Board seeks validation of public records request policy
Posted: July 1, 2016 - 11:47pm | Updated: July 2, 2016 - 4:26am
By JAKE MARTIN
In the midst of a months-long dispute over public records requests, it would appear the St. Johns County School Board and a correspondent for web-based news site Photography is Not a Crime are in agreement on at least one thing: There is a problem that needs resolving.
Jeff Gray, a father of three children attending county schools, claims he’s an activist on a mission to get public agencies and the private companies they do business with to get their procedural act together and comply with Florida’s public records laws.
He says the St. Johns County School District’s policy does not comply with Florida’s statutory requirements, that it infringes on his right to access and obtain public records, and that he is, therefore, not required to follow the policy.
The School Board claims Gray’s refusal to follow the policy is “antagonistic and disruptive to the lawful, orderly and safe operation” of district schools and offices, that the policy is in compliance with state law, and that Gray has continually refused to cooperate because his interests are more about making money via lawsuits and YouTube posts than actually obtaining the records he’s requested.
In its lawsuit brought against Gray on Jan. 7, the School Board requests a definitive judicial declaration on the validity of the School District’s public records procedures; issuance of an injunction against Gray for continuing to defy them; and recovery, as damages for malicious prosecution and abuse of the process, of attorney fees incurred in the School Board’s successful defense of Gray’s lawsuit.
Gray claimed the School Board’s case against him is a strategic lawsuit against public participation — called a SLAPP — a lawsuit intended to censor, intimidate or silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.
However, Judge Howard Maltz of the 7th Judicial Circuit Court on April 14 ruled against Gray’s Dec. 29 anti-SLAPP motion for summary judgment and partially granted the School Board’s Jan. 19 cross-motion for summary judgment.
Deeming the School Board’s case against Gray reasonable, Maltz said there seemed to be a need for clarification and judicial determination given the nature of the case and the actors involved.
The School Board on May 23 filed a motion for an award of attorney’s fees against Gray by having prevailed on Gray’s motion for summary judgment on the SLAPP claim. According to backup documents, the School Board’s counsel, David Delaney and Frank Upchurch III, expended 71.1 and 60.1 hours respectively in the defense of the SLAPP claim for a total of $23,573.09, as well as $85 in court fees.
Gray on May 26 filed his answer and affirmative defenses to the School Board’s complaint, agreeing as to the controversy surrounding several events and the need for judicial resolution, but denying the School Board’s characterizations and conclusions.
As written in Gray’s affirmative defenses: “The Plaintiff comes to this court with unclean hands. The Plaintiff’s wrongful and illegal conduct precludes it from seeking relief and the claims for equitable relief should be dismissed.”
Gray said the School Board’s claims were “barred by illegality” as a result of what he called a failure to comply with the Public Records Act.
“The actions taken by the Defendant which are the subject of the Plaintiff’s complaint are either not prohibited or are authorized in whole or in part under the Constitution and statutes of the State of Florida,” his affirmative defenses said.
The School Board on June 23 filed a motion for partial summary judgment seeking a declaration its public records policy is lawful and valid as well as an injunction requiring Gray to comply with that policy.
Specifically, the School Board seeks a declaration that the district’s designation of the Community Relations Department staff to respond to public records requests is authorized by the Public Records Act, that its requirement for Gray to submit his requests to the department — as designee — is lawful, and that it is not a violation of the law to require members of the public who are making requests in schools to identify themselves and register as a condition of entering those schools.
“No one can seriously suggest that it is or should be necessary for a parent to contact CRD (the Community Relations Department) to obtain a copy of a school lunch menu, class schedule, master calendar or basketball schedule,” the motion said. “However, it is reasonable and, indeed, prudent and efficient, to refer complex, difficult or adversarial requests to the specialists at CRD (the Community Relations Department) in order to make sure they are handled efficiently and properly.”
In reference to the signing-in issue, the School Board said the intention is not to abridge access to public records but to control physical access to schools in the interest of student safety and security.
“If a member of the public is uncomfortable with the sign-in requirement, he or she could still make the request anonymously in person at District headquarters, or via telephone, email, fax, or mail,” the motion continued.
In terms of injunctive relief, the School Board seeks an order requiring Gray to submit all of his requests to the Community Relations Department, enjoining him from “attempting to harass or intimidate” district staff or disrupting or interfering with operations of district schools and offices, and enjoining him from violating the district’s Acceptable Use Policy as it relates to videotaping, audio recording and photographing in schools.
“Although Gray insists that the Public Records Act gives him the right to irritate and annoy government workers, they should not have to put up with being baited, badgered and belittled on YouTube under the banner of Gray’s public records crusade,” the motion said.
Gray had filed his complaint against the School Board on Oct. 14 claiming non-compliance with Florida’s public records law in the handling of an in-person request he made at the district’s Maintenance Department on Aug. 26 to inspect and photograph material safety data sheets there.
Gray said he was not permitted to inspect or photograph the records he requested that day, which he considered an unlawful breach in protocol and of his right to access the requested documents.
In its response, the School Board said Gray misdirected his request to a secretary it claimed had no responsibility for or authority over the requested records. It also said Gray’s complaint omitted mention that the Community Relations Department contacted him by email Aug. 28 offering to produce the records at the Maintenance Department office, where they are kept, and that Gray refused the offer.
There was some back-and-forth in the proceedings regarding the School District’s policy and whether it was reasonable to reroute Gray’s public records requests to the Community Relations Department, but, ultimately, Gray filed a notice of voluntary dismissal with prejudice of his case on Dec. 4, calling it a “strategic move.”
Superintendent Joe Joyner, in a sworn affidavit filed Jan. 19, said he made the decision to file the countersuit because of Gray’s “history of causing problems and disruption at District schools and offices, mainly stemming from public records requests.”
Gray argued the School Board’s suit against him was unfounded and served no purpose except to intimidate him from exercising his First Amendment rights and to suppress his investigations of the School District.
He referred to his investigation into the Nov. 18 crash along Interstate 95 involving Bus 268 that sent several Pacetti Bay Middle School students to the hospital and in which the bus driver, Joseph Sanks, 69, of St. Augustine, was cited for careless driving.
Gray’s related public records requests, obtained through the School District’s Transportation Department, revealed there was no pre-trip inspection form filled out before the crash.
“School bus safety and the integrity of public records are inarguably ‘public issues’ protected from assault by SLAPP suits,” Gray’s motion for summary judgment said. He cited five video-documented instances, filmed by Gray, of bus drivers allegedly not filling out pre-trip inspections.
Joyner, in his affidavit, said although he was aware Gray had approached bus drivers at R.B. Hunt Elementary on Dec. 4, he was not aware Gray was investigating bus inspection practices before filing the suit on Dec. 7.
The School Board claimed Gray’s right of access to public records is not a First Amendment right and, therefore, Gray’s claim the School Board filed suit to unlawfully limit his access to those records was not cognizable under anti-SLAPP statutes.
Motivation and litigation
While much of the School Board’s case against Gray has focused on his methods, it has also questioned his motivations.
The School Board, in its complaint, claims Gray was not interested in obtaining records but in scamming the School Board, “starting with catching an unsuspecting employee off guard and unprepared for his request.”
Barbara Petersen, head of the First Amendment Foundation of Florida, told The Record in a previous story that motivation is not to be considered a factor in processing a public records request.
“Why a person wants a record is none of government’s business,” she said.
But the School Board says Gray’s motivations are at odds with its responsibilities regarding the day-to-day operation and security of school facilities.
“Gray contends that he has the unconditional right to videotape on public property,” its motion for partial summary judgment said. “However, unlike a public street, sidewalk or park, a school is not an open public forum, where members of the general public are free to come and go, with video recorder or otherwise.”
Several instances in which Gray showed up at School District facilities making additional requests and filming or photographing school property resulted in trespass warnings against Gray issued by Joyner and each of the district’s school principals on Jan. 7, the same day as the School Board’s filing of its countersuit.
Gray was ordered to not come within 500 feet of any school, with limited exceptions, but, on March 14, deputies with the St. Johns County Sheriff’s Office arrested Gray on a single charge of trespassing after he was observed holding a sign just outside the fence at St. Augustine High School.
In a video of the arrest posted to his “HonorYourOath” YouTube channel, Gray, when asked what he was doing outside the school, told deputies he was “peacefully assembling and peacefully protesting.”
Gray has insisted he was not breaking the law by holding a sign and standing on a public sidewalk. He also said his trespassing order and the corresponding statute, as it pertains to “school safety zones,” has a clear exemption for protected First Amendment activity.
As written in Florida Statute 810.0975c(3): “This section does not abridge or infringe upon the right of any person to peaceably assemble and protest.”
The trespassing charge was dropped in April when the 7th Judicial Circuit State Attorney’s Office filed a memorandum stating a lack of evidence that met the standards for criminal prosecution.
“There is no evidence or testimony that could lead a person to a reasonable belief that Mr. Gray was preparing to commit a crime or was engaged in harassing students,” the memorandum said. “There is no testimony or evidence that Mr. Gray’s conduct disrupted or disturbed any of the students of St. Augustine High School on March 14, 2016.”
The memorandum also said a review of the legislative history of Florida Statute 810.0975 shows the law’s intent was to protect children via the 500-foot buffer zone so that “persons such as drug dealers, gang members, or pedophiles.”
“In the case at hand, there is no evidence to that would lead one to a reasonable suspicion that Mr. Gray was engaged in any of the conduct sought to be prohibited by Florida Statute 810.0975,” the memorandum said.
Gray says he’s been arrested four other times by other agencies and all charges related to those arrests were also dropped.
But some still question Gray’s motives and point to the extensive matters of litigation related to his self-styled activism that don’t stop at the School Board’s doorstep.
On May 10, Gray filed a lawsuit against SJCSO and four of its deputies with the U.S. District Court for the Middle District of Florida. Gray claims the four deputies — on 10 occasions — violated the federal Drivers Privacy Protection Act, which puts limitations on law enforcement officers accessing people’s information for non-law enforcement purposes.
Gray had told The Record he learned his information had been accessed more than 200 times by 30 different agencies by placing a public records request with the Department of Highway Safety and Motor Vehicles, asking for reports indicating how many times records attached to his driver’s license number and registrations for two of his cars had been looked at in the Driver and Vehicle Information Database, or DAVID.
While a number of SJCSO deputies were shown to have looked at his information, Gray said he singled out the four named in the lawsuit because, “To the best of my knowledge I had no contact with these officers.”
He acknowledged his activism brings him in regular contact with law enforcement, but insisted the DAVID system is not for officers to use merely out of curiosity while having conversations about Gray not related to law enforcement activity. He filed a similar lawsuit against the City of Jacksonville and seven officers from the Jacksonville Sheriff’s Office on May 5.
The School Board has repeatedly cited a final order, filed by Circuit Court Judge Jack M. Schemer of Duval County on Dec. 1, 2014, denying Gray relief under the Public Records Act and determining his lawsuit against the Lutheran Social Services of Northeast Florida was unfounded. Lutheran Social Services is a nonprofit, private entity that was subject to the Public Records Act due to a social services contract with Duval County.
In his ruling, Schemer said the law “was not designed to create a cottage industry for so-called ‘civil rights activists’ or others who seek to abuse the act for financial gain.” He also made reference to 18 other lawsuits involving public records requests Gray had filed in Duval County that year alone.
“It was nothing more than a scam,” he wrote, finding Gray was unreasonable in his request and had a financial interest in assuring his request was refused.
The Florida First District Court of Appeal affirmed the order on Dec. 16, although Gray has maintained the decision was based on assumptions made about his motivations, which he said shouldn’t have been under consideration in the first place.
The School Board sees it differently.
“He has not been the least bit chastened by litigating and losing on public records issues in Lutheran Social Services and his unsuccessful lawsuit against the District,” its motion for partial summary judgment said. “He was made it abundantly clear that the only interpretation of the law he intends to follow is his own.”
Hearings are scheduled for 11 a.m. July 14 and 1:30 p.m. Nov. 1 in Maltz’s chambers.
What is a public record?
“Public records” means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material, regardless of the physical form, characteristics or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. The only exceptions are for records specifically made confidential by the Florida Constitution and records exempted by Florida statutes.