School Board Files SLAPP Suit Against Citizen Jeff Gray, Records Requester?

Once upon a time, Southern white racists formed the Dixiecrat Party.In 1948, Strom Thurmond and other segregationists walked out of the Democratic National Convention, forming the "Dixiecrat" "Party.
Florida's biggest "Dixiecrat" was St. Augustine lawyer Frank D. Upchurch, Sr. (1894-1986), who demonized President Harry S Truman on national television. Dixiecrats contributed endlessly to enforcing "Jim Crow" law, oppressing minorities.
Upchurch's grandson, Frank Upchurch, III is the school board lawyer, hired without any evidence of a conflicts check on clients who do business with the School Board.
Upchurch sends big bills to the School Board.
Has Frank Upchurch, III  disgraced himself and the School Board by filing a SLAPP lawsuit in possible violation of F.S. 768.295, suing an Open Record requester? Florida law provides:
It is the intent of the Legislature to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state. It is the intent of the Legislature that such lawsuits be expeditiously disposed of by the courts.

What do you reckon?
Here's Jake Martin's thorough investigative report about the SLAPP litigation filed by the School Board -- what a disgrace.
School Board trades lawsuits with local man over public records requests
Posted: December 26, 2015 - 11:37pm | Updated: December 26, 2015 - 11:50pm

By By Jake Martin
jake.martin@staugustine.com
The St. Johns County School Board and Jeff Gray, a correspondent for Photography Is Not a Crime, have been swapping lawsuits over the St. Johns County School District’s policy regarding public records requests and Gray’s alleged violations of that policy.

Gray, a father of three children who attend schools in the county, contends the 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 contends 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 the law, and that Gray refuses to cooperate because his interests are not in obtaining the records but in filing frivolous lawsuits for personal financial gain.

“I’m genuinely interested in the records I’m requesting, but I’m also seeing if they’re in compliance,” Gray said. “It’s a matter of public interest whether or not public agencies comply with the law.”

In its complaint against Gray, the School Board said he has “frightened, intimidated, baited and provoked District employees, particularly female employees who feel menaced and threatened by him.”

Barbara Petersen, head of the First Amendment Foundation of Florida, said the state’s public records law is complicated and there are bad actors on both sides for any number of reasons.

She said what’s needed is an “enforcement mechanism” through which residents could go to an Office of Open Government, for example, and file a complaint the office would then investigate — with authority to take action based on its findings.

In lieu of any such office, however, the lawsuits will have to do.



Gray goes to court

Gray filed his suit against the School Board on Oct. 14, claiming it was in violation of Florida’s public records law after he made a request at the district’s Maintenance Department on Aug. 26 to inspect and photograph material safety data sheets on location.

According to his complaint, Gray made a verbal request to a “Suzan (sic) Lee,” at which point Lee asked Gray to identify himself. Gray declined and Lee then told him he would have to obtain the records from the “district downtown.”

“Such procedure constitutes an unlawful restriction of accessing public records,” Gray’s complaint continued.

Gray said he insisted on his right to inspect and photograph the records at the location in which they are stored and that Lee insisted it would not be through her.

“I asked her if she was a supervisor, or if she could contact a supervisor, and she said, ‘I’ve been here for 27 years, and I’m telling you how it’s done,’” Gray told The Record.

According to Gray’s complaint, Lee eventually said she felt threatened by Gray and called the St. Johns County Sheriff’s Office, and deputies soon arrived asking Gray to leave the premises.

Gray said he was ultimately not permitted to inspect or photograph the records that day.

As written in the School District’s policy: “An individual requesting to inspect, photograph or obtain copies of public records does not have to show identification or give a reason for the request. If request is being made in person, the individual may remain in the lobby of the school or building where the request is being made while the request is processed in accordance with this protocol.”

The School Board answered on Nov. 10 with a motion to dismiss Gray’s complaint, claiming he failed to state a cause of action with prejudice by the School District, or Susan Lee.

As written in the motion, Florida’s public records law states only a records custodian, or that person’s designee, is responsible for maintaining public records and thus Gray misdirected his request.

Lee is the executive secretary for the Maintenance Department who, according to the School Board, had no responsibility for or authority over the requested records.

According to Florida statutes, each school district’s superintendent is charged with the responsibility for keeping all records regarding the school system and may designate additional employees to maintain the records and oversee production of those records in response to public records requests.

“As Plaintiff is aware from his numerous prior public records requests and prior communications with School Board staff, employees within the District’s Community Relations Department have been designated as the custodian of public records for the St. Johns County School Board,” the motion continues.

The School Board 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.

“It is obvious that every single employee of the St. Johns County public school system is not tasked with the responsibility of responding to public records requests,” as written in the School Board’s memorandum of law. “A misdirected request to an employee who is not the records custodian or his designee is not the basis for a statutory violation.”

However, the School Board’s motion to dismiss Gray’s case was denied by Judge Howard Maltz of the 7th Judicial Circuit Court.

In an amended complaint filed Nov. 19, Gray claimed Lee was a person who had custody of the material safety data sheets stored in the building and so she was required to permit Gray to inspect them or to at least not prevent him from making his request to the correct person, citing Florida Statute 119.07(1)(a).

As written in that statute, “every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”

As defined under Florida Statute 119.011, the “custodian of public records” means the elected or appointed state, county or municipal officer charged with the responsibility of maintaining the office having public records, or his or her designee.

Custodians of public records, and designees, must acknowledge requests to inspect or copy records promptly and respond to such requests “in good faith,” according to Florida Statute 119.07(1)(c).

“A good faith response includes making reasonable efforts to determine from other officers or employees within the agency whether such a record exists and, if so, the location at which the record can be accessed,” the statute continues.

There is no definition provided in the statutes for what is “reasonable” as it pertains to public records requests, which perhaps allows enough wiggle room for both Gray and the School Board to stick to their conflicting interpretations.

Petersen said although there is no definition for “reasonable” in the statutes, there are definitions provided through case law in terms of time, effort and circumstances.

“The courts have determined ‘reasonable’ is the time it takes to locate the record, to review it for exempt information and to provide a copy,” she said. “We don’t have an instantaneous right of access.”

Gray said he intentionally asks for records he believes don’t have any exempt information when looking for compliance.

“I set the bar as low as possible to make it as easy for them to comply as possible, and sometimes they do it, sometimes they don’t,” he said.

Petersen said it’s not the requester’s place to determine what is and isn’t exempt information, however.

Gray said if he’s requesting something he knows is going to take time and resources, he goes through the Community Relations Department.

He’s not the only one.

Christina Langston, chief of community relations for the district, said as of Dec. 17 there had been 175 public records requests made since the start of the fiscal year, July 1. There had been 86 requests as of the same date in 2014 and 184 for that entire fiscal year.

According to the School District’s policy, people may request records online, by fax, by mail, by phone or in person, and either from the School District or from the school site.

Protocol requires the on-site records custodian or — at the custodian’s election — the Community Relations Department to review requested records in order to confirm they are subject to public disclosure under the Florida public records law. From there, the custodian would coordinate inspection and copying of the records.

Petersen said she thinks it’s appropriate enough that the Community Relations Department is the designated custodian for handling the School District’s responses to public records requests and that she sees no red flags in the policy — with one caveat.

She said it would be more efficient to instruct staff to forward a request to the appropriate custodian rather than having the requester do it.

“They should at least know who to call,” Petersen said. “Public officials who feel intimidated by requesters need to know who to call other than the sheriff because we also have requesters who feel intimidated.”

The question of how much access to schools is too much access is a complicating factor Gray’s requests have added to the mix.

“People have a legitimate fear, frankly, about strangers coming onto campus, and more schools are providing stiffer security,” Petersen said.

Gray said he understands concerns of School District employees and fellow parents but maintains that individuals making a public records request don’t have to enter the school or office beyond the reception area in order for their request to be fulfilled.

“I want to see the records, they’re right there, and I think they have a policy that is unlawful,” he said.

Nonetheless, Gray filed a notice of voluntary dismissal with prejudice of his case on Dec. 4.

Gray said it was a “strategic move” he and his attorney made.

“We decided the facts of the case and the law were on our side, however, it didn’t seem we were getting a fair shake in the court,” he said.

The School Board on Nov. 13 had filed a motion for sanctions against Gray and his attorney, Abraham Shakfeh, and the awarding of attorneys’ fees and costs to the School Board on the grounds Gray and Shakfeh filed and maintained a frivolous claim.

Gray said his lawsuit against the School Board was an effort to get it to change its policy, not an effort to extract money.

“Any policy requiring a person to jump through additional hoops just promotes an atmosphere allowing them time to doctor the documents or create documents that weren’t there,” Gray said.

Schools fight back

On Dec. 7, the School Board filed a complaint of its own against Gray, alleging he 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.”

“Why a person wants a record is none of government’s business,” Petersen said, elaborating that motivation is not to be considered a factor in processing a public records request.

She said she is familiar with Gray and his work but cannot speak to his true motivations.

The School Board claimed Gray baited Lee into refusing to produce the records in order to parlay that refusal into a lawsuit for personal financial gain via a fee-splitting scheme with his attorney.

It was further alleged that Gray dismissed his suit against the School Board “recognizing the suit was frivolous and that he and his lawyer were in jeopardy of being taxed with attorney fees.”

The complaint cites a final order denying Gray relief under the Public Records Act, filed by Judge Jack M. Schemer of the Circuit Court of Duval County on Dec. 1, 2014, determining a lawsuit Gray had filed 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.

The final order identified Gray as a “self-described ‘civil rights activist’ who earns part of his livelihood by making public records requests for unwanted documents on unsuspecting private entities which are agents of public entities and potentially subject to the requirements of the Act.”

The court found Gray and his attorney had a financial interest in ensuring Gray’s requests for public records are refused and noted that 13 of the 18 cases Gray had filed in Duval County that year were filed by Shakfeh.

The court concluded Shakfeh pays Gray when he recovers attorneys’ fees in these cases and that “any payment to Gray in the past in other cases is merely a fee-splitting arrangement between Gray and Shakfeh.”

“It was nothing more than a scam,” the court said.

Gray said he never won any monetary judgment or settlement of any kind with Shakfeh and that any such scheme as suggested by the court would have been impossible.

Gray said he thought the judge’s assessment of his motivations was incorrect, that the entire decision was based on his motivations, and that those motivations shouldn’t have even been under consideration.

The Florida First District Court of Appeal affirmed the final order in the Lutheran Social Services case on Dec. 16, 2015.

Gray said he has filed only one lawsuit this year — the one against the School Board.

The School Board’s lawsuit also claims Gray “surreptitiously videotaped” his encounter with Lee in violation of Florida Statute 934.03(1)(a), a third-degree felony, and then posted the “unlawfully obtained” video on YouTube for financial gain in the form of advertising revenue and the contributions he solicits from followers.

According to the statute, intentional interception and disclosure of wire, oral or electronic communications is prohibited, although there are several exceptions.

Gray maintains he is not surreptitious with the use of his video camera and that although he may not announce it’s on when he enters a school or office, it’s a rather large piece of equipment hanging from his neck with a flashing red light indicating when it’s recording.

He also said case law has established that public employees don’t have a reasonable expectation of privacy in the lobby areas of public buildings.

Still, the School Board said there is no need for Gray’s “guerilla tactics” to obtain records and that it’s inappropriate for him to be profiting from the venture.

Gray said producing his videos is not a full-time commitment and that he drives a truck for a living.

He has video-documented many of his attempts to make public records requests at schools in St. Johns County, and elsewhere, and posted them to his YouTube channel, “HonorYourOath.”

As of Dec. 26, Gray’s YouTube channel had 35,477 subscribers and his hundreds of videos had accumulated more than 17.4 million views since the channel’s launch in January 2011.

Gray said he receives advertising revenue money from YouTube and that he also has a GoFundMe page, which, as of Saturday, had raised $5,756 toward maintaining his “HonorYourOath” channel.

How many views it takes to make money on YouTube varies. According to YouTube policy, advertisers only pay when someone clicks a video ad or watches it for 30 seconds — or more, if the ad is longer. Channel views, therefore, cannot be directly tied to dollars. If a video gets 1 million views, but nobody watches the ad or clicks on it, the posting account doesn’t make any money.

Gray said he does not monetize his “more instructional” videos.



Going too far?

On Dec. 4, the same day he dismissed his lawsuit, Gray entered the R.B. Hunt Elementary School campus unannounced and without checking in at the reception desk.

The School Board said Gray went to the bus parking area and began questioning school bus drivers about bus inspection reports and demanded they give him copies, despite having previously obtained copies of bus inspection reports on at least two occasions from the Transportation Department and once through Community Relations.

Gray said his investigation was a result of 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 said his public records requests revealed that there was no pre-trip inspection form filled out before the crash.

According to a Nov. 19 memorandum for record by Al Pantano, director of transportation for the district, Pantano had contacted Sanks that day to check on his well-being and ask why he had not annotated a pre-trip inspection for Nov. 18.

Pantano said Sanks informed him he had completed a thorough pre-trip inspection, as usual, before his morning route.

“Sanks further shared with me that he routinely completes the paperwork for the pre-trip check sheet at Bartram Trail High School following his last morning school route,” the memo continued.

Gray said he filmed drivers from off school property at R.B. Hunt to see if they were completing their inspections before driving off.

But that’s not the way the School Board saw it.

“It now appears Defendant is deliberately trying to harass, provoke and intimidate District school officials, not only by his improper public records requests but also by acting suspiciously around District schools,” the complaint continues.

Police reports from the St. Johns County Sheriff’s Office place Gray within the 500-foot School Safety Zones of three district schools shortly following two mass shootings.

According to one report, Gray was videotaping students leaving school under increased law enforcement presence at Mill Creek Elementary on Dec. 14, 2012, the same day a school shooting at Sandy Hook Elementary in Newtown, Connecticut, left 20 students and six school employees dead.

Another report said Gray was at Hickory Creek Elementary and Switzerland Point Middle schools on Dec. 3, the day after the San Bernardino mass shooting, taking photographs and asking a School District maintenance employee standing near the gate of the two schools if he knew whether a park behind the schools was maintained by the School District or the county.

As written in the complaint against Gray, “Coming at times of heightened school safety consciousness and concern, Defendant knew or should of known his actions would be suspicious and threatening, and would disturb and disrupt the school environment.”

“It seems like they’re making an attempt to associate me with school shooters and things like that,” Gray said. “I’m an investigative journalist, and I’m asking them questions they don’t like.”

Superintendent Joe Joyner sent a trespass warning, dated Dec. 7, notifying Gray he is not authorized, licensed or invited to enter any structure or property of the School Board, or any School Safety Zone, except to attend School Board meetings or other public meetings; to submit public records requests to the Community Relations Department at 40 Orange St.; or to drop off and pick up his children from their schools.

“If you wish to visit your children’s schools for some other legitimate purpose, you should contact the principal, who will duly consider your request,” Joyner wrote.

Joyner’s letter was accompanied by trespass warnings to Gray from each of the School District’s 37 principals.

Gray said he and attorney Lesley McKinney will be fighting the School Board’s lawsuit and trespass order “vigorously.”

“They have overstepped their bounds, here, and they clearly have hostility toward transparency, or at least hostility toward me,” Gray said.

Legislative measures

Changes to a statute governing the awarding of attorneys’ fees in public records cases could be on the way.

Current law says, “If ... the court determines that such agency unlawfully refused to permit a public record to be inspected or copied, the court shall assess an award against the agency responsible, the reasonable costs of enforcement, including reasonable attorneys’ fees.”

Bills filed in the Florida Legislature this week would change “shall” to “may” in that statute, making such fee provisions permissive rather than mandatory, thus making it more of a gamble for residents to take a government agency to court over any potentially unlawful refusals to produce public documents.

“That’s a problem because it eviscerates any real penalty for violating the law,” Petersen said. “There is no remedy if they take away the assurance that we would get attorneys’ fees if we win.”

The bills — HB 1021 and SB 1220 — would also require written notice of a public records request to the custodian of the records at least five business days before filing a lawsuit.

All this comes in wake of Gov. Rick Scott spending $1 million in taxpayer money this year to settle lawsuits over public records and open meetings.

Supporters, including the Florida League of Cities, say people are taking advantage of the system and that the bills are intended to combat frivolous, harassing or disingenuous demands for public information.

The School Board on Sept. 22 reviewed a draft of its 2016 Legislative Platform, since approved, which includes support for changing protocol with regards to public records requests made in schools.

The lone item under a new category dealing with “school safety” indicates the School District would support legislation requiring individuals making public records requests at a school site to check in with proper identification.

Beth Sweeny, coordinator of governmental relations for the district, said at the Sept. 22 meeting that this position is not an attempt to limit anyone’s ability to make a public records request or anyone’s ability to get those documents.

She said anonymous requests would still be allowed through the Community Relations Department and that the School District’s position aligns with its protocol applying to all other individuals entering county schools — including parents of students currently attending those schools.

“It’s a safety issue,” Joyner said at the meeting. “The right to ask someone to identify themselves coming onto a campus with children seems to be pretty apparent — pretty basic — but it’s not.”

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 state statute.