BRADENTON BEACH – Five months after former City Attorney Ricinda Perry retired, the city seeks the return of all public records still in her possession.
When Perry retired on Sept. 18, she turned over three binders of city documents, but the city does not believe that represents the full production of all public records in her possession.
“There was the demand to the former city attorney for public records,” City Attorney Erica Augello said during the Feb. 5 city commission meeting. “Under statute, she was required to do it upon resignation. After the demand, she was required to do it within 10 business days.”
Augello said she believes Perry is amenable to returning the public records to the city, but she is apparently working to determine what constitutes a public record.
“She was doing a lot of business from her personal accounts, which does not make them not public record,” Augello said. “I have a phone call scheduled with her tomorrow (Feb. 6). Hopefully, we can come up with a reasonable time. If not, then I will be back before you to see what we need to do next. It might just be we need to file an action in court, which has an attorney’s fees provision in it, to compel the return of those records from a public official because those are rightfully belonging to the city.”
DEMAND LETTER
On Jan. 12, Augello sent Perry a formal demand letter which stated, in part, “This letter serves as a formal demand for the immediate return and production of all records in your possession, custody or control that constitute public records of the city of Bradenton Beach. As you are aware, Florida’s Public Records Act defines ‘public records’ broadly, including, but not limited to, all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software or other material regardless of physical form, characteristics or means of transmission made or received in connection with the transaction of official business.”
Augello’s letter further stated the demand includes all public records, whether maintained on personal or professional devices, accounts or platforms, including, but not limited to, emails (including attachments), text messages, messaging applications, voicemails, electronic documents, drafts, memoranda, notes and correspondence, hard copy documents and files, cloud-based storage records, records maintained on personal computers, mobile phones, tablets or external storage devices and communications with city consultants, vendors or members of the public relating to city business.
“Please return all such public records within 15 calendar days, from the date of this letter to the city clerk. Please be advised that failure or refusal to comply with the Public Records Act may subject you to statutory consequences, including but not limited to civil and criminal penalties and potential referral to the Florida Bar and the Florida Commission on Ethics,” Augello’s letter stated.
PERRY’S RESPONSE
“I intend to cooperate in good faith to ensure that any city public records not already in the city’s possession, custody or control are appropriately returned,” Perry stated in her Jan. 21 letter to Augello.
She noted that prior to resigning, she presented three binders of relevant work, communications and draft documents to the city.
“Your demand, as written, presents two threshold issues that must be addressed before any meaningful production can occur: (1) the letter’s arbitrary 15-day deadline and (2) the scope of the request,” Perry wrote.
Perry stated any good faith retrieval and return process requires a reasonable amount of time to identify records, segregate city records from non-city records and ensure records are returned without disclosure of non-responsive or personal materials.
“Accordingly, to the extent the city expects my office to perform extensive search, retrieval, compilation and production efforts responsive to this demand, the city will be assessed a special service charge as authorized by section 119.07(4)(d), Florida Statutes,” Perry wrote. “Before undertaking any unusually time-intensive collection and production work, I will provide a written estimate of the anticipated special service charge and will require written confirmation that the city agrees to pay that charge.”
Perry said she has retained paralegal Michael Barfield, of Denovo Law Services, to assist in the production of materials. She directed future communications be sent to Barfield.
AUGELLO’S RESPONSE
Augello said she reviewed the three binders Perry referenced in her letter and sent the following response to Perry on Jan. 30: “The contents of these binders is not consistent with the breadth of this definition (by statute),” Augello wrote, noting that the binder contents do not include emails, text messages or notes.
Augello’s letter also stated Perry has a statutory obligation to return all public records to the city.
“Under the law, you were required to deliver them to the city within the 10 days allotted in the statute. At this point, you unlawfully possess public records, as you have admitted in your response that you have such public records in your care, custody and control,” Augello wrote. “I would suggest you either seek the advice of counsel on this matter or return the public records in your possession immediately.”
Augello stated Perry is responsible for returning all public records regardless of the scope or burden. She also stated the city will not be paying any records retrieval fees and Perry does not have the authority to charge such fees.
“I think you have misconstrued the demand for the return of public records to the agency to which they belong with a request for public records to an agency which maintains such records,” Augello wrote. “The city is demanding you, as former city attorney, return the records in your possession that belong in its possession as public records, as is required by Florida law.”
Augello closed her letter by stating, “The city demands that you return the public records immediately. Absent such production, the city is prepared to avail itself of all available legal remedies. Please govern yourself accordingly.”
Following her Feb. 6 phone call to Perry, Augello sent The Sun an email that said, “She was very accommodating and reasonable. She indicated she has many records but needs to review them to determine if they are public records.”
