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City seeks public records from former city attorney 

Written by Leslie Lake on . Posted in Featured.

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.” 

City Attorney Erica Augello discussed the demand for the return of public records from former city attorney Ricinda Perry. – Leslie Lake | Sun

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.”

Commissioners pass resolution to protect municipal clerk privacy

Commissioners pass resolution to protect municipal clerk privacy

Written by Leslie Lake on . Posted in Bradenton Beach, Community News.

BRADENTON BEACH – City com­missioners have approved a resolution urging the Florida Legislature to provide a public records exemption protecting the personal information of municipal clerks and employees who perform election work.

“This is being asked of all the cities to adopt by the Institute of Municipal Clerks,” City Clerk Terri Sanclemente said at a Feb. 20 city commission meeting. “There have been too many attacks on clerks and others who have to deal with elec­tions. And that is why they’re asking each city in Florida to adopt this resolution so that they can take it to the Legislature and ask for changes.”

Commissioner Deborah Scaccianoce clarified that the exemption protects clerks’ personal information such as addresses and telephone numbers.

“Public officials are very often attacked and they’re attacked at their homes and this protects them, their home, their children and fam­ily members from being physically attacked and emotionally attacked and harassed,” Scaccianoce said. “Just like police officers and firemen. They just want to add clerks to that and election workers.”

The resolution will go into effect if the Legislature passes a parallel law.

During public comment, Elayne Armaniaco asked for confirmation that this resolution will not impede public records access, but is about personal information only.

Mayor John Chappie confirmed that is the case.

“That resolution is a template that came from the Institute of Municipal Clerks, that is not something that I created, that is something that was passed around to the municipal clerks in the state of Florida,” Sanclemente said.

A motion to approve a public records exemption for municipal clerks and employees regarding election work was passed unani­mously by the city commission.

Van Ostenbridge seeks Fifth Amendment protections

Van Ostenbridge to invoke Fifth Amendment in public records case

Written by Joe Hendricks on . Posted in Community News, Manatee County.

MANATEE COUNTY – County Commissioner Kevin Van Ostenbridge intends to invoke his Fifth Amendment rights when deposed under oath by Michael Barfield on Friday, March 12, according to court filings.

Barfield, a paralegal, is representing himself in a civil case he filed in 12th Judicial Circuit Court on Dec. 7, 2020, against Van Ostenbridge and commissioners Vanessa Baugh and James Satcher, claiming they violated Florida’s public records law.

During a hearing Friday afternoon conducted via Zoom, Judge Charles Sniffen denied Van Ostenbridge’s March 1 motion for an order protecting him from being deposed.

During the deposition, Van Ostenbridge will invoke his Fifth Amendment right to refuse to answer questions that could incriminate him, according to Van Ostenbridge’s attorney, Morgan Bentley.

Van Ostenbridge seeks Fifth Amendment protections
Attorney Morgan Bentley is representing Kevin Van Ostenbridge. – Bentley Law Firm | Submitted

The Florida Department of Law Enforcement (FDLE) is conducting an independent criminal investigation of the case. The Fifth Amendment to the U.S. Constitution provides, “No person shall be compelled in any criminal case to be a witness against himself.”

Barfield began making public records requests of Van Ostenbridge and fellow commissioners Baugh, Satcher and George Kruse on Nov. 20. That was one day after Van Ostenbridge made a motion at a county commission meeting to put then-County Administrator Cheri Coryea on notice that her proposed termination would be discussed and decided in early December.

Van Ostenbridge made that motion two days after he, Satcher and Kruse took office, and with no advance notice given to the public or the commission as a whole. Baugh, Satcher and Kruse supported the motion, which was later rescinded at the request of Kruse, who is not named as a co-defendant in the case.

Coryea and the county commission agreed to a $204,000 separation settlement on Feb. 23, which ended by mutual agreement her tenure as county administrator.

Motion for protective order argued

In the motion denied by the court, Bentley wrote, “Van Ostenbridge has produced all items requested by plaintiff. Nonetheless, on Feb. 19, plaintiff filed his notice of taking deposition. Such deposition is improper in the context of the current litigation, the purpose of which was to obtain documents. As such documents have been produced, there is no ongoing purpose and no need to take the deposition of Van Ostenbridge other than to annoy and harass.

“Moreover, there exists a pending Florida Department of Law Enforcement investigation. The FDLE investigation centers on the same issues as those involved in this case. As such, during the pendency of that investigation, Van Ostenbridge will necessarily invoke his Fifth Amendment rights in response to questions related to any matters subject to the investigation,” Bentley stated in his written motion.

In his response to Bentley’s motion, Barfield wrote: “Van Ostenbridge claims he has produced all records responsive to the records request but wants to avoid questions about his production by invoking his Fifth Amendment rights due to a pending criminal investigation. As set forth below, there is a factual dispute about whether Van Ostenbridge has produced all records. Moreover, a blanket assertion of Fifth Amendment rights is not permitted under Florida law.

“The contention that Van Ostenbridge produced all records responsive to the records request prior to the amended complaint is disputed by the parties. As one example, Van Ostenbridge’s response to the amended order to show cause, filed on Dec. 23 claimed ‘all items’ sought in the records request had been produced. However, as recently as Jan. 26, Van Ostenbridge produced records responsive to the request that had not previously been produced.

“Two days later, Van Ostenbridge produced another version of the same record but with a different filename. An evidentiary hearing is required to resolve the dispute about whether all records have been produced. It is inconsistent for Van Ostenbridge to claim he has produced everything while seeking shelter under the Fifth Amendment to prevent any adversarial inquiry to test his claim of full compliance,” Barfield stated in his response.

Van Ostenbridge seeks Fifth Amendment protections
Paralegal Michael Barfield wants to question Kevin Van Ostenbridge under oath. – Joe Hendricks | Sun

“The litigation is related to the commissioners’ compliance with Florida’s open-government laws, which includes the Public Records Act and the Government in the Sunshine law. The purpose of the pending litigation is to ensure that all records responsive to the initial request have been produced. I have many questions about the production of records and whether it was a full and complete production. That is why I scheduled Kevin Van Ostenbridge’s deposition,” Barfield stated after the motion was denied.

When being deposed, the subject is questioned under oath, usually in a non-courtroom setting, with a court reporter present. The court reporter then produces a verbatim transcript that serves as sworn preliminary testimony to be provided to the judge and others before a case goes to trial.

As the county’s District 3 commissioner, Van Ostenbridge represents Anna Maria, Bradenton Beach, Holmes Beach, Cortez, the northern portion of Longboat Key and portions of Bradenton.