To cc or not to cc? Public Records Requests and Adverse Governmental Parties

In eminent domain and property rights litigation, I frequently send a public information request (“PIR”) to public entities to get public records and documents. One of our summer associates, Chip Skambis, came across a recent case and took over the pen for the latest blog post.

The Second District Court of Appeal dropped an important opinion this week, City of St. Petersburg v. Dorchester Holdings, LLC, — So. 3d —, No. 2D20-463, at 9-10 n.2 (Fla. 2nd DCA 2021, that’s worth reading for all practitioners and clients serving a PIR on governmental agencies. It has some important ethical considerations for lawyers directing PIRs. Most public agencies have a records custodian, usually someone working in the office of the city or county clerk. Once a lawsuit against the government commences, it is advisable for lawyers to direct PIRs to government counsel only, not only to the agency’s records custodians.

In Dorchester Holdings, two lawyers represented a property owner whose land suffered from arsenic contamination due to muck dumped on it by the City of St. Petersburg. The property owner and St. Pete entered into an agreement for the City to clean up the contaminated soil. It allegedly breached its promise to clean up the property, and the owner sued the City for breach of agreement. After filing the lawsuit, the attorneys sent multiple PIRs to the City asking for voluminous documents, which the City produced an estimate in excess of $20,000 to produce.

The owner’s lawyers challenged the fee’s legitimacy. The court noted that, after filing the lawsuit, the attorneys sent the PIRs to the City clerk’s office, not the City’s attorney. The court indicated this was improper communication with an opposing party. In a footnote, the court observed:

It seems that the City Attorney was unaware of Dorchester’s public records request before this point in time. Although there appears to be no prohibition against using the Act as a discovery device, thereby circumventing the rules of civil procedure regarding discovery, this does not provide an attorney who represents a party in pending litigation with carte blanche to directly contact a represented opposing party. See R. Regulating Fla. Bar 4-4.2; Fla. Bar Ethics Opinion 09-1 (concluding that a lawyer may not communicate with government officers, directors, or employees who are directly involved or whose acts can be imputed to the government entity in a represented matter); see also Robert D. Pelz, Use of the Florida Public Records Act as a Discovery Tool in Tort and Administrative Litigation Against the State, 39 U. Miami L. Rev. 291, 303 (1985) (“It is axiomatic that when litigation is pending the attorney for one party may not ethically communicate directly with the adverse party, but instead must communicate through the adverse party’s attorney. Accordingly, the proper course under such circumstances should require that the public records requests be submitted to the agency’s attorney, rather than through the agency’s records custodian. This procedure would also prevent uninformed agency personnel from producing records which the attorney might intend to invoke a valid claim of exemption.”). Here, because litigation was pending, Dorchester’s counsel should have submitted the public records request to the City Attorney, not the City Clerk.

City of St. Petersburg, — So. 3d —, No. 2D20-463, at 9-10 n.2 (emphasis added).

Since the City did not raise this ethical issue on appeal, the language is probably dicta, meaning this language is not central to the court’s holding and is not binding as legal precedent. The cited ethical rules, however, are binding.

Here’s Chip’s take-aways. After filing a lawsuit against the government, lawyers should likely direct PIRs to the governmental agency’s legal counsel, and not just records custodians. It’s also a good idea to instruct clients not to submit their own PIRs during a lawsuit.

Jay Small practices in the areas of eminent domain, condemnation, property rights, inverse condemnation, and land use law. If you have any questions about how government regulations can affect your property, contact him at (407) 425-9044, by email at [email protected], or follow him on LinkedIn.

This blog and these materials are not intended to provide legal advice.  They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only.  These materials should not be used as a substitute for the advice of qualified legal counsel.

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