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NUMBER 98 - JUNE 28, 2019
MY FIGHT OVER PUBLIC RECORDS IS NEVER ENDING BECAUSE THE PEOPLE VIOLATING THE LAW ARE ALL ATTORNEYS WHOSE BEHAVIOR WARRANTS A BAR COMPLAINT - THIS IS THE FIRST DRAFT OF WHAT WILL BECOME THAT COMPLAINT
Until I came along 10 years ago, few if any city employees knew or understood how access to public records - emails, memorandums, files with the record of how transactions involving public money had occurred - represented a window into how they conducted public business that could come back and bite them in the ass.
It was only after I obtained my first batch of emails in June of 2010 - approximately 1.1 million emails transferred from the city's mainframe computer to an external hard drive that I supplied - and started writing stories based on the unvarnished and uncensored information I discovered in those emails and documents that it quickly dawned on everyone in the city from the mayor to the security guard at City Hall that public records in the hands of someone like me could create real problems for the folks who viewed their employment in the city as membership in a loosely organized criminal conspiracy.
Since then, it's been a constant knife fight, with an ebb and flow predicated on how close I came at any point and time to exposing the misbehavior by the mayor, a city commissioner, a department director or even the city attorney and her staff.
A central part of this knife fight centered around the times that City Attorney Victoria Mendez attempted to either deprive me of records, or openly and willfully lied to me, and how those lies and that behavior prompted me to file lawsuits that ended up cost the taxpayers $22,500 to settle.
In the last 10 years I've had more than my share of disputatious public fights with Mendez and others in the city who I believed were engaged in practices that not only violated the letter and spirit of the public records law, but whose behavior was clearly intended to protect the behavior of a public official who by rights, and by law, deserved to be exposed for their misbehavior.
This year, my biggest fights over public records have been the one regarding the allegations about free VIP tickets to the ULTRA Music Festival, and by the actions of the city's Code Enforcement Department in response to allegations made by Little Havana businessman Bill Fuller that Commissioner Joe Carollo, who spent the last year trying to use code enforcement as a club to put Fuller out of business, was himself guilty of multiple code violations at his house in Coconut Grove.
On May 9th, I wrote my first story that included a video of Fuller's press conference outside City hall, and the press packet where he detailed the allegations regarding the code violations at Carollo's house.
On May 17th, I wrote my second story that detailed how a code enforcement inspector had supposedly been ordered to responded to an anonymous phone complaint about possible illegal construction going on at Carollo's house, by going to the house where upon her arrival she was met by the Commissioner, his wife and a neighbor, and how after a supposed inspection from the street outside the house she, "departed at 11:45am with no violations found at the time of my inspection."
That was, to put it bluntly, bullshit.
The "visit" was nothing but an orchestrated visit that was an attempt to try and quash Fuller's allegations by claiming that the property had been inspected and no violations has been found.
On May 23rd, in obvious response to my May 17th story, a new "joint inspection" was conducted at Carollo's house, and like the first one, it was conducted from the street, the Commissioner choosing not to give permission for the inspectors to enter his property.
This "joint inspection," prompted 5 separate violations being discovered, and 2 Notices Of Violation were placed on the door of the entrance gate of the property.
This bring us to the end of the first part of this story which is in reality a story about a fight over the release of public records.
On June 10th, I sent a public record request to Code Enforcement Director Adele Valenica that I thought was both straight forward and self-explanatory.
For those unfamiliar with the process, when a Notice of Violation is served on a property owner in the City of Miami, it sets into motion a series of actions, and each of these actons creates a document - or documents - that are maintained in a file that is kept by Code Enforcement or future use before the Code Enforcement Board, if it reaches that point.
In this case, I cited a copy of the file I had obtained through a public record request about the code violations at the house owned by perennial candidate Alez Diaz de la Portilla, who like Carollo I alleged had received special treatment by both the Code Enforcement department and Code Enforcement Board.
Because my request was so self-explanatory, and because I had made my request for the Diaz de la Portilla records on May 30th, and been provided them on May 31st, I figured that this request would also be complied with promptly.
When I didn't receive a response after 4 days, I submitted a follow up request, and then received the following response from Assistant City Attorney Jihan Soliman.
Here is where the train left the tracks, so to speak, and where we now have to take a necessary detour so as to understand what's been going on in the city for far too long when it comes to public records that might prove to be damaging to someone, or some deal.
In response to my numerous public records requests - many of them I openly admit were submitted with the intention of obtaining documents that I could then turn around and beat some public official over the head with - the city, guided by City Attorney Victoria Mendez decided that the way to try and deal not only with me, but with others as well who having seen what I was doing also decided that obtaining public records was the way to beat public officials over the head on issues that they cared about - decided to create a filtering process to keep track and monitor all the public record requests made to the city.
To do that, the city installed a new software system in 2015 called NextRequest that was intended to serve as a central repository for all public records made to the city.
Now, I have no problem with the city's efforts to maintain some centralized process to keep track of public record requests, and in fact have come to appreciate the fact that in doing so it has provided me with access to documents that others had requested which in turn have provided me with information I would not otherwise been aware of, but the use of NextRequest and the establishment of a Public Record Clearing House supervised by an Assistant City Attorney went beyond just operating as a repository, or a clearing house for purely administrative purposes.
the reason I say this is that NextRequest is also used as a process to delay the legal requirements to provide public records in the, "limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt."
To understand what I mean, you have to start by knowing what the public law says, and requires.
“Florida Statute, Section 119.07(1)(a) F.S.
“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 of the
custodian of the public records.”
Because the statute does not provide a clear definition of what constitutes "a reasonable time," for a custodian to comply with a public record request, Florida's courts were tasked with providing guidance through various court decisions on that question.
Here is a portion from the Florida Sunshine Manual prepared by the Florida Secretary of State's Office on the question of timeliness, that provides the language about "the limited reasonable time allowed to provide a requested document. (2018, page 156.)
In the email exchange that I included above, you see that after I had made my initial request to Adele Valencia, the "custodian" of the documents I requested - the response that I received was not from her, but from Assistant City Attorney Jihan Soliman who unnecessarily interjected herself into what was an interaction between a citizen - me - and the custodian of a document that I had requested - the Director of the Code Enforcement Department.
This happens a lot.
And the reason that it happens is that if you make a request to a person who is clearly the custodian of a document you're trying to obtain, that individual will, depending on who they are, and what the document is, turn around and forward your request to Ms. Soliman or one of her assistants who will then log it into NextRequest, and then she, or one of her assistant will turn around and make their own request back to the custodian for the record.
It's a loopty-loop that in effect builds in an additional step in the process that creates an "unjustified delay" in complying with the requirements of the law.
And that's even when there is no ulterior motive on behalf of either the custodian, a public official, or the City Attorney's Office to try and keep the document secret.
But this is the City of Miami, where chicanery and corruption goes on on an almost daily basis, and where keeping documents out of public view has become an art form.
From my very first big expose in 2011, when I broke the story about how Mayor Tomas Regalado, his then Chief of Staff Tony Crapp Jr. and Chief Financial officer Larry Spring conspired to bribe then Police Chief Miguel Exposito to resign by offering him a $400,000 bribe - the first $200,000 coming in the form of a check written on the City Attorney's Settlement Account, so as to shield the money from taxes - a flagrantly illegal act given that any check written on that account for an amount greater than $25,000 required a vote by the City Commission, and a fact that was unclear to Exposito and the FDLE at the time, which resulted in Exposito's refusal to take the check - my efforts to obtain public records has been met with all kinds of resistance, from being banned from the MRC building, to being lied to, to be being rope-a-doped by being provided bogus documents, or blank pages as substitutions for the documents that I requested.
Which brings us back to the issue at hand: The city's Code Enforcement Department's attempt to play cute with the code enforcement documents related to the 5 Code Violations served on Commissioner Joe Carollo.
On June 25th, I wrote a story that detailed my June 10th request for the file on the Code Enforcement Violations against Commissioner Carollo's property, the refusal of Adele Valencia to provide me any documents, and providing copes from the file of the Code Violations logged against Alex Diaz de la Portilla as examples of the documents that should been been available and should have been provided to me, which in turn supported my belief that Adele Valencia was purposely withholding the documents that I had requested.
Several hours after I posted that story I received a notice informing me that several documents related to Carollo's house had been posted on NextRequest.
When I went to NextRequest, I discovered that these documents had been attached to a totally unrelated public record request, and when I opened the documents, they purported to represent the version of the Diaz de la Portilla documents that I claimed that I should have been provided.
On June 26th, I posted a public letter to Ms. Valencia on this blog detailing the documents I had been provided in an after-the-fact manner, and went on to discuss not only the failure of those documents to comply with my original request and then went on to describe the process and time requirements that those documents - if valid - would have triggered as the next steps in a process that would either lead to the violations being removed, or the Commissioner appearing before the Code Enforcement Board.
In short, I was once again detailed for the fifth time that I wanted ALL of the documents that had been generated by Code Enforcement since they had initiated their very first "inspection" on May 17th, which would have been included in an file of documents related to the alleged code violations occurring at Commissioner Carollo's house.
When I say ONCE AGAIN, it is because in my June 10th public record request I had asked for the documents in the Carollo file, which given the dates on the documents I received, indicated that not only had these documents been generated before my June 10th request, but the responding documents triggered by whatever decision Carollo made upon receiving these particular documents would also have been in that file before my June 10th request.
Instead of receiving the documents I requested, I was once again the recipient of an email from Assistant City Attorney Soliman, interjecting herself between me and Adele Valencia, the custodian of the documents I had requested.
I had by this point grown weary of the bullshit, and after a couple less than satisfactory exchanges I sent the following email to Victoria Mendez, Jihan Soliman and Adele Valencia this morning.
There is a price that needs to be paid for this continued abuse of the public records law by lawyers who know better, and whether they can beat the rap, I am going to send them on the ride, not only for myself, but for everyone else whose be subjected to this bullshit behavior that has been engaged into to protect the corrupt politicians who think they can continue to get away with all of their sleazy and illegal behavior.
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