CITY OF SUNNY ISLES BEACH, etc. v. JEANNETTE GATTO

• Court: District Court of Appeal of Florida
• Decided: March 30, 2022
• Docket: 21-1003
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 30, 2022. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D21-1003 Lower Tribunal No. 21-7688 ________________

City of Sunny Isles Beach, etc., et al., Appellants,

vs.

Jeannette Gatto, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge.

Nabors, Giblin & Nickerson, P.A., and Edward A. Dion and Valerie Vicente (Plantation), for appellants.

Kuehne Davis Law, P.A., and Benedict P. Kuehne and Michael T. Davis; Michael A. Pizzi, Jr., P.A., and Michael A. Pizzi, Jr., for appellee.

Before SCALES, LOBREE and BOKOR, JJ.

SCALES, J. The City of Sunny Isles Beach, Florida (the “City”), and one of its

commissioners, Dana Goldman, appeal the trial court’s order that

determined, under Florida’s Public Records Law,1 that text messages

between Goldman and her husband, communicated during a City

Commission meeting, are subject to inspection. We reverse the challenged

order because the text messages between Goldman and her husband are

not “public records” as defined by Florida’s Public Records Law.

I. Background

During a Sunny Isles Beach City Commission meeting on November

19, 2020, a meeting conducted via Zoom, Goldman was observed on screen

texting on her phone. On November 20, 2020, a city resident, appellee

Jeanette Gatto, served the City’s clerk with a public records request that

sought copies of the text messages. The City’s clerk acknowledged receipt

of Gatto’s request and forwarded the request to Goldman. After several

unsuccessful attempts to have the City respond to the request, Gatto, on

March 30, 2021, filed a chapter 119 lawsuit against the City and Goldman in

Miami-Dade County Circuit Court. In relevant part, Gatto’s lawsuit alleged

1 Florida’s Public Records Law is codified in chapter 119 of the Florida Statutes and, as more particularly described herein, requires, among other things, a government to allow inspection of public records.

2 that the requested text messages “were made during a City Commission

Meeting and pertain[ed] to City business.”

Pursuant to section 119.11(1), 2 the trial court conducted an April 12,

2021 expedited hearing on Gatto’s claims, at which it ordered the City and

Goldman to provide the trial court with all of Goldman’s text messages sent

or received during the November 19, 2020 City Commission meeting to allow

the trial court to conduct an in camera review of these text messages.

Two sets of text messages were produced to the trial court: (i)

messages between Goldman and a city resident named Andrey Ryzhichkov;

and (ii) messages between Goldman and her husband (the “Husband

Texts”). 3 After conducting the in camera review, the trial judge directed his

judicial assistant to disseminate to the parties’ counsel, via email, those text

messages the trial judge deemed to be public records – both the Ryzhichkov

texts and the Husband Texts. Without providing the requisite 48 hours’

notice 4 of the trial court’s determination, the text messages were e-mailed to

2 Section 119.11(1) reads as follows: “Whenever an action is filed to enforce the provisions of this chapter, the court shall set an immediate hearing, giving the case priority over other pending cases.” § 119.11(1), Fla. Stat. (2021). 3 It is unclear from the record on appeal whether there were text messages between Goldman and other people. 4 Section 119.11(2) reads as follows: “Whenever a court orders an agency to open its records for inspection in accordance with this chapter, the agency

3 the parties’ counsel. The City and Goldman immediately moved for a

protective order (to prevent the parties’ counsel from disseminating the text

messages) and for reconsideration of the trial court’s determination that the

text messages were public records subject to inspection.

On April 21, 2021, the trial court entered the order on appeal that

granted that portion of the City and Goldman’s motion seeking a protective

order (ordering the parties’ counsel not to disclose or disseminate the judicial

assistant’s email for 48 hours), but it denied that portion of the City and

Goldman’s motion that sought reconsideration. The City and Goldman timely

appealed this order, and the trial court entered an agreed order to stay

proceedings pending this appeal. The agreed stay order allowed the release

of the Ryzhichkov texts to Gatto but prohibited disclosure of the Husband

Texts pending disposition of this Court.

In the Ryzhichkov texts, Goldman and Ryzhichkov discussed Sunny

Isles Beach business and procedures. Goldman also made unflattering

remarks about a fellow Commissioner. The City and Goldman did not appeal

the disclosure of these texts. Gatto’s appeal focuses only on the Husband

Texts.

shall comply with such order within 48 hours, unless otherwise provided by the court issuing such order, or unless the appellate court issues a stay order within such 48-hour period. § 119.11(2), Fla. Stat. (2021).

4 II. Analysis

We review de novo a trial court’s determination of whether a record is

a public record subject to inspection under Florida’s Public Records Law.

Media Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir., 840

So. 2d 1008, 1013 (Fla. 2003).

Florida’s Public Records Law defines “public records” as documents

and other defined types of materials and media that are made “in connection

with the transaction of official business by any agency.” § 119.011(12), Fla.

Stat. (2021). “Agency” includes a “municipal officer” such as a city

commissioner. § 119.011(2), Fla. Stat. (2021). A city commissioner’s text

message may be a public record. O’Boyle v. Town of Gulf Stream, 257 So.

3d 1036, 1040 (Fla. 4th DCA 2018) (“An elected official’s use of a private cell

phone to conduct public business via text messaging can create an

electronic written public record subject to disclosure.”). A private

communication by a municipal official, however, falls outside of the definition

of a public record. State v. City of Clearwater, 863 So. 2d 149, 153 (Fla.

2003); Butler v. City of Hallandale Beach, 68 So. 3d 278, 281 (Fla. 4th DCA

2011) (holding that Mayor’s email enclosing copies of newspaper articles she

wrote was not a public record).

5 Gatto argues that the Husband Texts are public records because they

were communicated during a public meeting, they touched on City matters,

and they bear some similarity in subject matter to the Ryzhichkov texts,

which the City and Goldman concede constitute public records. 5

Goldman’s text messages with her husband, though, were uniformly

personal and private and were not made in connection with any business

transacted by the City. In contrast with her texts to and from Ryzhichkov,

Goldman was not acting in her official capacity as a City Commissioner when

texting with her husband. Nor did her husband step out of his role as husband

and adopt the role of a citizen either seeking to enter a City process or to

transact City business. The Husband Texts did not possess the attributes of

official business and, therefore, did not become subject to public records

5 We note that this public records case is somewhat different from a public records case in which a stay has been entered because Gatto’s counsel received the challenged records and is asserting that they are public based, in part, on the documents’ content. A party seeking disclosure in public records litigation in which a stay has been granted ordinarily does not have possession of the challenged documents unless and until it has been determined, with finality, that the documents are subject to disclosure. See AgroSource, Inc. v. Fla. Dept. of Citrus, 148 So. 3d 138, 140 (Fla. 2d DCA 2014) (Altenbernd, J. concurring in part, dissenting in part.) Indeed, the purpose of Section 119.11(2)’s 48-hour “hold” period is to allow an appeals court to enter a stay of a judgment ordering disclosure to allow the appeals court to conduct its review of the subject documents prior to the documents being disclosed.

6 inspection. Thus, we reverse that portion of the challenged order determining

that the Husband Texts constitute public records subject to disclosure.

Reversed.