Filing # 47873591 E-Filed 10/20/2016 12:40:17 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA JAMES MCLYNAS, Plaintiff, Case No. Div. vs. PINELLAS COUNTY SHERIFF'S OFFICE Defendant. pA Rice eee) COMPLAINT TO ENFORCE FLORIDA'S PUBLIC RECORDS ACT AND FOR DECLARATORY RELIEF, INJUNCTI EF, AND FOR ATTORI STS COMES NOW, the Plaintiff, JAMES MCLYNAS, by and through his undersigned counsel, and hereby sues the Defendant, PINELLAS COUNTY SHERIFF'S OFFICE (horeinaiter referred to as “PCSO”), and states as follows: 1. This action concerns the Defendant's multiple violations of Plaintiff's i rights pursuant 10 Antic |, Section 24 of the Florida Constitution and Chaptet 119, Florida Statutes (the “Public Records Act’). 2. This action seeks declaratory anid injunctive relief, as well as attomey's fees and costs. 3, Specifically, Plaintiff seeks an order declaring the Defendant to be in breach ofits Constitutional and statutory duty to permit access to public records, and compelling the Defendant to provide access to the requested public records, enjoining the Defendant from denying access to public records, enjoining the Defendant from utilizing unreasonable methods and charges, and awarding Plaintiff attomey's fees arid costs.4, Additionally, Plaintiff requests thie matter be expedited pursuant to Section 119.11(1), Florida Statutes + JURISDICTION AND VENUE 5. This Court has subject matter jurisdiction pursuant to Article V, Section 5(b) of the Florida Constitution, and Section 119.11, Florida Statutes. 6. This Court has personal jurisdiction over the Defendant, because the Defendant is a public agency in Pinellas County, Florida. 7. The causes of action in the instant case accrusd in Pinellas County, Florida; therefore, this Court is the appropriate venue for the vindication of Plaintiff's civil rights. ‘THE PARTIES: 8 Atall times relevant hereto Plaintit, JAMES MCLYNAS, was a citizen of Florida who resided in Pinellas County, Florida. 9. Plaintiff qualifies as a “person” as that term is used in the Public Records Act. See § 119.07(1)(a), Fla. Stat. and § 1.01(8), Fla. Stat. ("The word ‘person’ includes individuals, children, firins, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.”) 10. Atall times relevant hereto, Defendant, was an “agency” pursuant to § 119.011 (2), Fla, Stat.2 with its principal place of business in Pinellas County, Florida. 11: The Defendant has a duty to permit the inspection, copying, and photography of Defendant's public records by any person desiring to do so, at a reasonable time, under reasonable 1 Note § 119.11(1), Fla Stat. ‘Whenever an action i fled to enforce the provisions ofthis chapter, the court shall set an immediate hearing, giving ‘the case priorty over other pending cases. 2 “Agency” means any state, county dstit, authority, or municipal officer, department, division, board, bureau, ‘commission, or other separate unity of government created of estabitshed by law..."conditions, and for reasonable costs. (Emphasis added), See § 119.07 Fla. Stat.; Ar. |§ 24, Fla. Const. IDA’S PUBLIC RECORDS ACT & PCSO GENERAL ORDER 12. Florida's Public Records Act implements a right guaranteed to members of the public under the Florida Constitution and it therefore promotes “a state interest of the highest order.” See NCAA v. Associated Press, 18 S0. 34.1201, 1212 (1st DCA 2009): 18. Under the Public Records Act, “felvery person who has custody of a public record shall permit the record to be inspected and copied by any person desiting to do so at any reasonable time, under reasonable conditions, and under the supervision by the custodian of the public records.”. See § 119.07(1)(a), Fla. Stat. 14, Under the Public Records Act, “fajny person shall have the right of acoess to public records {for the purpose of making photographs of the record...” See § 119.07(3)(a), Fla: Stat. 18. Defendant; as an agency and custodian of records, has an obligation to provide any non- ‘exempt public records for inspection, copying and photography upon request. See § 119.07(1)(a), § 119.07(8)(@), Fla. Stat; Art. I § 24, Fla. Const. 16. The Public Records Act imposed on the Defendant PCSO an affirmative duty to “acknowledge requests to inspect or copy records prompily and respond to such requests in good faith.” § 119.07(1)(c), Fla. Stat. 47.The PGSO maintains a policy under General Order 8-9.1(E)(3) that if the “accumulated time 40 complete the request will be longer than oné hour, the agency member(s) responsible for processing the public records request(s) will provide the requestor with an estirnate of the special service charge.” 18. Pursuant to PCSO General Order 8-9.1(E)(1) “When the nature or volume of a public. records request requires “extensive” use of information technology resources or extensive19. a4 22. clerical or supervisory assistance,” a special fee shall be charged as provided in section 119.07(1), Florida Statue FACTUAL BACKGROUND & CHAPTER 119 VIOLATIONS (On August 29, 2013, via email, the Plaintiff informed Sheriff Bob Gualtieri that he was considering running for Sheriff against him in the next cyclical election as Plaintiff was dissatisfied with the Sheriff's mishandling of investigations and his inaction in investigating proven, legitimate complaints against specific deputies that the Plaintiff had brought to the Sherif’s attention on numerous occasions (Exhibit A). |. Upon information and belief, the Defendant PCSO, installed a separate policy and proceduré' specifically for the Plaintiff when the Plaintiff requested to review public records of the Department at the PCSO physical building location. In addition, the Defendant, PCSO, posted in plain view of the public, the Plaintiffs confidential information and photograph from the Driver and Vehicle information Database (DAVID) system that is utilized by the Florida Highway Safety and Motor Vehicles and accessible to law enforcement personnel, at the front desk of the PCSO administrative building where Plaintif would go to attempt to review public records. ‘The posting prohibited the Plaintiff from viewing public records as he was not permitted ‘access to the public records department area per Major Jowell’ handwritten-statement on the document stating “THIS SUBJECT IS NOT TO LEAVE THE LOBBY AREA PER. MAJ. JOWELL 01-08-13" (Exhibit B - redacted). . Due to the Defendant PCSO’s discriminatory policy and procedures implemented against the Plaintiff, the Plaintiff was prohibited from obtaining records, viewing records, and photographing the public records at the PCSO.24, The Defendant PCSO, has utilized an illegal pattern of conduct by knowingly and intentionally “lumping” together estimated costs of separate, multiple public records requests that the Plaintiff ordered in order to constrain and confuse the Plaintiff which then prohibited him from paying for and obtaining the records he requested. 25. Due to the Defendant's illegal “lumping” practice of bills for Plaintif's separate, multiple public records requesis, the Plaintiff was prevented from determining if each of the individual requests were reasonably priced by the Defendant and whether It was feasible to order each separate public records request (Exhibit C). 26. This “lumping” of public records requests and bills practice by the Defendant PCSO also prevented the Plainti from knowing if any specific records actually existed and in essence would force the Plaintiff to pay for all requests and bills lumped together before finding out exactly what he was paying for and which specific records he would receive. 27. The Plaintiff has repeatedly asked for clarification from the Defendant PCSO’s illegal practice regarding the “lumping” together ot his estimated costs for his multiple but separate public records requests, and the Defendant is intentionally derelict in its duties by merely ignoring the Plaintif’s pleas to itemize and separate the estimated bill to correlate to each specific public records request made by the Plaintiff (Exhibit C). 28. The Defendant PCSO's illegal and improper practice of “lumping” bills for separate and distinct public records requests and the accompanying excessive charges utlized by tho Defendant, PCSO, are in essence a “transparency tax" in that this illegal billing practice is intentionally meant to stifle the Plaintif’s public records requésts and prohibit him from obtaining valuable information concerning not only the Defendant but his opposition in the upcoming election, Sheriff Bob Gualtieri of the PCSO. 29. On July 13, 2016, the Defendant PCSO, intentionally sent the Plaintiff an email invoice for $908.44 (53 hrs labor @ 17.47/nr with first hour free) “lumping” the bills covering thePlaintiff's public records requests from May 22 through May 28, 2016, without distinguishing which charges were for each individual request the Plaintiff, in clear violation of § 119 Florida Statutes (Exhibit D). 80. Again, on May 23, 2016, the Defendant PCSO, intentionally sent the Plaintiff an email invoice for $1,554.83 (90 hrs. of labor @ 17.47/hr with the first hour free) “lumping” the bills covering the Plaintif’s public records requests from April 24 through April’30, 2016, failing once again to distinguish which charges were for each individual request the Plaintiff made, in clear violation of § 119 Florida Statutes (Exhibit E). 81. Again, on May 23, 2016, the Defendant PCSO, intentionally sent the Plaintiff an email invoice tor $104.82 (7 hrs. labor @ 17.47/hr with the first hour free) “lu ‘the bills covering the Plaintif's public records requests from May 8 through May 14, 2016, failing once again to distinguish which charges were for each individual request the Plaintiff made, in clear violation of § 119 Florida Statutes (Exhibit F ). 32. On September 13, 2016, the undersigned counsel, on behalf of the Plaintiff, requested via ‘email that the Defendant PCSO provide “Any-and all memorandums, directives. or emails: 83. In response to the September 13, 2016, public records request on behalf of the Plaintiff, the Defendant PCSO sent an email on October 7, 2016, unreasonably responding with an estimate that it would cost $2,735.95 and require 120.5 hours of labor at $22.70 per hour: to fulfil this request, in cléar violation of § 119 Florida Statutes (Exhibit G ). 34. On April 18, 2016, on behalf of the Plaintif, the undersigned Counsel made a public records request for “Any and all Emails to or from Sat. Kenneth Luth regarding James Mclynas on October 29, 30 and the 31st of 2013" (See Exhibit H).35. The April 18, 2016, public records request for the Plaintiff was requested as the Defendant PCSO, through Sheriff Gualtier, had caused 5 frivolous felony charges to be brought ‘against the Plaintiff in order to derail his ambitions of running for Sheriff in the upcoming election and in retaliation for filing complaints against PCSO deputies. 36. In response to the Plaintif’s April 18, 2016, public records request, the Defendant, PCSO, on May 5, 2016, responded at no charge with seven emails and stating “Enclosed please find the records responsive to your public record dated April 18, 2016. The records have been produced with the following mation having been excised, withheld or exempt. FS. 119.071(2)(c) Open Investigation.” (Exhibit H). 87. The Defendant PCSO's response in their Apiil 18, 2016, email in which they excised, withheld or exempted records was a fraudulent response in light of the fact that the Plaintif had already been charged over 2.5 years earlier with two frivolous felony charges (both {frivolous felony charges were ultimately dismissed by the State Attorney's Office) and. therefore no information Should have been withheld, in clear violation of § 119 Florida Statutes. 38. On February 18, 2016, the Plaintiff made 7 public records requests and the Defendant, PCSO, failed to provide the documents and records requested, in fact, no invoice was ever ‘sent by PCSO or received by the Plaintiff, in clear violation of § 119 Florida Statutes (Exhibit . 30. On May 24, 2015, the Plaintitf emailed a four-part public records request to the Defendant PCSO regarding in part the following: “3, Any application for warrant requested by the Pi if for any surveillance or any form of monitor to.James Molynas from any time frame.” (Exhibit J).40. In an email response to the Plaintif's May 24, 2015, public records request, the Defendant PCSO responded on June 4, 2015, with the following: “3. No records responsive” and “4. No. records responsive.” (Exhibit J). 41. On February 17, 2016, General Counsel for the Defendant PCSO, Shannon Lockheart, responded via email to the Plainti’s accusation that the Defendant PCSO intentionally lied {o him stating the following: “The reason you received the response 'no records responsive’ is because we did not have the document in our possession as it was in the possession of the State Attorney's Office and sealed under court order. As such, our response was accurate at the that time.” (Exhibit J). 42. The Defendarit PCSO’s General Counsel failed to recognize and acknowledge that they were obligated to inform the Plaintiff that the document(s) were unavailable as a public record at that time and cite to the proper exemption under Chapter 119.07(1}(e) of the Florida Statutes, especially since it was an employee of the Defendant PCSO that authored {and filed the documents that the Defendant, PCSO, was hiding, in clear violation of § 119 Florida Statutes. 43. An agency is not authorized to refuse to allow inspection of public records it made or received in connection with the transaction of official business on the grounds that the ‘documents are in the actual possession of an agency or official other than the records custodian. See Wallace v. Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997)(public records cannot be hidden from the public by transferting physical custody of the records to the agency's attorneys); Tober v. Sanchiez, 417 So. 2d 1059 (Fla. 8d DCA 1982), review denied sub. nom., Metropolitan Dade County Transit Agency v. Sanchez, 426 So. 2d 27 (Fla. 1983) (official charged with maintenance of records may not transfer actual physical custody of records to county attorney and theréby avoid compliance with request for inspection under Ch. 119, FS.); and AGO 92-78 (public housing authority not authorized to withhold itsrecords from disclosure on the grounds that the records have been ‘subpoenaed by the state attormey and transferred to that office). "Given the aggressive nature: of the public’s rights to inspect and duiplicate public records, a governmental agency may not avold a public records request by transferring custody of its records to another agency." Chandler v. City of Sanford, 121 So. 3d 657, 660 (Fla. 5th DCA 2013). 44. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and all rm Re Gualtie it mentic McLynas is or has been. wit May 1, 2013 thr th 30, 2013," and-to date the Plaintiff has only received an acknowledgement of the email ‘without any invoice or documentation from the Defendant PCSO, a: ‘clear violation of § 119 Florida Statutes (Exhibit K). 45. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and ail emails ymunicat form or to. Gualtior that | 31, 2013," and to date the Plaintiff has only received an acknowledgement of the email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119, Florida Statutes (Exhibit L): 46. On February 24, 2014, the Plaintif, via email to Defendant PCSO, ordered “Any and all Mol} 9 18 oF: involved wit 4, 2013 0 july 31,2013” and to date the Plaintiff has only received an acknowledgement of the email ‘without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit M). 47-On February 24, 2014, the Plaintitf, via email to Defendant PCSO, ordered “Any and all emails wn to uaitieri that mentAugust 30, 2013." and to date the Plaintiff has only received an acknowledgement of the ‘email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit N). 48. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and all Melynas or an} Motynas is or has beer 1,201: October 31,2013,” and to date the Plaintiff has only received an acknowledgement of the ‘email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit 0). 49. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and all 14S OF AN} MeLynas is. ‘with. Ne 1,201: zh ‘Novernber 80, 2013," and to date the Plaintiff has only received an acknowledgement of the ‘email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit P). 50. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and all through December 31, 2013.” and to date the Plaintiff has only received an acknowledgement of the email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit Q). 51. On February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and allPlaintiff has only received an acknowledgement of the email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit R). 52..0n February 24, 2014, the Plaintiff, via email to Defendant PCSO, ordered “Any and all has been involved with trom February 1. 2014 through February 28, 2014," and to date the Plaintiff has only received an acknowledgement of the email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes altieri that in. relate to case 1317235CFANO State of Flori as.” and to date the Plaintiff has only received an acknowledgment of the email without any invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit 1). 54. On October 4, 2015, the Plaintiff, via email to Defendant PCSO, ordered “All documents or 1317235CFANO State of Florida v. MeLynas' and to date the Plaintiff has only received an acknowledgment of the email without any invoice or documentation from the Defendant PCSO, a cléar-violation of § 119 Florida Statutes (Exhibit U). 55. In October of 2015, Plaintiff attempted to avail himself of the Attorney General's voluntary “Records Dispute Mediation” program, however, the Defendant PCSO's counsel; Shannon Lockheart, Esq., via email on October 22, 2015, indicated that the Defendant PCSO wasrefusing to take part in the mediation service to resolve the issues with Plaintiff, (Exhibit Ww. 56. On February 18, 2016, the Plaintiff, via email to Defendant PCSO, ordered “All emails to or rh 2013 that in any wa) fa James MoLynas or the phone number 727-599-4374" and to date the Plaintf has never teceived a response, invoice or documentation from the Defendant PCSO, a clear violation of § 119 Florida Statutes (Exhibit W). 57. ObI ing the various information contained in the multiple public records requests of the Plaintiff as listed in this Complaint is vital to the Plaintiff, especially since Sheriff Bob Gualtieri has refused to debate the Plaintiff in the upcoming election for Sheriff of Pinellas County and only the Plaintiff and current Sheriff are ‘on the ballot for Novembor 2016. WHEREFORE, Plaintif, JAMES MCLYNAS, respecttully requests this Honorable Court to enter a decree enforcing the Public Records Act, Chapter 119, Florida Statutes, including, but not limited to the following findings and relief: . Finding that the emails requested on dates_-__ were and are public records not subject ‘to any exemption under Chapter 119, Florida Statues; b. Ordering the PCSO to immediately provide the records to the Plaintiff in the format ‘described in § 119.01(f), which requires that the records must be provided in the native format of the mediurn in: which the document is maintained; c. Finding that the PCSO violated the provisions of Chapter 119, including, but not limited to ‘the provisions of § 119.07(1) which requires the production of public records within e reasonable time after a request is made; d. Fi 1g that the Defendant PCSO violated the provisions of Chapter 119, including but not limited to the provisions of §119.07(1)(e) which requires that an agency state the basis of‘any exemption when all or part of the record requested is exempt from inspection and copying; ‘@. Finding that the Defendant PCSO violated the provisions of Chapter 119, including but not limited to the provisions of §119.07(3)(a) which requires that the PCSO permit the Plaintiff to have access to public records for the purpose of making his own photographs of the records in possession of the PCSO; {.. Finding that the Defendant PCSO violated the provi ns of Chapter 119, including but not order to ited to the provisions of §119.07(4)(d) which prohibits the “lumping” of bill charge fees for labor in excess of one hour when the PCSO compiles the public records; . Finding that the PCSO violated the provisions of Art. |, § 24(a) of the Florida Constitution; fh. Entering a Judgment in favor of the Plaintiff against the PCSO for all attomey’s fees and costs incurred in this matter; I. _ Providing such additional relief as the Court deems appropriate, including but not limited to, an immediate preliminary order requiring the preservation and production of all public records requested by Plaintif, or copies thereof, in possession of the PCSO. Dated: October 20, 2016. LiL Gersinos Teng? Tlegphilgeales. & Gerasimos “Jerry” Theophilopoulos, Esq. attomeyjerryt@gmail.com Crow Law Group, PA. 1247 South Pinellas Ave. Tarpon Springs, FL 34689 (727)945-1112 FBN 0068380 Attorney for the Plaintiff, JAMES MCLYNAS.VERIFICATION BY JAMES MCLYNAS penalties of perjury, | declare that | have read the above Pleading and foregoing stated in it are true to the best of my personal knowledge and belief. and the: MCLYNAS OF FLORIDA ) JUNTY OF PINELLAS =) “The foregoing pleading was acknowledged before me this Z © day of October, 2016, MCLYNAS, who is personelly known to me or has produced the following manyFiling # 47873591 E-Filed 10/20/2016 12:40:17 PM FORM 1.997. CIVIL COVER SHEET ‘The civil cover sheet and the information contained herein neither replace nor supplement the fling and service of pleadings of other papers as required by law. This form shall be filed by the plaintiff or petitioner for the use of the Clerk of the Court for the purpose of reporting judicial workload data pursuant to Florida Statutes section 25.075. CASE STYLE INTHE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, INAND FOR PINELLAS. COUNTY, FLORIDA Case Nox Judge’ JAMES MCLYNAS Plaintiff vs She Bob Gualtieri Defendant TYPE OF CASE Other eal property actions $0 - $50,000 Condominium Other rea property actions $50,001 - $249,900 [CContracts an indebtedness 1 Other real property actions $250,000 or more |Gleminent domain |B Auto negigence Professional malpractice D1 Negligence — other ‘1 Malpractice — business Business governance Malpractice - medial Business torts Malpractice — other professional OC _ Environmental/Toxic tort ‘@ Other Thi pety indemnification LL AntirusvTrade Regulation |D_ Construction defect Business Transaction Mass tort BL Cicuit Civil - Not Applicable Negligent security 11 Constitutional challengestatute or Nursing home negligence ‘ordinance Premises fablty~ commercial C1 Constitutionalchallenge-proposed Premises liability ~ residential arena OD Products liability fl Coen Cl Real Property/Mortgage foreclosure cig ae emo mne Or et 1D Cormac! rose 30-850 00 1 arene came Commercial forecosure $50,001 - $249,980 Feo Commercial foreclosure $250,000 or more nae {2 Vonesoad esr recosue$0~20000 a si: ot Homestead residential foreciosure $50,001 - peed $240,908 (Trade secrets 7 Homestead residential foreclosure $250,000 or _Trustitgation 11 Non-homestead residential foredosure $0 - $50,000, _Nor-homestead residential foredosure $50,001 - $249,998 1 __Non-homestead residential forecosure '$250,00 or moreCOMPLEX BUSINESS COURT This action is appropriate for assignment to Complex Business Court as delineated and mandated by the ‘Administrative Order. Yes [) No 53 IL REMEDIES SOUGHT (check all that apply): Monetary: Non-monetary Non-monetary dectaratory or injunctive relief; Punitive [C [ea ba IV. NUMBER OF CAUSES OF ACTION: (_) (Specify) V. _ IS THIS CASE A CLASS ACTION LAWSUIT? O Yes No VI. HAS NOTICE OF ANY KNOWN RELATED CASE BEEN FILED? No 11 Yes — If 'yes' list all related cases by name, case number and court VI IS JURY TRIAL DEMANDED IN COMPLAINT? Yes BI No I CERTIFY that the information I have provided in this cover sheet is accurate to the best of my knowledge and belief. Signature s/ Gerasimos Theophilopoulos FL Bar No.: 68380 Attorney or party (Bar number, if attorney) Gerasimos Theophilopoulos 10/20/2016 (Type or print name) Date