AMENDED PUBLIC RECORDS LAWSUIT
Plaintiff Naples Golf Development, LLC (“Naples Golf”), sues William McDaniel, Jr.
(“Commissioner McDaniel”), and alleges:
ALLEGATIONS COMMON TO ALL COUNTS
Parties, Jurisdiction, and Venue
1. Naples Golf is a Michigan limited liability company authorized to conduct business in the State of Florida, with its principal place of business in Collier County, Florida. Naples Golf previously filed claims against Collier County (the “County”) in a separate action related to the County’s illegal enforcement of Ordinance No. 17-10, later codified as Section 5.05.15 of the County’s Land Development Code, which prohibits Naples Golf from reasonable development of its property (the “Golf Course Ordinance Lawsuit”).
2. Commissioner McDaniel purports to be a resident of Collier County, Florida. Based on his representations to the public as being a citizen of Collier County, Commissioner McDaniel was elected, and now serves, as a Collier County Commissioner for District Five. He is the custodian of public records that he has authored, received, or on which he has been copied that reside on his private e-mail account and personal devices. Commissioner McDaniel utilizes his private non-government issued e-mail account and personal devices as a repository for public records.
3. Jurisdiction is cognizable before the Court because Naples Golf seeks injunctive and declaratory relief under chapters 86 and 119 of the Florida Statutes.
4. All of the public records requests that are the subject of this action were submitted by, or on behalf of, Naples Golf.
5. Venue is appropriate in this Court because the violations of the Florida Public Records Act, as described herein, took place in Collier County, Florida.
6. All conditions precedent to bringing this action have occurred or been waived.
The Public Records Request and Discovery of a Private E-Mail Account
7. On April 14, 2023, a public records request (the “April 14 Public Records Request”) was made on behalf of Naples Golf to Commissioner McDaniel seeking, in relevant part, documents and communications related to the golf course operating on Naples Golf’s property that is the subject of the Golf Course Ordinance Lawsuit.
8. Commissioner McDaniel is a former developer and a savvy real estate professional who has utilized his knowledge of real property for monetary gain over the course of his career in the private sector.
9. As alleged in the Golf Course Ordinance Lawsuit, the actions of Commissioner McDaniel and other members of the County evidence a pattern of behavior designed to artificially depress the market value of the Naples Golf property so that it could be purchased at a discount. Indeed, Commissioner McDaniel previously attempted to negotiate a purchase of the Naples Golf property. Commissioner McDaniel recently admitted that his actions targeting Naples Golf were motivated by a desire for the County to apply government funds allocated for affordable housing to purchase Naples Golf’s property and utilize it for residential purposes.
10. On May 2, 2023, the County responded to the April 14 Public Records Request with a set of responsive records.
11. Upon review of the documents responsive to the April 14 Public Records Request, it became clear that Commissioner McDaniel utilizes private devices and private electronic mail accounts to create, store, and transmit public records.
12. Furthermore, it is clear from a review of the documents produced in response to the April 14 Public Records Request, that the only communications produced were ones that ultimately resided only on public accounts and public devices.
13. Although the April 14 Public Records Request specifically requested documents and communications residing on public or private accounts (i.e., e-mail accounts, text messages, or social media accounts), no private e-mails or text messages were produced.
14. Increasingly concerned that Commissioner McDaniel was purposefully withholding responsive documents and communications stored on his private e-mail account and personal devices, Naples Golf, through counsel, submitted a new public records request on September 8, 2023, requesting all public records residing on, or located within Commissioner McDaniel’s private e-mail accounts or located on his private devices (the “September 8 Public Records Request”). A copy of the September 8 Public Records Request is attached as Exhibit A.
The Delay and Refusal to Produce Public Records
15. On September 14, 2023, Collier County Attorney Jeffrey Klatzkow responded via e-mail that Commissioner McDaniel was out of State and would produce the requested documents upon his return. A copy of the September 14, 2023, e-mail correspondence is attached as Exhibit B.
16. After more than two weeks passed with no further communication from the County, Commissioner McDaniel, or his representatives, Naples Golf transmitted a final demand and pre-suit notice under Chapter 119, Florida Statutes (the “Pre-Suit Demand”), requesting that the public records be produced no later than October 5, 2023. A copy of the Pre-Suit Demand and the County’s response is attached as Composite Exhibit C.
17. Commissioner McDaniel has refused to produce responsive records despite the Pre-Suit Demand.
18. Naples Golf files this lawsuit to vindicate its rights and to obtain responsive public records located on Commissioner McDaniel’s private e-mail accounts and devices.
Commissioner McDaniel Utilizes the County
Attorney’s Office to Further Evade the Public Records Laws
19. After Naples Golf filed its Original Complaint in the instant dispute, Naples Golf struggled for nearly two weeks to locate Commissioner McDaniel so that it could serve him with the lawsuit. During that time, Commissioner McDaniel continued in his refusal to respond to the Pre-Suit Demand and the September 8 Public Records Request.
20. On October 24, 2023, Naples Golf served Commissioner McDaniel at the County Center during a regularly-scheduled public meeting.
21. After service of the lawsuit, the Collier County Attorney, Mr. Klatzkow, communicated with Naples Golf on October 26, 2023—almost two months after the September 8 Public Records Request was first made. Mr. Klatzkow indicated that the County (as opposed to Commissioner McDaniel) would produce the public records if Naples Golf wanted them from the County’s Public Records Coordinator.
22. According to Mr. Klatzkow, the public records located on Commissioner McDaniel’s personal devices and private e-mail accounts were now somehow located on the County’s public servers. Mr. Klatzkow went on to suggest that the production of the requested records from Commissioner McDaniel would “presumably end the issue.”
23. On that same day, the County’s Public Records Coordinator, Angel Bates (“Coordinator Bates”), prepared a worksheet indicating the time it would take to search for Commissioner McDaniel’s public records located on his “county e-mail” located on a “public server.” Coordinator Bates’ statement about these search efforts were diametrically opposed to what Mr. Klatzkow had indicated earlier that day—i.e., that the searches were being performed on private devices and accounts.
24. Coordinator Bates also indicated in an internal County communication that the worksheet utilized to help perform these calculations for fees and time (including the estimates as well as the means and methods to arrive at such estimates) was not typically shared with individuals and constituents who make public records requests in Collier County, and he did not feel comfortable with the County sharing the summary sheet with Naples Golf.
25. According to Coordinator Bates, he retrieved 349,868 e-mails from Commissioner McDaniel’s publicly issued, government e-mail account located on the public servers. The worksheet that Coordinator Bates sought to conceal from Naples Golf indicated the same.
26. To perform these searches, Coordinator Bates estimated that it would cost $57,244.77 and take 1749 hours to review the records that were located on Commissioner McDaniel’s “county e-mail.”
27. The September 8 Public Records Request did not seek records that were located on Commissioner McDaniel’s “county e-mail”; rather, the request clearly sought all public records that were residing on his private e-mail accounts and private electronic devices.
28. Coordinator Bates did not indicate whether he had performed any searches of Commissioner McDaniel’s private devices and e-mail accounts to determine what public records were located on the repositories that Naples Golf demanded Commissioner McDaniel inspect and produce in the September 8 Public Records Request.
29. On October 30, 2023, another attorney within the County Attorney’s office reached out to Naples Golf, indicated that Commissioner McDaniel was retaining a private attorney at the County’s expense, and inquired whether Naples Golf still wanted the records that it requested in September of 2023. Again, the County Attorney’s office suggested that the production of the requested records would “presumably end the issue.”
30. At the time of this communication, the County Attorney’s office knew that Coordinator Bates had indicated that the searches of Commissioner McDaniel’s “county e-mail” on a “Public Server” (which, again, is not what Naples Golf requested) would cost $57,244 to perform and that it would take almost a year’s worth of time to review and produce.
31. In response, and on October 30, 2023, Naples Golf indicated that the production of the requested records would not end the issue because Naples Golf was being forced to file a lawsuit to vindicate its rights under the Public Records Act. Naples Golf informed the County Attorney’s Office:
We still have an outstanding request and we have never indicated that we do not want the public records. We still do not have them and it is unclear why you are asking if we will want the records. Nobody from this office has indicated otherwise. Commissioner McDaniel remains delinquent in his production of the records. The production of the records, whenever they are given to us, does not end the issue. Due to the delay, it became necessary to file the lawsuit. Our client is entitled to the payment of his fees and costs that have been incurred in bringing this lawsuit. Additionally, we do not know if Commissioner McDaniel has produced all public records on his personal devices and e-mail accounts.
32. Rather than produce the records and abide by the Public Records Act as Naples Golf continued to demand, the County Attorney’s office responded a day later by disclosing that the County would only produce records if Naples Golf agreed to: (i) pay $57,244 to the County; and, (ii) wait almost a year for the County to review public records that were residing on Commissioner McDaniel’s “county e-mail” account to determine whether any exceptions to the public records existed to that would allow Commissioner McDaniel and the County to refuse to produce certain of those records.
33. Neither the County Attorney’s office nor the Public Records Coordinator indicated that any search would be performed on Commissioner McDaniel’s private e-mail accounts and his personal devices. Rather, the searches and review the County stated it would undertake were limited to repositories and accounts that were in the public domain and were not what Naples Golf demanded in its September 8 Public Records Request.
34. To date, Commissioner McDaniel has failed to produce any public records from his personal devices or private e-mail accounts, and, according to the County’s Public Records Coordinator, no efforts have been made to determine whether there are any public records located on Commissioner McDaniel’s private e-mail account (as opposed to county e-mail account) located on any private servers (as opposed to public servers).
Commissioner McDaniel Admits that there is no
Need for the Estimated Time or Expense that is being Imposed on Naples Golf
35. In connection with this lawsuit, an investigative reporter interviewed Commissioner McDaniel.
36. Commissioner McDaniel admitted during this interview that there was never a need for the County to demand that Naples Golf pay the fees, costs, and expense to review e-mails because he did not believe it was necessary for the County to review his records for any exemption or redaction.
37. Despite this concession, Commissioner McDaniel continues in his quest to deny Naples Golf its constitutional and statutory right to obtain, inspect, and keep public records that are responsive to the September 8 Public Records Request.
38. To date, and according to internal County records, there have been no efforts made to perform searches of Commissioner McDaniel’s private e-mail accounts located on private servers or devices.
39. Given the conduct of Commissioner McDaniel, including conducting public business on his private accounts and devices, and his refusal to produce properly requested public records, it is necessary to seek the prompt and immediate assistance of this Court.
40. Commissioner McDaniel’s harboring of public records on his private e-mail account and personal devices, and subsequent refusal to comply with the September 8 Public Records Request and Pre-Suit Demand regarding those records, is a blatant refusal to comply with Florida law.
41. Commissioner McDaniel should not be allowed to continue to use his private e- mail account and devices as a shield to engage in public business without being subject to Florida’s public records laws.
42. There is a real and immediate need for relief from this Court, not only to compel Commissioner McDaniel’s full compliance with the Public Records Request but to also prevent Commissioner McDaniel from further violating Florida’s constitutionally-protected right of access to public records.
43. All conditions precedent to filing this lawsuit have occurred.
44. Naples Golf has retained the undersigned law firm and is entitled to recover attorney’s fees and costs in connection with the violations of Florida law described herein.
COUNT I
DECLARATORY AND INJUNCTIVE RELIEF
(Preliminary and Permanent Injunction)
45. Naples Golf incorporates allegations 1 through 44 as if fully set forth herein.
46. This is an action for declaratory and injunctive relief under the Florida Public Records Act, Chapter 119, Florida Statutes.
47. The September 8 Public Records Request was made in accordance with Chapter 119 of the Florida Statutes.
48. Commissioner McDaniel has refused to comply with the September 8 Public Records Request.
49. Commissioner McDaniel has utilized the County to aid and assist in his efforts to evade his responsibilities to promptly and fully comply with the Public Records Act by directing the County to, among other things: (i) demand an extraordinary (and unnecessary) monetary fee to review records that were never requested on accounts or repositories; (ii) review and inspect accounts and repositories that were never requested in the September 8 Public Records Request; and, (iii) delay in the production of records that are actually responsive to the September 8 Public Records Act.
50. Given Commissioner McDaniel’s lack of compliance with the September 8 Public Records Request and Pre-Suit Demand, it is reasonable to conclude that Commissioner McDaniel will continue to make efforts to hide public records in his possession, including those on his private e-mail account and devices.
51. The refusal to respond and produce records pursuant to the September 8 Public Records Request is a violation of law.
52. There is a bona fide, actual, present and practical need to declare Commissioner McDaniel’s conduct to be in violation of Chapter 119 of the Florida Statutes.
53. It is in the public’s best interest that this Court enter an injunction ordering Commissioner McDaniel to produce all requested public records in his possession, to promote the proper preservation of public records, and to protect the County’s taxpayers from improper management of public records.
54. Commissioner McDaniel has no discretion to refuse the production of public records and should be ordered to immediately produce such records.
55. There is a substantial likelihood that Commissioner McDaniel will continue to conduct public business on his private e-mail account and devices (and, thereby, jeopardize the preservation of public records).
56. Naples Golf has no adequate remedy at law because, among other reasons, the Public Records Act does not allow for claims for money damages. For the same reason, money damages are not sufficient to compensate Naples Golf for the improper conduct of Commissioner McDaniel.
WHEREFORE, Naples Golf requests that this Court enter judgment: (a) requiring that Commissioner McDaniel produce all responsive documents to the September 8 Public Records Request; (b) requiring the forensic inspection of any and all hard drives, storage media, or electronic devices through which Commissioner McDaniel’s private e-mail account is accessed or utilized; (c) requiring Commissioner McDaniel to provide access to his private e-mail and devices for a forensic examination; (d) awarding attorney’s fees and taxable costs, and (e) granting any other relief appropriate under the circumstances.
COUNT II
PUBLIC RECORDS ACT VIOLATION
(Mandamus)
57. Naples Golf incorporates the allegations of paragraphs 1 through 45 as if fully set forth herein.
58. This is an action for a writ of mandamus under the Florida Public Records Act, Chapter 119, Florida Statutes.
59. Naples Golf has a clear and certain legal right to the requested public records sought in by its public records requests pursuant to Art. I, § 24 of the Florida Constitution and Chapter 119, Florida Statutes.
60. It is Commissioner McDaniel’s duty to produce the requested public records under Chapter 119 of the Florida Statutes. Commissioner McDaniel’s duty to produce the requested public records is ministerial, and Commissioner McDaniel has no discretion to refuse the production of the public records.
61. Nevertheless, Commissioner McDaniel has refused to produce the requested public records despite repeated and adequate requests.
62. Naples Golf will be left without remedy unless this Court issues a writ of mandamus.
WHEREFORE, Naples Golf requests, in the alternative, that the Court issue an immediate writ in mandamus ordering Commissioner McDaniel to show cause as to why a writ of mandamus should not be issued: (a) requiring Commissioner McDaniel produce all documents and communications responsive to the September 8 Public Records Request, (b) awarding attorney’s fees and taxable costs, and (c) granting any and other relief appropriate under the circumstances.