How a government agency is trying to stop residents demanding records

March 23--The public steward of South Florida's water supply is taking extreme measures to keep secret the reasons behind a multimillion-dollar settlement while embroiling more than a dozen unwitting citizens in a battle over public records.

South Florida Water Management District officials hired two private legal teams with taxpayer money to fight the release of a transcript from an August meeting regarding a 50-year deal with the billionaire-backed mining company Lake Point Restoration.

The months-long litigious affair began with a simple public records request under Florida's decades-old Sunshine Law -- a statute heralded nationwide as a tool to keep governments honest.

Instead of a traditional response of yes or no, the district sued the non-profit organization that made the request. The lawsuit triggered a cascade of identical demands from disgruntled soccer moms, retirees, activists and the titan of Treasure Coast environmentalism, Maggy Hurchalla.

Now the district wants the non-profit agency and Hurchalla to hand over all of their Lake Point-related communications and personal emails to and from the 16 other residents who requested the same documents. The idea is to find out if they were trying to trick the district into a violation of the Sunshine Law rather than simply trying to hold the agency accountable.

First Amendment experts call the district's threat to subpoena the communications of private citizens bullying -- an overreach by a public agency using taxpayer dollars to cow the public from digging deeper. If Hurchalla and the non-profit agency don't turn over the documents, the district said in court papers it would slap all the other citizens with a subpoena demanding all communications between themselves and "anyone else" that relate in any way to their Lake Point request.

"They are trying to scare the pants off people," said Barbara Petersen, president of Florida's First Amendment Foundation. "Why someone makes a public records request and the purpose of the request is none of the government's business, so they are just doing this to intimidate people."

Water management attorney Brian Accardo disagrees. He said the legal maneuver is a push to protect the district from nefarious public records requests made solely to initiate court action and force the district to pay attorneys fees for the other side.

"This onslaught of requests may have been to cause the district to slip up in how it handles records, or maybe we would miss a request, or perhaps it was just to start a queue of folks who are attempting to collect fees in the event the court were to ultimately rule we were to turn over the records," Accardo said during a March 8 district board meeting.

The requests focus on the transcripts of closed-door meetings held by the district to discuss Lake Point litigation. State law allows closed meetings as long as transcripts are kept and made publicly available upon the conclusion of the litigation.

The district released four transcripts, some of them dating back years, but held on to a fifth, claiming it wasn't public because the only thing discussed was mediation and the mediated settlement agreement. Florida law allows mediations to remain confidential in some circumstances.

That meeting, on Aug. 23, led to a change in the district's legal position: Afterward, the district dropped its fight against the mining concern and agreed to settle.

"In light of the exhaustive briefings and detailed discussions that we just went through in the attorney-client session, I certainly am confident if we went forward with trial we would have a good chance of prevailing," board Vice Chairman Jim Moran said publicly after the closed Aug. 23 meeting. "But when you take into consideration the potential ramifications of that and what's in the best interest of the taxpayer and district, I think it's in our best interest to accept this agreement."

More assertive district

The public records fight through mid-February has cost the district about $76,000 in fees to private law firms, a small amount but a noteworthy expense for a district that has been in cost-cutting mode since Gov. Rick Scott took office in 2011.

Under Scott, who appoints district board members, sharp cuts resulted in layoffs and, in 2015, the ousting of the district's executive director over a slight property tax increase. In his place, the district hired Pete Antonacci, the governor's former counsel, who took a more aggressive stand against critics.

In public statements and emails, the district challenged environmentalists' requests and went on the attack to condemn a federal agency, a scientist for a watchdog organization and activists.

Antonacci left in July, appointed to head Enterprise Florida. His replacement, Ernie Marks, came on three weeks before the Aug. 23 settlement with Lake Point.

Hurchalla's attorney, Virginia Sherlock, called the district's push to turn over communications regarding Lake Point a "disgraceful path of harassing and intimidating private citizens."

Sherlock said it's particularly concerning considering Lake Point won a $4.4 million judgment against Hurchalla in February based on emails she sent to Martin County commissioners about the project.

"The subpoena for communications appears to be a thinly veiled attempt by the district to assist the operators of the Lake Point rock-mining operation in setting up future litigation against citizens who may have expressed objections or concerns about the project," Sherlock wrote in a March 6 court filing. Lake Point has piggybacked on the district's request for Hurchalla's emails.

Accardo said he's just putting Hurchalla on notice that she "needs to play this one straight, as 16 other people can be called upon to provide information regarding" her motives.

The legal drama is likely escalated by the rancorous history between the water management district, Martin County, Hurchalla and Lake Point, which is co-owned by the deep-pocketed George Lindemann Jr., an heir to a cellphone and cable TV fortune.

Lindemann, a former Wellington resident and one-time Olympic equestrian hopeful, remains dogged by a 1996 prison sentence of 33 months for hiring a hit man to electrocute his show horse for insurance money. It is a history that resurfaced in 2016 as district board members discussed getting out of a contract with Lake Point penned nearly eight years earlier.

"They are, you know, they're not the most trustworthy folks," an attorney said about Lake Point in an August 2016 meeting, according to one of the transcripts turned over by the district. "I mean, the principal of Lake Point, he has a criminal record right? If you all didn't know, he had been convicted of insurance fraud for killing his horse."

A Lindemann spokeswoman defended him, saying the conviction was more than 20 years ago and he has since helped environmental efforts. Last year, he donated 1,000 acres worth $8.27 million in Tennessee to be part of the Great Eastern hiking trail. The Tennessee Wildlife Federation named Lindemann conservationist of the year in May.

50,000 tons of rubble

In 2008, Lake Point paid $47.7 million for about 2,200 acres in far western Martin County slated for a polo community.

When the housing market crashed, the horse community was canned, and Lake Point came up with a plan to mine the land and donate the holes after 20 years to the water district for storage and treatment areas for Lake Okeechobee overflow.

To make the mining more palatable, and get approval to pull rubble from property that once grew sugar cane, Martin County was courted to join an agreement that would allow the mining. The selling point was that Lake O water would be diverted from the fragile St. Lucie Estuary, where it can cause harmful algae to grow. Martin County also would get a public park out of the deal.

When the deal went sour, Lake Point sued the district and Martin County in 2013. It also sued Hurchalla, sister to former U.S. Attorney General Janet Reno, saying she sent misleading emails about the project to Martin County commissioners that caused the company millions of dollars in losses.

A bitter five-year legal fight ensued.

In an April 2017 meeting, the district's attorney told board members Lake Point was "out for vengeance" and that it wanted to "punish governments that wronged them." He said Lake Point wanted the lengthy legal machinations "to be painful."

Four months later, after the Aug. 23 closed-door session, the district begrudgingly accepted a settlement that forces it to buy 50,000 tons of rubble annually from Lake Point for 15 years, and extends Lake Point's hold on the land from 20 to 50 years.

The settlement seemed an "abrupt change in position" to Everglades Law Center attorney Lisa Interlandi. She filed the initial public records request on Oct. 4 for transcripts of the district's closed sessions concerning Lake Point.

State law requires public bodies to provide public records unless they can cite an exemption in Florida law that allows them to withhold the records. If denied, the person making the request can sue.

But the district didn't do that. Accardo said it wanted to be proactive, filing the lawsuit against the Everglades Law Center so a judge would decide whether the records should be released, and both sides would pay their own court costs.

Frank LoMonte, professor and director of The Brechner Center for Freedom of Information at the University of Florida, said it's a bad precedent to set.

"It's not better to be on the offense because they are spending the public's money," LoMonte said. "You are running up the public's tab unnecessarily when you could just wait and see if you get sued."

Judge favors district

Two months later, Hurchalla made the same records request as the Everglades Law Center. In court documents, the district said her request was made for "improper purposes" and asked that she pay its attorneys' fees and costs.

Between Dec. 19 and Dec. 21, another 16 nearly identical requests came in.

The district released four transcripts of Lake Point-related attorney-client sessions in January. But the district claims the Aug. 23 meeting held immediately before the settlement vote is not a public record because the entire transcript is "confidential mediation communication."

LoMonte doesn't buy it.

"You don't just get to label something a mediation," LoMonte said. "If they are literally saying the closed session is actual mediation, there's no way it should be exempt."

But Circuit Court Judge William Roby sided with the district in a March 6 hearing, agreeing the meeting was exempt from public records law.

Marcy LaHart, the attorney for the Everglades Law Center, plans to appeal.

"The proposition that the citizens are never allowed to know the basis that the water management district accepted this settlement on is absurd," LaHart said. "It is contrary to Florida's long history requiring transparency of their government officials."

The district is not seeking attorneys' fees from the 16 individuals who made the public records request after Hurchalla's and they have not been added as defendants to the litigation. But the district still wants their private communications with Hurchalla and the Everglades Law Center.

The district also is demanding Everglades Law Center's membership list, including all contact information for members, and any communication between the center and its members regarding the Lake Point lawsuit.

The reason the district wants the communications is tied to a 2017 amendment to Florida's Sunshine Law. The amendment says if a judge decides public records are being requested for a frivolous purpose, or to cause an agency to violate the law, the person who made the request can be forced to pay attorneys fees.

Before that, the law required public agencies to cover attorneys' fees if it was found to have not properly turned over the records. Local governments complained unscrupulous groups had turned the Sunshine Law into a profitable business model based on attorneys' fees.

Who wants to know

Petersen, of the First Amendment Foundation, doubts the citizens who made the Lake Point-related requests did so to cheat the district.

"There is nothing frivolous about the requests, they are just trying to get the record," she said.

Paul Laura, chairman of the Treasure Coast Democratic Environmental Caucus, is one of the people who requested the public records. He said he doesn't trust the district and is concerned it is "hiding" the transcript from the Aug. 23 meeting.

Laura was unaware his emails were the subject of a legal request, but said there has been "very little, if any" communication about Lake Point with Hurchalla or the Everglades Law Center.

Stuart resident Laurence Key said his records request was a copy of Laura's. He made it because the previous requests had been "stonewalled by our fine public servants."

Kathleen Saigh, of Palm City, pointed to Stuart resident Laurie Prim as the motivator of her request.

Prim said she may be responsible for some of the requests because she tries to educate friends about environmental issues and often suggests they use her template when communicating with public officials.

"My motivation is that I am really, truly furious that big-monied companies are railroading our small town," said Prim, of Stuart. "I have no agenda. I'm just a mom who is not afraid to speak out."

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