Dayton Request for Investigation: Office of the State Attorney Twentieth Judicial Circuit of Florida

June 25, 2021

Mr. Jay S. Purdy
Chief of Investigations
Office of the State Attorney Twentieth Judicial Circuit of Florida
2000 Main Street
Ft. Myers, Florida 33901

Sent via email to jpurdy@sao20.org

RE: Dayton Request for Investigation

Dear Mr. Purdy:

I am in receipt of a letter from attorney Diane Perera sent to you on behalf of her client Regina Dayton.  The April 13, 2021 letter and supporting attachments document in great detail a series of public record requests made by Mrs. Dayton to Marco Island City Clerk Laura Litzan and the Clerk’s responses to those requests.

It is my understanding that your office initiated an investigation in response to the letter but that it was closed rather quickly after Special Prosecutions Chief Anthony Kunasek spoke to the Marco Island City Attorney and, based on that conversation, determined there was insufficient evidence to support any public record law violation.

Having reviewed Ms. Perera’s letter and the supporting attachments, I believe there may well have been a public record law violation, whether intentional or unintentional,  and I ask that you reopen the investigation into Mrs. Dayton’s complaint.

Specifically, in response to Mrs. Dayton’s first request, the City Clerk initially claimed the City did not have custody of  the paper Councilman Howard Reed said he had submitted to the City Attorney. (The statement by Mr. Reed was made at a public meeting of the City Council and was easily verified.) The Clerk then stated that the paper was submitted but constituted Mr. Reed’s “personal notes” and was thus not subject to disclosure under chapter 119, F.S., Florida’s public records law.  Mrs. Dayton then made a request for email correspondence between the City Clerk, the City Attorney and others for a specified period of time. The paper Mrs. Dayton had previously requested was attached to one of the emails obtained in response to her second request. The City Clerk did not provide a copy of the requested paper in response to Mrs. Dayton’s first request.  Additionally, the chain of emails received in response to her second request show what may be considered an attempt to thwart Mrs. Dayton’s request for a copy of Mr. Reed’s paper.

If Mr. Kunasek determined there was insufficient evidence to pursue a criminal violation of the public records law by the City Clerk and City Attorney, I would suggest consideration of a noncriminal violation given the facts that (1) the City Clerk did not provide a copy of the Reed paper in response to Mrs. Dayton’s first request and (2) the content of the emails between the City Clerk and the City Attorney which may reflect collusion between the two to deny Mrs. Dayton a copy of the paper she had requested.

Section 27.02(1), F.S., clearly authorizes a state attorney to pursue civil charges on behalf of the State for violations of law, both criminal and civil.  This authority is supported by AGO 91-38, in which Attorney General Butterworth opined

• A state attorney may prosecute suits charging public officials with violation of Florida’s Public Records Law, pursuant to his or her statutory authority to appear on behalf of the state in all suits in which the State of Florida is a party. . . .
• [T]he state attorney may pursue actions on behalf of the state against public officials for violations of Ch. 119, F.S., the Public Records Law, and s. 286.011, F.S., the Government in the Sunshine Law, which may result in a finding of guilt for a noncriminal infraction.  [emphasis mine]

The right of access to public records is protected by our constitution, Mr. Purdy, and our ability to oversee our government and hold government officials accountable is fundamental in a democratic society such as ours.  Any attempt by government to toy with our constitutional right of access, to thwart or delay or deny that right, must be thoroughly investigated and vigorously pursued.

Thank you for your attention to my concerns, Mr. Purdy.  I look forward to your response.

Sincerely,

B.

Barbara A. Petersen, Executive Director

Cc:      Michael Barfield, Public Access Program Director, FLCGA
Ms. Diane Perera, Esq.
Mrs. Regina Dayton