By Dan Christensen, FloridaBulldog.org
Rocked by scandal and run by leaders under criminal indictment for violating Florida’s Sunshine Law, Broward Health is now moving aggressively to choke off disclosure of potentially embarrassing public records.
Florida Bulldog and others recently have used the state’s public records law to request information about how many lawyers Broward Health is paying and how much it’s paying them. Those requests have been stymied, however, by new up front demands for thousands of dollars in administrative and legal fees before being able to review those records.
Broward Health, whose legal name is the North Broward Hospital District, has traditionally provided public records free of charge or at low cost even as the law allows for the fees to cover “the extensive use of information technology or extensive clerical or supervisory assistance by personnel of the agency.”
The new stonewalling has been Broward Health’s official policy since last July when it was implemented by Interim President/CEO Beverly Capasso and General Counsel Lynn Barrett, both of whom are under indictment. The district’s policy-setting board of commissioners approved the policy, GA-016-005, in September 2016.
On Wednesday, Broward Health’s board decided to abandon its long search for a permanent President/CEO and voted to give Capasso the $650,000-a-year job even as she awaits trial.
“This was done to prevent people from getting information,” said former Broward Health Commissioner Joe Cobo. “If it will cost you $4,000 you most likely will back off.”
More governments charging fees to block access
Legal experts say governments in Florida increasingly are using the threat of substantial legal fees to block access to public records by reporters and others.
“I frequently see agencies demand high fees for records they don’t want to release,” said Thomas Julin, a Miami First Amendment attorney whose clients include Florida Bulldog. “Now that most records are electronic, there is no justification for charging high fees.”
What’s happening is starkly illustrated by the experience of student reporters at the University of Florida. Their project is seeking to pin down the costs of providing access to public records around the state.
Barbara Petersen is president of Florida’s First Amendment Foundation. She is working with the students who she said filed requests with constitutional officers in nine counties and six state agencies, including the Department of Juvenile Justice (DJJ).
DJJ initially said the records the students wanted would cost $128.60. The students paid it. About the same time, however, DJJ was the focus of a highly critical series by the Miami Herald called “Fight Club.” Soon, DJJ notified the students that it had made a mistake and that the public records would actually cost more than $13,000.
“How do you go from $128.60 to $13,000 unless you don’t want us to have the records? It was right after they’ve been slammed in the press,” said Petersen.
Broward Health is the publicly supported safety net hospital system for Broward residents in the northern two-thirds of the county. It collects approximately $140 million in property taxes every year.
The district employs about a half-dozen in-house attorneys. It also pays more than a dozen outside lawyers and law firms, including criminal defense attorneys now representing Capasso, Barrett, Commission Chairman Rocky Rodriguez, Commissioner Christopher Ure and former Commissioner Linda Robison
Gov. Rick Scott has the authority to suspend the five – each of whom he appointed – but has not done so.
The taxpayer’s tab
What’s taxpayers’ tab for Broward Health’s legal fees and costs? Millions. How many millions? The district isn’t saying.
Until now, Florida’s public records law allowed a few glimpses of that spending.
In April 2016, Florida Bulldog reported that Republican-controlled Broward Health had paid two law firms with strong ties to Gov. Scott – Foley & Lardner and Greenberg Traurig – more than $3 million in legal fees in the prior 12 months.
Last November, local activist Dan Lewis, who operates Broward Health Blog, obtained vendor payment histories that show from March 1, 2015 to Nov. 10, 2017 Broward Health paid Foley & Lardner and an Alabama-based firm $8.4 million.
Foley & Lardner’s haul was $5.5 million. Baker Donelson, hired to monitor the district’s compliance with a federal oversight agreement required as part of its $70 settlement of Medicare fraud allegations in 2015, got $2.9 million.
Lewis initially sought copies of the firms’ actual invoices, but last August was told he’d have to pay $1,400 to cover “estimated time of 2-3 hours of attorney review.” In November, after Lewis indicated he might sue, he was given Broward Health’s vendor payment summaries for the two firms.
Also in November, the district provided without cost to Florida Bulldog paid invoices of two out-of-state law firms –also tied to Gov. Scott – that handled the controversial internal investigation culminating in the December 2016 firing of Broward Health President/CEO Pauline Grant.
More big fees approved
General Counsel Barrett approved the payment of $780,000 in fees and expenses to those firms between August 2016 and October 2017, records show. The Waller Lansden firm, which actually conducted the probe, was paid $150,000. The Bradley Arant firm received $630,000. No explanation was provided about the apparent discrepancy between those two totals.
Since then, Broward Health has been demanding lots of money before providing access to its public records.
Amy Galloway is a Fort Lauderdale attorney who for years has represented Broward Health’s medical staff regarding matters necessary to do their jobs, such as complying with statutory and regulatory issues and conducting peer reviews. Broward Health paid for Galloway’s staff services until recently when it announced that it would no longer do so for cost-cutting reasons.
As a result, Galloway filed a public-record request seeking copies of the district’s retainer agreements and invoices with outside law firms from 2015-2017. In an interview, Galloway explained that her clients objected to Broward Health’s decision and want more information about such expenditures.
Foley & Lardner attorney Kevin Hyde, based in Jacksonville, responded to her request with a letter informing her that she would have to pay about $5,000 to obtain those records, Galloway said.
On Jan. 19, Hyde likewise informed Florida Bulldog that it would have to pay at least $3,791.42 to obtain copies of the district’s engagement letters and retainer agreements with a dozen outside law firms, as well as the firms’ invoices submitted for payment. He added that the final cost could be higher if additional review work was involved.
“Please let me know how you would like to proceed,” Hyde wrote.