By Francisco Alvarado, FloridaBulldog.org
Miami City Attorney Victoria Mendez fired off a quick email May 31 to her office’s paralegal Stephanie Schloss-Sassi declaring she had no documents pertaining to a public records request about Ultra Music Festival returning to the city-owned Bayfront Park. “As discussed, our office has no responsive docs,” Mendez wrote. “This doesn’t apply to us. :).”
However, a few days later, 26 calendar invites and emails between May 21 and 31 that show a meeting was being scheduled to discuss Ultra involving Mendez, three assistant city attorneys, her office’s legislative coordinator and Miami Deputy City Manager Joe Napoli ended up in a deleted folder of the city’s Microsoft Outlook. Two emails contained an attachment titled, “1122909.pdf Ultra contract 18.”
Mendez’s flip response and the files in the trash bin were no coincidence to Sam Dubbin, the lawyer for a coalition of downtown Miami residents who sought the emails and calendar invites, along with copies of proposed draft agreements and other documents, before the City Commission’s ultimate July 25th 3-2 vote to allow the massive three-day music event’s return to Bayfront in March 2020.
“In all my years working with public records, I’ve never seen any in the ‘Deleted’ folder,” Dubbin said. “More importantly, as you can see from the subject lines, every one concerns Ultra.”
Based on Dubbin’s months-long quest for Ultra-related documents — and two other protracted battles for public records involving the proposed David Beckham soccer stadium and the overturning of the city’s Pottinger homeless protection law — the city attorney’s office is subverting Florida’s public records law by stifling the flow of information involving controversial deals. In the latter cases, city officials began turning over records only after threats of litigation following months of not producing any documents.
One example: Justin Wales, a senior counsel representing wealthy Miami activist Bruce Matheson, requested documents relating to the Beckham stadium on April 9. Two months later, Wales followed up with a phone message and a June 3 email to Assistant Miami City Attorney Jihan Soliman, the office’s public records coordinator. His email, obtained by Florida Bulldog, states: “We have not received any documents or a response from the city… Accordingly, we intend to file a lawsuit to compel production.”
Threat of a lawsuit
Soliman responded a few minutes later, asking Wales for the timeframe and terms related to his public records request. A frustrated Wales told Soliman, “I think it is unfortunate that the city waited until a threat of litigation to ask for those terms.”
According to an automated June 7 email generated by the city’s public records log system, officials identified 17 digital files containing more than 70,000 emails related to the stadium request. An Aug. 13 email exchange between two other Carlton Fields attorneys shows that only nine of the files have been turned over and the last file was sent July 9.
“This happens all the time,” Dubbin said. “It’s part of the city’s regular procedure. But when you withhold records, it is against the law.”
In an email response to questions, Mendez denied that she and her staff are intentionally delaying production of documents and destroying files. She said the 26 Ultra files were “erroneously deleted.”
“We turn over records when they are specifically responsive to a request pursuant to the public records law,” Mendez wrote. “The IT searches reveal the calendar invites and those emails were turned over for the appropriate request.”
On May 29, Dubbin, on behalf of the Miami Downtown Neighbors Alliance, had formally requested records relating to any negotiations with Ultra and its representatives following a Sunshine Law meeting eight days earlier in which City Commissioner Keon Hardemon and City Manager Emilio Gonzalez said they were interested in renewing talks with the festival’s owners.
Homestead deal in the works
At the time, Ultra was reportedly working out a possible 10-year agreement with the City of Homestead. The alliance is opposed to Ultra returning to Bayfront Park. Dubbin requested all correspondence, including electronic messages and meeting notifications, from May 1 until the date the city fulfilled his request.
On June 13, Dubbin was emailed a link to a Public Storage Table (PST) file, which is a carbon copy of folders containing calendar invites and emails on the city’s Microsoft Outlook. The file, which Dubbin shared with Florida Bulldog, has an “Archive” folder with 70 pages of emails containing references to Ultra, but nothing indicating any talks between city officials about the festival returning to Bayfront. “Since all of the public discussion at the time involved Ultra being close to a deal with Homestead, this information seemed reassuring,” Dubbin said.
Five days later, the city commission agenda was published containing a resolution for the city manager to offer Ultra a revocable license agreement to use Bayfront Park next year. On June 19, Dubbin emailed Mendez and other city officials accusing them of withholding documents and violating Florida’s public records law. The same morning he received a draft of the resolution and a draft of the license agreement, both dated May 31.
“Those records should have been incontestably available on June 13 but were withheld in violation of Chapter 119,” Dubbin wrote. “It is inconceivable that other responsive communications and records were not also withheld at the time.”
Dubbin told Florida Bulldog he also went through the PST file again and discovered a sub-folder marked, “PRIV,” in the “Deleted” folder that contained the 26 files. “Every single one of them has something to do with Ultra, mostly concentrated between May 28-31,” Dubbin said. “According to the metadata, most of the deletions occurred on June 11 and June 12. Remember, the city produced the PST files to me the following day.”
Mendez referred specific questions about how the 26 files wound up in the deleted folder to Soliman, who said the calendar invites and emails were segregated for a closer review to determine if those were exempt under Florida’s public records law.
“Upon completing a closer review of said emails, we either exempt them or put them back in Archive folder and delete the created folder,” Soliman said. “As those [26] emails were not exempt, it was intended for them to be placed back in Archive but were inadvertently placed in the Deleted folder.”
Soliman also said the files technically were not completely erased as Florida law requires all emails on the city server to be retained for 10 years. As far as taking nearly four weeks to provide Dubbin with all the documents he requested, Soliman insisted his request was fulfilled in a “reasonable time.”
“Please note, the Office of the City Attorney was not the custodian of the requested documents, in this instance we were simply the liaison,” Soliman said. “Documents were not withheld. They were produced once received from the custodian and reviewed for any exemptions.”
Dubbin dismissed Soliman’s explanation that the documents he requested had to be reviewed for exemptions. “If the city were to actually claim an exemption, it is required by statute to inform the requester,” he said. “Usually, the city simply redacts the exempt material. The city didn’t do any of this. Further, there is no exemption for emails discussing and setting up meetings about a major agreement to lease public parkland to a private, for-profit enterprise.”
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