DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARTIN E. O’BOYLE and ASSET ENHANCEMENT, INC.,

Appellants,

v.

TOWN OF GULF STREAM, SCOTT MORGAN, JOHN C. RANDOLPH, 

ROBERT A. SWEETAPPLE, and JOANNE O’CONNOR,

Appellees.

No. 4D17-2725

[October 24, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; David E. French, Judge; L.T. Case No. 50-2015-CA001737-XXXX-MB.

Robert Rivas of Sachs Sax Caplan, P.L., Boca Raton, (withdrawn as 

counsel after filing brief), and Jonathan R. O’Boyle of The O’Boyle Law 

Firm, P.C., Deerfield Beach, for appellants.

Hudson C. Gill and Jeffrey L. Hochman of Johnson, Anselmo, Murdoch, 

Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees Town of Gulf 

Stream, Scott Morgan, John C. Randolph, and Joanne O’Connor.

Therese A. Savona and Kathryn L. Ender of Cole, Scott & Kissane, P.A., 

Miami, for appellee Robert A. Sweetapple.

KLINGENSMITH, J.

Appellants Martin E. O’Boyle and Asset Enhancement, Inc., (“Asset”) 

appeal the trial court’s dismissal of their Complaint to Enforce Florida’s 

Sunshine and Public Records Laws and for Declaratory and Injunctive 

Relief against the Town of Gulf Stream (“the Town”) and other affiliated 

individuals (collectively, “appellees”).1 We find the trial court properly 

dismissed the Sunshine Law claims, as well as the claims arising from 

alleged public meeting violations under Chapter 286, Florida Statutes, and 

affirm on those issues without further comment. However, we reverse the 

 

1 Appellants filed their complaint against several other defendants, including the 

Town’s mayor, and two of the Town’s attorneys.
2

dismissal of appellants’ claims under the Public Records Act, and remand 

for further proceedings.

In their complaint, Asset and O’Boyle alleged separate Public Records 

Act violations regarding two public records requests: (1) for copies of bills 

and payments sent to the Town for services rendered by the Town’s 

attorney; and (2) for copies of text messages sent or received by the Town’s 

Mayor since the time of his appointment. Asset alleged that the Town 

produced illegitimately redacted copies of the bills and payments. In 

another claim, O’Boyle asserted that the Town produced “a cherry picked” 

selection of texts which painted O’Boyle “in a negative light.” After another 

records request that produced additional, previously unseen texts, O’Boyle 

insisted that the initial release was incomplete and that the Town and 

Mayor deliberately concealed records from the public. 

Appellants alleged that the Town violated Article I, section 24 of the 

Florida Constitution and Chapter 119, Florida Statutes (“the Public 

Records Act” or “the Act”). They requested the trial court order the Town 

and others to allow the inspection, copying, and photographing of the 

requested records after a hearing held pursuant to section 119.11, Florida 

Statutes (2017). They then filed a Motion for Mandatory In-Camera 

Inspection of Record asking that the court review the redacted legal bills 

to determine if they fell within the “work product” exception of the Public 

Records Act, as the Town claimed. A week later, the Town turned over the 

bills and payment records at issue without any redactions.

Appellees each filed a motion to dismiss, and the trial court held a 

hearing on the parties’ motions. The court dismissed the complaint and 

granted ten days for amendment. Instead of amending, appellants 

requested that a final judgment be entered, and the trial court obliged.

“A motion to dismiss tests whether the plaintiff has stated a cause of 

action.” Bell v. Indian River Mem’l Hosp., 778 So. 2d 1030, 1032 (Fla. 4th 

DCA 2001). An appeal of a trial court’s ruling on a motion to dismiss is 

an issue of law subject to de novo review. See id. The trial court’s decision 

regarding a motion to dismiss is limited to a consideration of the 

allegations within the four corners of the complaint, and such allegations 

must be viewed in the light most favorable to the non-moving party. See 

id. Likewise, “[t]he determination of whether something is a public record 

is a question of law subject to de novo review and is determined on a caseby-case basis.” Bent v. State, 46 So. 3d 1047, 1049 (Fla. 4th DCA 2010); 

accord State v. City of Clearwater, 863 So. 2d 149, 151 (Fla. 2003); Media 

Gen. Convergence, Inc. v. Chief Judge of the Thirteenth Jud. Cir., 840 So. 

2d 1008, 1013 (Fla. 2003). 
3

The right of access to public records is a “cornerstone of our political 

culture,” Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 

3d 120, 124 (Fla. 2016) (further citation omitted); therefore, the Public 

Records Act “must be liberally construed in favor of access, and all 

exemptions must be limited to their stated purpose.” Palm Beach Cty. 

Sheriff’s Office v. Sun-Sentinel Co., LLC, 226 So. 3d 969, 972 (Fla. 4th DCA 

2017). 

“Article I, Section 24(a) of the Florida Constitution grants ‘[e]very person 

. . . the right to inspect or copy any public record made or received in 

connection with the official business of any public body, officer, or 

employee of the state, or persons acting on their behalf.’” Id. (alterations 

in original). The Act “implements this important constitutional tenet, and 

declares: ‘It is the policy of this state that all state, county, and municipal 

records are open for personal inspection and copying by any person. 

Providing access to public records is a duty of each agency.’” Id. (quoting 

§ 119.01(1), Fla. Stat. (2017)); accord Rasier-DC, LLC v. B & L Serv., Inc., 

237 So. 3d 374, 376 (Fla. 4th DCA 2018). “Public custodians must allow 

a requested record to be inspected and copied by ‘any person desiring to 

do so, at any reasonable time, [and] under reasonable conditions.’” Id. 

(alterations in original) (quoting § 119.07(1)(a), Fla. Stat. (2016)).

To set forth a cause of action under the Act, a party must “prove they 

made a specific request for public records, the City received it, the 

requested public records exist, and the City improperly refused to produce 

them in a timely manner.” Grapski v. City of Alachua, 31 So. 3d 193, 196 

(Fla. 1st DCA 2010). “Public records” include “all documents, papers, 

letters, maps, books, tapes, photographs, films, sound recordings, data 

processing software, or other material, regardless of the physical form, 

characteristics, or means of transmission, made or received pursuant to 

law or ordinance or in connection with the transaction of official business

by any agency.” § 119.011(12), Fla. Stat. (2017); accord Braddy v. State, 

219 So. 3d 803, 820 (Fla. 2017).

In line with these authorities, we consider the requests for the text 

messages and the attorney bills and payments separately.

Text Messages as Public Records

This is an action against a municipality to obtain records that, while 

potentially related to the Town’s public business, are in the exclusive 

control of one of their elected officials. An elected official’s use of a private 

cell phone to conduct public business via text messaging can create an 
4

electronic written public record subject to disclosure. However, for that 

information to indeed be a public record, an official or employee must have 

prepared, owned, used, or retained it within the scope of his or her 

employment or agency. An official or employee’s communication falls 

“within the scope of employment or agency” only when their job requires 

it, the employer or principal directs it, or it furthers the employer or 

principal’s interests.

Therefore, not all written communications sent or received by public 

officials or employees of a government agency are public records subject 

to disclosure upon request under the Act. See City of Clearwater, 863 So. 

2d at 150. The reach of the Act is to those records related to the employee 

or official’s public responsibilities. For instance, “employees do not 

generally act within the scope of employment when they text their spouse 

about working late or discuss their job on social media. Nor do they 

typically act within the scope of employment by creating or keeping records 

purely for private use, like a diary.” See Nissen v. Pierce Cty., 357 P.3d 45, 

54 (Wash. 2015). None of these examples would result in a public record 

in the usual case. 

Illustratively, in City of Clearwater, a Times Publishing Company 

(“Times”) reporter requested copies of all e-mails sent or received over the 

City’s network by two City employees throughout the course of a year. 863 

So. 2d at 150. The employees sorted their e-mails into private and public 

categories, and the City released the “public” emails to the reporter. Id. 

However, Times filed an action asserting it was entitled to all emails on the 

City’s computers. Id. at 150-51. The trial court ordered all e-mails to be 

obtained, preserved, and secured from destruction. Id. After a final 

hearing, the trial court denied Times’ requests for a writ of mandamus and 

permanent injunctive relief. Id. On appeal, the Second District affirmed 

the lower court’s order, but did so without prejudice to Times seeking an 

in-camera review of all e-mails, while also ruling that “private” e-mails 

were outside the Act’s scope. Id. 

On review, the Florida Supreme Court agreed with the Second District 

that “[b]ased on the plain language of section 119.011(1), . . . ‘private’ or 

‘personal’ e-mails ‘simply fall[] outside the current definition of public 

records.’” Id. at 153 (alteration in original) (quoting Times Publ’g Co. v. City 

of Clearwater, 830 So. 2d 844, 847 (Fla. 2d DCA 2002)). The Court 

concluded that not “all e-mails transmitted or received by public 

employees of a government agency are public records pursuant to [the Act] 

by virtue of their placement on a government-owned computer system.” 

Id. at 150 (alteration in original); accord Butler v. City of Hallandale Beach, 

68 So. 3d 278, 280-81 (Fla. 4th DCA 2011).
5

To comply with the dictates of the Act, the governmental entity must 

proceed as it relates to text messaging no differently than it would when 

responding to a request for written documents and other public records in 

the entity’s possession—such as e-mails—by reviewing each record, 

determining if some or all are exempted from production, and disclosing 

the unprotected records to the requester. Where specified 

communications to or from individual state employees or officials are 

requested from a governmental entity—regardless of whether the records 

are located on private or state accounts or devices—the entity’s obligation 

is to conduct a reasonable search that includes asking those individual 

employees or officials to provide any public records stored in their private 

accounts that are responsive to a proper request. The ability of public 

officials and employees to use cell phones to conduct public business by 

creating and exchanging public records—text messages, e-mails, or 

anything else—is why a process must be available to offer the public a way 

to obtain those records and resolve disputes about the extent of 

compliance. Without such a process, the Act cannot fulfill the people’s 

mandate to have full access to information concerning the conduct of 

government on every level. 

When judicial intervention is requested to test the adequacy of the 

entity’s response, the court can make the requisite determination of 

relevance and privilege as to any contested record. And like pre-trial 

discovery conducted in the context of litigation, the text messages or other 

records that may ultimately be produced will be narrowly confined to those 

found to be “relevant” and “non-privileged.” 

Strong public policy reasons also support the conclusion that electronic 

information stored on privately-owned devices may be subject to 

disclosure under the Public Records Act. The purpose of both Article I, 

section 24 and Chapter 119 is to ensure that citizens may review (and 

criticize) government actions. That purpose would be defeated if a public 

official could shield the disclosure of public records by conducting 

business on a private device. 

We acknowledge that the public’s statutory right to public records does 

not extinguish an individual’s constitutional and statutory rights in private 

information. But we do not read Article I, section 24 or the Public Records 

Act as a zero-sum choice between personal liberty and government 

accountability. Accordingly, the Town’s reasons for its lack of disclosure, 

whether for reasons related to relevancy, the application of possible 

privileges, or otherwise, necessitates a judicial review of the available 

communications to identify those which are subject to disclosure and any 
6

defenses to allegations of noncompliance. Such review would ensure that 

a meaningful determination of relevancy and privilege can be made, 

disputes can be expeditiously resolved, and all legitimate privacy concerns 

safeguarded.

Clearly, some of the text messages reviewed by the trial court during

this process could include personal or private information, and some could

be the subject of legitimate claims of privilege. Deciding which ones may

remain private was the very purpose of the protocol ratified by the 

Supreme Court’s City of Clearwater decision—review these 

communications in-camera and afford an opportunity to raise objections 

to protect against disclosure of irrelevant, privileged, or otherwise nondiscoverable materials. To avoid that process altogether, assuming the 

scope of the request was reasonable, it would have been incumbent on 

appellees to show some controlling authority that the Public Records Act 

did not apply, or otherwise prohibited, the submission of the text messages 

to the court for an in-camera review. No such showing was made here. 

Regardless of whether any of the texts are ultimately deemed subject to 

disclosure, each element of O’Boyle’s public records claim as stated in the 

complaint regarding the text messages was sufficiently pled. See Grapski, 

31 So. 3d at 196; Brandon, 141 So. 2d at 279. First, O’Boyle stated in the 

complaint that a specific request was made for all texts over a certain 

period of time. See Grapski, 31 So. 3d at 196. Second, the Town received 

the request because it responded with a release of certain texts deemed to 

be public records. See id. Third, the requested public records texts 

existed, as was evident by their release and inclusion as an exhibit with 

the complaint. See id. Fourth, O’Boyle complained that a later response 

by the Town revealed several additional texts that were not released upon 

the first request, leading to the belief that there may be more available. See 

id. 

Whether O’Boyle’s individual claim proceeds further may depend on the 

outcome of that in-camera review. But for now, we reverse the dismissal 

on this count of appellants’ complaint and remand for the trial court to 

conduct an in-camera inspection of the disputed text messages sent to and 

from the Town’s Mayor to determine whether any qualify as public records.

Production of Redacted Attorney Bills

Following Asset’s public records request for attorney billing records, the 

Town responded by citing work product privilege and only provided 

redacted copies of the requested records. After appellants filed a motion 

for in-camera review, but before the dismissal hearing began, the Town 
7

acquiesced and provided Asset with a complete set of unredacted billing 

records. As a result, the Town asserts this issue on appeal is now moot 

and should be dismissed. We disagree.

“An issue is moot when the controversy has been so fully resolved that 

a judicial determination can have no actual effect.” Godwin v. State, 593 

So. 2d 211, 212 (Fla. 1992). “A moot case generally will be dismissed.” Id. 

But there are at least three instances where an otherwise moot case will 

not be dismissed: (1) when questions of great public importance are raised, 

(2) when issues are likely to recur, or (3) “if collateral legal consequences 

that affect the rights of a party flow from the issue to be determined.” Id. 

(emphasis added); accord Paul Jacquin & Sons, Inc. v. City of Port St. Lucie, 

69 So. 3d 306, 308 (Fla. 4th DCA 2011).

We find the case of Cookston v. Office of Pub. Def., 204 So. 3d 480 (Fla. 

5th DCA 2016), to be analogous. There, Cookston filed a petition for writ 

of mandamus seeking the trial court to compel the production of 

correspondence from the Public Defender’s Office (“PDO”) and an assistant 

public defender pursuant to the Act. Id. at 481. He also petitioned for 

costs. Id. The trial court found the petition for writ of mandamus moot 

because the PDO provided the requested documents to Cookston in full 

shortly after it was filed. Id. On appeal, the Fifth District held, “Cookston’s 

petition was not moot because the court did not determine whether he was 

entitled to reasonable costs of enforcement pursuant to section 119.12.” 

Id. The matter was reversed and remanded for the trial court to determine 

whether the PDO’s delay in providing the records entitled Cookston to an 

award of costs. Id.; accord Mazer v. Orange Cty., 811 So. 2d 857, 858-60 

(Fla. 5th DCA 2002).

Similar to Cookston and Mazer, Asset requested records and, after filing 

a claim with the trial court, the records were provided in their requested 

form. See Cookston, 204 So. 3d at 481; Mazer, 811 So. 2d at 858-60. 

While it was argued in Cookston and Mazer that the issues were rendered 

moot, the appellate court held that collateral legal consequences affecting 

the rights of a party still existed—namely, the issuance of fees and costs 

based on improperly refused, completed, or delayed records requests. See 

Cookston, 204 So. 3d at 481; Mazer, 811 So. 2d at 860; Godwin, 593 So. 

2d at 212. 

Like those cases, we find this claim was not moot due to the presence 

of collateral issues yet to be decided by the trial court—specifically, a 

determination whether the Town’s initial redactions of the bills were 

proper, and whether any reasonable attorney’s fees, costs, and expenses, 
8

should be awarded. We therefore reverse and remand for a determination 

of those issues.

Affirm in part; reverse in part; and remand for further proceedings 

consistent with this opinion.

TAYLOR and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.