Submitted by Adam Kaufman
July 25, 2021
After a three (3) hour hearing in the Historic Centre Street Court House, held on Friday July 23, 2021, Nassau County Judge Steven M. Fahlgren, ruled that there was no legal basis for the Port of Fernandina Operator, Nassau Terminals, and its CEO and Port Director Christopher Ragucci to deny Ronald “Chip” Ross access to records of the Port’s operation.
Ross, who is a City of Fernandina Beach City Commissioner, as a private citizen, beginning in December 2020, requested by email and certified letter access to records of the Port of Fernandina maintained by the Ocean Highway Port Authority (OHPA), a government agency, and/or the Port Operator, Nassau Terminals. The requests listed and specified documents related to the Port’s operation and revenue, including grants received by the Port.
OHPA complied by providing records in its possession and, by its attorney, made a demand upon Ragucci, consistent with its agreement with Nassau Terminals, that “records in the custody and control of the Port Operator” that are responsive to the Ross requests be provided to the OHPA.
In 2016 the Florida Legislature, amending the Public Records Act, required that all requests for records related to a government contract for services must be made to the government agency, not the contractor. If the government agency does not have copies, it must then notify the contractor of the request and the contractor can supply the requested copies via the public agency or directly to the person making the request. The OHPA contract with Nassau Terminals, which Ragucci negotiated, incorporated that obligation.
Ragucci and Nassau Terminals responded to that demand by asserting that, as a private entity, it was not subject to the Florida Public Records Act.
Public Records Compliance
In Florida, access to public records is a constitutional right. That right is put into effect by Florida’s Public Records Act. Judge Fahlgren, repeatedly from the bench, emphasized that any and every person, regardless of motivation has the right to access public records from a public agency and that right is virtually unfettered. Further, he underscored, that even disregarding the statutory and contractual requirements present in this case, a contractor to whom the work of a government entity is “delegated,” and/or when it is determined upon an examination of a “totality of factors,” that the contractor is performing a governmental function, that entity must provide access to records.
A “Symbiotic” Relationship
When Ragucci was called to the stand by his attorney, and was subsequently questioned by Fahlgren, his claim that he could not provide Ross documents because they would contain proprietary and confidential information and that such disclosure would put him at a competitive disadvantage appeared gossamer at best. Ragucci then allowed that he only had objections to portions of two of the Ross document requests.
Significantly, in answering a question from Falhgren, he acknowledged that he and Nassau Terminals had a “symbiotic” relationship with OHPA, a close association and mutually dependent interaction with the Port Authority. He conceded that virtually all the current work OHPA had as a chartered obligation to perform was the contractual obligation of Nassau Terminals and executed under his direction.
During Ragucci’s testimony, a perturbed Fahlgren asked the parties, and possibly himself and others in the Court room, “then why are we here.” The parties, at Judge Fahlgren’s direction, met on the day before the hearing in an effort to stipulate to the facts of the case, limit the issues and possibly settle the matter.
Decision from the Bench
An obviously prepared Judge Fahlgren, observed that by any standard: a contractual and statutory obligation; a finding that OHPA had “delegated” that which otherwise would be an agency responsibility; or a review of a “totality of factors” in deciding whether a private entity is acting “on behalf” of a public agency; Nassau Terminals is subject to the Public Records Act.
Fahlgren suggested that an individual citizen might even have a claim as a third party beneficiary of the “public records” provision of the contract between OHPA and Nassau Terminals. Further, he noted that OHPA may have a statutory right to cancel its agreement with Nassau Terminals for failure to comply with its public records obligation.
With Fahlgren’s intervention from the bench, Ross and Ragucci agreed upon the number and scope of documents that could be produced and that were available.
Order and Sanctions
Directing his comments to Nassau Terminals and Ragucci, Judge Fahlgren called the proceeding “a waste of the Court’s time,” and characterized Nassau Terminals’ and Ragucci’s conduct as “frivolous.”
Judge Fahlgren ordered, as required by statute, that Nassau Terminals produce the agreed to and requested documents within forty-eight (48) hours.
In his published Order Judge Fahlgren wrote:
“The Court finds on its own motion that the defenses raised by Nassau Terminals are not colorable, particularly the contractual language and the delegation test defenses. These defenses were not supported by the material facts necessary to establish the defense or would not be supported by the application of then existing law to those material facts. The Court reserves ruling on what sanctions should be awarded to the other parties, including attorney’s fees to OHPA, shifting costs back to Nassau Terminals for copies or work performed by it to obtain the documents that would otherwise be required to be paid by the Petitioner (Ross), court costs and expenses to the Petitioner, and any other relief that could be awarded under … Florida statutes.”
The parties were directed by Judge Fahlgren to mediate these issues within thirty (30) days.
Judge Fahlgren’s written decision was made available to the parties at the close of the day, Friday.