On Saturday, March 21st, Stephen Herbits filed a Motion for Sanctions Against the City of Miami because of the City’s continual and illegal pattern of withholding public documents regarding the Flagstone development on Watson Island.

This action was triggered by the City’s withholding an August 15, 2014 document and related correspondence that conclusively shows Flagstone did not meet its June 2, 2014 deadline to commence construction. 

The result, according to the Motion, is a default under City resolutions and agreements that required the developer to have all permits in place and commence actual construction on or before June 2, 2014.  Proof that the City is illegally perpetuating the Project, has defied the Court’s order to provide all relevant documents, and withheld these records to give Flagstone an illegal six-month “grace period” to establish “facts on the ground.” 

The City did not provide the construction-related correspondence until March 3 of this year, despite being under court orders as far back as September 5, 2014 to do so.    

“The document and related correspondence records demonstrate conclusively that Flagstone did not meet its June 2, 2014 deadline to commence construction, defined as all material plans and permits are approved and issued and the actual act of physical construction has begun,” states the Motion.

The pattern of ignoring the Florida Constitution and statutes regarding public records, ignoring court orders dealing specifically with the Watson Island development, of misleading statements, and sometimes-false statements under oath, Herbits believes, reveal a fundamental problem in Miami today. “The behavior of the City’s legal department calls out the question of whether they represent the citizens of this City, or certain officials and private developers against the interests of those citizens. The alarming question is simply this:  Why is the City willing to engage in such outrageous behavior to prevent the public from knowing what it is doing? What are they afraid of?”    

Herbits’ Motion specifically asks the Court to: 

  • Require the City to provide an affidavit by a City official that the City has fully complied with Plaintiff’s public records requests and court order,
  • Require the City to produce, at the City’s expense, paper copies of all records responsive to Plaintiff’s requests over the past 20 months, whether originally in paper or email form so that they may be checked against the electronic files produced,
  • Require depositions under oath of all City officials who played any role in the City’s response to Herbits’ Chapter 119 requests and the Court’s September 5, 2014 Order, 
  • Require the City to certify how it can assure the Court that future compliance will be accurate.

In addition, given the 20 months of abuse of the Public Records law by the City, Herbits is also asking the Court to refer the matter to the Office of the State Attorney for Miami-Dade County for prosecution under section 119.10, Florida Statutes.

The Motion documents that, on at least three occasions -- November 12, November 18, and December 16, 2014 -- City witnesses and the City itself represented that every city agency had been consulted and that the City had produced every record responsive to Plaintiff’s Chapter 119 request and the court’s September 5, 2014 Order.   These representations were not true. 

According to Roger Craver, head of a citizens’ group supporting Herbits in his litigation, “The City’s withholding of these documents fits a deeply troubling pattern of denying public access and involvement, in which the City withholds public records critical to ongoing, time-sensitive City decisions with broad public impact, forcing citizens to go to court and spend their own money to enforce the City’s constitutional public records obligations, after which it is often too late for the requester or the public to use the information to participate meaningfully in the governmental decision-making process.” 

You’ll find other details of the City’s shocking behavior in the full text of the Motion found here.