Muchnick’s Letter to Fort Lauderdale City Manager Regarding Alex Pussieldi Public Records Dispute

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April 25, 2014

Mr. Lee R. Feldman

City Manager

City of Fort Lauderdale

Dear Mr. Feldman:

I want to thank the City of Fort Lauderdale staff, especially assistant city attorney Cole Copertino, for all the time they have put into the public records requests related to the reporting by Tim Joyce and me on the history of youth swim coach Alex Pussieldi.

Unfortunately, we seem to be at an impasse regarding certain documents so far not produced or, in some cases, redacted more heavily than is appropriate under Florida law. Accordingly, I have prepared this letter with the assistance of local legal counsel experienced in litigating such disputes in your state. It is my view that the further release of records, plus elimination of existing redactions, as outlined below, would be in the public interest. I am prepared to pursue all avenues of appeal.

As I have stated in previous correspondence with the city counsel’s office, there are three current areas of dispute:

1. The 2/14/04 report by Detective Jennings of the Fort Lauderdale Police Special Victims Unit twice includes the notation in capital letters and bold face: “SEE STATEMENT FOR EXACT WORDING.” I am requesting copies of those two attachments.

2. Also on 2/14/04, an email was sent by Alan Silva, then acting city manager, to Ernest Burkeen, then director of the Parks and Recreation Department. I am asking you to restore the content of that email, which was redacted in your original production (see the bottom of the last page at http://muchnick.net/lauderdaledocs2.pdf).

3. I have not received a definitive response to my request for the entirety of the February 2004 email thread with the subject line “Re: Fort Lauderdale Swim Team Incident,” including all replies and forwards, among correspondents Al Ortenso, Bruce Roberts, Chuck Drago, Alan Silva, Ann Kelleher, Bob Lamberti, Richard Herbert, Ernest Burkeen, Bob Pusins, and Sharon Andersen.

So far, evidently with respect to Nos. 1 and 3, the assistant city attorney has responded only with a general statement that no such records are likely to exist. If that is the City’s final answer on those items, a more developed explanation is necessary. On their face, the requested documents are integral parts of records already produced. An assertion of their failure to exist cannot be allowed to rest.

Before proceeding to argue in support of No. 2, I would like to make one further point. The Special Victims Unit report was heavily redacted in the response to my first request, then released in fuller form in response to a second and separate request. (Indeed, because of the original redactions, I was not even aware that the document in question was the Special Victims Unit report.) Thus, Fort Lauderdale’s own claims of exemptions seem internally inconsistent.

Whether internally inconsistent or not, the redactions in your records productions are justified as being pursuant to Florida Statutes § 119.071(2)(h)(1)(a), 119.071(2)(h)(1)(b), and 119.071(2)(j)(1). However, those redactions do not hold up under a plain reading of the law.

The documents emanate from a complaint to police regarding a physical altercation between swimming coach Pussieldi and a 20-year old swimmer, Roberto Cabrera Paredes. Both the age and the name of the alleged victim are already a matter of public record based on (a) the Incident Report (pp. 18-19 of your March 21, 2014, production) and (b) a February 17, 2004, news article in the Sun-Sentinel. In Sarasota Herald Tribune v. Florida, 924 So.2d 8 (Fla. 2d DCA 2005), the court held that a statutory exemption provided in 119.071(2)(h) did not apply once information has already been made public.

Further, the assault at immediate issue concerned an allegation of Pussieldi “punching” Paredes “in the ribs” and wrapping a “towel around his neck” in an effort to choke him. Nothing about that incident was sexual in nature or involved the abuse (sexual or otherwise) of a minor or child. At the time of the incident, Paredes was 20 years old; Florida Statute § 827.01 defines a child as a person under the age 18.

Florida Statutes §119.071(2)(h)(1)(a), 119.071(2)(h)(1)(b) specifically exempt records from public disclosure if the information (a) reveals the identity of the victim of the crime of child abuse as defined by chapter 827 or (b) reveals the identity of a person who is a victim of any sexual offense, including a sexual offense proscribed in chapter 794, chapter 796, chapter 800, chapter 827, or chapter 847. To reiterate, Paredes does not appear to be the victim of a sexual offense based on the documents provided.

Florida Statute §119.071(2)(j)(1) allows for the withholding of public records content revealing the identity, home or employment telephone number, home or employment address, or personal assets of the victim of a crime, and identifies that person as the victim of a crime.

Previous correspondence from Mr. Copertino concedes that some of the redactions (including No. 2 listed above) involve “narratives.” None of the exemptions under 119.071(2)(h)(1)(a), 119.071(2)(h)(1)(b), or 119.071 (2)(j)(1) covers narrative information; all cover only specified information which might identify a victim.

In sum, none of the exemptions asserted by your office with respect to the 19-page production on March 21 is valid. The information contained in these pages was not properly redacted.

Please confirm acknowledgment of this letter at your earliest convenience and let me know whether the City of Fort Lauderdale intends to comply with its statutory obligations here. The full text of this letter will be published around 10 a.m. EDT at https://concussioninc.net.

Sincerely,

Irvin Muchnick

 

Complete links to our Alex Pussieldi investigation are at https://concussioninc.net/?p=8652.

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