Public Records Request #4 – Reilly v. North Broward Hospital District, et al.,

Sent: Wednesday, September 16, 2015 9:02 AM
Subject: Public Records Request #4 – Reilly v. North Broward Hospital District, et al., Case No. 10-60590 (S.D. Fla.)

September 16, 2015

Lynn Barrett, General Counsel
North Broward Hospital District
Broward Health Spectrum Office
1700 NW 49 Street,
Fort Lauderdale, Florida

Re: Public Records Request #4 – Reilly v. North Broward Hospital District, et al., Case No. 10-60590 (S.D. Fla.)

Dear Ms. Barrett,

This letter is a public records request pursuant to the Public Records Act, Florida Statutes, Section 119 to allow the inspection and copying of public records. This request is also made pursuant to Art. 1, s. 24(a), Fla. Const. which establishes a constitutional right of access to 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.

YOU ARE CAUTIONED THAT THE FAILURE OF THE REQUESTEE TO FULLY COMPLY MAY RESULT, INTER ALIA, IN THE INSTITUTION OF LITIGATION, THE REQUEST FOR APPOINTMENT BY THE COURT OF AN INDEPENDENT REVIEW AND AN AWARD OF ATTORNEY’S FEES AND COSTS TO REQUESTOR’S LEGAL COUNSEL.

Please provide me electronic copies of the following records to Dan@BrwdHealth.com which as a result of the settlement of United States ex rel. Reilly v. North Broward Hospital District, et al., Case No. 10-60590 (S.D. Fla.) have now become public.

  1. The recorded and transcribed minutes of all shade meetings held in this matter by the Board of Broward Health.

As a corollary to the above matter and consistent with the public’s right to know and the public interest in the appropriate expenditure of their tax funds, please provide me electronic copies of the following records to Dan@BrwdHeath.com or alternatively, please let me know when the following records are available for my inspection.

  1. Copies of all invoices from Broward Health’s Fair Market Analysis contractor for 2014 through the date of this production.
  2. Copies of all Fair Market Value Analysis provided by Broward Health’s independent consultant to Broward Health for 2014 through the date of this production.

In previous public records requests, I have requested copies of physician service, employment and medical directorship contracts that have, in part, been produced with excluded scope of services and compensation sections.  These fundamental and basic elements of these contracts have been excluded by Broward Health asserting privilege for confidential and trade secret information.

I would argue that fair market value, by definition, cannot be a confidential or a trade secret and that the disclosure of the financial arrangements by contract for physician professional services by Broward Health is both necessary and in the public interest in light of the recent settlement.  It is noteworthy that this information is considered a public record by the Memorial system, as well as other public hospitals in Florida.  Therefore, please provide me electronic copies of the following records to Dan@BrwdHeath.com or alternatively, please let me know when the following records are available for my inspection.

  1. Complete copies of all executed contracts between Broward Health and physicians for professional or any other services for which a Fair Market Analysis was utilized for 2014 through the date of this production.

If you have a requested public record but claim a privilege which protects you from providing it pursuant to this public records request, A LOG SHOULD BE PROVIDED IDENTIFYING THE SPECIFIC DOCUMENT/ COMMUNICATION BEING WITHHELD, AND THE LEGAL BASIS FOR THE CLAIMED PRIVILEGE.

Please note that section 119.07(2)(a) of the Public Records Law provides that a person who has custody of a public record and who asserts that an exemption applies to a particular pubic record or part of such record shall delete or excise from the record only that portion of the record with respect to which an exemption has been asserted and validly applies, and such person shall produce the remainder of such record for inspection and examination.  This section further provides that if the person who has custody of a public record contends that the record or part of it is exempt from inspection, he shall state the basis of the exemption which he contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he shall state in writing and with particularity the reasons for his conclusion that the record is exempt.

It is hereby requested that you do state in writing both the statutory citation to any exemption which you claim applicable to any requested record and the specific reasons for a conclusion that the requested record is exempt.

Also, please note that section 119.07(2)(C) prohibits the destruction of any of the requested records, including any which you claim are exempt, for a period of 30 days after the date on which you receive this written request.  If a civil action is instituted to enforce the Public Records Law with respect to the requested records within the 30-day period, you may not dispose of the records except by court order after notice to all affected parties.

As a matter of Florida law, unless the nature or volume of public records to be inspected or copied requires “extensive” use of information technology resources or “extensive” clerical or supervisory assistance, the special service charge is not authorized. If authorized due to the nature or volume of a request, the special service charge should not be routinely imposed, but should reflect the information technology resources or labor costs actually incurred by the agency. AGO 90-07. And see, AGOs 92-38, 86-69 and 84-81.  Moreover, the statute mandates that the special service charge be “reasonable.” See, Carden v. Chief of Police, 696 So. 2d 772, 773 (Fla. 2d DCA 1996), stating that an “excessive charge” under s. 119.07(1)(b), F.S., “could well serve to inhibit the pursuit of rights conferred by the Public Records Act.”

After inspection, I agree that I will compensate you for the actual cost of duplication of any of the records that I have requested.  If the nature or volume of the public records requested is such to require extensive use of information technology resources and/or extensive clerical and/or supervisory assistance by personnel of your office, I agree that I will compensate you for those costs that are reasonable as well, subject to the terms enumerated herein.  Before incurring any charges, please contact me and advise me of the actual cost basis of duplication and/or any necessary and reasonable staff research time.

I would appreciate confirmation that you have received this request and an estimated date of when I might receive and/or inspect the public records. Thank you in advance for your prompt consideration of my request. Please feel free to contact me if you have any questions.

Thank you for your kind attention to my request.

Just say No – How Not to Cancel a Meeting – Part 4

Dr. El Sanadi’s response to my public records request (see Part 3) flies in the face of his public claims of transparency as Broward Health’s CEO.  My El Sanadi public records request can be seen here.

Soon after I submitted my public records request to Dr. El Sanadi, Broward Health through their corporate counsel’s office hired a law firm to represent and respond on his behalf.  Although this is common, and given his position as CEO entirely appropriate, it did create a layer of delay and formality in the process.  The public records request response can be seen here (it is a very large PDF file -22 Megs).  Any redacted file or exempted record must be noted as specified by section 119 of the public records law.  This section states in part:

0317toon_ohmanCLRThis section further provides that if the person who has custody of a public record contends that the record or part of it is exempt from inspection, he shall state the basis of the exemption which he contends is applicable to the record, including the statutory citation to an exemption created or afforded by statute, and, if requested by the person seeking the right under this subsection to inspect, examine, or copy the record, he shall state in writing and with particularity the reasons for his conclusion that the record is exempt. 

Dr. El Sanadi’s exemption log can be seen here (PDF file – 42 KB).

To ensure that Dr. El Sanadi was given every opportunity to be transparent in his dealings with Broward Health, I sent his “Public Record’s” attorney the following request:

Let me know if you take the position on behalf of Dr. El Sanadi that his response to my public records request is complete, and that he has produced all the requested records in his possession and control, and/or asserted an exemption for their production in the exemption log.

Their response was:

Within the parameters of your request, there are no other records for which Dr. El Sanadi is an agency or custodian of public records. 

To the extent you are seeking his communications and other records with BSO, Fort Lauderdale, Sunrise and Tamarac in his capacity as medical director for those agencies, he is an independent contractor and not an agency or custodian of public records.  Each record you seek is in the possession of those agencies.  If you want those records, you can go to those agencies and request them.  Those agencies will exercise their prerogative to decide which records are exempt or exempt and confidential.  I urge you to review §§395.50 & 401.30, Florida Statutes.  With limited exceptions, none of which are applicable here, Art. I, §24 of the Constitution and Chapter 119 place the responsibility and burden of compliance on government agencies, not on individual citizens.   

sunshine-law-2The issue and the point of my public records request was to provide Dr. El Sanadi an opportunity to be transparent in his contractual dealings with Broward Health.  Specifically, Paragraph 6.3 of his employment agreement provides in part that he “agree[s] to refrain from any other service or employment which would restrict his ability to devote his full time to employment as President/CEO”.  Further his agreement allows him to be a board member of any organization that does not create a conflict prohibited by Chapter 112, Part III, Florida Statutes.   You will recall that, according to public corporate records, in addition to being the highly paid medical director for the Broward Sheriff’s office and the cities of Fort Lauderdale, Sunrise, and Tamarac, Dr. El Sanadi is an officer and/or board member of the following active corporations:

  • South Florida Fire Rescue Medical Directors’ Association, LLC
  • N & L Services, Inc.
  • Total EMS, Inc.
  • El Sanadi Holdings, LLC
  • Green Harbor Company

In addition to these outside duties, he is allowed to work in the emergency room for 4 hours per week.  Now, no one questions Dr. El Sanadi’s abilities as a distinguished emergency medicine clinician, but all these other non-Broward Health duties, responsibilities, and contracts raise the issue of Dr. El Sanadi’s ability to faithfully fulfill his contractual obligation to be a full time CEO for Broward Health.  Further, flying in the face of his constant assertion of transparency is Dr. El Sanadi’s refusal to produce the requested documents putatively knowing full well that, at the very least – in the case of the medical directorship contracts – they are certainly public records.

Finally, Dr. El Sanadi’s refusal to be transparent about his private businesses is troubling at best.  See my previous post “Has the Office of Inspector General seen Dr. El Sanadi’s CEO Contract with Broward Health? “. Perhaps what is more troubling is that the members of Broward Health’s Board of Commissioners are apparently not asking these questions!

Exemptions

wonthurtmeThrough his attorneys, Dr. El Sanadi has claimed many exemptions to the public records statutes.  He, through his attorneys,  has taken an over-broad position, which is ostensibly contrary to the mission of Broward Health and the public good, but completely consistent with the seeming attitude what happens at Broward Health is none of the public’s business (see my post – “It’s none of your business! Really?”).

Once again, instead of simply responding transparently, Dr. El Sanadi evidently plays games.  Perhaps if he had just provided the records, the issue would be closed, but instead he obfuscates the issue to the extent that it seems that he must be hiding somethingThere are people who walk the talk, then apparently there is Dr. El Sanadi.  He should not be allowed to even say the word “transparently”!

Clearly, thanks to Dr. El Sanadi’s ostensible evasionthe issue of his contract, his companies, and his outside employment is far from over.  Stay tuned!