Just say No – How Not to Cancel a Meeting – Part 3

Just say No – How Not to Cancel a Meeting – Part 3

DoAsISayIn “Just say No – How Not to Cancel a Meeting – Part 1” you learned that there were a number of initiatives underway to improve Broward Health’s services at the time David DiPietro, the Board Chair, seemingly orchestrated the ouster of Frank Nask followed by DiPietro’s apparently predetermined CEO choice and his wife’s fellow medical board member, Dr. Nabil El Sanadi as Broward Health’s new CEO.  See  “The Best Broward Health CEO contract politics can buy!”  and “Has the Office of Inspector General seen Dr. El Sanadi’s CEO Contract with Broward Health?”.   In Part 1, you also saw a remarkable  paranoia of organizational transparency in an email chain that is a troubling indicator of how Dr. El Sanadi ostensibly sees his new public responsibilities.

In “Just say No – How Not to Cancel a Meeting – Part 2” Dr. Nabil El Sanadi decided to abandon any direct or simple response to my request for a meeting and instead seemingly chose to communicate through his Corporate Counsel Mr. Horowitz a veiled warning not to question him and Dr. El Sanadi’s apparent paranoia deepens.   This resulted in my detailed response to the Board of Commissioners through its chairman David DiPietro (see part 2) and my request for public records which is where this post begins.

open-govt-cartoon1Public organizations like Broward Health must operate transparently under the sunshine in Florida and every document, every piece of paper, and every computer data file is available for review and duplication by the public unless exempted from disclosure.  Further, every vendor and/or sub-contractor to a public organization must similarly maintain and when requested, disclose their public documents relating to their agreements and contracts with a public entity.  The penalties for the failure to do so can be harsh and a personal liability.  Click here for “The Reporter’s Handbook – Sunshine and Public Records Laws” which has more information about public records in Florida.

Because Dr. El Sanadi refused to meet privately, the following public records request was promulgated to him personally. (Click here to download a copy of the Public Records Request to Dr. El Sanadi.)

February 17, 2015
Dr. Nabil El Sanadi
5100 N Ocean Blvd #518
Ft Lauderdale, FL 33308

Re: Public Records Request

Dear Dr. Sanadi,

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.

Section I. Subject of the Communications

The subject of the “communications” and/or “records”[1] are limited to those created since December 20th, 2014 and include, but not limited to, correspondence, letters, e-mails, memoranda, notes, text messages, documents of any nature, and facsimiles in your possession by and between any of the individuals identified below, and/or any third party not previously identified which pertains to, relates to, or mentions in any manner the following individuals and/or entities, or the matters identified below:

  1. Any “communications” and/or “records” related to the transition from the previous CEO to your administration including but not limited to the formation of committees, the addition or elimination of budgeted employee positions, and/or the reassignment of officers of Broward Health and its related entities.
  2. Any “communications” and/or “records” related to new or previously unoccupied medical directorships.
  3. Any “communications” and/or “records” related to recruitment of fellowship and/or internship positions at Broward Health or any of its entities.
  4. Any “communications” and/or “records” related to the relationship between Broward Health and Nova Southeastern University.
  5. Any “communications” and/or “records” related to the relationship between Broward Health and FIU.
  6. Any “communications” and/or “records” related to physician credentialing at Broward Health.
  7. Any “communications” and/or “records” related to the Broward County Sherriff’s office.
  8. Any “communications” and/or “records” related to the City of Sunrise, Florida.
  9. Any “communications” and/or “records” related to the City of Tamarac, Florida.
  10. Any “communications” and/or “records” related to the City of Fort Lauderdale, Florida.
  11. Any “communications” and/or “records” related to Dr. Stephen Scott and or the entity commonly referred to as “The Phoenix Group” and/or its successor company MCare who currently provides Emergency Management services to Broward Health.
  12. Any “communications” and/or “records” related to your calendar.
  13. Any “communications” and/or “records” related to your Broward Health cellular phone.
  14. Any “communications” and/or “records” related to your use of Broward Health vehicles, mileage, per diem and/or travel expenses.
  15. Any “communications” and/or “records” related to your outside Medical Director Agreements.
  16. Any “communications” and/or “records” related to your clinical work performed pursuant to section 6.4 of your Broward Health employment agreement.
  17. Any “communications” and/or “records” related to payments from you to the Children’s Diagnostic & Treatment Center.
  18. A copy of any contracts including attachments signed by you on behalf of Broward Health which have not been presented to the Board of Commissioners at a regularly scheduled Board meeting.
  19. Any “communications” and/or “records” by and between[2] you and any past or current Broward Health Board member.

Paragraph 6.3 of your employment agreement provides in part that you “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 your agreement allows you to be a board member of any organization that does not create a conflict prohibited by Chapter 112, Part III, Florida Statutes.   According to public corporate records, you are 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

To identify any potential conflicts with your obligations under Florida’s code of ethics for Public Officials, please provide the following “communications” and/or “records” for each entity wherein you were or are a current officer, partner, principal and/or employee after December 20th, 2014;

  1. Any “communications” and/or “records” between any of the entities identified above and Broward Health and/or any of its entities.
  2. Any “communications” and/or “records” which identify clients/members/customers of any of the entities identified above.
  3. Any “communications” and/or “records” which show income & expense & profit distributions for any of the entities identified above.
  4. Any “communications” and/or “records” which reference or concern services offered and/or the job description, duties and/or time commitments for you outside of your Broward Health duties, including but not limited to a copy of any contracts between any of the entities identified above and any third party.

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.  

If these public records can be provided electronically, please email them to me.  Alternatively, kindly let me know when and where I may inspect them. 

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.

Sincerely,
Dan Lewis

Zambia-FOI-cartoon-559x440Dr. El Sanadi’s response was again through legal counsel.  This time, however, a special law firm was hired for the ostensibly sole purpose of fulfilling Dr. El Sanadi’s personal statutory requirement to respond and comply with this public records request.

In the final post in this series, Just say No – How Not to Cancel a Meeting – Part 4” you will see Dr. El Sanadi’s incomplete response which appears to be a hypocritical attempt to outsmart the law and duck both the letter and the spirit of transparency in spite of his publicly proclaiming to be a devoted acolyte of “complete transparency”.   It is a post you won’t want to miss.

Notes:
[1]     The term “records(s)” as used herein shall mean “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software (including e-mail), 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.”  “Records” also includes originals, drafts, revisions and other non-identical copies (together with all attachments thereto).

[2] By and between means any and all “communications” in which the persons identified either initiated, received, or was copied in any manner on the communication.

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