By Ashley Lopez
Florida Center for Investigative Reporting
Gov. Rick Scott’s policy requiring state employees to act as the custodians of their own emails and text messages related to state business has created a tricky situation for workers leaving state government.
This latest discovery is thanks to an ongoing legal battle between Scott and Tallahassee attorney Steven Andrews.
Andrews was initially in court with the governor over a land dispute, but that fight has become a way for him to unveil some of the ways the Scott administration has been skirting the state’s public record laws. Andrews has said that taking Scott to court has been the only way to shed light on how he runs the state. Because of their legal battle, newspapers have learned the governor has a private email account where he has conducted state business, among other things.
Now, however, Andrews is asking Scott’s office to hand over text messages and emails off private accounts related to state work from about 40 former employees. Andrews wants Scott to hire a specialist to retrieve these public records, which he thinks may have been improperly deleted.
According to Mary Ellen Klas from The Miami Herald/Tampa Bay Times, “in a response to a lawsuit filed in circuit court in Tallahassee accusing the governor of intentionally hiding public documents, the governor’s legal counsel argued that the governor’s office has done its part to turn over the records sought in the lawsuit and, if there are more records to turn over, it’s not their fault.”
It is a bit of a catch-22 for the departed staffers of the governor, ranging from his former deputy chiefs of staff to his office interns. Many of them were instructed by Scott’s former chiefs of staff to use private accounts and cell phones to conduct public business via text message and email.
Under state law, and governor’s office Code of Personal Responsibility, they were required to turn over those records when they left the governor’s office and forwarded to the records custodian to be archived.
But after numerous public records requests by Andrews, many of the messages have still not been turned over. In many instances, Andrews has evidence that records once existed – such as text messages and emails from one staffer to another, but only one side of the conversation has been turned over in the public records searches.
Andrews suspects that either the governor’s office did not collect all the data, despite the law and Scott’s own rule, or it allowed employees to delete the public records – in violation of the state public records act.
The governor’s lawyers told the court Scott’s office did everything they could to get all those records from those former employees, but they were unable to.
According to a statement from lawyers representing the governor, state officials “conducted a good faith, reasonable and appropriate search for responsive records, and produced responsive public documents in its custody and control without alteration as soon as practicable,” the Herald/Times reported.
Scott’s lawyers argued they did everything they could, but they were simply unable to obtain the emails and text messages.
According to a paralegal in Andrews’ law firm, though, this means they will have to sue each former state employee individually to obtain those records.
Last year, Scott’s attorneys created a policy making state employees the “custodians” of their private emails and text messages that deal with state work.
In practice, the change has meant journalists and members of the public will have to ask a state employee personally for records of state business conducted over private accounts. In the past, a state agency would hand over any public record on the subject requested, regardless of what type of email was used.
Barbara Petersen of the First Amendment Foundation has said the change has effectively crippled the state’s public records laws.
However, it has also created a situation in which state employees are personally liable for not relinquishing public records in a timely fashion.