City of Tallahassee and Tallahassee Democrat attorneys have negotiated a settlement over a lawsuit alleging city officials violated the Florida Public Records Act that could set a precedent for other local governments across the state.
Tallahassee Democrat Publisher Skip Foster said the newspaper had to seek the judgment to which the City has agreed to preserve the public’s right to know.
“This is a landmark settlement for the citizens of Tallahassee and the entire state of Florida,” said Foster. “The city has admitted it broke the state’s public records law and is now putting into place innovative new policies and procedures to make sure it doesn’t happen again. We are pleased to avoid litigation that ultimately would have been costly for Tallahassee taxpayers and appreciate the willingness of the city attorney to work with us on this matter.”
The suit alleges that City Manager Rick Fernandez, who is on a paid leave of absence pending the outcome of a state ethics investigation, deleted text messages that showed he asked a local lobbyist for four expensive sky box tickets to a Florida State football game in 2016.
The lobbyist worked at the time of the request for a Unconventional Strategies, a firm that is at the heart of a federal investigation of the city-county Community Redevelopment Agency and several key business leaders.
A subpoena of the lobbying firm by the Florida State Commission on Ethics as part of its investigation of Fernandez produced the text messages in question. On Nov. 29, the Democrat sued over the fact that the text messages were public records, but the city did not retain them and were unable to produce them when requested, in violation of the public records act.
Under the settlement agreement, which is expected to be on Wednesday’s City Commission agenda, the city will formally admit to a violation of the public records law. It also will agree to establish a public records retention policy that could be a model for other cities in the Sunshine State to follow, a spokesman for the Florida Press Association said.
Up until now the city has had no policy for retaining text messages.
City Commissioner Curtis Richardson said the case with Fernandez was an exception to the city’s strong tradition of transparency and complying with public records requests.
“We didn’t know the city manager had deleted those text messages for whatever reason,” Richardson said. “If this is what we need to do to continue that transparency we are prepared to do that. If it includes admitting we violated the public records law, unintentionally I believe, but if we did, we did.”
He also said he hopes it will serve as a prototype for other cities that also don’t have policies regarding the retention of text messaging.
Barbara Petersen, president of the First Amendment Foundation, said adopting these new policies was a great way to kick off the new year.
“It lays out a comprehensive policy that addresses many — if not all — of the concerns raised by the controversy regarding access to the city manager’s text messages and serves as a strong reminder to all city officials and employees that access to public records is a right and not a privilege,” Petersen said.
Florida’s Public Records Act includes texts as public records, along with emails, faxes and other correspondence. Any text message “made or received pursuant to law or in connection with the transaction of official business by any agency” constitutes a public record, whether it’s on a personal phone or city-issued phone.
It also recommends several policy changes for commissioners to consider for adoption.
One would prohibit the transmission of any public record via text message over a private cellphone or by private email, unless that message is retained by the city system.
Another mandates that all text messages and emails sent via city cellphones or city email accounts are public records and must be retained by the city.
Violation of the public records law or city policies shall be grounds for disciplinary action, and repeat violations or “flagrant abuse” will be a firing offense.
The city will provide public records law training and provide notice in city policies about the duty to preserve and retain public records.
City commissioners and members of the leadership team will file annual reports confirming compliance with both state and city public records policies.
The public won’t be charged for the first 100 pages of public records produced by the treasurer-clerk and not be charged for staff time under two hours. The Treasurer-Clerk will also provide a public records hotline for complaints and requests.
The court will retain jurisdiction over the lawsuit until September 2018, during which time Tallahassee Democrat lawyers will conduct interviews to verify compliance with public records laws.
Finally, the city will reimburse the Democrat for its legal costs.
If the Commission votes to approve the settlement, it will be submitted to the court for approval.
Jon Moyle, co-counsel for the Democrat, applauded the city for enacting “new policies to capture and retain public records sent or received by text message, private email accounts and instant messaging. These policies could serve as a model for other governmental entities wrestling with public record requirements in the digital age.”
Contact Schweers at firstname.lastname@example.org. Follow him on Twitter @jeffschweers.
JOE’S COMMENTS: SCREW IT, I SENT A 119 TO STACY, PAM AND RHETT TO SEE ALL DOCUMENTS THAT THEY HAVE TEXTED TO ANYONE OR RECEIVED FROM ANYONE ABOUT TOWN BUSINESS IN THE LAST 3 MONTHS.