- Associated Press - Sunday, March 13, 2016

When Florida’s public records law was approved 40 some years ago, people were still using typewriters and rotary dial telephones.

If you wanted a public record, you got a piece of paper or maybe lots of pieces of paper.

Technology has changed all of that and has presented a challenge for members of the public who want to know what their government officials are up to and local governments that want to avoid violating the law.

During Sunshine Week, March 13-19, reporters from newspapers all over Florida are looking at one aspect of the technological changes: texting.

Local officials send and receive texts relating to their official duties from a number of sources.

Florida’s public records law is clear that the public has the right to see all documents relating to the conduct of public business unless there is a specific exception in the law.

The section of the law governing how long to keep texts is less clear.

“The statute is very vague,” said Ed Wolfe, Polk County’s director of information technology.

All public record requests coming to Polk County government officials are routed through the Information Technology Division.

The key issue is whether users consider the messages “transitory.” Transitory is defined as texts and other electronic communications that have short-term value based on their content and purpose.

Some examples cited in a 2013 presentation to the Florida Association of County Attorneys included meeting reminders, announcements of office events and copies of formal agency announcements.

Texts and other electronic communications that should be retained relate to such topics as setting policy, establishing guidelines and procedures and certifying transactions, according to the presentation.

The technological issues are clearer if local officials follow the right procedures, Wolfe said.

Polk County has a 32-page written technology policy, which includes information about archiving text messages from various devices.

Wolfe said Polk County for the past three years has used a program called Mobile Guard, following the lead of officials in Orange County, who signed on for a system called TextGuard with an annual fee that has risen from $97,000 to $130,000.

Orange County officials enacted its policy for capturing texts related to public business following a 2012 incident that was dubbed “Textgate” in the media in which commissioners reportedly erased texts - in violation of Florida’s public records law - related to their deliberations on a controversial ballot measure involving mandating that private employers provide paid sick time to employees.

“We looked at that as a learning moment,” said Polk County’s County Attorney Michael Craig. “We wanted to make sure we had something in place to capture our texts.”

In January, Hillsborough County officials approved a policy to issue county-owned cellphones to commissioners to allow text messages to be captured using software county staffers are developing. The change came in response to an increase in public records requests for commissioners’ texts, which in the past had been sent and received on commissioners’ personal phones.

That policy change came following a controversy over obtaining public records of texts between commissioners and a prominent lobbyist over a major transportation contract. The new policy was part of a larger change in county lobbyist registration rules.

In Osceola County, the official policy dating to 2009 discourages conducting county business by texting, said Andrew Sullivan, the county’s public information coordinator.

He said Osceola IT staff members are able to retrieve any texts county employees or commissioners send or receive in response to public records requests.

Craigin Mosteller, the Florida Association of Counties’ director of communications, said an informal poll of member counties showed a mixture of approaches. She received responses from 20 of the 67 counties.

Officials in 12 counties - Citrus, Escambia, Flagler, Gulf, Hendry, Lee, Leon, Osceola, Pinellas, Polk, St. Johns and St. Lucie - said they had formal policies on texting and many generally discourage it.

Representatives from Baker, Bradford, Charlotte, Collier, Lafayette, Levy, Miami-Dade and Palm Beach counties said they had no policy, she said.

Although this is an emerging issue in some jurisdictions, it has been on state officials’ agenda for some time.

The issue was mentioned in informal advisory opinions from the Florida Attorney General’s office in 2010.

In that opinion, Attorney General Bill McCollum pushed back against claims that the information was impossible or difficult to retain.

“Those messages are able to be retained by the flip of a switch,” McCollum wrote.

The opinion also urged state officials to update rules on retention of electronic communication records.

Attorney General Pam Bondi’s office provides training and printed materials to help public officials to comply with Florida’s public records laws, said Whitney Ray, the office’s director of media relations.

That information includes the Government in the Sunshine Manual, which makes it clear that the same standards apply to the retention of texts as public records as for emails and other public documents.

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