- Associated Press - Sunday, March 13, 2016

Correspondence related to public business by elected officials is public record. All of it. That means “snail mail,” Faxes and emails.

But muddying the public records law process is perhaps the most popular, quickest and often creative way people communicate - text messages.

By state law, texts are public records, whether sent or received on a county-issued communication device or on a personal one paid for by the elected official. Public officials must archive the correspondence and turn it over on demand.

Depending on what county they’re in, you might wait a long time or pay a hefty fee to find out what they’ve typed. And even then you have to trust some when they say they didn’t send any texts.

Requests for text messages were made by eight newspapers as part of an annual project by the Florida Society of News Editors in which governments are asked for the same types of documents and results are compared. The effort is part of Sunshine Week, a nationwide initiative to educate the public about the importance of transparent government.

Response time varied - Palm Beach County commissioners took five business days to deliver texts. Other counties took as little as four business days, one as many as 11. Alachua County commissioners responded quickly with one simply offering to hand his phone to a reporter.

Meanwhile, Jacksonville’s state attorney declared, surprisingly, that her office doesn’t believe text messages are public.

Did Palm Beach County Commissioners say anything in private cellphone texts that should be public?

According to the records provided, they did not. But trying to find out wasn’t cheap. Just getting one week’s worth of texts - Jan. 25 to Feb. 1 - from each of the commissioners cost The Palm Beach Post nearly $200. And that’s with four of the seven declaring they had sent none, and two of the remaining three sending all of two texts each.

In fact, Palm Beach was the only county, of those surveyed, to charge even a penny.

“I’m surprised,” Commissioner Melissa McKinlay said. “I’m the one that had to take all the time and hours to get all the screen shots.”

Commissioners Hal Valeche, Mary Lou Berger, Shelley Vana, and Paulette Burdick reported they’d sent no text messages regarding county business. Priscilla Taylor and Steven Abrams posted two texts each.

Screen grabs of McKinlay’s texts stretch for 132 pages. Most are between her and her assistant, Johnnie Easton, and carry lengthy discussions of county agenda items and pending state legislation, but also include discussions of the weather forecast and what to order for lunch. McKinlay: “I’ll run to Tina’s; lemon chicken soup, I think.”

“I check with Johnnie a lot,” McKinlay said. She allowed as to how she’s a little younger than her colleagues: “I’m a lot more technologically savvy.” She added, “it’s just a sign of the times and a different use of technology.”

Through words, photos and even emojis - those digital images and icons that express an emotion or idea - texting can pose problems for public officials.

Among the complications - screen grabs from the audited texts often showed only the contact name as the commissioner has it recorded in his or her cellphone. Sometimes a phone number, sometimes just a single name; “Ed,” ”Vogel,” ”Stacy.”

Access to texts came to a head in 2012 in Orlando, when an advocacy group discovered Orange County Mayor Teresa Jacobs and four county commissioners were exchanging cellphone text messages with lobbyists and others during a meeting and then deleting them.

That prompted a public records lawsuit by Citizens for a Greater Orange County, a coalition of groups that led the fight for a paid-sick-time referendum opposed by county officials and local tourism interests.

In 2013, Orange County leaders settled the “textgate” suit, agreeing to pay $90,000. Local prosecutor Jeff Ashton concluded commissioners violated public records laws, but unintentionally. Commissioners each paid a $500 civil fine, including Jennifer Thompson, who had texted with a Walt Disney World lobbyist 32 times on the day of the sick-time vote.

This month’s audit through the FSNE project revealed that Mayor Jacobs and six Orange County commissioners texted 143 times in the time period requested.

One, Scott Boyd, said he’d stopped using his mobile phone to swap text messages with citizens, lobbyists, reporters and everyone else following “textgate.”

“Are you kidding? It’s not worth the headache,” Boyd said.

Thompson said she has limited her use of texts since the scandal, generally communicating only with her staff.

“I think I learned my lesson,” she said.

County records show Thompson texted 60 times during a Jan. 26 commission meeting. Those messages, all to her staff, were well-meaning: Thompson wanted to move a brief discussion item ahead of a controversial land-use matter so those waiting to be heard on the brief topic would not have to sit through hours of discussion on the land-use issue.

Barbara Petersen, the president of Florida’s First Amendment Foundation , said there’s an easy way for officials to handle texting and the question of public record compliance. She points to software that can create an archive of the text messages sent and received by elected officials. It has privacy protections for the politician, such as limiting archives to certain hours of the day or excluding any texts from a spouse.

But Petersen said most local governments don’t use TextGuard, the text-tracking technology that was installed on Orange County-issued phones to archive electronic communications. Orange County was TextGuard’s first government client, at an initial annual cost of $97,000 that has grown to $130,000 based on the number of cellphones in use.

Nearby Polk County, meanwhile, set up a system that enables commissioners and any other official to forward texts that they receive or send to a public records repository maintained by staff. And Polk has a written policy barring use of texts to conduct county business without authorization by the county manager.

In Duval County, where the county and Jacksonville are a combined government entity, requests were made to various leaders: Jacksonville Sheriff Mike Williams, Jacksonville Mayor Lenny Curry, Duval County Superintendent of Schools Nikolai Vitti, State Attorney Angela Corey, City Council President Greg Anderson, City Council Vice President Lori Boyer and City Council Finance Committee Chairman Bill Gulliford.

Boyer sent screen shots of two separate text messages. The rest said they had no public texts, except Curry, who finally complied March 9 with 15 pages of screen shots including some pages with multiple texts. His texts ranged from casual conversations about dinner reservations or questions about an ailing back to more serious city-related conversations about a presentation in Tallahassee or someone asking if the city is trying to shut down the Uber application in Jacksonville.

Williams, the sheriff, said leaders at his department recently realized they did not have a policy in place to retain text messages so he took it upon himself to start saving his own texts starting Feb. 10, a point after the FSNE request.

State Attorney Corey’s office contended text messages were not public record. It said text messages are “transitory” and “informal” and “have no administrative value.”

But, the First Amendment Foundation’s Petersen said, “text messages are anything but transitory. How else can I look on my phone, purchased in 2012, and see every text message I’ve sent or received over the past four years? “

She said then-Attorney General Bill McCollum issued an informal opinion saying the same public rules for emails apply to text messages and even instant messages.

A request to Polk County Commissioners yielded five texts from one, 11 from another, and none from the remaining three.

In Ocala, Marion County provided five texts or exchanges involving the County Commission chairwoman, one exchange involving another commissioner, and nothing from the other three.

Miami-Dade commissioners generated a total of 220 texts, the bulk of them from Jose “Pepe” Diaz. Another Commissioner, Levine Cava, accounted for more than 70 printed pages of texts, many of them detailing hum-drum office functions such as scheduling meetings and managing the commissioner’s social media accounts.

In Gainesville, Alachua County commissioners complied in various ways - two supplied text documentation, two said they had no texts related to the request about official business and then there was the commissioner who offered up his phone.

In Tampa’s Hillsborough County, four commissioners provided texts; two said they had none. And next door in Pinellas County, officials supplied only 12 texts. Four commissioners declared they had none during that period.

“I’m on my phone all the time, but unless I’m asking for directions or confirming a time for a particular meeting, I don’t do texts or even Facebook messenger,” Pinellas Vice Chair Janet Long said. “I really try to avoid it. It’s not in the public domain.”

(The Florida Times-Union, Gainesville Sun, Lakeland Ledger, Miami Herald, Ocala Star-Banner, Orlando Sentinel, Palm Beach Post and Tampa Bay Times contributed to this report.)


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