By: Tracy M. Evans, Esq., Associate, Saxon, Gilmore, Carraway & Gibbons, P.A.
Published in FAHROGRAM, November/December 2013
A recent investigation and report released by the State Attorney for Orange County, Florida (the “State Attorney”) analyzed the applicability of Florida’s law regarding the retention and destruction of public records in the context of digital text messages received by public officials. The investigation and report were prompted after a complaint was filed with the State Attorney requesting an investigation into the actions of the members of the Orange County Board of County Commissioners (the “Board”) for alleged unlawful destruction of public records. The records at issue were text messages exchanged during a public meeting regarding a paid sick-time ballot measure between several Board members, the mayor, lobbyists, and private citizens against the measure. All of the Board members in question admitted to receiving the text messages and to deleting the messages, but each contended that they were unaware that the text messages were public records.
The report released by the State Attorney emphasizes the duty imposed on public officials and agencies to maintain and provide access to all official records, as provided in Florida Statutes § 119.011. The report further details what constitutes a public record in Florida. Public records are defined by Florida Statutes § 119.011(12) as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, 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.” The report points out the broad, all-encompassing nature of this definition, finding that the plain language of the statute includes the text messages in question because the text messages all relate to official business of the Board, specifically with respect to the Board’s decision to place a particular initiative on the ballot for an upcoming election. The report points out that had this information come in the form of letters, it is extremely unlikely that such letters would have been destroyed by the Board members, since they would have easily identified such letters as public records.
The report also takes into consideration the position of many of the Board members that the text messages were transitory or temporary in nature and therefore excluded from the requirements of Chapter 119. The report, however, fails to find any authority within the statute providing for such a distinction. Further, the report noted that the only characteristic of the text messages which would make them transitory in nature is the ease with which the messages can be deleted.
Based on these findings, the report found that the text messages were public records and unlawfully disposed of by the Board members and the mayor. The report noted that the investigation did not uncover sufficient evidence to establish that the deletion of the text messages was done willfully or knowingly, and accordingly imposed the lowest level of sanctions provided by the statute, a $500 civil fine on each individual who violated the statute.
This recent report should serve as a cautionary reminder to all state, county and municipal agencies within the State of Florida to be ever cognizant of the statutorily imposed duty to maintain and provide access to all public records. With the constant evolution of technology and various modes of communication, precisely what constitutes a public record will undoubtedly also continue to evolve. Any doubt as to whether a particular communication or document constitutes a public record should be seriously considered and fully evaluated before any destruction or deletion of the record is contemplated in order to avoid potential violations of Florida law.
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