City wants $22,275 for additional public records subpoeaned by FBI

Tallahassee Democrat by Jeffrey Schweers
November 7, 2017

City Manager Rick Fernandez deleted from his cell phone a text message chain with a lobbyist who he asked for pricey football tickets, believing they weren’t public records and didn’t need to be saved, City Attorney Lew Shelley said.

“The messages were deleted last year under the good faith belief that they did not constitute public records or were transitory communications and not required to be retained,” Shelley said in a letter to John Bussian, a First Amendment lawyer for the Tallahassee Democrat.

It doesn’t matter what Fernandez believed, or that he made the bad call to destroy the texts, Bussian said. The city is still responsible for producing the texts, and failing to produce them violates the state’s Public Records Act, he said.

“The bottom legal line is that the city is responsible for producing every record made or received in connection with city business, whether it came inbound on city-owned phones or email accounts or not,” Bussian said. “And if public records are destroyed in the process, the city is responsible for that, too.”

It’s especially disconcerting, according to Bussian, since the city first said the text chain didn’t exist and now admits it did but was destroyed under the belief it was a transitory communication.

“Given the strong interpretation of public records law by the Florida courts,” he said, “the ‘transitory’ excuse for not preserving and disclosing this text message would be condemned as a violation of the Public Records Act, particularly where the city admits this text chain is a public record and a photo of the messages exists to prove the violation.”