After a year of arguing in court that the state is not required to turn over public records generated on private accounts, Gov. Rick Scott has decided to turn a new leaf as he transitions into a second term.
Beginning Tuesday, the day the governor was sworn into office after being re-elected, his office will require former employees who use their private email accounts or private cellphones for public business to turn over the records when they leave, Scott’s office announced in an email.
The policy is already embedded into law as statute 119.021(4)(a). But, until now, the governor’s legal counsel has argued in court that the statute doesn’t apply to Scott’s administration because, they said, the custodian of the records is the employee, not the state.
It was a new legal argument, unprecedented in Florida law, and exposed the governor to violating the state’s open records act and a pending lawsuit.
“It is now EOG policy that when an employee terminates their employment with the EOG, they are required to turn over any public records during their tenure,’’ Jackie Schutz, Scott’s spokeswoman, said in a statement, referring to the Executive Office of the Governor.
What happened to all the records of the dozens of former employees from Scott’s first term?
John Tupps, the governor’s deputy communications director would not answer whether the public documents from the governor’s first term have been destroyed or turned over, as required by law. In response to a request for a list of those records, the governor’s office said no list existed.
State law requires that “whoever has custody of any public records” must turn those records over at the end of his or her time in public office. The governor’s deputy general counsel Heather Stearns argued in court documents, however, that Scott did not “have control over employees’ private accounts and devices, and therefore does not search those accounts and devices for public records.”
A lawsuit challenging the governor’s practice was filed by Tallahassee attorney Steven R. Andrews. It is pending in Leon County court. A Tallahassee judge last month gave Andrews permission to amend the lawsuit to claim that the governor intentionally violated the public records act by failing to produce the documents as required by law. The governor must respond to the amended complaint within the next week.
In November, Scott turned over 197 pages from his private Google mail account after he and his attorneys previously told the court the records did not exist.
“I’m glad the EOG has adopted a policy that requires its employees to comply with the law,’’ said Barbara Petersen, director of the First Amendment Foundation who has filed a brief on behalf of Andrews’ challenge.
The governor’s office also said it could not provide a copy of the new policy.
“This is a new practice. There is nothing responsive to this request,’’ Tupps wrote in an email. He also said the governor’s office is working to enforce the law.
“As we continue to look for ways to increase transparency within our office, during the governor’s transition review process an emphasis has been placed on the enforcement of the existing policy that requires employees to turn over any public records when they leave the agency,’’ he said.
Colleen Andrews, a paralegal in Steven Andrews’ firm, said she is disappointed in the governor’s interpretation of the law.
“The records are not the governor’s records, they are the public’s records and we just wanted to get copies of them,’’ she said. “It saddens me that it took filing a lawsuit, and incurring costs, to get him to comply with the law. Most people don’t have the time or access to the courts to financially go up against the governor’s office.”
Under Florida law, an unintentional violation of the public records act is a noncriminal infraction punishable by a fine of up to $500; an intentional violation is a first-degree misdemeanor punishable by a fine of up to $1,000 and a jail term not exceeding one year. A public officer, such as the governor, who intentionally violates the law is subject to “suspension and removal or impeachment.”
If Andrew’s lawsuit succeeds, taxpayers could be on the hook for paying the attorney fees and court costs in addition to the $500 fine. Meanwhile, the governor’s policy also has the potential to expose the individual employees to separate lawsuits and subsequent attorneys fees.