Tallahassee Democrat by Jeffrey Schweers
November 29, 2017
The lawsuit filed in Leon Circuit Court puts in motion a process where the city and Democrat negotiate a consent order to develop policies and procedures to preserve text messages and produce them when requested.
It also would make public all texts sent or received on a city-issued phone regardless of the nature of the text, and govern the way in which texts are preserved and produced from personal cell phones.
“This is not just about the Fernandez text. It’s going to cover the whole universe of text messaging,” Bussian said.
The Democrat’s lawyers also want the city to pay the Democrat its attorney costs and fees related to this case.
Despite its long record of compliance with the state’s public record law, City Attorney Lew Shelley admitted in this case the city and Fernandez violated the law.
“We didn’t know (the text messages) existed until they showed up on the front page of the paper,” Shelley said. “We very quickly thereafter looked at the phone at issue and they were not on that phone at that time.”
The lawsuit was filed a week before the City Commission is scheduled to discuss the creation of a text messaging policy. It includes a request to spend $100,000 on text retention and search software.
Shelley said he and the Democrat’s lawyers will begin working immediately to resolve the issues “and not spend money defending lawsuits if at all possible.”
Shelley said he didn’t want to speculate on the details of what form the settlement agreement might take. Once they reach an agreement they’ll take it in front of a circuit judge for approval.
Democrat Publisher Skip Foster said the newspaper also is interested in a quick resolution.
“This isn’t about us having our day in court, it’s about holding the city accountable to the public,” he said. “We are pleased the city has indicated a willingness to resolve this thoroughly and expeditiously.”
It wasn’t until the Democrat threatened to sue the city that it considered creating a text messaging policy, Bussian said.
The Democrat’s reporting “certainly may have sped up the process,” Shelley said. But he and the city manager, treasurer-clerk and technology and innovation departments have been talking about text messaging since the beginning of the year.
It’s also been a topic of discussion at municipal attorney association meetings for the last two years, he said.
An attorney for the state press association said the deal could have statewide ramifications.
“To the extent that the agreement with the city of Tallahassee covers such specific archiving policies, such agreement will go a long way in providing open access to citizens and providing a model for other cities and counties in the state that are grappling with the issue,” said Sam Morley, general counsel for the Florida Press Association.
Florida’s Public Records Act includes texts as public records, along with emails, faxes and other correspondence. Any text message “made or received pursuant to law or in connection with the transaction of official business by any agency” constitutes a public record, whether it’s on a personal phone or city-issued phone. [READ MORE]