Judge Daniel finds in Rayonier’s favor – BOCC officials violated Public Records Act

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adopted rule 1B-24.003 of the Florida Administrative Code to address the retention of public records by public agencies.2 Under rule 1B-24.003, the division publishes retention schedules on its website for all public agencies and the administrative rule then specifically incorporates by reference those published schedules. The published schedules incorporated into the administrative rule provide the minimum retention requirements for various types of public records and section
119.021(2)(b) then mandates that “[e]ach agency shall comply with the rules establishing retention schedules and disposal processes for public records which are adopted by the records and information management program of the division.” §119.021(2)(b), Fla. Stat.

 

Rule 1B-24.003(1)(a) specifically directs that the general records schedule for state and local government agencies (identified as GS1-SL) is found at http://www.flrules.org/Gateway/reference.asp?No=Ref-12098ltr” role=”presentation”>. GS1-SL classifies correspondence and memoranda generated by state and local government agencies like Nassau County into two groups identified as “Administrative” and “Program and Policy Development.” “Administrative Correspondence and Memoranda” are defined as “correspondence and memoranda of a general nature that are associated with administrative practices or routine office activities and issues but that do not create policy or procedure, document the business of a particular program, or act as a receipt.” GS1-SL directs that these types of records should be retained by a state or local agency for three fiscal years. “Program and Policy Development Correspondence and Memoranda” are described as “correspondence and memoranda documenting

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2 1B-24.003. Records Retention Scheduling and Disposition. (1) The Division issues General Records Schedules which establish minimum retention requirements for record series common to all agencies or specified types of agencies based on the legal, fiscal, administrative, and historical value of those record series to the agencies and to the State of Florida. The General Records Schedules established by the Division, which can be obtained at http://dos.myflorida.com/library-archives/records-management/general-
records-schedules/, are incorporated by reference:

Fla. Admin. Code R., 1B-24.003(1).

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policy development, decision-making, or substantive programmatic issues, procedures, or activities.” GS1-SL requires these records be retained by a state or local agency for five fiscal years.

In the instant case, the overwhelming majority of the 147 pages of text messages fall within one category or the other. Therefore, in accordance with GS1-SL, the county should have retained these text messages for three or five fiscal years depending on their classification. When Plaintiffs submitted their public records request in October of 2018, at minimum the county should have been in a position to produce for inspection any text messages dating back to October of 2015 that
were part of the 147 pages of messages given to Plaintiffs’ in response to their subpoena of Ms. Jones. All but two of the 147 pages of texts were created after that date and should have been available for Plaintiffs to inspect if the county had adhered to the mandated ret=ention schedules. 3

Even without the retention schedules contained in GS1-SL, the county’s approach to the retention of text message communications was unreasonable and inconsistent with the goal behind the Public Records Act. “The general purpose of the Florida Public Records Act is to open public records so that Florida’s citizens can discover the actions of their government.” City of Riviera Beach v. Barfield, 642 So.2d 1135, 1136 (Fla. 4th DCA 1994). If county employees or officials
conduct the public’s business using text messages, automatically deleting text messages after thirty days without regard to their subject matter simply does not give the citizens of Nassau County a reasonable opportunity “to discover the actions of their government.” ‘

For purposes of the county’s compliance with the Public Records Act, it makes no difference that two former county employees retained these text messages and the messages were ultimately discovered at a later date. It has long been the policy of this state that each government

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(3) Two pages contained messages dated from August and September of 2015. The other 145 pages contain messages
dated between 2016 and 2018.

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official has a duty to preserve public records and that such records belong to the government agency, not the individual. See Bell v. Kendrick, 6 So. 868, 869 (1889) (“[W]henever a written record of the transactions of a public officer is a convenient and appropriate mode of discharging the duties of his office, it is not only his right, but his duty, to keep that written memorial, … and, when kept, it becomes a public document–a public record–belonging to the office, and not to the officer.”) This duty on the part of individual government officials to preserve public documents and records is not somehow altered because those items are stored on their private account or privately-owned device. In such situations, an agency still has a duty to produce public documents in response to a valid public records request no matter their location. See O’Boyle, 257 So. 3d at 1041 (“Where specified communications to or from individual state employees or officials are requested from a governmental entity—regardless of whether the records are located on private or state accounts or devices—the entity’s obligation is to conduct a reasonable search that includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to proper request.”) However, if employees or officials have no individual responsibility under the Public Records Act to retain public records stored on their private devices or accounts in accordance with published retention schedules, then there is no way to ensure that a governmental agency will be able to fulfill its obligation to retrieve those public records in response to a public records request. It was only by chance that the documents requested in this case still existed in October of 2018 and compliance with the Public Records Act should not depend on happenstance.

Summary judgment is also appropriate despite record evidence that the county attorney advised BOCC members and county employees they could delete these text messages because the

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documents were “transitory” and eligible for deletion after a short period of time. “Transitory” messages are defined in the GS1-SL retention schedule in the following manner:

“Transitory” refers to short-term value based upon the content and purpose of the the message, not the format or technology used to transmit it. Examples of transitory messages include, but are not limited to, reminders to employees about scheduled meetings or appointments; most telephone messages (whether in paper, voice mail, or other electronic form); announcements of office events such as holiday parties or group lunches; recipient copies of announcements of agency sponsored events such as exhibits, lectures or workshops; and news releases received by the agency strictly for informational purposes and unrelated to agency programs or activities. Transitory messages are not intended to formalize or perpetuate knowledge and do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt.

The GS1-SL retention schedule further directs that agencies need only retain “transitory” documents “until obsolete, superseded, or administrative value is lost.” The overwhelming majority of the content contained within the 147 pages of text messages, however, cannot be characterized as “transitory.” The messages are clearly intended to formalize or perpetuate knowledge among BOCC officials and county employees about the ENCPA, the stewardship
district, the municipal services taxing unit, and HB 1075, as well as to discuss policy and procedures related thereto. The content of these messages goes well beyond mere reminders about meetings or appointments, telephone messages, announcements of agency sponsored events, and equivalent matters. Any claim that these messages were “transitory” and eligible for deletion after a short period of time is unfounded.

When county employees and officials delete public records stored on privately-owned devices or accounts, records documenting the public’s business may be lost for all time. By random chance, Plaintiffs were able to recover 147 pages of text messages by other means, but this in no way absolves the county of its obligation to ensure that all employees and officials properly retained those records in accordance with published retention schedules. The Public

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Records Act demands government agencies be vigilant in their retention of public records, particularly if their employees and officials transact government business using their own personal devices and accounts. Automatically deleting text messages after thirty days or arbitrarily “clearing space” from a personal device, without any concern for the content of the messages, is inconsistent with the mandate in section 119.021(2)(b) that agencies comply with the retention schedules adopted by the Division of Library and Information Services. More importantly, it directly undermines the overall purpose of the Public Records Act which  is to “fulfill the constitutional requirement of making public records openly accessible to the public.” Lee, 189 So.
3d at 125. For this reason, Plaintiffs are entitled to summary judgment declaring the county
violated Section 119.07(1)(a), Florida Statutes.

B. Failing to Undertake a Reasonable Search for Public Records

In addition to employees and officials indiscriminately deleting text messages after thirty days or an otherwise arbitrarily chosen period of time, the county violated the Public Records Act by failing to undertake a reasonable search for the requested public records. Once an agency receives a request to inspect public records,records custodians must respond promptly and in good faith by determining if they possess the requested records, retrieving those records, assessing if any exemptions apply, and making non-exempt records available. See Siegmeister v. Johnson, 240 So.3d 70, 73-74 (Fla. 1st DCA 2018). This obligation is no different for text messages or other public documents stored on private accounts or devices. See O’Boyle, 257 So. 3d at 1041.

Where specified communications to or from individual state employees or officials are requested from a governmental entity—regardless of whether the records are located on private or state accounts or devices—the entity’s obligation is to conduct a reasonable search that includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to a proper request.

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Id. (emphasis supplied). If public agency employees and officials transact public business on their privately-owned accounts or devices, then the agency has an affirmative duty in response to public records requests to do what is reasonably necessary to promptly retrieve any public documents from those employees or officials.

In this case, the county did not discharge its obligation to conduct a reasonable search. No one directly asked Ms. Jones to provide any text messages responsive to Plaintiffs’ public records request until January 30, 2019. This was over three months after the date of Plaintiffs’ original request and the county by then had advised Plaintiffs three times that it had no relevant text messages. The county maintained this position even when Plaintiffs’ counsel insisted in November of 2018 that these text messages did, in fact, exist. As the former county manager when Plaintiffs and the county were involved in a very public dispute related to the ENCPA, Ms. Jones should have been one of first county employees approached by the county’s records custodian, particularly when she was specifically identified in Plaintiffs’ public records request as one of the senders or recipients of the requested text messages. Moreover, the record is clear that the county denied the existence of any text messages relevant to Plaintiffs’ request before the county ever contacted Ms. Jones. There is no reasonable explanation contained in the record evidence as to
why it took the county three months to ask Ms. Jones if she had any text messages and why the county repeatedly denied their existence without first speaking to her. The county’s failure to conduct a reasonable investigation amounted to an additional violation of Section 119.07(1)(a) of the Public Records Act.

C. Count III – Government in the Sunshine Act Violations
Section 286.011, Florida Statutes, commonly referred to as the “Government in the Sunshine Law,” provides a right of access to governmental proceedings of public boards or

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commissions at both the state and local levels. The intent of the Government in the Sunshine Law is to “cover any gathering of some or all of the members of a public board at which such members discuss any matters on which foreseeable action may be taken by the board; and it is in the entire decision-making process that the legislature intended to affect by the enactment of the statute.” Wolfson v. State, 344 So. 2d 611, 614 (Fla. 2d DCA 1977) (emphasis supplied). The law “aims to
prevent the evil of closed-door operation of government without permitting public scrutiny and participation, and if any two or more public officials meet in secret to transact public business, they violate the Sunshine Law.” Transparency for Florida v. City of Port St. Lucie, 240 So. 3d 780, 784 (Fla. 4th DCA 2018) (emphasis supplied). When two or more board or commission officials meet to discuss matters currently under consideration, or those matters that will be in the foreseeable future, section 286.011, Florida Statutes directs that the board or commission must provide reasonable notice to the general public.

Here, Plaintiffs have alleged BOCC members violated the Sunshine Law by meeting without notice to discuss matters related to the ENCPA while gathered in Tallahassee for the 2018 legislative session. Plaintiffs also contend that county officials committed further violations by frequently meeting for dinner after BOCC meetings at the home of one of the commissioners where they continued to discuss issues concerning the county’s on-going dispute with Plaintiffs over the ENCPA. Plaintiffs have set forth record evidence to support their claims. Several witnesses provided sworn testimony through affidavit and deposition that BOCC members and county employees in both settings openly discussed the county’s ongoing dispute with Plaintiffs over the obligation to maintain parks and recreational facilities in the ENCPA. This issue was at that time, without question, one in which the BOCC might take action in the foreseeable future and the BOCC provided no notice to the general public about these meetings.

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However, Nassau County has met its obligation to bring forward record evidence in opposition to Plaintiffs’ evidence which creates a genuine issue of material fact over the subject matter discussed at these meetings. The county does not dispute that BOCC members and county employees met without notice in Tallahassee and after BOCC meetings, but the sworn affidavits and testimony submitted in opposition to Plaintiffs’ motion expressly deny that they discussed substantive matters related to Plaintiffs and the ENCPA. The court must assess the conflicting proof to determine whether there is a genuine dispute of material fact and, in a light most favorable to the county, the record evidence is such that a reasonable jury might return a verdict in its favor on the subject matter of these discussions between public officials. Accordingly, summary judgment for Plaintiffs as to Count III is not appropriate based on conflicting evidence over this
narrow factual issue.

D. Count I – Writ of Mandamus
As conceded by Plaintiffs’ counsel, summary judgment on this count is also not appropriate because the issue is now technically moot. Plaintiffs have conclusively established that the text messages in question are no longer in the possession of any county employee or official because they were deleted. Therefore, the court cannot compel the county to produce items it does not have.

F. Order
Based on the reasoning detailed above, the court grants summary judgment in favor of Plaintiffs as to Count II. As a matter of law, BOCC officials and county employees violated section 119.07(1)(a) of Florida’s Public Records Act byindiscriminately deleting text messages without consideration of their substantive content and failing to undertake a reasonable search for text messages specifically requested by the Plaintiffs in their October 12, 2018 public records request.

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Summary judgment is denied as to Counts I and III and the case shall proceed forward to trial on the remaining issues of fact, namely the subject matter of conversations between BOCC members and county employees during the 2018 legislative session and at dinners following BOCC meetings. The court reserves ruling until after the resolution of the claim in Count III to assess entitlement to and the amount of attorney’s fees under Chapter 119.

DONE AND ORDERED in Chambers, at Yulee, Nassau County, Florida, this 24TH day
of August, 2021. ____________________________________ JAMES H. DANIEL, Circuit Judge
Copies furnished to: Attorneys of Record