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Is PSC subverting public records laws by sharing message codes?

Bass email Three aides to Florida utility regulators repeatedly gave private Blackberry messaging codes to an FPL executive, potentially allowing the utility to communicate directly with them outside of public view and without leaving a paper trail, the Herald/Times has learned.

The newspaper obtained emails sent between February 2008 and February 2009 that show FPL attorney Natalie Smith repeatedly requested and received the Personal Identification Numbers, or PINs, of the state-provided Blackberry phones of PSC staff as well as the PIN to Commissioner Lisa Edgar's Blackberry phone.

State law prohibits PSC commissioners from discussing a pending rate case with utility officials but it specifically excludes PSC staff from the ban. A 1991 grand jury report recommended that the statute be changed to close that loophole but it was never amended.

PSC rules forbid staffers and commissioners from discussing certain types of commission business out of the public eye with those who appear before the regulatory panel. Under state law, a commissioner who engages in such discussions -- called "ex parte communications'' -- and who fails to report them could face a $5,000 fine and even removal.

Edgar said she may have received PIN messages but does not recall receiving any from FPL. "I do know this, I don't understand the whole PIN thing," she said. "I don't PIN, it's just not something I do."

FPL said in a statement that Smith never communicated via PIN with Edgar or any other commissioner, and the company defended Smith's use of them.

"Communication with staff members is a normal and appropriate part of the regulatory process in which all parties to any proceeding or issue regularly engage," said Mark Bubriski, FPL spokesman. "All of Ms. Smith's communications have been appropriate and any suggestion that Ms. Smith engaged in improper communication at any time is patently false."

BlackBerry devices support direct PIN-to-PIN messaging, which lets the user bypass an email system. The Herald/Times asked the PSC for copies of PIN and Blackberry messages of the five members of the PSC and their staff but the newspaper was told no records are kept.

"Pin-To-Pin or SMS text messages are not logged," wrote Ann Cole, PSC clerk. "There is not a retention schedule, as they are never saved."

The failure to retain the message may be a violation of Florida's public records law, said Tom Julin, a Miami attorney who specializes in media law.

"If it resides as a record at some time and if it is not preserved, that certainly would be a violation," he said. State law requires public agencies to have a system to record all documents created, "regardless of physical form."

The emails show that FPL attorney Smith obtained the PIN numbers for: Edgar; Edgar's aide, Roberta Bass; the aide to PSC Chairman Matthew Carter, William Garner; PSC communications director Cynthia Muir; and PSC lobbyist Ryder Rudd. Smith is a staff attorney representing FPL in the rate case pending before the PSC. Rudd was removed from all FPL business last month after commissioners learned he had attended a party at an FPL executive's home.

In an email dated Feb. 19, 2008, Bass sent an email message from her state-provided Blackberry phone to Smith that had no subject line or text, only a copy of Edgar's Blackberry PIN number. Bass could not be reached for comment.

Carter said that he did not use PIN messaging and was unaware that Garner, his aide, had used them to communicate with utility officials.

"I certainly hope my staff would not be doing that," he said. "It does not look good."

Garner email_001 On three occasions, Garner sent emails to Smith to exchange PIN numbers and also invited her on Feb. 23, 2009, to join his Blackberry messenger contact list, another messaging service that bypasses the state email system. Garner could not be reached for comment.

Carter said Saturday that the "sideshows'' over the staff and FDLE probe was "making it difficult for staff to do their jobs."

He sent out a rare public statement Wednesday declaring that he had "independence and freedom from external bias. '' He denied that he was too "cozy'' with regulated utilities -- FPL in particular -- and pointed out that, "in nearly every high-profile issue that FPL has brought before this commission, I have voted to deny or severely limit the company's request."