Gov. Rick Scott has sent a warning to his former employees: you’re on your own when it comes to defending yourself in court over lost public records.
In a response to a lawsuit filed in circuit court in Tallahassee accusing the governor of intentionally hiding public documents, the governor’s legal counsel argued that the governor’s office has done its part to turn over the records sought in the lawsuit and, if there are more records to turn over, it’s not their fault.
The argument was made as part of a response to an amended complaint filed by Tallahassee attorney Steven R. Andrews, accusing the governor of failing to turn over text message and emails about public business conducted on private email accounts of more than 40 former employees.
Andrews is asking the court to order the governor’s office to produce records, which he wants as part of a lawsuit relating to a property dispute, and is asking the court to order the governor to use a forensic technician to retrieve documents that may have been improperly deleted.
It is a bit of a catch-22 for the departed staffers of the governor, ranging from his former deputy chiefs of staff to his office interns. Many of them were instructed by Scott’s former chiefs of staff to use private accounts and cell phones to conduct public business via text message and email.
Under state law, and governor’s office Code of Personal Responsibility, they were required to turn over those records when they left the governor’s office and forwarded to the records custodian to be archived.
But after numerous public records requests by Andrews, many of the messages have still not been turned over. In many instances, Andrews has evidence that records once existed – such as text messages and emails from one staffer to another, but only one side of the conversation has been turned over in the public records searches.
Andrews suspects that either the governor’s office did not collect all the data, despite the law and Scott’s own rule, or it allowed employees to delete the public records – in violation of the state public records act.
Meanwhile, while the governor’s office wants the court to make Andrew’s lawsuit disappear, the court allowed him to amend his complaint last month and accuse the governor of intentionally violating the law. Download Andrews amended complaint
The governor’s office is pushing back. Tanner Bishop and Heather Stearns, the governor’s private legal counsel and deputy general counsel, responded to the amended complaint in a response filed Monday. Download EOG Answer to Andrews
The governor’s office “conducted a good faith, reasonable and appropriate search for responsive records, and produced responsive public documents in its custody and control without alteration as soon as practicable,” they wrote.
However, “some of the documents Andrews requested, such as text messages or emails of current and former employees, were not in Respondent’s possession.’’
The governor’s office tried to get those documents from the former employees, as well as from other agencies, the lawyers claim, and thus “went above the requirements of Chapter 119 in facilitating the production of responsive records to the Petitioner.”
State law requires that copies of any emails, text messages or other documents used in the course of public business be preserved and produced if requested by a member of the public.
Employees who use their private email accounts to conduct public business must also turn over those documents to the state and former employees are required to turn over copies of all public documents when they leave the state.
Scott’s lawyers argue that it was relying on his former employees to follow the law and turn over the documents from their private accounts.
However, it wasn’t until this year that the governor’s office announced that it was now requiring employees to turn over text messages and emails from their personal phones when they leave state employment.
What happened to the text messages and emails from the private accounts of former employees who left during the first four years? The governor’s office isn’t saying, but it also says it has turned over everything it has to Andrews.
“The facts flatly negate Andrews’ allegations that Respondent willfully refused to produce public records or attempted to circumvent compliance with Florida’s Public Records Act,’’ Scott’s lawyers argue in the answer to Andrews’ complaint. “Andrews has received and continues to receive all public records responsive to the repetitive requests he has made, and continues to make, to this day.”
If the governor’s office is right and most of the former employees didn’t turn over their records, what’s next?
“They governor’s office is saying we’re going to have to sue them individually,’’ said Colleen Andrews, a paralegal in Andrews’ firm.