With Friends (and Lawyers) Like These, Who Needs Enemies?

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The Players

 

Barfield is well-known as a scourge of public officials in Sarasota and Manatee Counties, where he has filed a near endless slew of court actions against local governments and public officials. Together with Sarasota attorney Andrea Mogensen, Barfield, 53, has cultivated something of a cottage industry, tactically exploiting Florida's broad public records law, which is largely policed by citizen watchdogs. By law, plaintiffs in such cases cannot seek damages, but attorneys can seek the reimbursement of fees if they prevail in court or by settlement.

 

Barfield is not a lawyer. He is currently a paralegal, employed by Mogensen, who serves as counsel for a group that calls itself Citizens for Sunshine. Barfield typically files the suit as the plaintiff (often with Citizens for Sunshine) and is represented by Mogensen. In the eyes of some good government advocates, people like Barfield and Mogensen are serving as necessary checks and balances to a largely unpoliced realm of public policy, regardless of their motivations. Mr. Barfield maintains that he is proud of the role he serves in the system.

 

Together, he and Mogensen have worked to help plaintiffs that were victims of police brutality and fought to have public records released that had clear and obvious merit in terms of transparency, such as the names of North Port Police officers who were involved in an infamous sexual assault case, and a case against Governor Scott's highly-controversial dismissal of an agency head that should have required a vote of his cabinet. The two are routinely praised as crusaders by groups like the First Amendment Foundation, a Tallahassee-based nonprofit that advocates for free speech and open government. Barfield is even currently the Vice President of the Florida chapter of the ACLU.

 

The state's sunshine laws strictly prohibit elected local government officials from discussing current or potentially future public business with each other, unless it is at a properly-advertised public meeting of the board on which they serve. It's worth noting that while Florida's sunshine laws are among the broadest and most far-reaching in the country, they only came to be as a drastic response to the otherwise impenetrable systemic corruption that long plagued the state and continues to do so, even in light of their existence.

 

They were never conceived as a fail-safe way to police such behavior, only a single tool when a violation could be proven. As one can imagine, there exists a near infinite amount of ways the law can be safely broken. When two county commissioners share a car ride to an event in Tallahassee or Washington, who's to say what was mentioned? There's also the common practice of using go-betweens. For example, a county administrator or influential donor can legally meet with a number of commissioners individually and then share with them the positions or other feedback from their fellow board members in order to strategize and/or build a consensus out of the public eye.

 

This is suggested by the many public issues that often come to an abrupt vote with little or no discussion at meetings, despite widespread opposition. In these cases, such officials leaving some sort of public records paper trail is often the only hope in terms of accountability. For these reasons, public records inquiries and legal actions are often encouraged as a way for citizens to police their local governments.

 

The advent of email and then smart phones have drastically altered the landscape of Florida public record laws in ways that could not have even been conceived during their creation. Now, if a public official sends a text, or even reads an incoming one during a public meeting, it can become a public record. If a commissioner receives a personal email on their personal account, but somewhere in the thread a bit of public business or even an issue that could come before them for a vote is raised, it becomes a public record. By law, that official becomes the steward of the record and bears responsibility for following the laws in terms of maintaining it.

 

To avoid this, they are routinely taught to courtesy copy their public email address in any response to such an email, therefore putting the transmission onto the public system where the government body once again becomes the steward. As we learn in this and other such cases, that is not always done, sometimes for nefarious reasons, though more often for those that are benign.

 

In October of 2012, Barfield filed a public records request shortly after several county commissioners made hay at a public meeting, regarding a comment Commissioner DiSabatino made to then fellow commissioner (and TBT publisher) Joe McClash about a conversation at an MPO meeting, where McClash was then serving as a representative of the BOCC and DiSabatino had been in attendance. Barfield sought access to DiSabatino's emails related to the inquiry via certain keywords that could be searched, words like sidewalks, MPO and lights.

Manatee County attorneys handled the request, as per protocol. DiSabatino said that she was told by the county attorney's office to search her personal email account for messages that contained the keywords contained in the public records request. Commissioner DiSabatino reported that she was having difficulty with her email account and could not access archived sent mail. She described a scenario in which, while trying to access messages in her personal email account, the messages began deleting themselves and said she was left only with the ability to access messages from recent weeks. She worked with a G-mail tech to recover the missing files, but to no avail.

 

At that point, Barfield demanded that she have no further use of the computer and it be quarantined until a forensic audit could be performed in order to retrieve any possible public records relevant to the search that had not been properly stewarded. The county asserted that it had no authority to direct an employee on the use of their personal computer but said that DiSabatino was willing to discontinue use and drop it off with the county IT department.

 

Barfield claims that he had good reason to suspect that the commissioner was not being forthright in complying with the request. He said his group had been provided with email communications from other parties that were from Commissioner DiSabatino's personal account and were not contained in the county's emails, as evidenced by their failure to turn up in the county's search of her government account.

 

Robert Eschenfelder (a deputy county attorney in the office who identified himself as representing Commissioner DiSabatino in emails to the plaintiff) and Barfield bickered back and forth over what would come next. Through his vast experience with public records law, Barfield surely knew that he had the commissioner on the hook. She had provided one partial thread of personal account emails on hard copy, which corroborated the fact that public records not in the county's possession existed. Between them and any second-party communications he had in his possession that she could not produce in order to show they had been properly preserved, he could prove the commissioner was in violation of sunshine laws.

 

Barfield pointed out that the law required Commissioner DiSabatino to retain original electronic copies of the emails he requested and asked for the forensic audit to determine whether any such records could be recovered from her personal hard drive. Commissioner DiSabatino maintains that she was not advised by the county attorney's office that she was under no obligation to do so without a court order, which county attorney Mickey Palmer confirmed at the time, telling TBT that DiSabatino had been very clear that she wanted to comply with the request in order to put it behind her.

 

When asked why, as the county commission's attorney, his office failed to advise her on her various options and the potential pros and cons of each at that point, Palmer simply repeated DiSabatino's desire to be forthcoming with the request. This lack of instruction to DiSabatino would prove pivotal.

Next came a disagreement over the forensic audit of DiSabatino's hard drive. Barfield wanted a former county employee who worked part time in forensics to be able to make a copy of the hard drive to take off premises in order to do the search, while Eschenfelder insisted that it be done on site with their IT staff present, along with Commissioner DiSabatino, who would verify which records were personal and which were relevant to the search. Keep in mind, while Commissioner DiSabatino was responsible for securing copies of any and all official correspondence made on her computer, phone or other personal devices, Barfield was only entitled to receive those that pertained to the scope of his specific public records search.

 

When Barfield's IT guy was not able to come to terms with the county, Barfield continued to threaten legal action on the basis that his request was not being fulfilled in a timely manner, as specified by the law. The county then found a forensic IT specialist to their liking and contracted with him to perform an audit as per industry protocols (the audit was performed off-site, in a secure facility with neither party present, using a duplicate hard drive that the tech had made from Commissioner DiSabatino's original). Afterward, they notified Barfield that the forensic audit had been conducted and no relevant records had been discovered.

 

Barfield then filed suit against both the county and Commissioner DiSabatino, arguing that they had failed to properly comply with Florida statutes, chapter 119, involving public records by not properly maintaining public records.

 

The county attorney's office informed Commissioner DiSabatino that she would have to retain her own legal counsel out of her own pocket, while it filed a motion for summary judgment, arguing that it had obviously complied with the law regarding the records that the county had been custodian of. The county attorney's office also argued that legal precedent has held that once a public official used their own devices to store and transmit public records, that official became its own agency and henceforth was solely responsible for the record's stewardship.

 

The Commissioner's Hard Drive

 

Here's where things get very dicey for the county. According to emails dated May 29, 2013–six days before the county's scheduled hearing for summary judgment was to take place–the county and Barfield, through his attorney, came to terms on an agreement to have the county voluntarily dismissed from the suit by Barfield, provided ... wait for it ... the county make and give him a duplicate copy of Commissioner DiSabatino's entire personal hard drive! Eschenfelder's response via email? "We would be more than happy to provide a duplicate of (Commissioner DiSabatino's) drive for (Mr. Barfield)."

 

That's right; the Manatee County Attorney's office, while acting as Commissioner DiSabatino's counsel, obtained a copy of her personal hard drive for the specified purpose of having a controlled and secure forensic audit performed as it pertained to a specific public records request. Then, once it had informed her that it was no longer her attorney, the office made another copy and gave it to a private citizen who would now have access not to public records that she may have been storing on it that were relevant to his request–the audit had already shown they were not on the drive regardless of whether or not they ever had been–but to every single thing a person's personal computer might contain; everything from email messages and photos to other sensitive information like what websites they visit, who they communicate with and possibly even social security, bank account and credit card information.

 

After three years of dealing with the issue and spending more than $30,000 on her legal fees, Commissioner DiSabatino eventually entered into a settlement agreement with Barfield that very clearly stipulates it was made "in order to conclude the litigation without the need for incurring additional expenses for attorneys' fees and costs, and this agreement is not in any way to be considered an admission of wrongdoing." DiSabatino says she agreed to pay Barfield's stated legal fees of $6,500 in order to stop hemorrhaging money on her own.

 

So, when did Commissioner DiSabatino become aware that there had been such an immense intrusion of her privacy? The first inkling occurred when she was being deposed by Mogensen. DiSabatino says she was shown several Word documents she had written regarding county business, including an issue in which several commissioners and the county administrator attended an event at McKechnie Field during which Commissioner Larry Bustle announced that he would be supporting a vote that would come before the board regarding funding for Little League fields in Palmetto. It was not a public meeting and DiSabatino and three other commissioners confirmed that they were not told about the event. DiSabatino had drafted–but not transmitted–a letter to the county attorney on the matter, asking if perhaps that constituted a sunshine violation.

 

Commissioner DiSabatino said she was thrown by the presentation of the documents during her deposition because they had never been transmitted in the emails, but only existed to her knowledge as documents on her personal computer. All DiSabatino could think was to ask herself how had someone gotten a hold of something of that nature. It wasn't until it was revealed that the county attorney's office gave Barfield a copy of her hard drive that she started to connect the dots.

 

Now, let's think about this for a moment. When Mr. Eschenfelder was acting as Commissioner DiSabatino's attorney, he was adamant that any search of her personal computer be done by a licensed and bonded professional in a secure facility. Once he and the county had abandoned their representation of her–and to their own benefit, as it was a condition of the voluntary dismissal from Barfield–they suddenly had no qualms about turning over a public official's entire hard drive–the contents of which they could not even have contemplated.

The quasi-subpoena that compels a public official to turn over a private computer for a search of records must be done in a well-protected and secure environment, and the computer can only be searched for the material requested. That was the protocol followed when DiSabatino voluntarily turned over her computer, and she never agreed to anything else and wasn't advised that by doing so she could or would be making her entire personal computer available to the public. In DiSabatino's case, the only relevant information that could have been turned over related to specific language in emails within a confined date.

 

Barfield contends that once a hard drive copy is turned over for forensic audit–either voluntarily or by court order–the entire copy becomes a public record, and cites State v. City of Clearwater, though that case dealt with whether personal messages sent from public computers were inherently public records, which the Florida Supreme Court held they were.

 

He also claimed that in another high profile Citizens for Sunshine Case, Lorenzo v. City of Venice, hard drives of public officials ordered for forensic audit were made available as public records, though I couldn't verify whether that had been the case by this article's deadline. However, the county nor DiSabatino was not being compelled to turn over the commissioner's drive, nor, might I reiterate, had she been compelled to submit to the audit in the first place.

The risks associated with the county or especially a private citizen having a copy of someone's personal hard drive are literally endless. That's why a bonded, certified forensic technician charges thousands of dollars to perform a professional search in a secure environment under strict protocols. We spoke with Richard Green of United States Forensics, the tech who was contracted by the county to conduct the forensic audit on Commissioner DiSabatino's personal computer. Green said he copied the hard drive as per protocol, and ultimately sent the copy to Eschenfelder, suggesting Eschenfelder hold on to it in case further legal issues arose. Communications from Eschenfelder note that the drive was, at least for some time, maintained by the IT staff under a seal that was put on at the end of the audit.

 

DiSabatino didn't become fully aware of the fact that Barfield must have had a copy of her entire drive until she went with her attorney, Ralf Brookes, to the office of Citizens for Sunshine to pick-up any and all document property once the case had been dismissed. Right before she left, DiSabatino says that Andrea Mogensen said, "Wait, I have something for you." It was a hard-copy file that contained printouts of private information and personal documents, including the aforementioned drafted letter. She knew these files could have only come from her personal computer and wondered what Barfield and his attorney were doing with them.

DiSabatino says she still has not received the copy of her hard drive Eschenfelder sent to Barfield. But the county didn't return the copy Green had originally sent them either. DiSabatino said, "When I went back to the CAO for it, Eschenfelder and Palmer said they destroyed it. They didn't say when; they didn't say why, and they didn't have any record of its destruction." This is confirmed by an email from Eschenfelder to the commissioner which alleges that IT destroyed the drive while under instructions to maintain it, without direction to do so from the CAO.

 

When asked about the thought of others having access to such an immense trove of her most personal information, DiSabatino said, "It felt almost like being raped."

 

When DiSabatino confronted Eschenfelder via email, regarding him having given Barfield a copy of her hard drive, he wrote that even though his communications with Mogensen "may characterize obtaining a copy of the duplicate drive as an 'agreement'", his confidence that they would have won the upcoming hearing had it not been dismissed, along with his preference for that having been the case, somehow prove that it was not.

 

Eschenfelder says the county was almost certain to win. He's right. So again, why on Earth would he have given Barfield a copy of a county commissioner's personal hard drive without being compelled by the court to do so? Why didn't he refuse unless ordered or, at the very least, refer the request to DiSabatino's attorney? Eschenfelder's answer? Essentially, why not? He wrote that it was DiSabatino's own fault that her and her lawyer didn't contemplate such a possibility and file a motion of protective order preventing the CAO from doing so.

Eschenfelder wrote to DiSabatino that "when you turned your tower over for forensic inspection by a third party not employed by you or your counsel (in this case Eschenfelder), you knew or should have known that whatever contents which were on the drive would be subject to viewing."

 

This is clearly not true, as Green confirmed to TBT that only files that matched the strictly defined terms of his search would have been extracted. Green also said that himself nor anyone else would have been given access to view other files or materials on the drive as per the protocols in the contract for his services. Also, if she should have known this, wouldn't it be owed to the fact that her attorney, Eschenfelder, would have told her? Why the argument over who would perform the audit, where and under what protocols? Why not just ask DiSabatino if she would concede to giving the plaintiff a full copy of her hard drive in the first place?

"As to our Office’s even knowing what was on the drive," continued Eschenfelder, "IT staff would, if necessary, confirm that neither I nor Mr. Palmer nor Mr. Minix ever reviewed, or even saw, the drive or its contents ... Our Office never asked for, nor received, any other materials which were on your hard drive." If that's true, how could the attorney's office have been sure that they were properly redacting sensitive information such as her social security number or banking records before turning them over to a member of the public? Obviously, they couldn't.

Eschenfelder then went on to suggest that the documents she was confronted with in her deposition were probably public records as well. "To the extent the documents concerning Manatee County which you were questioned on at your deposition were also on your drive (a fact I cannot speak to), in light of the contents of the documents, I am not certain the law would agree that they are not also public records."

Barfield argues that they are, saying that any document created by a public official that relates to public business is a public record and although a draft would otherwise be unlikely to come to light, once he had possession of the hard drive, it was fair game. He said Mogensen had paraded it and other recovered documents in front of DiSabatino during deposition as evidence that there were many public records that she had become steward of that had not been properly preserved. Barfield asserted that even though the documents in question would not have fallen under the scope of his initial request, once he had possession of the drive, he was entitled to access any public record on it.

 

He also claims that they found evidence that the hard drive may have been tampered with in order to intentionally fragment data, a process that can be done to overwrite existing files with random or even foreign characters (i.e. Chinese letters) so that they cannot be easily retrieved, which is usually done to either wipe the drive of a computer someone is going to give away or sell as to prevent future owners from accessing sensitive data, or to intervene in a matter such as the audit in question. DiSabatino denied knowledge of any such software being knowingly used on her computer. There is also the problem that Barfield's copy of the drive cannot be compared to the original copy made by United States Forensics because the county had it destroyed.

 

Nonetheless, all of this is moot if the county attorney's office had simply not handed over the copy of the drive to Barfield, which they had no obligation to do.

 

The Legal Fees

 

On Tuesday, Brookes will go before DiSabatino's fellow commissioners and ask that they reimburse her legal fees incurred over the course of the ordeal, which now total over $30,000, including her settlement with Barfield. Eschenfelder has filed a recommendation to the board that it not grant the request, arguing that even though the case was voluntarily dismissed with no admission of wrongdoing, she failed to meet the threshold of having "prevailed" in the matter.

 

Brookes disagrees and the two cite dueling precedents. Brookes has also argued that as Eschenfelder has previously acted as her lawyer on this very case, he seems to have a conflict of interest in now acting in an adversarial role toward his former client. He says that because Eschenfelder is a fact witness–a person with knowledge about what happened in a particular case–with a high-level of involvement with the case, there is enough for, at a minimum, "an appearance of conflict."

 

Brookes further notes that Eschenfelder himself had declared a conflict of interest at the point when he stopped representing DiSabatino. Brookes has suggested that the county instead retain outside counsel to render an opinion on whether the board should vote to reimburse her for the legal fees.

 

Commissioner DiSabatino seems to have, at a minimum, acted outside of the advice commissioners are given as to handling communications regarding public business, which is to either use only their official government email account or copy the county on all such communications. When she became steward of her records, she failed to maintain and produce them in accordance with Florida law. Whether she intentionally destroyed or otherwise attempted to avoid producing public records in any manner is unclear.

 

However, the county attorney's office seems to have done a highly-questionable job of acting in the interest of its client, and the possible ramifications of such actions are sure to send a chill down the spine of public officials everywhere. The CAO declined multiple requests by TBT to comment on this story.