Organization for Government Accountability Brings Suit Against Manatee County

BRADENTON – The Florida Center for Government Accountability (FLCGA) has taken legal action against Manatee County Government for alleged violations of Florida’s Public Record Law. The organization has filed for mandamus relief, requesting that the court intervene to compel the county to produce public records requested by the organization.

This is not the first lawsuit brought against Manatee County related to alleged public record law violations. In April, Twelfth Judicial Circuit Judge Edward Nicholas sided with the plaintiff in a civil case brought by a citizen who alleged the county had failed to produce numerous public records upon request. Judge Nicholas found the county had violated Florida Public Record Law, Chapter 119, and in May the judge issued a final judgment awarding the plaintiff in that case fees incurred through litigation.

While the May ruling dealt with requested email records and a failure of the county to follow the law and produce the public records to the requester in their entirety and within a "reasonable timeframe," the lawsuit brought by FLCGA is a bit more complex in that it seeks to collect text message public records–where the county has told the requester that it has no procedure in place to collect and archive such records.

In its complaint filed on August 9, FLCGA not only requests the courts to compel the county to fully produce the public records requested but also seeks to establish a violation of the law by not preserving text message records, in accordance with the law.

"Manatee County failed to perform its statutory duty to properly archive and retain electronic public records in its possession," the complaint included. "As a direct consequence of this failure, Manatee County has caused an unreasonable delay in making electronic public records available for inspection and copying upon request."

In its complaint, FLCGA outlined the back and forth it experienced with the county as it attempted to retrieve copies of text message public records for inspection.

On May 24 of this year, Michael Barfield–as the director of Public Access for FLCGA–submitted a records request to Manatee County requesting copies of all text messages of County Administrator Scott Hopes within a specific date range. On May 27, the county responded to the request for public records providing a log of text activity for Hopes' county-issued cell phone. The log did not contain copy of any content from the text messages, it only provided phone numbers that Hopes had sent or received text messages including the dates and times.

When Barfield questioned the county on its failure to produce an actual copy of the text messages themselves, Deborah Scaccianoce Manatee County's Records Manager, informed Barfield that the county had no system in place to archive text messages.

An email sent to Barfield from Scaccianoce on May 31 included, "Manatee County does not have a method to capture the content of text messages sent or received on County issued cell phones. I reached out to our vendor Verizon and they confirmed that factÉ It requires a subpoena." Scaccianoce also told the requester that she was working with Hopes to provide screenshots of his text messages.

Attached to Scaccianoce's response to the requester was a copy of correspondence the county had with its service provider, Verizon. The communication provided between the county and Verizon showed that the county was requesting Verizon produce to the county copies of Hopes’ text messages so that the county could provide those to Barfield to satisfy his request. But, in the complaint, FLCGA pointed out that under the law, it is the onus of the county itself to archive text messages of its employees, and that its failure to do so delayed the production of public records.

After several weeks, an appointment was arranged for an agent of FLCGA to meet, in person, with county officials on June 23 to review the Hopes' text messages. At the meeting, Hopes connected his county-issued cell phone to a device that allowed messages to be displayed on a large screen. The plaintiff’s agent was allowed to take photographs of the messages that were displayed. However, some messages were blurred and could not be captured in a readable manner.

After the meeting, acting on behalf of the FLCGA, Barfield submitted additional requests for public records including text message records and text message logs of Deputy County Administrator Robert Reinshuttle and Deputy County Administrator Charles Bishop, as well as text messages spanning a further date range for Hopes than was originally requested in May.

The county also agreed to produce screenshots of the messages that were not legible during the in-person meeting. However, the plaintiff included in the legal complaint that as of the first week of August, the county had not yet produced the screenshots of texts as it had agreed. Likewise, the production of the additionally requested public records submitted after the meeting had also gone without fulfillment. Exhibits submitted by the plaintiff in the case show that Barfield repeatedly followed up with the county throughout the weeks, attempting to secure copies of the public records requested.

"Based on information and belief, the county," as summarized in the complaint document, "through its elected and appointed officials, employees, staff, designees, devisees, agents and representatives, utilized electronic devices and electronic accounts to make or receive certain records pursuant to law or ordinance, or in connection with the transaction of official business, without any adherence to the 9 archive and retention requirements set forth in Chapters 119 and 257, Florida Statutes, or Rule 1B-24 and 1B-26, Florida Administrative Code."

In an email,Barfield told TBT, "The Center (FLCGA) brought this litigation because it is important for all governmental agencies to comply with the Public Records Act and to make records available in a reasonable and timely manner."

Barfield's email continued, "Text messaging is the most common form of communication and significant county business is discussed via texting. The County knew of its obligations to archive and backup text messages. Through neglect or avoidance, the county decided not to comply with state law."

Based on filings in the case, it appears Twelfth Judicial Circuit Judge Charles Sniffen found merit in FLCGA's complaint. In his preliminary determination, Judge Sniffen granted the plaintiff’s request to order the defendant–Manatee County–to show cause why the plaintiff’s writ of mandamus should not be granted, and to schedule a hearing.

In order for a court to issue a writ of mandamus, the entity bringing forward the mandamus request must establish its merit. Under state law, "mandamus" is a legal remedy requested of the court to enforce the performance of an act that the plaintiff has a legal right to demand. Through mandamus relief, the court can coerce government agencies and their officials to follow through on duties that they have a clear legal obligation.

Most recently, FLCGA has filed its intent to subpoena Verizon for cellular records the county has failed to produce through Barfield's legal request for public records.

The notices of production from a non-party were filed with the courts on Monday and target cellular records from the cell phones of Administrator Hopes, and Deputy County Administrators Reinshuttle and Bishop. The plaintiff compelling–through legal means–Verizon to produce "a log of all texts sent or received" for each of the county employee's phones, including records disclosing date, time, sending number, receiving number, attachments, message type, and whether the message was incoming or outgoing. The dates specified for the requested data begin on January 2, 2022, and end on June 23, 2022.

Known as our "government in the sunshine" policy, Florida has broad public record laws that require government agencies to make such records available upon request. Chapter 119 of the Florida Statutes reads, in part:

"It is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency ... Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records."

Florida Statutes 119.011(12) defines public records as "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency."

Administrative rules of the Division of Library and Information Services of the Department of State Florida Administrative code rules 1B-24 established standards and procedures for public records archive and preservation. Administrative code rules 1B-26 provide standards for copies of public records which reside in electronic form.

In March of this year, TBT reported that public records we obtained raised questions concerning Manatee County Government and whether the agency was operating in "good faith" to comply with Florida's public records laws.

Established in 2021, the Florida Center for Government Accountability is a non-partisan 501(c)(3) organization. According to its website, the organization was established to "Provide support and assistance for citizens and investigative journalists working for government transparency and accountability in Florida."