MANATEE COUNTY — In an ongoing civil lawsuit brought against the Manatee County Government by the Florida Center for Government Accountability, recent deposition transcripts submitted in the case contain new revelations concerning the handling of public record text messages and the production of these records in response to public record requests.
A former county employee alleged under oath that she was encouraged to manipulate the way the total number of responsive records was calculated in order to charge a fee for production—a plan intended to dissuade the production of the text records, she said. The former employee further claimed that she believed that her production of the text messages, despite a commissioner’s desire that they not be released, ultimately led to her termination.
Court filings show that on Oct. 24 and 25, an attorney representing FLCGA deposed two individuals in the case—Department Information and Technology employee Ronald Hardy and the county’s former record manager Debbie Scaccianoce. Both individuals provided corroborating statements under oath alleging that Manatee County had not operated in compliance with Florida Statutes, Chapter 119 when it came to capturing and archiving text message communications of county employees and elected officials.
The lawsuit was filed by the nonprofit organization in August of 2022, following FLCGA submitting record requests to the county. In the suit, FLCGA alleges Manatee County failed to respond to the requests in accordance with the law.
A month into the litigation, Manatee County Government admitted that it had not been capturing and archiving text messages and agreed to a judge's order requiring the county to produce records requested by FLCGA.
At that time, the Director of Public Access for FLCGA, Michael Barfield, told the Herald-Tribune that the county’s agreement had not satisfied the requirements of state law and its efforts to make changes to come into compliance going forward, was a step in the right direction.
"It's great they are coming into compliance, but they need to go backward as well as forward," Barfield said.
As FLCGA’s civil case against the county has progressed, the nonprofit has amended its complaint in the case, filed requests for the county to produce additional electronically stored information and public records, and taken two depositions in the past month.
On Oct. 25, Attorney Andrea Flynn Mogensen deposed Scaccianoce on behalf of FLCGA. Manatee County Attorney Doug Polk was present for the deposition and conducted cross-examination.
Answering questions under oath, Scaccianoce told Mogensen that she had worked for Manatee County as the county’s records manager for 11 years until she was terminated in August.
In her sworn statements, Scaccianoce revealed that she believed that she was terminated from her job because she produced text message records that Commission Chair Van Ostenbridge did not want to be released.
When faced with a question regarding whether she recalled any conversations at Manatee County about using fees for record production to deter requesters from making requests, Scaccianoce asked whether she could “refuse to answer” the question. Informed that she could not refuse to answer—as the deposition was under oath—Scaccianoce reluctantly stated, “Once, that happened, and it resulted in my termination.”
Florida’s Public Record Law provides for certain fees charged to the requester, including the cost of paper production of records. The law also provides discretion to the records manager in instances where “the nature or volume of public records requested to be inspected or copied…is such as to require extensive use of information technology resources or extensive clerical or supervisory assistance by personnel of the agency involved…”
The law also provides that “...the agency may charge, in addition to the actual cost of duplication, a special service charge, which shall be reasonable and shall be based on the cost incurred for such extensive use of information technology resources or the labor cost of the personnel providing the service that is actually incurred by the agency or attributable to the agency for the clerical and supervisory assistance required, or both.”
In her deposition, Scaccianoce detailed a “formula” that the county utilized for calculating such fees when fulfillment of a request for records required extensive resources or staff hours. Scaccianoce stated that while she was employed as the county’s records manager, the calculations were based on the estimation that 750 records could be reviewed by one staff member per hour.
When there was a public record request for text messages from an employee or elected official’s phone, this formula would be applied to the number of text messages existing on an individual’s device within the requester’s identified time range. The hours were based on the amount of time it would require of staff to review the date-responsive text messages to determine which texts were “private” in nature, or public records.
According to Scaccianoce, the county received a request for text messages from all commissioners’ devices occurring during a certain time frame. She alleged that when Van Ostenbridge was made aware of the request he told her he “did not want the messages released.”
“And he said, specifically, that there, as you can imagine, there will be a lot (of messages) and I don’t want that out there,” Scaccianoce explained.
“That was the conversation, but I did not comply. The messages were released ultimately and I was fired within two days,” she added.
Scaccianoce claimed that some of the texts requested had already been produced to her by other commissioners, but Van Ostenbridge informed her that he intended to “tell the commissioners to combine all their messages into one number” so that Scaccianoce could use the formula to base the request on a larger number and apply a fee that might then deter the requester from following through with the request.
“I believe it was a newspaper because they rarely pay,” said Scaccianoce of the requester. “And so, with an estimated fee, the likelihood of the text messages being released would not have happened.”
Scaccianoce further added that because the other commissioners—save for Commissioners Rahn and Van Ostenbridge—had already provided the requested records, and because there “weren’t enough of them to generate an estimated fee per statute” she released the records she had already obtained.
When questioned as to why she believed it was this action that led to her termination, Scaccianoce explained that the text records were released on a Monday before being published the following Wednesday in The Bradenton Times.
On Thursday of the same week, former acting administrator Lee Washington parted ways with the county, and Charlie Bishop was appointed as acting administrator. According to Scaccianoce, it was on Friday, Bishop’s first full day in the role as acting administrator, when he met her in her office and informed her she was being terminated.
Based on the timeline that Scaccianoce provided during her deposition, TBT published a story about text messages between Commissioner Baugh and political consultant Anthony Pedicini titled, “Pedicini Broke it Off with Baugh.”
According to records retained by our publication, the text records from Baugh’s cell were produced to TBT by the county’s records division on Friday, July 28. The texts were then published in our reporting on Wednesday, Aug. 2. The Thursday after our story ran, the board confirmed Bishop as the next acting administrator.
TBT attempted to reach Van Ostenbridge for his response to Scaccianoce’s deposition statements, but did not receive a reply to our request for comment.
In her answers to questions throughout the deposition, Scaccianoce revealed that in instances where a requester had requested copies of text messages, the individual user of the phone was tasked with going through their device for responsive records. Scaccianoce said that the process effectively made each county employee or elected official the custodian of their own text messages.
Unlike emails, the county had little ability to archive or retain text messages from county-issued devices prior to the implementation of software that archives text messages from county-issued devices in November 2022—and no ability to do so from privately owned devices according to Scaccianoce.
Although there was no text archiving software in place before 2022, county policy discouraged employees from using text messaging to conduct county business and instructed employees to forward all incidental county-related text messages to their mymanatee.org email addresses as a way to archive them. However, according to Scaccianoce, there was no way to ascertain the overall compliance with the mail-forwarding measure or to enforce it.
Scaccianoce claimed that she first became aware of the county’s inability to capture and archive text messages in 2020. She stated that following a record request for text messages, she discovered the county might be out of compliance with public record law. She further stated that she shared her concerns with the county attorney and administration. However, Scaccianoce also stated that there would be no record of her having alerted anyone because those conversations would have taken place by phone call.
It would not be until Oct. 2022—six months after FLCGA first submitted its record request for text messages from county officials' phones that led to the lawsuit and nearly two years after Scaccianoce stated she first identified the issues—that according to Scaccianoce, the county would begin to solve the noncompliance problem by purchasing Smarsh software.
Though Smarsh software addressed archiving text messages on county-issued devices, both individuals deposed by FLCGA in the case stated it could not address county-related text messaging that may be taking place on any employee or elected officials’ personal device.
When questioned about obtaining text message records from commissioners or administrative officials to fulfill a public record request, Scaccianoce answered that some commissioners and administration officials would “turn over their phones” or text messages, while others, she alleged, refused to do so.
When asked specifically which elected officials refused to provide her with their devices to retrieve text messages, Scaccianoce stated, “Mr. Van Ostenbridge never provided a phone. He does not have a county-issued phone, he only has a personal device.”
Scaccianoce also stated that former county administrator Scott Hopes never allowed her to examine his phone to retrieve public records.
Scaccianoce said that it was mainly “elected officials and upper administration” who “gave her difficulty” in obtaining text messages from their personal cellular devices.
“I guess pretty much with the exception—Commissioner (George) Kruse was always compliant. I never had an issue with Commissioner Kruse, he was always very quick,” Scaccianoce detailed.
“Commissioner (Vanessa) Baugh always provided all her messages, she was very transparent,” Scaccianoce continued. “Pretty much, I never got the text messages from Commissioner Van Ostenbridge, he always told me there were no records, and Commissioner (Mike) Rahn always stated he had none. The rest just took a long time to provide anything that I requested, and often had to be prompted by the county attorney.”
Speaking of Commissioner James Satcher, Scaccianoce said that he too would eventually provide requested records, but that his records would go through the county attorney before being produced to her office.
Scaccianoce also offered that during their terms, former commissioners Misty Servia, Reggie Bellamy, and Carol Whitmore were also all compliant and transparent whenever she was attempting to obtain text messages from their devices.
Concerning county administration, Scaccianoce claimed that it was her experience that Charlie Bishop “was difficult” as was former administrator Hopes. She added that former acting administrator Lee Washington was “transparent” as was Deputy County Administrator Courtney De Pol.
Despite her statements that De Pol was “transparent,” while answering another question during the deposition, Scaccianoce alleged that when FLCGA submitted the request for text messages which led to the civil suit, both Bishop and De Pol did not produce their phones or responsive texts until “the day the lawsuit was filed.”
In his cross-examination, County Attorney Polk asked Scaccianoce if she was aware whether issues involving text messaging and compliance with public record law were "unique to Manatee County." Answering the question, Scaccianoce stated that during her annual attendance at the Florida Records Manager Conference, she had heard from a general counsel for the AG and the Florida Department of Library Services that the issue of text messaging and public record law was a common problem across the state.
During his deposition, Hardy likewise acknowledged the county’s inability to capture and archive text messages on county-issued devices prior to the implementation of Smarsh software in October and November of 2022.
Hardy also confirmed another point raised during Scaccianoce's deposition, that some county-issued phones had iMessaging capabilities that further complicated the matter because texts sent through this application would "disappear" from the devices themselves leaving no record of the content for archiving or production.
Following the depositions in late October, FLCGA filed a second request with the court “for production and electronically stored information.”
Reached by email about the depositions and ongoing proceedings, FLCGA Director of Public Access Michael Barfield wrote that FLCGA remains concerned about public records that may never be able to be produced or inspected.
“We continue to learn new information about the events that began with a records request to Scott Hopes in May 2022. It’s clear that multiple individuals within Manatee County were aware that public records were not being archived or backed up over a significant period of time. Instead of acting on proposed remedies for compliance, high-ranking county officials ignored the problem for more than one year,” Barfield wrote.
“We may never know the full extent of public records that were irretrievably lost but FLCGA is determined to recover as many records as is possible,” Barfield added.
Concerning allegations made by Scaccionce that she was told to issue fee estimates for the production of records to dissuade a requester, Barfield wrote that FLCGA is “gravely concerned” about those allegations.
“Allegations that the records custodian was encouraged to increase the costs for citizens to access public records is expressly contrary to both the spirit and letter of Florida’s transparency laws,” he wrote.
Barfield concluded his emailed comments adding, “FLCGA will continue to hold Manatee County government accountable so that its citizens can make informed decisions and express their opinions.”
The county did not respond to TBT’s emailed request for comment about statements made by the individuals deposed in the case, or the ongoing litigation before our publishing deadline.
The deposition transcripts were added to the case docket on Nov. 13, and are publicly available on the Clerk of Court website. The transcripts can also be reviewed by clicking here.
