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Florida’s open-records law, regarded as one of the nation’s most liberal, does not apply to personal e-mail generated by public employees on public computers on public time, the state Supreme Court has ruled. The 7-0 decision, which affects some 800,000 state and local government employees, immediately raised concerns about oversight and accountability. The ruling comes in a case that saw an alliance of Florida’s attorney general and the St. Petersburg Times newspaper beaten by the city attorney of Clearwater, a Gulf Coast town of 110,000 people. It is also the final act in a mini-scandal that forced one Clearwater official from his post and compelled another to apologize publicly because the two were using the municipal e-mail system to manage their private storage business. Times Publishing Co. v. City of Clearwater, No. SC02-1753 (Fla. Sept. 11, 2003). Times attorney George Rhadert said the issue was not solely one of open records, but about fraud and abuse. “Somebody could be sitting at their computer and look mighty busy,” he said, “meanwhile they’re chatting, dating, downloading porn.” A partner in the St. Petersburg firm of Rhadert Steele Bryan & Bole, he added, “in the context of this case, our newspaper was exposing the practices of an assistant city manager.” Three years ago, the Times reported that the assistant city manager, Garry Brumback, and the city planner, John Asmar, were using city e-mail to manage a storage business they owned on the side. But when the paper made a request for any e-mail sent or received by the duo during the previous year, the city allowed Brumback and Asmar to sift through their missives, eliminating anything that they determined to be non-work related. Contending that the state’s open-record laws covered all the e-mail on Asmar and Brumback’s office computers, the Times took the city to court. The paper could not overcome City Attorney Pamela K. Akin’s reliance on the laws’ definition of public documents as just those documents that concern “official business.” However, neither of the controlling provisions-the state constitution’s Article I, Sec. 24 and Florida statutes Chapter 119-mentions e-mail, leaving room for statutory interpretation. On appeal, the Times was joined by the attorney general’s office. Arguing for the state, Solicitor General Christopher M. Kise urged the high court to adopt a broader view of its public records laws. “The people are entitled to know what is happening on the people’s computers in the people’s offices on the people’s time,” Kise said in a telephone interview. While not condoning the officials’ conduct, Akin said that under a plain reading of the laws, the e-mail did not concern city business and were not covered by the paper’s request. “Our position is that just because it hits the city computer or the city desk or comes through the city mail system that does not make it a public document,” she said. “It’s the content, not the method of delivery.” In her 16-page decision, Associate Justice Barbara Pariente agreed. “It cannot merely be the placement of the e-mails on the City’s computer system that makes the e-mails public records,” she wrote. “Rather, the e-mails must have been been prepared ‘in connection with official agency business’ and be ‘intended to perpetuate, communicate or formalize knowledge of some type.’ “ Former Holland & Knight lawyer Sandra Chance, now director of the University of Florida’s Brechner Center for Freedom of Information, said that the ruling failed to account for changes in technology, making it difficult to monitor government operations. “Most troubling is that the individual employee gets to decide what’s public and what’s private,” she said, adding, “The system is ripe for abuse.” Robert Freeman, executive director of the New York State Committee on Open Government, said that had the case transpired in New York, the outcome would have been different because state law eliminates any distinction between the public and private records kept by public officials. Rhadert said that he will “do what it takes” to see the laws amended to reflect modern means of communication. “I don’t think its sensible to have a rule that you can goof off on public time without the potential for oversight.” Akin countered, “we still have the means to deal with people who are not doing their jobs.” Harris’ e-mail address is [email protected].

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