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News organizations say two recent Florida Supreme Court actions restricting public access to government employees’ e-mails and phone call lists will hurt their ability to uncover misconduct by public officials. In a case filed by the St. Petersburg Times, the Supreme Court this month unanimously ruled that the city of Clearwater was not required to release the personal e-mails of two employees just because the messages were sent on city-owned computers and on city time. Some First Amendment lawyers are calling the decision in Times Publishing Co. v. City of Clearwater — along with the high court’s refusal to review a decision from the state’s 1st District Court of Appeal blocking media access to legislative staffers’ mobile phone records — significant defeats for openness and accountability in Florida government. Sam Terilli, managing partner at Ford & Harrison in Miami and former general counsel for The Miami Herald, criticized the Supreme Court in the Times case for failing to bring public records laws into the computer age. “They missed an opportunity to allow [the state Public Records Act] to enhance the accountability of public servants by requiring that, if they use a public computer, it is public business,” said Terilli, who was not involved in the case. The day after the Times ruling, the justices without comment declined to hear an appeal filed by The Tampa Tribune and the Orlando Sentinel to gain access to complete lists of mobile phone calls made by state legislative staffers. The newspapers hoped to challenge a ruling from the Tallahassee-based 1st District Court of Appeal that blocked their access to unedited phone records of staffers who worked for then-Florida House Speaker Tom Feeney, now an Orlando-area Republican congressman. The newspapers wanted the call lists to determine whether one staffer was working on Feeney’s congressional election campaign while receiving a state paycheck. Staffers had been allowed by Barry Richard, outside counsel for the House, to black out phone numbers they said memorialized private calls. News media executives blasted the 1st District Court of Appeal ruling in the Feeney case. “Who’s going to oversee what names are redacted from a list of phone calls?” asked Earl Maucker, vice president and editor of the South Florida Sun-Sentinel in Fort Lauderdale. “The potential for abuse is huge.” In the Times case, the newspaper had sued to obtain the messages of two workers who allegedly were operating a moving and storage business on government time. It sought to establish that Florida’s Public Records Act applies to all electronic communications on government computers that are not specifically exempted. A Pinellas-Pasco Circuit Court judge in May 2001 denied the newspaper’s request for the electronic correspondence. The Lakeland-based 2nd District Court of Appeal backed that decision last year. On Sept. 11, the Supreme Court, in a 16-page decision written by 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 prepared ‘in connection with official agency business’ and be ‘intended to perpetuate, communicate or formalize knowledge of some type.’” The ruling cited Pinellas-Pasco Circuit Judge Anthony Rondolino’s opinion that “absurd consequences” would result from opening such records to public scrutiny. “If the attorney general brings his household bills to the office to work on during lunch, do they become public record if he temporarily puts them in his desk drawer?” Rondolino had written. “If a senator writes a note to herself while speaking with her husband on the phone, does it become public record because she used a state notepad and pen?” The 2nd District Court of Appeal previously had said that the Times could ask Rondolino to review the e-mails to determine whether they qualify as public information. But Karen Kammer, of counsel at Mitrani, Rynor, Adamsky & Macaulay in Miami who represents Post-Newsweek and other news media clients, said that approach is unrealistic and undesirable. She bemoaned the Supreme Court decision. “Anytime a member of the public now wants to see e-mails of somebody who works for the government, they’re going to have to have a trial court review each and every e-mail to determine if the Public Records Act applies, even before you get to the issue of exemptions,” Kammer said. Sanford Bohrer, a Holland & Knight partner in Miami who has represented the Daily Business Review and The Miami Herald, had a different view, arguing that the Supreme Court ruling wasn’t particularly significant. “Justice Pariente is saying that from a public records standpoint, we agree you can have e-mails that are personal,” he said. He noted that personal phone-mail messages and handwritten notes memorializing personal calls previously were not considered public records. But, Bohrer added, the exemption for personal e-mails must not be used by public employees as a dodge. “I’m talking about truly personal stuff, not the game-playing where public officials are trying to get around the Sunshine Law,” he said. George Rahdert, a partner at Rahdert, Steele, Bryan & Bole in St. Petersburg whose firm represented the Times in the case, complained that the high court ruling grants each government employee the right to decide what’s public or private. As a result, it hampers the ability of journalists and other government watchdogs to determine when government employees are conducting private business on government time, he said. “We contend this is fundamental to preventing fraud, waste or abuse,” Rahdert said. Paul Tash, president and editor of the Times, said his newspaper now is considering a variety of options, including lobbying for state legislation to close what he sees as a “pretty large loophole” in the Sunshine Laws created by the Supreme Court ruling. In addition, the Times is likely to ask a circuit court judge to review the requested e-mails sent by the Clearwater city employees to determine whether they qualify as public information, said Joe Childs, Times Clearwater managing editor. In the other public records case, which the Supreme Court declined to review, Media General Operation Inc. and Orlando Sentinel Communication v. Tom Feeney, as speaker of the State of Florida House of Representatives; and the Republican Party of Florida, the 1st District Court of Appeal ruled that government employees can determine which phone calls are private and thus are not eligible for public disclosure on call lists under the Sunshine Laws. Those news organizations, along with The Palm Beach Post (which didn’t participate in the appeal), sued Feeney before last year’s election to obtain mobile phone records for five of his staff members. Feeney had complied with an earlier phone record request from the newspapers. But the state Republican Party subsequently agreed to supply and pay for mobile phones for Feeney’s top staffers; the party argued that its billing records were private. The party eventually turned over a list of calls made on those phones, but the staffers were instructed by counsel that they could black out any calls on the list that they deemed private. A trial judge in Leon County ruled against the news organizations’ request. On appeal, the 1st District Court of Appeal ruled that the call records were public information but that private information on those records could be withheld. The 1st District Court of Appeal, citing the 2nd District Court of Appeal’s decision in Times Publishing Co. v. City of Clearwater, said personal calls fall outside the definition of public records. “There is no dispute over the individuals’ designation of calls as private or public,” said the 1st District Court of Appeal opinion, written by Judge Ricky Polston. “It was the appellants’ burden to request an in camera inspection of the calls designated as private if they intended to prove that the designations as private were incorrect.” The case creates no barriers to news media access, said Barry Richard, an appellate lawyer and partner at Greenberg Traurig in Tallahassee who represented the Florida House in fending off the newspapers’ information request in the Feeney case. There’s nothing illegal about a government employee using a public computer, phone or pen for private purposes if authorized, Richard argued. “As much as I like to claim that I’ve made new law when I have a victory, I don’t think this case involved anything new or surprising. The courts have held that the mere fact that records are in possession of a public entity or in a public depository of some kind does not mean they are public records.” Timothy Franklin, editor and vice president of the Orlando Sentinel, called the Supreme Court’s e-mail ruling and its refusal to review the 1st District Court of Appeal’s phone list decision “scary,” and said news organizations need to consider ways to get the law changed. “I’m a purist about it,” Franklin said. “If you make a phone call from a government office, it’s fair game for public information. If you are using a government computer, taxpayers should have unfettered access. Once you start down the path, you’re really forfeiting the right to hold government officials accountable to a large extent.” Franklin said the 1st District Court of Appeal’s ruling in Media General encourages elected officials to turn over telephone banks to the political parties and have the parties run campaign operations using government employees. Florida Attorney General Charlie Crist, who intervened on behalf of the Times, also called the ruling a disappointment. “Taxpayers ought to have the opportunity to see what’s on those computers they paid for,” he said in an interview. Crist said he would consider asking the Legislature to change the law. But crafting language that protects public access without punishing innocent government employees will be tricky, experts say. If a hard-working government employee takes work home over the weekend and completes a report on his home computer, for example, should everything on his or her computer be considered a public record? David Bralow, senior counsel for Tribune Publishing, who represented the Orlando Sentinel in the phone-list case, said it would be better to simply say that all documents and phone lists generated by public employees while working on government time are subject to public records laws. But Bohrer cautioned against over-reacting to the rulings in the two cases. “Sometimes, when the press pushes too aggressively for things that have marginal significance, we end up doing worse than if we hadn’t done anything at all,” he said. “I am still pretty comfortable the law works.”

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