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Records show Gov. Rick Scott's office put up barriers to public records

TALLAHASSEE — Gov. Rick Scott launched Project Sunburst two years ago to give the public easy access to his emails and those of his staff and promised it would become an "unprecedented, transparent window into how state government works."

He also created a website to show state employee salaries and held more news conferences flaunting his open government record than any governor in recent history.

But, in practice, the Scott administration has erected barriers to public records, marginalized the use of Sunburst and interpreted the state's Sunshine laws in a way that open government advocates say has set back the clock on Florida's open records tradition.

"They don't turn over anything unless they get caught,'' said Steve Andrews, a Tallahassee lawyer whose two-year legal battle over a property dispute with the state produced thousands of documents raising questions about many of the administration's practices.

Andrews spent 18 months getting copies of text messages that he was repeatedly told by the governor's staff did not exist. He is suing the governor's office for violating the state's public records laws, alleging the records he has received are incomplete and, in some cases, altered.

The governor acknowledged for the first time last week that he uses a private email account but issued a blanket denial that he uses it for public business. He also accused Andrews of harassment.

"We follow the law," Scott told reporters. "This is just an individual that sues the state, tries to cause problems."

The governor's office "code of conduct" states that employees should not use personal email accounts "unless such use is necessary upon a reasonable evaluation of the circumstances at hand" and then must forward the public record to his or her state account "or otherwise retain them in accordance with the Department of State retention policy."

Scott spokesman John Tupps said the governor's office "now discourages the use of text messaging by employees because text messages are hard to catalog due to the digital nature of the message."

But thousands of records obtained by Andrews and the Times/Herald indicate that the governor's staff may have violated that policy when dealing with communication about politically-sensitive information, or when lobbyists and well-positioned Republicans want to communicate with the governor's top advisers.

For example, when Department of Environmental Protection Secretary Herschel Vinyard met the governor and staff from the governor and attorney general's offices at the Governor's Mansion on a Sunday in February 2012, he arranged and discussed it with Scott's then-deputy chief of staff, Carrie O'Rourke, via text messages. Records show they were meeting to discuss, among other things, a potential settlement regarding the BP oil spill.

"I'm here w SM (Scott's chief of staff Steve MacNamara),'' O'Rourke wrote to Vinyard as the secretary was approaching the mansion. "He wants to brief gov on other issues now."

Also at the mansion that day was Senate President Don Gaetz, who was instrumental in developing budget language at the time that would steer settlement proceeds to his community.

"I'm going to go outside and get gaetz in a while," MacNamara wrote in a text message to O'Rourke, who by that time was with Russell Kent of the Attorney General's Office, the DEP's Vinyard, and Mary Thomas and Jesse Panuccio of the governor's legal office. "I don't want these folks to see him,'' MacNamara said.

Emails and text messages show that top members of the governor's staff also routinely use private email accounts and personal cellphones to conduct public business, even though they are issued email accounts and cellphones from the state.

After the U.S. Supreme Court upheld the Affordable Care Act in June 2012, Scott's former deputy chief of staff Jenn Ungru sent an email from her private email account to officials in several state agencies reminding them that "all statements, press releases, etc following today's ruling are run through (Executive Office of the Governor's communications) shop today."

Marc Slager, another of Scott's deputy chiefs of staff, used his private Gmail account to send documents from the Legislature's 2012 budget conference to Abe Ucello, the private consultant hired by MacNamara to help upgrade the state Senate's computer system. MacNamara was Slager's boss at the time.

"Please review and let me know if there needs to be changes'' Slager wrote in the email.

Cynthia Lorenzo, the former director of the Agency of Workforce Innovation sent O'Rourke a text in February 2012 asking: "Is it ok if I change my title to interim exec director and my salary to the agency head base ($140,000)?" After checking with MacNamara and Gray Swoope, head of Enterprise Florida, O'Rourke reported: "The request has been denied. We can discuss today."

When MacNamara left the governor's office and went back to work at Florida State University in 2012, records show he communicated with the governor using the governor's private Gmail account, gov.rls@gmail.com. In one instance, he urged the governor to pick Sen. John Thrasher as his new lieutenant governor and in another he forwarded Scott an email from the FSU storm tracking center about a threatening tropical storm.

When reporters asked Scott last week why his former chief of staff would use his private email to communicate with him, Scott responded that he uses the email "primarily to communicate with my family."

"If anybody sends me an email to my private account I make sure I do the right thing. I make sure I forward it to Sunburst,'' he said.

Records released to Andrews show that staff never used state-issued phones for texting. Instead, lobbyists and legislators frequently relied on the private cellphone accounts to reach the governor's staff with the staff often responding with a phone call.

U.S. Sugar lobbyist Robert Coker sent O'Rourke a text in March 2012: "Do you have some time today or tomorrow to follow up on our conversation with the Governor on water projects and the budget? I am available on the cell," he wrote.

In May 2013, Ron Book sent a text to Chris Finkbeiner, another of Scott's former deputy chiefs of staff, as the governor was considering his budget vetoes: "Please call me when you get two minutes," Book wrote.

Finkbeiner routinely responded back to people who sent him text messages with a standard reply and gave them state telephone number and state email address. "EOG (Executive Office of the Governor) staff does not conduct public business via text messaging." But records show, he also made exceptions.

"This is Chris Finkbeiner. I'm outside chamber,'' he wrote in one text message to Miami Sen. Rene Garcia in April 2013.

Tupps, the governor's spokesman, did not deny the use of personal email accounts for public business. "There is always room for improvement,'' he said, "but we strive to be transparent."

Records also show that Scott's legal office interprets exemptions to the public records law in the broadest possible terms — often excluding meetings and travel from his official schedule — and shifting the responsibility for producing documents from the Executive Office of the Governor to individual employees.

When former employees leave state government, for example, people who want access to public documents residing on the employees' private email account must track them down, request the copies, and then hope they comply.

In previous administrations, it was the responsibility of the state to retain the records and comply with the request, said Barbara Petersen, executive director of the First Amendment Foundation.

"What Scott is doing is making it virtually impossible to get most records and he's shifting the legal liability from the EOG to the individual employee to do it,'' said Petersen, whose organization has filed a brief in Andrews' case opposing the governor's policy. "It's an incorrect interpretation of the law.''

Records show that after Andrews requested documents and communications from O'Rourke relating to the property dispute over the purchase of land the governor wanted to build a mansion park, he was initially told that no text messages existed.

After searching thousands of records, he found evidence that the DEP's Vinyard was exchanging numerous text messages with O'Rourke and then asked for those records.

Scott's lawyers, who have hired a Jacksonville-based attorney to defend against Andrews' claims, vigorously denied withholding any public documents. They accuse Andrews of failing to specifically request O'Rourke's text messages.

Andrews wasn't given the messages until November 2013, after O'Rourke had left the governor's office, and 272 days after his initial request.

The governor's lawyers said they have turned over more than 16,000 pages of records in good faith, and asked the court to dismiss the case, saying that Andrews' use of the public records law as a "tool to harass the EOG is unprecedented in the history of the Governor's Office."

In defending his record, Scott points to the Sunburst system, the website that is supposed to contain all emails to and from him and his staff. In fact, while the website lists the emails of several former members of the governor's staff, the emails of people who have replaced them have never been posted. Tupps, Scott's spokesman, said they are reviewing this.

Andrews argues in his lawsuit that there is an implicit policy within the governor's office to encourage the use of private emails to circumvent the public records process — a claim the governor and his lawyers vigorously deny. But this month, Andrews won permission from a judge to subpoena Google and Yahoo for information on who opened the private accounts, and when, to see if they are linked to the governor.

Andrews also found at least two cases where the governor's office removed details from calendars in public records requests. In one case, a calendar for John Konkus, the chief of staff of former Lt. Gov. Jennifer Carroll, failed to include details that were included when the same document was turned over to the Office of the State Attorney in Leon County.

When Andrews asked for copies of the governor's official calendar maintained by the Florida Department of Law Enforcement for the Feb. 19, 2012, mansion meeting, it read "no scheduled events." Calendars for MacNamara, O'Rourke, Vinyard and others, however, included the meeting, and FDLE records of those who entered and exited the mansion show that Scott and others were present.

The "line-by-line" schedule is intended to provide agents who guard the governor with information about each event, its location, and those who are attending with him. FDLE also left off the governor's official calendar any mention of his trip to Texas' King Ranch with officials of U.S. Sugar in February 2013.

Even though campaign finance reports suggested that the trip took place on Feb. 15-16, Scott's official calendar stated "no scheduled events." It was only after the Times/Herald requested receipts and reimbursement records from the FDLE agents guarding Scott that records verified the King Ranch trip.

FDLE spokeswoman Gretl Plessinger explained that the reason King Ranch didn't appear on the "line-by-line" was that it wasn't "official state business." The governor's lawyers argue that calendars are "transitory" documents that can be changed.

Progress Florida, a Tallahassee-based liberal advocacy group, made a public records request of Scott's office earlier this year as part of a national executive accountability project. They sought all electronic communication between the governor and his chief of staff, Adam Hollingsworth, and were told none exist.

"It just flies in the face of plausibility in this day and age,'' said Damien Filer, spokesman for the group. "It seems they are defying the spirit if not the letter of the government in the sunshine laws. It raises the question of why?"

Petersen, who works with newspapers and the public in helping to maintain the public records' law, believes that Florida could be at a turning point if Scott's policies are allowed to continue unchallenged.

"We don't know where he goes. We don't know who he goes with. We don't know who he meets with,'' she said. "Scott comes from the corporate environment where it's a 'need-to-know-only' basis. What's the point of adopting a policy if you don't enforce it?"

Times/Herald staff writer Michael Van Sickler contributed to this report. Contact Mary Ellen Klas at meklas@MiamiHerald.com. Follow @MaryEllenKlas.

Records show Gov. Rick Scott's office put up barriers to public records 08/22/14 [Last modified: Saturday, August 23, 2014 11:35pm]

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