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Records issue pits Butterworth against Harris

Attorney General Bob Butterworth advised Secretary of State Katherine Harris on Thursday that everything on a state computer, even personal e-mail, is public record unless specifically exempted by the Legislature.

Butterworth's position is not shared by Harris. Her attorneys told the New York Times that some material was removed from two computers used during the 36-day presidential recount period but that everything considered a public record under state law was preserved on computer disk or on paper and has been provided to many news organizations.

What the media never saw, explained Harris' attorney, Debby Kearney, was personal e-mail on state computers, which Kearney says is not public record under state law.

Butterworth, who has the job of interpreting and enforcing the law, strongly disagreed in a letter to Harris released by his office Thursday.

"It remains the position of this office that material on state-owned computers is public record unless it falls under a specific legislative exemption," Butterworth wrote Harris.

An example would be e-mail about a state employee's health insurance benefits, because personal medical information is exempt.

Harris, in South America on a cultural mission, conferred with aides on a response to Butterworth's letter. Her spokesman, David Host, said the reply would not be complete until today.

Host said some material may have been erased, and that the two computers have been "reformatted" and are being used in other areas of the department.

"All public records on each of those computers were preserved and maintained according to law," Host said. "To the extent that something wasn't a public record, there's nothing in law that required this office to preserve that."

The difference of opinion between Butterworth, a Democrat, and Harris, a Republican, has raised questions about how Florida's landmark public records law should be reinterpreted as e-mail supplants paper memos, inter-office mail and even the telephone.

Harris' actions during the 36-day recount period have been closely scrutinized.

But her handling of computer files has come under closer examination following a report in Sunday's New York Times. While the newspaper received copies of thousands of e-mail messages from the post-election period, its reporters were denied access to the two computers' hard drives so they could independently judge what material was not considered public by Harris' office.

The article said two advisers to Harris, both of whom are Republican political operatives, used two computers in a conference room to write statements used by election supervisors in determining how to handle overseas absentee ballots without postmarks, signatures or dates.

In an interview, Butterworth said he sent the letter not to criticize Harris, but to clarify his agency's position in response to an article published Tuesday in the St. Petersburg Times.

He said the article gave the impression that the attorney general's office decided that e-mail involving public employees on government-owned computers is not subject to public review because of a May Circuit Court decision in which the Times unsuccessfully sued the city of Clearwater for access to such messages.

"Nothing could be further from the truth," Butterworth emphasized to Harris. "We consider that decision to be limited to that case and not applicable to other agencies."

The St. Petersburg Times intends to appeal Pinellas County Circuit Judge Anthony Rondolino's decision to the 2nd District Court of Appeal.

Joe Childs, the Times' managing editor in Clearwater, said Rondolino's decision creates a situation in which each public employee can make a decision about what material to preserve and what to erase.

"It makes the individual city employee in Clearwater the first custodian of what's done on a computer, and that employee makes the factual determination of whether that's made public," Childs said.

A basic tenet of Florida's law is that a record is presumed to be public unless the Legislature decides otherwise.

In a recent and well-known example, lawmakers passed a law in April making it a crime to publicize pictures from an autopsy without a judge's approval. It was in response to the fight over media access to race car driver Dale Earnhardt's autopsy photos.

One of Harris' advisers during the recount period who had access to those two computers was Tampa political consultant Adam Goodman.

He said Thursday he does not recall sending any e-mail from the computers. He and another Harris adviser, lobbyist J.M. "Mac" Stipanovich, said they were not certain that the two computers they used were hooked up to other computers in the secretary of state's office.

_ Times political editor Tim Nickens contributed to this report.