Obtaining Florida elected officials' texts can be tricky — and costly

Barbara Petersen, president of Florida’s First Amendment Foundation, said software exists that can create an archive of the text messages sent and received by elected officials.
Barbara Petersen, president of Florida’s First Amendment Foundation, said software exists that can create an archive of the text messages sent and received by elected officials.
Published March 13, 2016

Correspondence related to public business by elected officials is public record. All of it. That means "snail mail," faxes and emails.

But muddying the public records law process is perhaps the most popular, quickest and often most creative way people communicate — text messages.

By state law, texts are public records, whether sent or received on a county-issued communication device or on a personal one paid for by the elected official. Public officials must archive the correspondence and turn it over on demand.

Depending on what county they're in, you might wait a long time or pay a hefty fee to find out what they've typed. Even then, you have to trust some when they say they didn't send any texts.

Requests for text messages were made by eight newspapers as part of an annual project by the Florida Society of News Editors in which governments are asked for the same types of documents and results are compared. The effort is part of Sunshine Week, a nationwide initiative to educate the public about the importance of transparent government.

Response time varied — Palm Beach County commissioners took five business days to deliver texts. Other counties took as little as four business days, one as many as 11. Alachua County commissioners responded quickly, with one simply offering to hand his phone to a reporter.

Meanwhile, Jacksonville's state attorney declared, surprisingly, that her office doesn't believe text messages are public.

In Hillsborough County, four commissioners provided texts; two said they had none. And in Pinellas County, officials supplied only 12 texts. Four commissioners declared they had none during that period.

"I'm on my phone all the time, but unless I'm asking for directions or confirming a time for a particular meeting, I don't do texts or even Facebook messenger," Pinellas Vice Chair Janet Long said. "I really try to avoid it. It's not in the public domain."

It took Pinellas County officials seven business days to respond to the text message request. Although officials advised that they might charge for retrieving the messages based on the work involved, they subsequently provided them for free.

That differed from Palm Beach County, where getting commissioners' texts wasn't cheap.

Just getting one week's worth of texts — Jan. 25 to Feb. 1 — from each of the commissioners cost the Palm Beach Post nearly $200. And that's with four of the seven declaring they had sent none, and two of the remaining three sending all of two texts each.

In fact, Palm Beach was the only county, of those surveyed, to charge even a penny.

"I'm surprised," Commissioner Melissa McKinlay said. "I'm the one that had to take all the time and hours to get all the screen shots."

Through words, photos and even emojis — those digital images and icons that express an emotion or idea — texting can pose problems for public officials.

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Among the complications: Screen grabs from the audited texts often showed only the contact name as the commissioner has it recorded in his or her cellphone. Sometimes a phone number, sometimes just a single name — "Ed," "Vogel," "Stacy."

Access to texts came to a head in 2012 in Orlando, when an advocacy group discovered Orange County Mayor Teresa Jacobs and four county commissioners were exchanging cellphone text messages with lobbyists and others during a meeting and then deleting them.

That prompted a public records lawsuit by Citizens for a Greater Orange County, a coalition of groups that led the fight for a paid-sick-time referendum opposed by county officials and local tourism interests.

In 2013, Orange County leaders settled the "textgate" suit, agreeing to pay $90,000. Local prosecutor Jeff Ashton concluded commissioners violated public records laws, but unintentionally. Commissioners each paid a $500 civil fine, including Jennifer Thompson, who had texted with a Walt Disney World lobbyist 32 times on the day of the sick-time vote.

This month's audit through the FSNE project revealed that Mayor Jacobs and six Orange County commissioners texted 143 times in the time period requested.

One, Scott Boyd, said he'd stopped using his mobile phone to swap text messages with citizens, lobbyists, reporters and everyone else after "textgate."

"Are you kidding? It's not worth the headache," Boyd said.

Thompson said she has limited her use of texts since the scandal, generally communicating only with her staff.

"I think I learned my lesson," she said.

Barbara Petersen, president of Florida's First Amendment Foundation, said there's an easy way for officials to handle texting and the question of public record compliance. She points to software that can create an archive of the text messages sent and received by elected officials. It has privacy protections for the politician, such as limiting archives to certain hours of the day or excluding any texts from a spouse.

But Petersen said most local governments don't use TextGuard, the text-tracking technology that was installed on Orange County-issued phones to archive electronic communications. Orange County was TextGuard's first government client, at an initial annual cost of $97,000 that has grown to $130,000 based on the number of cellphones in use.

Nearby Polk County, meanwhile, set up a system that enables commissioners and any other official to forward texts that they receive or send to a public records repository maintained by staffers. And Polk has a written policy barring use of texts to conduct county business without authorization by the county manager.

In Duval County, where the county and Jacksonville are a combined government entity, requests were made to various leaders including Jacksonville Sheriff Mike Williams, Jacksonville Mayor Lenny Curry and State Attorney Angela Corey.

Williams said leaders at his department recently realized they did not have a policy in place to retain text messages, so he took it upon himself to start saving his own texts starting Feb. 10, a point after the FSNE request.

Corey's office contended text messages were not public record. It said text messages are "transitory" and "informal" and "have no administrative value."

But, the First Amendment Foundation's Petersen said, "Text messages are anything but transitory. How else can I look on my phone, purchased in 2012, and see every text message I've sent or received over the past four years?"

She said then-Attorney General Bill McCollum issued an informal opinion saying the same public rules for emails apply to text messages and even instant messages.

The Florida Times-Union, Gainesville Sun, Lakeland Ledger, Miami Herald, Ocala Star-Banner, Orlando Sentinel, Palm Beach Post and Tampa Bay Times contributed to this report.