Access to public records in Florida faced new, bigger hurdles in 2014

TALLAHASSEE — It was a dark year for sunshine in Florida in 2014.

Legal fights by Gov. Rick Scott and the Republican Party of Florida kept crucial documents under wraps long enough to dilute their impact once they were released. The governor took the state's public records tradition in a new direction as he used taxpayer money to defend his attempts to shift the burden for holding the public records from the state to individual employees, and his lawyers opened a new legal vein with his interpretation of the blind trust law.

A lawsuit over the state's congressional redistricting was fought without the aid of emails that showed GOP political consultants conspired to manipulate the process with false witnesses and gerrymandered maps. A legislatively commissioned report to make the state's budgeting process more transparent was ignored by legislators.

Scott continued to be the first governor in modern history to shield all record of his travel from public view, and his office defended efforts to erase events from calendars before turning them over as public records.

The Department of Children & Families, under orders from the Legislature following a Miami Herald series on the state's failure to protect vulnerable children from abusive parents, unveiled a website listing all child deaths. At the same time, Scott's Department of Health stopped posting critical child death data on its website, and excluded from its annual report detailed analysis of the causes of death and the state's role leading up to the fatalities.

And although the Department of Corrections introduced a "transparency database" listing prison deaths after a spate of critical news reports, it continued to embrace a policy that makes it difficult to fully examine the circumstances of in-custody deaths.

"What you're seeing is a CEO mentality in which everything is viewed as a trade secret,'' said Paula Dockery, a former Republican senator from Lakeland and a former Scott supporter. "While that has served Rick Scott well, it has not served the people of Florida well and is not abiding by the spirit of the open government laws."

Dockery also blames the Legislature, which was called into special session to redraw the Florida congressional maps after a judge ruled that the first map violated the state Constitution. But the emails that exposed the role of the GOP consultants were not made public until the Florida Supreme Court ordered them released three months later.

"What drives all this is there is really no punishment," Dockery said, predicting that 2015 could be more of the same. "If you are secretive and want to get away with it, why would you change?''

Scott's office defends its record.

The governor's personal lawyer argued in court records this year that the governor never used his private Gmail account to conduct public business, but after the governor won re-election, his office released 200 pages of email records — four years' worth — without explanation.

"The governor's personal attorney took the necessary time and worked with (Executive Office of the Governor) attorneys to conduct a full review to ensure complete responsiveness to the public records request,'' Scott spokeswoman Jackie Schutz said. She did not explain why the state's chief executive waited more than two years to release public records sought in numerous public record requests.

"He has turned over every public record,'' Schutz replied.

The setbacks in the state's public records tradition happened the same year that former Gov. Jeb Bush, who had his own battles over transparency, used Florida's broad open records law to his advantage.

Bush announced in December he would make available to the public more than 250,000 hand-picked emails from his time as governor to help build his case for a 2016 primary run for president.

The files released from the state archive resulted in a stream of positive national press for the former governor — "Jeb Bush's emails depict a hands-on governor," the Washington Post proclaimed. "Jeb answered immigrant pleas,'' the Hill wrote. Polls now show that if Bush announces, he will be considered the front-runner.

The Bush files, though enormous, are not complete, however.

The former governor conducted all his communication on his private Jeb@jeb.org account and turned over the hand-selected batch to the state archives when he left office. Absent from the stash are emails the governor deemed not relevant to the public record: those relating to politics, fundraising and personal matters while he was governor. Compared to Scott, however, who rarely communicates by email, the contrast is stark.

"The breadth and scope show he used email as his primary form of communication with other leaders, his staff and the people of Florida,'' said Kristy Campbell, Bush spokeswoman. "It allowed him to respond quickly, to be aware of the challenges facing the state."

When the liberal-leaning group Progress Florida made a public records request for all electronic communication between Scott and his chief of staff in April, it was told none exist.

"Not one email. Not one text message. Not one online instant message. So much for government in the sunshine,'' said Damien Filer, political director for the group.

Unlike Scott, Bush was clearly not deterred by the open records law. He set up some barriers to access, such as requiring the public to go through more obstacles to get records, said Barbara Petersen, director of the Florida First Amendment Foundation, the nonprofit open government group.

"But while Jeb wasn't good, he wasn't awful,'' she said. "Scott makes me dream of Jeb."

It is not illegal to use a private account for public business, but the records must be turned over when the public asks for them. The court record shows a deliberate attempt by Scott to erect barriers to access to those public records.

For example, the governor allowed his staff to send messages to his private Gmail account, gov.rls@gmail.com, using their private Gmail accounts. He also allowed them to communicate with lobbyists via text messages using their personal cellphones.

When Tallahassee lawyer Steve Andrews asked for copies of the public record trail on private cellphones and email accounts, the governor's lawyers said in court documents that it either couldn't get access to them or the documents didn't exist. Some records were made available only after Andrews found references to them in other email chains, thereby forcing the governor's office to admit their existence.

The Executive Office of the Governor "does not have control over employees' private accounts and devices and, therefore does not search those accounts and devices for public records," wrote Heather Stearns, the governor's deputy general counsel, in a court document in March. The governor spent at least $100,000 in taxpayer money defending these and other claims in 2014, before hiring a private attorney at his own expense.

It was a legal argument never before used in court, and it is an idea that Petersen believes "thwarts our right of access and creates a significant barrier to our right of access."

On Friday, Scott spokeswoman Schutz said that the governor's office has now revised its argument and has a new legal position regarding who is the custodian of public records.

"It is now EOG policy that when an employee terminates their employment with the EOG, they are required to turn over any public records during their tenure,'' she said in a statement.

Neither Attorney General Pam Bondi nor the state attorney has shown any interest in investigating whether the governor intentionally attempted to obstruct the public records law.

"There is a 'trust-us' attitude, but why would we trust them?" Petersen asked. " 'Oops' is going to become our new motto."

Scott made headlines in 2012 when he created Project Sunburst, a website that promised to be an "unprecedented, transparent window" into his emails and those of his staff. But once his re-election campaign began, Scott abandoned attempts to update the site until recently. When asked for an explanation, Schutz said they are "still working to improve the Sunburst system — which needs constant updating and maintenance."

"It seems the governor has retreated from that commitment to openness,'' said Ben Wilcox, research director for the nonprofit government watchdog Integrity Florida. He warned that an erosion of openness will lead to an erosion of trust.

"It all goes back to Gov. Askew's view that the public record is a public trust,'' he said, referring to the late Reubin Askew, who championed Florida's landmark public records law. "That was the basis of all of open government and the premise of the Sunshine Amendment. If the public feels they are not able to see what their officials are doing, then they become distrustful."

Contact Mary Ellen Klas at meklas@MiamiHerald.com. Follow @MaryEllenKlas.