Florida news outlets suing Gov. Rick Scott want emergency order protecting public records

Published Feb. 24, 2015

TALLAHASSEE — Florida news outlets and First Amendment advocates want a judge to order Gov. Rick Scott and Cabinet members to safeguard all relevant materials in an open meetings lawsuit, even their aides' cellphone text messages.

The media outlets' emergency motion, filed in state court Monday, focuses squarely on Scott's controversial record in maintaining public records. They cited the mass deletions of emails by Scott's transition team in the hectic weeks that preceded his taking office in January 2011 and a policy by Scott's office that allows employees to subjectively destroy records they consider "transitory" and not subject to the state public records law.

"The governor has had what can best be described as a series of unfortunate incidents when it comes to preserving records that he was required by law to preserve," wrote the attorney for the plaintiffs, Andrea Flynn Mogensen of Sarasota. She wants a court-ordered inventory of all systems and content to be preserved during the lawsuit and trial.

More than a dozen media outlets, including the Tampa Bay Times and Miami Herald, filed suit against Scott and all three Cabinet members this month, accusing them of violating Florida's Sunshine Law in the ouster of a top state law enforcement official in December. Other plaintiffs include St. Petersburg lawyer Matthew Weidner and the Florida Society of News Editors.

The case centers on the abrupt removal of former Commissioner Gerald Bailey of the Florida Department of Law Enforcement, an agency under the direction of both Scott and the three Cabinet members: Attorney General Pam Bondi, Chief Financial Officer Jeff Atwater and Agriculture Commissioner Adam Putnam.

Bailey said Scott's former general counsel, Peter Antonacci, told him to "retire or resign" in a face-to-face meeting on Dec. 16. Bailey said Antonacci told him he was acting with the support of the Cabinet members, and neither Scott nor Cabinet members have contradicted that claim by Bailey.

Scott has acknowledged that his Cabinet aides told the others' aides that he wanted "new leadership" at FDLE at the start of his second term, and that "Cabinet staff raised no objection."

Bailey led FDLE for eight years under three governors and various Cabinet members, but his job status was never discussed at a public meeting. The governor and Cabinet is a collegial body under Florida law, subject to the same "sunshine" requirements that apply to cities, counties and school boards.

In 2012, the FDLE investigated the deletions of emails by 26 members of Scott's transition team, including the erasure of messages on Scott's iPhone and a personal BlackBerry device, and concluded that it was the result of an "oversight … not as a result of any malicious or criminal intent."

Court documents show that Scott has hired three outside lawyers to represent him in the case. They are Pete Dunbar, a Tallahassee lawyer and lobbyist, former legislator from Pinellas County and former general counsel to Gov. Bob Martinez; Dunbar's law partner, John Wharton; and Carlos Muniz, a former adviser to the state House of Representatives and to Bondi.

The case, Matthew Weidner et al vs. Rick Scott et al, is before Circuit Judge George Reynolds in circuit court in Tallahassee.