Legal Report, November 2018

General Counsel, Jennifer G. Ashton
Davis & Ashton, P.A.

1.         O’Boyle v. Town of Gulfstream, 2018 Fla. App. LEXIS 15247, 2018 WL 5291287 (4th DCA 2018). Public records, text messages.
Appellants Martin E. O'Boyle and Asset Enhancement, Inc., ("Asset") appealed the trial court's dismissal of their Complaint to Enforce Florida's Sunshine and Public Records Laws and for Declaratory and Injunctive Relief against the Town of Gulf Stream ("Town") and others. Their complaint alleged separate Public Records Act violations regarding two public records requests: 1) for copies of bills and payments sent to the Town for services rendered by the Town's attorney; and 2) for copies of text messages sent or received by the Town's Mayor since the time of his appointment. Asset alleged that the Town produced illegitimately redacted copies of the bills and payments. In another claim, O'Boyle asserted that the Town produced "a cherry picked" selection of texts which painted O'Boyle "in a negative light." After another records request that produced additional, previously unseen texts, O'Boyle insisted that the initial release was incomplete and that the Town and Mayor deliberately concealed records from the public.

Appellants alleged that the Town violated Article I, section 24 of the Florida Constitution and Chapter 119, Florida Statutes ("Public Records Act"). They requested that the trial court order the Town and others to allow the inspection, copying, and photographing of the requested records after a hearing held pursuant to section 119.11, F.S. They then filed a Motion for Mandatory In-Camera Inspection of Record asking that the court review the redacted legal bills to determine if they fell within the "work product" exception of the Public Records Act, as the Town claimed. A week later, the Town turned over the bills and payment records at issue without any redactions. Appellees each filed a motion to dismiss, and the trial court held a hearing on the parties' motions. The court dismissed the complaint and granted ten days for amendment. Instead of amending, Appellants requested that a final judgment be entered, and the trial court obliged.

On appeal, the Fourth District Court of Appeals found the trial court properly dismissed the Sunshine Law claims and claims arising from alleged public meeting violations under Chapter 286, F.S., and affirmed without further comment. However, the appellate court reversed the dismissal of appellants' claims under the Public Records Act, and remanded for further proceedings. The court concluded that an elected official's use of a private cell phone to conduct public business via text messaging can create an electronic written public record subject to disclosure. However, for that information to indeed be a public record, an official or employee must have prepared, owned, used, or retained it within the scope of his or her employment or agency. An  official or employee's communication falls "within the scope of employment or agency" only when their job requires it, the employer or principal directs it, or it furthers the employer or principal's interests. The court noted that “[t]o comply with the dictates of the Public Records Act, the governmental entity must proceed as it relates to text messaging no differently than it would when responding to a request for written documents and other public records in the entity's possession—such as e-mails—by reviewing each record, determining if some or all are exempted from production, and disclosing the unprotected records to the requester.Where specified communications to or from individual state employees or officials are requested from a governmental entity—regardless of whether the records are located on private or state accounts or devices—the entity's obligation is to conduct a reasonable search that includes asking those individual employees or officials to provide any public records stored in their private accounts that are responsive to a proper request.”The court held that regardless of whether any of the texts were ultimately deemed subject to disclosure, each element of O'Boyle's public records claim as stated in the complaint regarding the text messages was sufficiently pled, remanding for the trial court to conduct an in-camera inspection of the disputed text messages sent to and from the Town's Mayor to determine whether any qualify as public records.

This case illustrates the difficulty for local governments in properly responding to public records requests when text messages are involved.