The administration of Gov. Rick Scott is making a unique legal argument when it comes to handing over public records: Get it from the employees, not us.
As part of a bitter ongoing legal battle, attorneys who work for the governor late last month declared that both current and former employees are the "custodians" of any text messages or emails done on personal accounts even if they cover state business.
The Scott administration and state agencies generally require that employees turn over emails and text messages from personal accounts if they covered state business. Past requests made by media organizations, including The Associated Press, as well as open-records advocates have shown various Scott administration employees using personal accounts to conduct state business.
Tallahassee attorney Steven Andrews, a persistent critic of Scott caught up in a land dispute with the state, last fall filed a series of public records lawsuits maintaining that Scott and other state officials weren't complying with the state's Sunshine Laws. Florida has some of the broadest public records laws in the nation.
In a court filing made in late March, Scott's assistant general counsel argued the administration had turned over thousands of relevant records but then added the office "does not have control over employees private accounts, and devices, and therefore, it does not search those accounts and devices for public records."
The filing then stated that both current and former employees are "the records custodians of public business contained on private accounts and devices."
That means that in order to obtain certain records the press and public would have to ask those employees directly and then potentially sue those state workers if they do not comply with the request.
Barbara Petersen with the First Amendment Foundation said that while it is true that the state does not control any personal accounts the state does control the employees. She said this new legal argument from the Scott administration could set up lengthy obstacles for the press and public trying to obtain records. She also said this would create a new legal liability for state employees.
"This is, for all practical purposes, an insurmountable barrier to the constitutional right of access," Petersen said.
Andrews, in his own recent legal filing, went further. In an April 10 response, he called it "Orwellian." Andrews said the legal argument was absurd and would result in members of the public and press having to go to employee homes and asking them for the right to inspect their computers and phones. He also said the public and press would then be required to report to law-enforcement any employees if they destroyed the records in violation of law.
In response to the filing, Andrews has now started filing public record requests with individual employees.
When asked about Andrews assertions, a spokesman for Scott blasted Andrews.
"It's no secret that this case, and its multiple companions, is simply Andrews seeking out revenge for his personal grudge against the Cabinet and state government," said Frank Collins.
Another spokesman for Scott maintained that the governor's office already "discourages" the use of text messages by state employees because the records are hard to catalog. John Tupps also maintained that personal email accounts are "already not allowed" to be used for state business and that if an employee receives a state-related email they are supposed to forward it over to a state email account.