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Here’s The Scoop … Mc-Vasion Of Privacy … Cutting Off Your Freedom Of Confidentiality ….

Dear Readers …The Vice Mayor has been in retaliation mode…after receiving a Public Records Request for his e-mails from his personal e-mail account from a constituent, Yann Brandt. Mr. Brandt asked for his e-mails to find out whether there was any prior knowledge in the “reassignment” of former BSO Chief Scott Gooding (prev. posts)…Rather than complying, the Vice Mayor has chosen not to respond 2 months after the request and now finds himself way over the “reasonable time” to produce such a request per the Florida State Statutes…He decided instead to ask for all e-mails of “Town-related business” from his 2 “foes” on the dais Mayor Minnet and Commissioner Dodd from May 1, 2009 to August 13, 2009…(prev. post)….

Commissioner Dodd asked for an opinion from the Town Attorney, and put the item on the September 9, 2009 agenda….

The Attorney made an opinion…. She wrote a 4 page response…produced and distributed on 8/24/09 to the Commission…

“I. QUESTION PRESENTED

You have asked me to provide guidance on the legal standards applicable to recent public records requests for documents related to Town business that may be located in the personal email accounts of Town elected officials ( referred to herein as “Town Commissioners”.

“II. DISCUSSION

A.  Are e-mails in the Private Email accounts of Elected Officials Public Record?

Answer …”POSSIBLY. Pursuant to Article I, section 24 of the Florida Constitution and Chapter 119, Florida Statutes, any document made or received in communication with official Town business that is “intended to perpetuate, COMMUNICATE or formalize knowledge” is a public record. (statute and case law followed)

“E-MAIL COMMUNICATIONS CAN BE PUBLIC RECORDS IF THEY MEET THIS TEST. See AGOs 01-20 and 07-14. BY DEFINITION, EMAIL INVOLVES COMMUNICATION BETWEEN 2 PERSONS (unless one were to email himself or herself for some reason) THEREFORE, ANY EMAILS BETWEEN ELECTED OFFICIALS AND ANOTHER PERSON THAT RELATE TO OFFICIAL TOWN BUSINESS ARE PUBLIC RECORD UNLESS THEY MEET A SPECIFIC EXEMPTION IN THE STATUTE ( social security numbers are exempt from disclosure, for example).

WHETHER, THE RECORD IS LOCATED IN A TOWN EMAIL ACCOUNT OR A PRIVATE ACCOUNT IS IRRELEVANT TO WHETHER IT IS CONSIDERED A PUBLIC RECORD. IF CONNECTED TO OFFICIAL TOWN BUSINESS AND IS INTENDED TO PERPETUATE, COMMUNICATE OR FORMALIZE KNOWLEDGE, IT IS A PUBLIC RECORD EVEN IF CONTAINED IN A PRIVATE EMAIL ACCOUNT. Likewise, if it is NOT related to official Town business, it is NOT a public record even if contained in a Town email account. State v. City of Clearwater, 863 So. 2nd 149,154 (Fla. 2003).

WHAT IS OFFICIAL TOWN BUSINESS? THE PLAIN MEANING OF THE PHRASE APPLIES. ACCORDING TO ONE OPINION OF THE FLORIDA ATTORNEY GENERAL, IF THE ITEM WAS RECEIVED BY THE ELECTED OFFICIAL IN HIS OR HER CAPACITY- IN OTHER WORDS, BECAUSE OF HIS OR HER STATUS AS AN ELECTED OFFICIAL THEN IT RELATES TO THE TRANSACTION OF OFFICIAL TOWN BUSINESS. See AGO 77-141 (copies of letters or other documents provided by newspaper reporters or individual citizens to a mayor in his official capacity are public records, unless covered by a specific exemption). An example of a record NOT related to Town business is an e-mail concerning one’s family, personal business activities, personal financial matters,planned vacation, or other matters having nothing to do with the Town.

AN EMAIL THAT RELATES TO A MATTER THAT HAS BEEN OR WILL BE ON A TOWN COMMISSION AGENDA IS DEFINITELY A PUBLIC RECORD, BUT SO ARE MANY OTHER EMAILS. EMAILS RELATED TO MATTERS THAT MAY NEVER BE ON THE AGENDA, BUT ARE STILL RELATED TO OFFICIAL TOWN BUSINESS, ARE PUBLIC RECORDS ALSO. An example might be an email from a resident to an elected official complaining about an issue in Town and seeking assistance with it, where the issue is resolved by being referred to staff without even appearing on the agenda. Another example might be an email to or from a resident or other person stating opinions about or discussing matters of official Town business, such as a potential new regulation or property development.”

B. dealt with Sunshine…and the response was the same as previously presented by Attys. Abbott and Trevarthen…”One-sided written communication- from one commissioner to another, with no response and no interaction- is not a violation of Sunshine Law.”

“C. Do the Normal Rules for Production of Public Records Apply to the Individual Town Commissioners as They Respond to Such Requests?

YES. THE NORMAL REQUIREMENTS– TO ACKNOWLEDGE THE REQUEST AND RESPOND WITHIN A REASONABLE AMOUNT OF TIME, BASED ON THE SCOPE AND COMPLEXITY OF RESPONDING TO THE REQUEST AND TO REDACT THEM AS NECESSARY TO APPLY ANY STANDARD EXEMPTIONS—APPLY. See Tribune Co. V. Cannella 458 So. 2d 1075 (Fla. 1984).

The person producing these public records also has the ability to CHARGE A SPECIAL CHARGE IF THE NATURE AND VOLUME OF THE RECORDS TO BE INSPECTED REQUIRES EXTENSIVE USE OF INFORMATION TECHNOLOGY RESOURCES OR EXTENSIVE USE OF CLERICAL OR SUPERVISORY ASSISTANCE. See Section 119.07(4)(d) Fla. Stat. “EXTENSIVE ” HAS BEEN INTERPRETED BY THE COURTS TO MEAN REQUIRING MORE THAN 15 MINUTES OF TIME TO LOCATE, REVIEW FOR ANY EXEMPTIONS, COPY AND REFILE THE PUBLIC RECORD. See Florida Institutional Legal Services, Inc. V. Florida Dept. of Corrections 579 So. 2d 267 (Fla. 1st DCA 1991).

The charge must be REASONABLE, and based on the cost ACTUALLY INCURRED in responding. See section 119.00 (11), Fla. Star., and Board of County Commissioners of Highland County V. Colby, 976 So. 2d 31,37 (Fla 2d DCA 2008) If copies are requested, the PERSON PRODUCING the records CAN CHARGE A REASONABLE FEE FOR MAKING AND PROVIDING COPIES. See Sections 119.01 (1) and 119.07 (4), Fla. Stat. THE REQUESTOR IS ENTITLED TO REQUEST AN ESTIMATE OF THE TOTAL COST, AND THE PRODUCING PERSON MAY REQUEST A DEPOSIT TO SECURE THAT AMOUNT.”

“III. CONCLUSION

The emails in a Town Commissioner’s private email account may be public records subject to disclosure if they involve another person, relate to official Town business and are intended to perpetuate, communicate or formalize knowledge. The provision of such Commissioner public records, directly or indirectly, to another Town Commissioner is not a violation of Sunshine Law. Those commissioners receiving such public records are reminded not to respond to or interact with other commissioners in any way about these records outside of a public meeting. The normal rules are applicable to the persons individually responding to these public records requests, including the requirement to respond within a reasonable time based on the circumstance and the ability to charge fees if extensive amounts of resources or time are required to respond.”

“Please do not hesitate to contact me if you have any questions about it or would like to discuss this matter.”

BC-There you have it…but is it enough…this opinion from the Town Attorney?… Commissioner Dodd was contacted by the Town Manager to see if he wanted to remove his agenda item, now having his questions answered….He responded “absolutely not!”….He said he’s “going for bear!”….

He does not intend to leave it at this…There are many other questions that require  the Attorney General’s opinion…..and some updated answers….

A few to consider, the confidentiality that might be included in a “header” of an e-mail from a constituent, and/ or friend…The confidentiality/ may not be reproduced etc… that is included in an e-mail  from a business/ Atty. …. advisory form of e-mails in that capacity before, during or after an election such as e-mails that are involving Town related business but are strategy to run a campaign….and of course allowing a sitting elected official (Vice Mayor McIntee) to effectively cut off a method of communication that provides many their only avenue to communicate by fearing retribution for having done so! ….

Commissioner Dodd also informed the Town Manager that with this “targeted” PRRs  for only the Mayor and himself….Vice Mayor McIntee may have “opened the floodgates” for  PRRs for 3 1/2 years from Vice Mayor McIntee…and his pal Comm. Silverstone  along with Comm. Clottey for her time in office…from ALL of their e-mail accounts and town phones!…….

This writer has many of what those PRRs would entail from the past years…as sender/ recipient/ Cc.  concerning the 3 commissioners ….(including at the last election)…..the undertaking would be massive from just these!… The emails are similar to what is being asked for under “Town related business” …which includes….advice, election strategy, opinion, forwarded emails from others,with and without their knowledge (including those still left by the VM’s side) and much more…YIKES!….

In the end it still comes down to this ….While it may be legal and within his “rights” …. he has either he has lost his mind, or had some very bad counsel (most likely not by e-mail) and has now entered into what may well be “the straw that broke the camel’s back”…in his attempt to be re-elected in March 2010…(So many, many straws!)….

There is no way out now for Vice Mayor McIntee….If he does not comply with the long overdue request from Mr Brandt he is in trouble per the laws…….If he withdraws his PRRs, it will not be forgotten and it will not go away…. Again, he has stopped many residents from any future communications by e-mail to their elected officials….He has cost the taxpayers time and money going down this road thus far….and if he goes for broke and keeps his PRRs intact….we will be diverted from Town business to require more opinions from the state and perhaps beyond….We’re likely left to deal with multiple lawsuits for producing documents and hard drives…and whatever else is not forthcoming……

This Mc-vasion of privacy…..is madness….March Madness!

Thanks, Vice Mayor!…..

more to come….

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