A federal appeals court dealt a significant blow to former Escambia County Commissioner Doug Underhill, affirming that his Facebook posts and private messages with constituents were public records subject to disclosure under Florida law, and that his refusal to turn them over was unlawful, leaving him on the hook for attorney’s fees.
Background: A Commissioner & Facebook
While serving as an Escambia County Commissioner, Doug Underhill used his personally owned Facebook account to communicate with constituents about county business. He maintained two pages under a single account: a personal “Douglas Underhill” page and a quasi-official “Commissioner Douglas Underhill” page. Underhill, himself, publicly acknowledged he was out of compliance with the county’s social media policy.
Through early 2019, Underhill operated the commissioner page as a public forum and told visitors that “everything here is a public record.” He later shifted his approach, trying to reframe the page as a simple electronic bulletin board. He used administrator settings to selectively filter and hide certain comments.
- One of the people on the receiving end of that selective treatment was David Bear. Underhill used his Facebook pages and direct messages to target Bear’s family—suggesting Bear’s father was “buying influence” and had improperly received a tax break. Bear suspected, correctly, that hidden posts and messages contained additional disparaging content about him and his family.
The Public Records Requests
To get to the truth, Bear filed three public records requests—to the county and to Underhill directly—seeking:
- All documents from Underhill discussing the county’s social media policy
- Facebook messages discussing Bear or his family
- All posts on the personal Douglas Underhill page related to his work as a commissioner
The county responded that the messages were under Underhill’s control, not the county’s. Underhill was not willing to fully comply. Bear contended the responses were incomplete and filed suit.
Discovery, Withheld Records and a Motion to Compel
During discovery, Underhill produced roughly 12,000 pages of Facebook records while insisting that none were public records because he personally owned the account. At the same time, he withheld more than 24,000 additional pages.
- Bear filed a motion to compel production of the withheld documents. A magistrate judge held a hearing and concluded that Underhill was an “agency” subject to the Florida Public Records Act because he was acting on behalf of the county commission when communicating with constituents on county matters.
After reviewing the disputed documents in camera, the magistrate judge recommended compelling production of 129 pages and directed Underhill to redact another batch that mixed public records with personal messages.
- The district court adopted the recommendation on the motion to compel but held off on the attorney’s fees question until after summary judgment briefing.
The District Court Rules on Attorney’s Fees
On March 25, 2023, the district court revisited the attorney’s fees issue and ruled in Bear’s favor. In 2024, the fees were $130,425.50, according to court documents.
The court rejected the magistrate judge’s finding of reasonable uncertainty, holding that Underhill should have known he was required to comply with the Public Records Act.
- As a commissioner, the court found, he was a public official, a county authority, a member of the board and—as already determined—a person acting on behalf of an agency when he created public records on his social media pages, whether the board had authorized him to do so or not.
Underhill appealed.
The Appeals Court: Three Questions, Three Answers Against Underhill
The Eleventh Circuit framed the appeal around three statutory questions under Florida’s Public Records Act.
Was Underhill an “agency” under the Act?
The court said yes. Florida’s Public Records Act defines “agency” to include any municipal officer or any private person acting on behalf of a public agency. Underhill argued that county commissioners aren’t “county officers” under the Florida Constitution and that only governmental entities—not individuals—can be agencies. The court rejected both arguments.
- The statute’s text explicitly covers municipal officers, and multiple Florida statutes refer to county commissioners as officers. Moreover, even under Underhill’s own reading, he was still acting on behalf of the county commission—itself an undisputed agency—when he used his platform to communicate with constituents on county business.
Were the Facebook messages “public records”?
Again, yes. The Public Records Act covers documents made or received in connection with the transaction of official business. The court found that Underhill’s Facebook messages—requests for commissioner action, responses to constituent inquiries, positions on matters coming before the board—were squarely within that definition.
- The court was direct: Underhill could not “engage with the public as a commissioner with the authority and force of that public position, but then evade disclosure by claiming his messages were merely rogue, personal commentary.”
Did Underhill unlawfully withhold the records, triggering mandatory attorney’s fees?
Yes. Florida law requires a court to award attorney’s fees when an agency is found to have unlawfully refused to allow inspection or copying of public records. The Florida Supreme Court has held that “unlawful” simply means a violation of the Act—no requirement of bad faith. Underhill attempted to invoke the so-called PHH exception, which shields private entities from attorney’s fees when they had a reasonable and understandable uncertainty about their status as an agency and acted quickly to clarify it, such as by filing a declaratory judgment action.
The court found Underhill qualified for neither prong of that exception.
- On the first prong, the statute and case law clearly established that commissioners are agencies. More damaging, Underhill himself testified that he knew the Public Records Act applied to him.
- On the second prong, Underhill took no swift action to clarify his status—no declaratory judgment, no legal proceeding of any kind. He simply refused and waited.
The Bottom Line
The Eleventh Circuit affirmed the district court’s judgment in full. Underhill must pay attorney’s fees. His Facebook messages with constituents about county business were public records. And his personal ownership of the account provided no legal shield.
The ownership of social media accounts doesn’t matter. What matters is whether official business is being conducted.
