I’ve noticed that during the Pensacola City Council and Escambia County Commission meetings several of the elected officials appear to be getting text messages on their cellphones. The IN made a public request for those text messages to see what influence that they may have on the issues being discussed in the meetings.
We specifically asked for the text messages for the May 19 joint city-county meeting, May 21 BOCC meeting and the May 26 City Council Committee meeting. County Attorney Alison Rogers told me that text messages are one of the hottest topics in public records law. There is some belief that they are so transitory in nature that they don’t qualify as a public record.
From County Attorney Alison Rogers:
Rick,
Without conceding whether text messages are public records subject to disclosure, I will tell you that we have checked with each commissioner’s office regarding the presence of any incoming or outgoing text messages during the two subject timeframes. We were told the following:
Commissioners Robinson, Robertson, Young and Valentino indicate they do not have and did not have any text messages incoming or outgoing during those two meetings. Two of those commissioners have further indicated they never text message.
Commissioner White indicates he did have some text messages between himself and staff during the meeting (at least during the joint meeting) but they were either deleted or “fell off” of the blackberry display. We checked with our IT department who said that once deleted, they are unable to retrieve them from the blackberry’s SIM and the only method of retrieval they could think of was to subpoena Nextel, the County’s cell carrier.
As we discussed, this is a very hot public records issue right now. We see there are several newspaper articles on the topic from southern Florida. The Governor’s Commission of Open Government Reform Report from Jan. 2009 considered them transitory in nature but the First Amendment Foundation feels they should be treated just like emails. One article mentioned that a police union from Broward Co. has requested an attorney general’s opinion on the topic. We could not find that such an opinion has been given yet. We may consider whether the BCC needs to institute policies to address the limited retention issues associated with texting as well as all of the other usual concerns.
Please let me know if there is anything else you need. I don’t have John Asmar’s email, so loop him in as appropriate.
Alison
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From: Aretta Griffin [mailto:Aretta_Griffin@co.escambia.fl.us]
Sent: Thursday, May 28, 2009 10:33 AM
To: smsmith@co.escambia.fl.us
Subject: RE: Public record request
Sonya,
Commissioner Young doesn’t text.
Aretta
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From: Illauna Brazwell [mailto:ibbrazwe@co.escambia.fl.us]
Sent: Thursday, May 28, 2009 10:43 AM
To: smsmith@co.escambia.fl.us
Subject: RE: Public record request
Commissioner Robertson has no text messages because he does not text. Let me know if you need anything further.
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My request of the City has been sent out to the council members:
From City Manager Al Coby:
Mr. Outzen,
The City Attorney and I have discussed your Public Records request and the
Attorney’s Office will be making the request of individual Council members to
provide the information. The City of Pensacola provides members of Council
only a laptop; hence, cell phones and PDA’s are personal property that the
City cannot access.
Al Coby
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From City Attorney Rusty Wells:
Mr. Outzen –
Al Coby has acknowledged receipt of your request. I am in the process of
notifying the members of Council of it. I doubt that the deadline you have
suggested can reasonably be met, particularly if a Council member has to
contact his or her service provider to retrieve a message that would respond
to your request. Also, as the talented Mr. Asmar is uniquely qualified to
advise you, not all messages are public records. Finally, the time required
to assemble the records you have requested may well qualify as an “extensive
search” and at this point we have no way of estimating your costs for
assembling and producing them.
WILLIAM D. WELLS
City Attorney