Underhill loses arguments in federal court

For over a year, David Bear has sought public records from Commissioner Doug Underhill. The commissioner has agrued that his comments on social media aren’t public records and he doesn’t speak for the county.

A magistrate judge disagreed with the commissioner, and Judge Casey Rodgers has weighed in Bear’s favor. FILE_8493.

Bear requested the disclosure of public records, pursuant to Chapter 119, Florida Statutes (the Florida Public Records Act) consisting, in part, of certain Facebook messages to and from Commissioner Douglas Underhill. He also said he was entitledr to an award of costs and attorneys’ fees because Underhill’s withholding the records was unlawful.

The requested public records were from Underhill’s privately owned and maintained social media accounts related to any comments by Underhill about the County’s social media policy or the blocking of viewpoints on social media during his tenure in office. He also requested
any comments by Underhill about Bear or his family, and public records from Underhill’s social media accounts related to his activities and duties as a commissioner.

In the report and recommendation, the magistrate judge determined that certain Facebook pages must be disclosed as “public records” pursuant to Florida’s public records laws, but recommended no award of attorneys’ fees. Both parties objected.

According to the magistrate judge, the evidence showed that out of approximately 36,000 Facebook pages Underhill reviewed, he produced 12,000 Facebook pages to Bear and reserved the remainder on privacy grounds. The magistrate judge then reviewed in camera the remaining 24,000 Facebook pages and identified 129 pages as public records, which Underhill has now voluntarily disclosed to Bear. The magistrate judge also identified another group of Facebook pages (the number is not known) containing both public records and personal messages on the same page, which Underhill was directed to redact to remove the personal messages.

Underhill completed the redaction using the magistrate judge’s definition of “public records,” and the magistrate judge has reviewed the redactions and determined that these also should be produced. But, because Underhill disputed the definition used as overly broad, this group of records has not yet been disclosed.

The magistrate judge ruled that Bear’s request for messages about him and his family was not a request for public records and further concluded that Underhill’s non-disclosure was not “unlawful” within the meaning of the statute, Fla. Stat. § 119.12. As a result, the magistrate judge recommended no award of attorneys’ fees and costs under the statute.

Judge Rodgers reviewed the report and the objections. Underhill lost many of the points he made to avoid releasing the records.

Judge Rodgers wrote: “Underhill also maintains that this broad definition of public records will unleash a parade of horribles, leading to every comment of any legislator being deemed a public record and resulting in burdensome and unworkable disclosure requirements.

The argument does not carry the day because the determination of what constitutes a public record must be made on a case-by-case basis, and here, the comments were related to projects and other matters before the Board or that citizens wanted brought before the Board.

Any adverse consequences from making and receiving this type of communication could have been easily avoided if Underhill had used official County social media sites for public comments related to duties or County business, instead of his privately controlled social media sites.”

She later added: “As to messages that Underhill was required to redact, he submitted them to the magistrate judge but did not make any argument or objection specific to them. The magistrate judge has reviewed the redacted messages and determined that they too should be produced to Bear as public records. Absent objection to any particular message, that recommendation will be adopted.”

Bear objected to the portion of the Report and Recommendation concluding that Underhill’s failure to disclose the public records upon request was not “unlawful” within the meaning of Fla. Stat. § 119.12(1) and thus does not support an award of attorneys’ fees. Judge Rodgers said she would take the issue under further advisement and will issue a ruling by separate order.

Also pending was Bear’s request to extend the discovery deadline, arguing he has been unable to complete discovery, provide expert disclosures, or depose Underhill until the public records disclosure dispute was resolved. Underhill objects but filed no written response. The Court finds good cause to extend the deadlines, as requested, one final time.

Accordingly:
1. The magistrate judge’s Report and Recommendation, ECF No. 128, is ADOPTED in part as to Sections I, II, and III, and the Court DEFERS in part as to Section IV. The Court will issue a separate order as to Section IV after fully considering Bear’s objection.

2. Plaintiff’s Renewed Motion for Expedited Hearing on Public Records Request, ECF No. 74, is GRANTED as follows: Defendant Underhill is directed to produce the previously redacted public records to Plaintiff Bear within seven (7) days.

3. Plaintiff’s Motion and Corrected Motion for Extension of Discovery Deadlines and Request for a Hearing, ECF Nos. 131, 137, are DENIED in part as to the request for a hearing, and GRANTED in part as to the request to extend deadlines, as follows:

a. The discovery deadline is extended to May 24, 2022.
b. Plaintiff’s expert disclosures are due by April 11, 2022.
c. Defendant’s expert disclosures are due by April 29, 2022.
d. Dispositive and Daubert motions are due by June 22, 2022.
e. Mediation must be completed on or before July 5, 2022.

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