Ernst: Local attorneys join Rick Scott email suit

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15 October 2011

Remember the search for Gov. Rick Scott's missing emails, the ones generated during the transition between his election in November 2010 and his inauguration in January? They're public record, but when the media requested them in January, they were nowhere to be found.

Scott blamed Rackspace, a Texas company hired to keep the records on its servers, although the company says it warned Scott's office it was deleting the files and was instructed not to keep them.

In August, the governor requested an investigation by the Florida Department of Law Enforcement. Three weeks ago, Scott's attorneys admitted that transition email records have also been erased from the governor's iPad and Blackberry.

Not only has the FDLE been unable to retrieve the documents, but unless its agents find evidence of criminal intent, no one will be held accountable for the destruction of public records.

That often happens in these types of cases.

But this time, things may be different. The nonprofit, nonpartisan First Amendment Foundation in Tallahassee is preparing a civil lawsuit backed by attorneys from Sarasota and New York, as well as an unlikely source, Yale Law School.

Attorney Andrea Mogensen and paralegal Michael Barfield lead the Sarasota contingent. Their reputation for pursuing public records cases started in Venice in 2007. That case cost the city $1.5 million, and led to policy changes statewide involving how governments handle electronic communications.

Barfield sees at least four parallels between the Venice case and the governor's: Emails were deleted; officials claimed the deletions were inadvertent; the communications were maintained at a foreign, third-party location; there was debate about whether open-records laws pertain to officials-elect.

Sarasota attorney Morgan Bentley also has joined the cause. He might appear to be an odd choice. Bentley successfully defended former Sarasota County sheriff Bill Balkwill against charges that he purposely destroyed public documents on a computer as he left office. Bentley also represented Sarasota County Commissioner Joe Barbetta, who was cleared of wrongdoing involving the state's Government in the Sunshine Law and negotiations with the Baltimore Orioles.

If nothing else, Bentley may cushion the First Amendment advocates from charges of zealotry. "No one's pointing fingers like this is Watergate or something," he says. "But there are unanswered questions, such as what's your exposure when passive third parties and web providers destroy public records?"

Media lawyer David S. Bralow comes to the fight through the Tribune Co. of New York, which owns, among other newspapers, the Orlando Sentinel.

The Sentinel was one of several media to request the Scott emails. Bralow connected the First Amendment Foundation to a recently formed Yale Law School organization called the Media Freedom and Information Access Practicum.

Known as "the Mafia," MFIA comprises law students and recent graduates who, under the direction of experienced lawyers, defend the public right to access through litigation and policy work.

Since its founding in 2010, MFIA has worked with media such as the New York Times and the Hearst Co.

In Florida's case, MFIA is preparing the civil complaint, which will be reviewed by media attorneys before being filed. The legal team continues to refine its strategies, arguments and remedies for the lawsuit.

So why all the fuss about emails exchanged before Gov. Scott even took office?

That's easy to explain. If Florida professes to have open government, then people deserve to know what government is doing and why. In Scott's case, where he instituted dramatic changes in policy after the election, it might be important to understand the influence that powerful people such as Wayne Huizenga or Jeb Bush, as Scott's informal advisers, had on those changes.

The emails might show it.

It's a bit of a fishing expedition, to be sure, but it's legal to fish. It's not legal to destroy the fish so no one can look.

And that raises a theme underlying some of the pending legal action: the sneaking suspicion that the erasure of records didn't go down quite as innocently as portrayed. Barfield had a good quip with a local reference.

"A series of unfortunate coincidences have stricken the governor," he said in an email. "Not only was the server erased, but his iPad and Blackberry suffered the same fate (all on different dates and under different circumstances). Maybe the governor has employed our former sheriff, Bill Balkwill, as his new IT manager."

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