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Workers' private e-mail is just that

The Florida Supreme Court makes its ruling after the St. Petersburg Times sued Clearwater for city employees' messages written at work.

By JENNIFER FARRELL, Times Staff Writer
© St. Petersburg Times
published September 12, 2003

Public employees do not have to turn over private e-mail to the public, even when using government computers at work, the Florida Supreme Court ruled Thursday.

The ruling was a defeat for First Amendment advocates and the St. Petersburg Times, which had sued the city of Clearwater for access to the e-mails of two city employees who sent and received messages about a private business in which they had invested. The city allowed the employees to determine which e-mails should be made public.

Written by Justice Barbara Pariente, the unanimous opinion found that e-mails are not public documents simply because they are created or stored on government computers. The ruling did not address who should decide what is public.

In an era when business increasingly is conducted electronically, critics worry the ruling erases an important layer of public oversight, leaving government employees to police themselves and taxpayers forced to trust the judgment of those workers.

"It's a disturbing turn of events, certainly," said Barbara Petersen, president of the First Amendment Foundation. "Sometimes that trust can be abused."

Florida Attorney General Charlie Crist, a longtime supporter of open records law who intervened on behalf of the Times, also was disappointed with the decision. "If the taxpayers pay for the computers," he said, "they ought to have the right to see what's on them."

In Clearwater, City Attorney Pam Akin said the ruling will not change the way public business is handled.

"I don't think it expands, interprets or in any way negatively impacts the effect of open records," she said. "I think it was a very straightforward interpretation of the statute."

Statewide, a 1967 blanket public records law made public virtually all paperwork used by government employees. But e-mail is a different animal and legislators should update the law to reflect that, Times attorney George Rahdert said.

"The problem is public records law is kind of paper-bound," he said. "It doesn't really account for the way that people are communicating important information."

An unfortunate byproduct of the rise of electronic communication, Rahdert said, is the potential for abuse. "People can sit at their computers and look busy," he said. "Employees with unfettered access to computers and the Internet spend an inordinate amount of paid time on private pursuits."

Clearwater City Manager Bill Horne said taxpayers should trust public employees to do the right thing. "I think that's why we're held to a higher standard," he said. "You are supposed to trust us and we are supposed to perform up to that standard."

In Clearwater, personal use of city computers is permitted, but not encouraged. "Believe me," Horne said, "supervisors do pay attention to that sort of thing."

But Paul Tash, Times editor and president, said the ruling creates a loophole for people to avoid the public records law or hide private business pursuits on taxpayers' time.

"I'm sympathetic to public employees and their privacy concerns," said Tash, whose wife is a public school teacher. "That said, I think the risk that comes with this decision is a very big one."

First Amendment lawyer Jon Kaney said the ruling should not be misinterpreted by public employees as a free pass. "If we suspect we're being bamboozled, we have the right to bring an action to sue," said Kaney, who added later: "If you guys try to use this as a dodge, we're going to bust your chops."

Horne said the opinion doesn't change the rules for his staff.

"I don't want any employees perceiving that this ruling means that they can do anything other than fulfill their responsibilities as city employees," he said. "That would be totally inappropriate."

In October 2000, the Times asked to review a year's worth of e-mails sent and received by Clearwater Assistant City Manager Garry Brumback and John Asmar, a former planning and development administrator. An earlier city audit found Asmar used city phones for personal calls, some to his private business in Central Florida.

The city turned over several e-mails, some containing off-color jokes and sexual innuendo. But because the city allowed Asmar and Brumback to withhold e-mails they considered private, the Times sued. Pinellas-Pasco Circuit Judge Anthony Rondolino decided the e-mails withheld were not public records, ruling the law does not apply to personal correspondence unrelated to work.

The 2nd District Court of Appeal in Lakeland upheld Rondolino's decision after the Times appealed. The appellate court then referred the matter to the Supreme Court as an issue of great public importance at the request of the state attorney general.

Pinellas County, on behalf of the Florida Association of County Attorneys, also chimed in, filing a brief in support of Clearwater.

- Jennifer Farrell can be reached at 445-4160 or

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