The legal battle over Escambia County Commissioner Jeff Bergosh's text messages is the latest issue to raise questions over how the county handles commissioners' public records.

Like all elected officials in Florida, county commissioners are required to receive one hour of training each year on Florida's public records law, but with the county's practice of leaving commissioners as the sole custodian of their public records, they are facing a large legal liability to navigate hundreds of regulations on storing and maintaining those records.

In September, Escambia County voted to seek legal action against former county employee Jonathan Owens over his possession of 52,486 text messages from Bergosh's personal phone, as the Federal Bureau of Investigation appears to be investigating exactly how they've ended up in Owens' possession.

Under Florida law, any written communication about county business by a county official is a public record, including text messages.

Text messages: Leaked Bergosh text messages mention EMS doctor who is suing Escambia County 102 times

Many local governments require officials to use government-issued phones that can be backed up or install software on their personal phones that archive communication that is public record.

Escambia County, however, maintains that each county commissioner is the official custodian of their public records.

Barbara Peterson, executive director of the Florida Center for Government Accountability, has more than 25 years of experience in dealing with Florida's public records law. She said it's unusual for a county to have an elected commissioner be the official custodian of their own public records.

"Every commissioner has a responsibility and a duty to retain and maintain records. But by designating each commissioner as the custodian of his or her records, it puts those commissioners at some pretty extreme legal risks," Peterson said.

Bergosh text messages

Ironically, Bergosh's text messages were leaked from a copy he said he made in an effort to comply with the strict requirements of Florida's records law while also seeking to retain sole control over those records. According to Bergosh, it was the duty to preserve public records that led him to ask county IT staff to back up his phone in February 2022, which led to the creation of a copy of his phone.

According to a sworn statement by a county IT employee obtained by the News Journal, on Feb. 1, 2022, he was told Bergosh's iPhone XR had been "activation locked."

In an affidavit filed in federal court, Bergosh said the backup was made to preserve public records ahead of an international trip.

The employee said whether to keep a copy of the backed-up data for retention purposes was discussed, though the statement does not make clear by who, but that it was decided against. A local copy was left on the employee's county-owned computer "in case the commissioner might need it again."

During a September County Commission meeting, Bergosh said he instructed the county's former IT director to delete any other copy.

"I explained to him the subsequent copy that you're downloading needs to be deleted," Bergosh said. "Give me the one copy because I'm the custodian of the record, and I'll maintain it. I'm the custodian. That was the understanding. Obviously, it didn't happen, and the reason I asked him to do that was for this very purpose."

The News Journal has requested a full copy of the county's investigation into the leak of Bergosh's text messages, but the full document is not releasable during an active investigation, said county attorney Alison Rogers.

Legal risk

Escambia County has faced legal troubles before over the commissioners' handling of public records.

Former Commissioner Doug Underhill is involved in multiple lawsuits over his failure to fulfill public records requests about his social media accounts in which he discusses county business. The county was ultimately dismissed from those lawsuits while they still continue against Underhill.

Other local governments have ended up paying for the failure of officials to maintain records. In 2018, the city of Tallahassee had to pay out $50,000 to the Tallahassee Democrat and admit its failure to follow Florida's public records law when a city administrator deleted a text message on his personal phone that turned out to be a public record.

"As a county commissioner, I'd be really worried about the legal liability because the county has just basically said 'it's up to you guys,'" Peterson said. "It's your problem, and the penalties for violation can be steep, and to destroy a public record prior to its scheduled destruction date is a violation of law."

Unintentional violations of the public records law can carry up to a $500 fine for each infraction, and if a court finds the violation was intentional, the fine increases to $1,000 and carries the possibility of up to a year in jail along with removal from office.

Records also are required to be retained for years, in some cases permanently, depending on the content of the records.

The Florida Department of State's General Record Schedule GS1-SL sets local governments' rules for retaining public records. Under the rules, record retention requirements apply to all records regardless of format. With text messages, the retention requirement depends on the message's content.

For example, "administrator records," which include elected officials' correspondence about the formulation of policy or programs, must be retained for 10 years.

Another item requires correspondence, which includes text messages, about "routine office activities and issues" to be retained for three fiscal years.

Most text messages will likely fall into a category known as "transitory messages," which have limited archival value and are only required to be kept "until obsolete."

Critically, before a public record can be deleted, Florida law requires it to be categorized under the record schedule, and its deletion must be documented with a "records disposition documentation."

That documentation is required to be kept permanently.

Escambia County commissioners records dispositions

Two members of the Escambia County Commission have been on the board for more than 10 years (Commissioners Steven Barry and Lumon May), yet a public records request made by the News Journal shows that only one commissioner has ever filed a record disposition form.

Commissioner Robert Bender's office filed one in 2019, about a year into his first term, for the deletion of old records of two commissioners who held the office before him, Grover Robinson and Tom Banjanin.

Bender told the News Journal he relies on his office aide, who has been with the county for several years, to follow the county's record retention policies.

"She knows what the county's policies are, and we just follow those," Bender said.

While Bender's office was the only office to return a fully filled out records disposition form, other commissioner's offices did return forms that were "revised" on Sept. 25, 2023 — three weeks after the News Journal filed its records request.

For District 2 (Mike Kohler), 3 (May) and 5 (Barry) offices, the forms said, "This Office Believes that all of the records, both electronic and hard, have valuable historical data that cannot be disposed of at this time."

District 1's office (Bergosh) returned an undated document, also "revised" on Sept. 25, that said it was for former Commissioner Wilson Robertson, showing the possible destruction of 4 cubic feet of "administrator records" with a date range of July 18, 1821, to Sept. 30, 2005.

Kohler told the News Journal that since he was elected last year, he's received no training on managing his public records and has pushed back on the county's public records policy regarding commissioners.

"On public records requests, if I get them, I feel like this is an IT responsibility, unless it's on your own phone," Kohler said. "...If someone puts a public records request, go do that immediately, answer it. I know I'm not doing anything illegal. And if something's on my personal phone, which technically you're the custodian of your phone, you have to turn that over by Sunshine Law. And when I get something that could potentially be (covered by Sunshine Law), I forward it to my District 2 email."

Both Kohler and Bender said while a better policy may be needed, at the end of the day, when a commissioner is using their personal phone, it will be up to them to do what is right.

Bender said he tries to direct anyone who contacts him on his personal phone to use his county phone or county email so the messages are retained.

"I was part of this community long before I came up here, and of course, there are people who have my personal cell. If it's someone who is usually talking business, I ask them to text me on my county cell for the purpose of record retention," Bender said.

However, there are some people who still talk about county business on Bender's personal phone. Bender said he bought software — the same software county IT staff used to back up Bergosh's phone — to download text messages off his phone.

Bender used the software to fulfill his request for his conversations with Pensacola businessman and political donor David Bear in Bear's lawsuit for Underhill's public records.

Bender said if there is a commissioner who refuses to follow the policy, there is little the county can do to enforce it and pointed to Underhill's public records lawsuit as an example.

"It's got to be on the commissioner," Bender said.

This article originally appeared on Pensacola News Journal: Escambia County's records policy could put commissioners at legal risk