Federal Magistrate to BCC: NO -- You are NOT the Custodian of an Individual Commissioner's Social Media Records

 

The Escambia County Commissioners have been dragged through the mud over the actions of one member.  Monday's Federal court order vindicates the board and provides a path forward, out of the "mud"

The Escambia County Commission has been dragged through the legal "mud" --figuratively speaking-over the actions (or inaction) of one of its members.  It has been prolonged, and it has been costly.

We have spent thousands and thousands of dollars defending a lawsuit that was brought about, again, by the purported, alleged illegal actions (or willful inaction) of one member of our board.

At issue:  Whether or not all applicable and responsive public records requested by a citizen were, in fact, turned over by Commissioner Doug Underhill to this citizen as specified in Florida Law.

About a month ago, Magistrate Judge Hope Cannon issued an order and in it she alluded to the fact that some of the records she reviewed that were NOT turned over to the citizen in question who made requests of Underhill were, in fact, bonafide public records.

Subsequent to this, a motion was entered in court, made by the public records requesting citizen's legal team---to compel the BCC to force Doug Underhill to turn over records over which he, Doug Underhill, has sole possession of and control.

Everyone knows we can't MAKE him do it, we have no ability to do so.  Legally or otherwise.  He is, like each of the five of us is, an independently-elected, constitutional officer.  We have no power over him, he has no power over us.

Which makes that motion to compel request of us somewhat baffling.

Well, Monday the Magistrate issued an order that most of us were expecting to see.  In it, she ruled that  NO-the BCC cannot be compelled to force Doug Underhill to provide information over which only he has control and autonomy (namely Underhill's personally-owned and operated social media accounts).

From the order:

“Given the lack of clear authority on this issue, the Court finds it unnecessary to compel the ECBCC to produce the information when the information is available from Underhill…Finally, to the extent Underhill, in his official capacity, is arguing he does not have “possession, custody, or control” of the Facebook account, that argument is nonsensical.”—Magistrate Judge Hope Cannon

So in the order on the motion to compel-- the motion by the citizen's lawyers was denied in part (The part where the lawyers wanted the BCC to be compelled to "force" Doug Underhill to turn over the previously requested public records)  BUT it was also granted in part-requiring Underhill to turn over all of the requested public records within 14 days.

Read the Magistrate's full 21 page Order Here.