In Florida, there is a Constitutional right to transparency in government. This right has two basic components, which are implemented by the Sunshine Law and Public Records Act, respectively:
- Government agency boards are required to make their decisions on the dais in meetings that are open to the public; and
- Any person has the right to inspect and copy records related to the official business of government agencies.
These components of government transparency were intended to limit government corruption by ensuring that the public could examine the factual bases for individual decisions.
The transparency requirements of the Public Record Act and Sunshine Law were created before the digital age, but have not been updated to keep pace with how government officials do business now. That is not to say that the Public Records Act and Sunshine Law do not apply to electronic communications and other digital media like emails and video webcasts. They do, but electronic communications have changed and those changes pose substantial threats to government transparency.
Text messaging, and other similar media like Snapchat, are not just for the millennial generation; they have become mainstream. Government officials and employees regularly conduct business through these media. These new media threaten government transparency because they are exclusively in the hands of the user and do not create permanent records. The same can be said of email accounts that can be used by governmental agency officials or employees to make decisions, but to which the agency does not have access or control, like Gmail. Those that control these accounts can simply elect not to produce the texts or emails that only they have access to and can delete.
To date, the legislature appears not to have recognized that there is a problem or begun working on a solution. It is up to courts to fashion a remedy. The courts have the power to protect constitutional rights, and they often do so through the creation of evidentiary rules and presumptions. For example, the exclusionary rule prevents the government from using evidence gathered in violation of the Constitution in a criminal trial. The courts created the exclusionary rule not because it was constitutionally mandated, but because it was prudential and its deterrence benefits outweigh its “substantial social costs.” In other words, the need to impose a penalty for violation of the Fourth Amendment outweighed the social cost of losing the ability to use potentially clear evidence of criminal conduct in criminal prosecutions.
Under the common law, Florida courts have the same right to create evidentiary rules. See McDonald v. Dep’t of Prof’l Regulation, Bd. of Pilot Com’rs, 582 So. 2d 660, 663 (Fla. 1st DCA 1991). Article 1, § 24 of the Florida Constitution provides the constitutional right of the public to access to public records and meetings. Florida courts need to create evidentiary presumptions that serve as a deterrent to those that might otherwise violate the Public Records Act or Sunshine Law. The benefits of such deterrents clearly outweigh any social costs.
How might an evidentiary rule or presumption work in the context of the Sunshine Law, for example? Assume that two members of a city commission are texting back and forth during a public meeting. If the subject of such text conversation was the business at hand or an upcoming matter, and that text conversation was not made available to the public, it is a clear violation of the Sunshine Law. But to prove the violation, you would need the texts. The texts can be erased by the very same commissioners alleged to have violated the law. As it stands, if the commissioners simply delete the text conversation, seeking relief from a court will fail for a lack of proof. But there is evidence of the text conversation in the form of the mobile phone service providers billing records. Evidence will exist showing that there was a text conversation between one commissioner’s mobile phone and another commissioner’s mobile phone, the date and time of that communication, and the date and time of the public meeting. In the presence of such evidence, a court should presume that a violation occurred in the absence of ameliorating evidence. The point of such an evidentiary presumption would be twofold: (1) it would discourage the use of media like text messages when conducting public business; and (2) it would discourage the deletion of text messages if such a communication took place. Before a court can create such a rule, it needs a case or controversy to rule on.