Article Courtesy of The Miami
Herald and St. Petersburg Times
By Michael C. Bender
Published August 20, 2011
TALLAHASSEE -- The email accounts of Rick Scott and most of the governor-elect’s transition team were deleted soon after he took office, potentially erasing public records that state law requires be kept.
Scott’s team acknowledged for the first time this week that the private company providing email service deleted the records as early as mid-January, about the time the Herald/Times first sought transition emails.
Unable to gather records from the server, as is typical to comply with public records requests, Scott officials attempted to recover the governor-elect’s emails from personal accounts of his top-level staff.
|But without access to the server, it’s impossible to know how many emails from Scott or his staff were lost between Election Day and the inauguration celebration, a two-month stretch when the team made key hiring moves and shaped the new administration’s agenda.
Chris Kise, the Scott transition’s attorney and public records adviser, said he and Enu Mainigi, a Washington lawyer who served as transition leader, should have done a better job preserving the electronic database. Kise said Thursday he has recommended Scott’s administration approve retention guidelines for future transitions to avoid a similar situation.
“As with most things, in hindsight it is relatively easy for me to see the mistake and to understand how to avoid same in the future,” Kise wrote in an email. “But that is true of all mistakes.”
Those mistakes may have violated state law, public records experts said.
“If they closed that account and destroyed those records, they are in violation,” said Barbara Petersen, president of the Florida First Amendment Foundation.
But Kise describes it as an oversight, the result, he said, of a chaotic transition run by a largely out-of-state staff still learning Florida law and unfamiliar with the technology that ran the email system.
After Kise learned in April that the electronic records were lost, he sent a letter — more than four months after the transition ended — to transition team members advising they must preserve transition-related records that remained on their personal email accounts.
Kise said he provided the Herald/Times every email he has been able to obtain. “We’ve captured most everything,” he said.
In the end, the Herald/Times received 69 emails that Scott sent as the governor-elect and 78 that he received. The emails run the gamut from details on Scott’s new stationery to the hiring of agency heads to meeting a Florida Supreme Court justice.
“Have we ordered for when I am governor, seems to take weeks to get,” Scott wrote to Mainigi about the stationery.
“Enu, I talked to Charles today,” Scott wrote in another email about a conversation with Supreme Court Justice Charles Canady. “I asked if we could meet next Thursday or Friday. He said yes. I told him I would call to schedule.”
But the emails printed from Gmail, AOL and other personal accounts leave clues that not everything has been recovered.
At least two messages indicate Scott traded emails with two people outside his transition team. That correspondence, with Naples Councilman John Sorey and another person identified as “Ogden,” was not included in the documents provided.
The documents include one email to Scott from Susie Wiles, his campaign manager who served as his legislative liaison during the transition. And there’s a single exchange between Scott and Tony Fabrizio, the Miami pollster who helped shape campaign ads, tested Scott’s agenda with focus groups and remains an adviser on the Republican Party of Florida payroll.
Scott said Thursday he rarely emailed during the transition. “I didn’t do email much,” he said. “When you run for office you don’t have any time to do it. Even after that, I tried to make sure we complied with all the open records things. The easiest way is to primarily do things by phone so you don’t make a mistake.”
A spokesman for the Department of State, the agency that archives public records, said transition records fall under the same public records laws as the governor’s executive office. The department has transition records for governors dating back to 1971.
But Kise said there is no clear guidance because the transition staff are not part of an official agency or office. “Unlike an existing state agency, there are no established IT or records departments, no records management policies nor any records retention policies,” Kise said.
State law carries a maximum $500 fine for violations of public records law and more serious penalties, including impeachment, for any official who “knowingly violates” the statutes.
Kise, 46, worked in the attorney general’s office under Charlie Crist, served on Crist’s transition as governor and was the state’s solicitor general, the state’s top litigator. He is now a partner at Foley & Lardner, a law firm in Tallahassee. A former lobbyist for railroad, real estate and electric companies, Kise was recently appointed by Scott to the board of Enterprise Florida, the state’s main economic development arm that awards tens of millions of dollars in tax incentives every year. After advising the transition, Kise attended daily senior-level staff meetings during Scott’s first weeks in office.
Kise resumed an unofficial role with Scott’s office in April, about the time the Herald/Times was told by Carolyn Timmann, head of the governor’s Office of Open Government, that she would no longer handle transition-related requests. Instead, Kise would coordinate the records from his Tallahassee law office.
The explanation for the change was that a surge of public records requests had overwhelmed the office; Kise volunteered to help.
Kise’s involvement followed a Herald/Times report that Scott’s office failed to turn over any work product related to a $25,000 state contract the transition gave to an opposition research team. It was also three months after Rackspace, the private company that hosted the email accounts for Scott’s campaign and transition, deleted nearly every transition email account.
Kise said the server was wiped after transition staff received a message from a consultant that transition e-mail accounts were scheduled to be closed. Kise said he did not know that meant the accounts would be deleted and become inaccessible.
Kise said between 40 and 50 transition email accounts, including Scott’s, were deleted.
Accounts remain open for three staffers who continued transition-related work beyond the inauguration: Mainigi; Fritz Brogan, Mainigi’s top assistant who held a position in Scott’s executive office until this summer; and Tim D’Elia of the Gerson Group, a New York headhunter hired to find candidates for the Scott administration. Mainigi declined to comment.
Candice Odom, a public records specialist for the Council of State Archivists, said lost emails would violate state law, which also requires the destruction of public records to be documented. “It comes down to poor records management,” Odom said of Scott’s transition. “And that’s a poor excuse.”