David Bear, a local business owner and political figure, and Douglas Underhill, a former Escambia County Commissioner, were long-standing political adversaries. While serving on the Board of County Commissioners, Underhill used his personally owned Facebook account to communicate with constituents about county business, votes, and political matters, acknowledging that he used the platform to carry out his duties. Despite county policies restricting such use, Underhill maintained a quasi-official page and engaged in direct messages with constituents, including disparaging remarks about Bear's family. When Bear requested these records under Florida's Public Records Act, Underhill withheld over 24,000 pages, arguing that his personal account was not subject to the Act. Bear filed suit, and the district court ordered Underhill to produce the records and awarded him attorney's fees, rejecting Underhill's claim that he was not an 'agency' under the law.
The Eleventh Circuit addressed three primary issues regarding the interpretation of Florida's Public Records Act. First, the court affirmed that Underhill qualifies as an 'agency.' The statute defines an agency to include any 'municipal officer' or any person 'acting on behalf of any public agency.' The court found that Underhill, as a county commissioner, is a county officer. Furthermore, his communications with constituents regarding county business were clearly acting on behalf of the Board, satisfying the 'scope of employment' test. Second, the court held that the disputed Facebook messages constitute 'public records.' The Act covers materials made or received 'in connection with the transaction of official business.' The court distinguished these final communications from internal drafts, noting they explicitly concerned official duties like voting on budgets and coordinating agendas. Finally, the court ruled that Underhill's failure to produce the records was an 'unlawful refusal' sanctionable by attorney's fees. The court rejected Underhill's argument that he qualified for the 'reasonable uncertainty' exception established in New York Times Co. v. PHH Mental Health Services. The court noted that Underhill had admitted to a duty to preserve records and was subjectively aware of the Act's applicability. Additionally, he failed to take swift action, such as filing a declaratory judgment, to clarify his status, which is required to claim the exception.
The decision clarifies that elected officials cannot shield official communications from public scrutiny by using personal social media accounts. It establishes that deleting such records constitutes a violation of the Public Records Act, triggering mandatory attorney's fees. The ruling reinforces that the 'reasonable uncertainty' defense is unavailable to officials who are aware of their obligations and fail to seek legal clarification before withholding records. The case is remanded for the enforcement of the fee award.