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Lawsuit against Sarasota city manager settled

Source: Herald-Tribune
By Nicole Rodriguez

No findings that Barwin violated Florida’s Sunshine Law for public records

SARASOTA — A lawsuit against Sarasota City Manager Tom Barwin that accused the top administrator of breaking state public records law by failing to produce city-related discussions from his private email account as part of numerous public records requests has been settled for $30,000.

As part of a settlement agreement, the city will pay Michael Barfield, a paralegal consultant and president of the Florida American Civil Liberties Union who filed the suit in September, to cover his legal fees. Barwin does not admit he violated state records law, and there was no finding he did, the document states.

“This case was brought to hold the city manager accountable under the law,” Barfield said in an email Wednesday.

“That task has been accomplished. I hope Mr. Barwin has finally learned his lesson that this is not Illinois, but the Sunshine State,” Barfield added, referring to Barwin’s time as city manager in Oak Park, Illinois, where public records laws are not as broad as in Florida.

In a letter dated Jan. 11 to Barfield and his attorney from Barwin’s Palm Beach-based attorney, Barwin agrees to never again respond to emails pertaining to city business from his personal Gmail account, and if he receives any, he is to forward them to the city server for preservation. Barwin also agreed to set up an automatic response on his Gmail account alerting senders to correspond with him on his official city email account if the message is about city matters.

“If you are writing me regarding any possible subject related to municipalities, the city of Sarasota or even simply forwarding a general community wide newsletter, invitation to a public event, or forwarding a professional or contemporary issues publication, please send your note, inquiry or publication to my official city of Sarasota email,” a portion of the auto-reply message states.

As part of the settlement, both parties also agree the dispute is over and that the city of Sarasota and Barwin have obeyed the law.

“The decision to resolve the litigation — with the express agreement that there was no finding of any violations of the public records law — was made by the city’s insurance carrier and counsel,” Barwin lawyer Lloyd Schwed said in an email. “Mr. Barwin has produced every email or text that could possibly qualify as a ‘public record’ so there was no benefit or reason to continue the litigation. That would be a colossal waste of time and money.”

The city’s insurance carrier for such cases is paying the settlement fee and also covered the city’s legal costs of $25,000, city officials said.

Barfield filed the lawsuit after allegations last August that Barwin extensively used his personal Gmail account to conduct city business — a charge Barwin has vehemently denied. Since the suit was filed, lawyers representing Barwin have produced nearly 3,000 emails from Barwin’s personal account that could be considered public records. The messages date back to 2012, when Barwin was appointed city manager.

While it is not illegal for government officials to use private email accounts, they must preserve the messages, because they are public records. Public officials are urged to use government emails for their official duties so that their conversations are properly archived and available to the public and those conducting oversight. Public records experts have said Barwin’s practice could be perceived as circumvention of state open records laws.

On several occasions dating back to 2013, Barfield requested public records from the city and Barwin on both work and personal devices since Barwin was appointed city manager, according to the lawsuit. Some, but not all, of the records were produced, the suit alleged. Last June, Barfield again requested the same records and was reportedly told by the city they did not exist. But a public records request made last year by former City Commission candidate Martin Hyde for city-related emails on Barwin’s Gmail account, which was fulfilled last August, revealed at least 500 messages to and from Barwin from 2015 to 2017 regarding city matters. The messages included electronic communications from his deputy, the mayor, city spokeswoman, private citizens and media outlets — with responses from Barwin to numerous messages. A large portion of the emails included flyers about local events.

“Most of the personal emails produced were already on the city’s servers and fully accessible to the public. Of the remaining emails, virtually all were simply receiving newsletters or brochures from various neighborhood and community groups,” Schwed said. “There has not been a single personal email identified that even meets the definition of a ‘public record’ under Florida law. And that’s why the settlement includes an express agreement that there was no finding that Mr. Barwin or the city had violated the ‘public records’ law.”

Barwin last August read a statement defending himself during a City Commission meeting in which board members remained silent.

“Both the city of Sarasota and I are strong believers in the importance of Florida’s Sunshine Law, and it has always been our intention to fully comply with any proper and lawful request for public records,” Barwin said at the Aug. 20 meeting. “Any documents covered by the Sunshine Law that have been overlooked will be produced as soon as we can gather them.”

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