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Lawsuit alleges Sarasota city manager broke public records law

Source: Herald Tribune
By: Nicole Rodriguez – Staff Writer

The suit asks a judge to grant an accelerated hearing in the case, and declare that Barwin and the city violated state record retention rules and the Sunshine Law

SARASOTA — A lawsuit filed Thursday against Sarasota City Manager Tom Barwin and the city alleges that the top administrator’s frequent failure to produce city-related discussions from his private Gmail account as part of numerous public records requests broke state open records law and eroded public trust in local government.

The suit, filed by Michael Barfield, a paralegal consultant and president of the Florida American Civil Liberties Union, asks a judge to grant an accelerated hearing in the case, and declare that Barwin and the city violated state record retention rules and the Sunshine Law, which is intended to guarantee that citizens have access to public records and the decision-making of governmental officials. The 23-page suit requests a judge to order Barwin and the city to follow the law, make records on Barwin’s personal electronic devices available for inspection, pay Barfield’s legal fees and award any other relief the court deems appropriate.

“The violations by the city and Barwin of the Public Records Act, and the minimal standards and requirements for the storage and retention of public records under Chapter 257 … are extensive and reveals a systemic pattern of conduct which is not isolated,” the suit states.

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 in 2012, according to the lawsuit. Some, but not all, of the records were produced, the suit states.

“I do not conduct city business with my personal cell phone, therefore I have no records to produce for October 2013,” Barwin wrote in an Oct. 31, 2013, email to the city attorney and city clerk. The exchange is included as an exhibit in Barfield’s lawsuit.

In June, Barfield again requested the same records and was reportedly told by the city they did not exist. But a recent public records request made by a former City Commission candidate for city-related emails on Barwin’s Gmail account, which was fulfilled last month, 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. Not complying with Barfield’s previous requests could be public records violations, City Attorney Robert Fournier told the Herald-Tribune last month.

Barwin has steadfastly denied using his private email account to conduct city business and has stressed his commitment to transparency and open government law. Barwin late last monthsurrendered his personal cell phone and laptop to Fournier pending an independent forensic examination of the devices to ensure all stored city-related matters are made public.

“On occasion, citizens and others have sent emails to my private email address and I have always made it a point to forward those emails to the city of Sarasota email system,” Barwin said at a City Commission meeting on Aug. 20. “I intend to be more careful to be sure that any such emails are forwarded to the city’s email system to avoid this situation in the future.”

Talks break down

The suit comes just hours after talks between Barfield and Barwin’s lawyers to conduct the forensic examination on Barfield’s terms seemingly fell apart. Barfield previously agreed to avoid litigation if the city’s outside legal team used an agreed upon third-party to conduct the exam using standard protocol that he provided the firm. But a dispute about a confidentiality agreement that Barfield claims Barwin’s team wanted him to sign prompted the suit.

“The court action is necessary because Mr. Barwin failed to take his transparency obligations seriously and has unreasonably delayed the production of public records for more than two months. Barwin’s attempt to have me enter into a nondisclosure agreement with venue in New York was the last straw.”

Barwin’s Palm Beach Gardens-based attorney Lloyd Schwed says the confidentiality agreement was part of the protocol that Barfield provided and was never proposed by Barwin. The confidentiality agreement was a generic agreement used by a Tampa-based company, which on Thursday conducted a forensic examination of Barwin’s mobile devices, Schwed said. The agreement had stipulated litigation take place in a New York court.

Schwed said his staff have retrieved roughly 53,000 emails from Barwin’s Gmail account since 2012 and are meticulously sifting through the messages to identify public records. The analysis should be complete by Oct. 1, he said, adding that public records recovered from the emails will be released in batches as early as Friday.

Schwed said his office has done everything to avoid litigation and to comply with what he calls Barfield’s shifting demands.

“It is unfortunate that Mr. Barfield has chosen to file an unnecessary and wasteful lawsuit seeking production of any ‘public records’ found on the city manager, Tom Barwin’s cell phone or personal e-mail account,” Schwed said in an email. “Both the city of Sarasota and Mr. Barwin have already agreed to produce these documents so the lawsuit seems more geared toward justifying an attorneys’ fee claim rather than for the purpose of obtaining access to public records.”

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