Sarasota’s City Manager turns in 2,500 emails from private email account for court to review

Source: ABC 7
By: Taylor Torregano

SARASOTA, FL (WWSB) – Sarasota’s City Manager is the most recent in a slew of people in power under fire for using a private email account for work related business.

These public record suits have shown up at the local, state and federal level. Most recently, Governor Rick Scott made headlines for allegedly using two private email accounts for state business. Of course, it’s hard to forget the issue with Hillary Clinton’s private email server during the presidential election.

Now, Sarasota’s City Manager Tom Barwin is being sued, too.

It’s a topic that keeps arising, begging the question – are the public record boundaries clear enough?

In his six years as City Manager, Tom Barwin has sent and received a total of 53,326 emails to his personal Gmail account.

“We went through all of the 53,000 emails and if there was an email that, in any way, could possibly be interpreted as a public record, we would set that aside,” explained Lloyd Schwed, Barwin’s attorney.

The City Manager’s attorney said of those 53,000 emails sent to and from Tom Barwin’s Gmail account, 2,500 of them could be construed as public record. But more than half of those 2,500 had already been forwarded to the City’s server.

“Of the remaining 1,059 emails that we produced, 770 of them are basically getting a newsletter from a homeowners association or an organization and also notifications from social media platforms like Google, LinkedIn, Facebook,” explained Schwed.

Schwed said even though they included those kinds of emails in the 2,500 submitted to the court, they likely aren’t considered public records. If you subtract those, Schwed said it boils down to 289 emails Barwin sent or received relating to City matters.

“Of those 289, then we have to look at those and determine, are those really “public records” as defined by Florida law?” Schwed questioned.

According to the attorneys, this is where it gets problematic. Florida’s Public Record Act, as defined by the Supreme Court, includes any materials made or received by an agency in connection with official business which are used to perpetuate, communicate or formalize knowledge.

“So when you try to apply that definition to these emails, it’s debatable whether they’re public records,” Schwed said.

On the contrary, the man suing Tom Barwin for using his private account said, ‘no, it’s not.’

“There are significant discussions of City business behind the scenes,” said Michael Barfield of the emails Tom Barwin had on his private account. “There’s even requests for confidentiality.. “don’t tell anyone that I’m talking to you.”

Michael Barfield is calling himself the Watchdog that won’t allow these kinds of conversations to be held off the record.

“Now he says ‘well these are just from citizens that were.. you know, I would just get things forwarded to me,’ Barfield explained. “Okay, there’s some examples of those in there, but there’s also these substantive, very weighty discussions about the dominant issues within City Hall. The homeless, the community redevelopment agency issues, the Bayfront 20/20, issues that routinely come before the City Commission.”

Not only that, Barfield said on three separate occasions, the City Manager denied having these conversations at all.

“He’d state emphatically, that ‘I just don’t do this, I will triple check, but I just don’t do this,” Barfield said. “That’s not an ‘oh, maybe I did, maybe I just forgot.’ He said that three times.”

Barwin’s attorney said he might’ve denied it, but only because he didn’t know.

“In his mind, transacting official City business is a lot more than just getting an email from someone that mentions something about Sarasota,” said Schwed. “It’s going to be for the court to decide if, in fact, these personal emails, that we’ve produced now, that the public has access to, are transacting official city business.”

From an outside perspective, the rules governing public records in a day of new technology are difficult to navigate.

“I think one of the things that everyone’s asking is what are the rules?” questioned Keith Fitzgerald, associate professor of Political Science at New College. “Because it seems that the rules seem to be applied differently to different people. Some of the very same people who were very concerned about Hillary Clinton actually gave some very similar kinds of activities once they got into office. I assume that they were innocent in their motivation but it makes you ask, what are the rules for this kind of stuff? And we’re still trying to figure that out.”

If you want to compare the two, Michael Barfield said, “Hillary Clinton had less problems complying with emails than the City Manager has.”

But regardless of the outcome of this lawsuit, the City Manager’s attorney said Barwin has already learned a valuable lesson.

“I assure you he will not be receiving personal emails that relate to City business anymore,” said Schwed.

The City Manager’s attorney said they have just submitted all of those 2,500 emails to the court. Now it’s in the judge’s hands, who will be the one to decide if they constitute as public records.

If the judge decides that they do, Barfield will be eligible to get his attorney fees paid for, but as for as any repercussions for the City Manager, that will be up to the City Commission to decide.