DELTONA BONA FIDE

Deltona’s ceremonial head suspected of working where Sun don’t shine

Citizen suspects Mayor is conducting City business in private, outside of the Florida Sunshine.

February 4, 2007

To create a more open government, Florida’s “Government-in-the-Sunshine Law” requires that the public have access to government documents – even emails are public record. But concerned citizen Jeff Ensminger says “Deltona’s record-keeping policies seem to be a bit shady.”

In early March of 2006, Ensminger made a simple public records request for copies of some of Deltona’s public records. More specifically, he requested copies of the Mayor’s AOL emails dated between 2/1/06 and 3/4/06. The Mayor responded to the request by producing 14 pages of public records - only a fraction of the requested records - claiming that AOL no longer stores his emails dated before 2/21/06.

Regarding the purportedly lost AOL emails, Adrian Harper, Director of the First Amendment Foundation, said “This is problematic. It doesn't matter where the records are created or stored, at the office computer or home computer, or on a private or business email account -- if the records pertain to public business, they are subject to disclosure. Thus, the city should have a policy in the place that guarantees emails written from the home computers or private email accounts of public officials that relate to public business are properly maintained for public disclosure pursuant to the public records law. Emails, as with any form of public records, should not be "deleted" prior to their date of destruction according to the retention schedule maintained by the Department of State.”

In January 2007, shortly after an ethics complaint was filed by Ensminger against Mayor Mulder alleging misuse of office, Mulder contested the source of one of the emails accompanying the complaint. According to the Orlando Sentinel, Mulder said “This document is not public record. The only way this e-mail got printed was somebody opened my AOL account and printed it out, it’s very disturbing.”

The disputed email was titled “Use Of City Park.” It was allegedly sent from Mulder to attorney Lonnie Groot and, in part, conveyed Mulder’s concern that because of his election, and for the "sake of appearances," his wife should resign from a local non-profit tennis organization – an organization that receives services from the City.

Ensminger says he’s certain that he obtained the disputed email from City Hall, as part of his public records request. He says “why would I make a public records request to legally obtain copies of 14 of his emails but then resort to other means to get a copy of another? I have a handwritten note from Mulder saying he’ll copy all of his AOL email for me – is his written word no good?”

Ensminger then made a public records request that was identical to the previous one, except this time he wanted the requested records on compact disc. He thought that would prove that he obtained the controversial email through a public records request. Instead, it didn’t prove that he did and it didn’t prove that he didn’t – but it did prove that Deltona’s record keeping policies can raise more questions than they answer.

One might think that Ensminger’s second records request – a repeat of the first – would have yielded the same results that it did the first time it was made. But instead of producing 14 pages like they did before, this time the City provided only 7 pages of AOL emails.

Of the 7 pages provided by the City, only 1 email was produced that was also included in the first batch of records requested in March 2006. There has been no explanation given by City Hall as to why 13 pages of public records appear to have been omitted from Ensminger’s request, or if those records have since been destroyed or lost.

Of the 7 pages provided by the City, 2 emails are dated during the period of which Mulder previously claimed records were inaccessible - that AOL no longer stored his emails dated before Feb 21^st 2006.

“If Mulder was unable to produce those records before, claiming AOL lost them, how was he able to produce them now, nearly a year later?” questions Ensminger.

The second records request did not produce a copy of the controversial Mulder-Groot email, but Ensminger pointed out that the City produced only half as many pages as they did the first time the request was made.

Ensminger made the same records request a third time. That time, the City wanted to charge Ensminger $80 for the records. Ensminger declined, because he felt that $80 was an unlawfully high amount to pay for public records that originally cost him only $2.10 a year ago and then only $1.05 weeks ago.

Colette Rowley, another concerned Deltona citizen, made a similar public records request for the same batch of Mayoral AOL emails. She was directed by City Clerk Faith Miller to obtain the emails directly from the Mayor’s assistant, Janet Day. Day then redirected Rowley back to the City Clerk, who produced only 7 pages of public records.

Just last week, wanting to give the City one more opportunity to reproduce the 14 pages of public record, Ensminger made the same records request a fifth time. Faith Miller told him: “…if you want the same 14 pages of emails again, of course, I can copy those and save them as a PDF file and put them on a CD. You already have the 14 pages but if you want them on a CD we will do so.” Ensminger told Miller to do so.

But instead of doing so, the City produced 16 pages of public record. Over half of what the City produced are records Ensminger didn’t request. 9 pages were not even in the date range clearly specified in Ensminger’s request.

2 of the pages are dated during the period of which Mulder a year ago claimed he had no access to, citing AOL as the cause of record loss.

According to Ensminger, only 1 email was produced that was originally included in the first batch of records requested in March 2006 - but it was not the controversial Mulder-Groot AOL email. City Clerk Faith Miller claimed that she does not recall seeing the e-mail, but Ensminger asks “If her powers of recollection are so good, then why can’t she reproduce the 14 pages of records that she gave me before?

Disappointed in the City’s record management ability, Ensminger remarks “The only thing consistent about their record keeping policies seems to be that they are either unable or unwilling to reproduce the public records that they were custodian of last year.”

Determined, Ensminger wonders “We have seven commissioners who have all sworn under oath to support, protect, and defend the constitution of the United States and of the Sate of Florida. Why is it that a citizen must undertake legal action to obtain from the City what the Constitution already requires?”

According to Florida’s open-government law, “Any public officer who knowingly violates the provisions of s. 119.07(1) is subject to suspension and removal or impeachment and, in addition, commits a misdemeanor of the first degree.”

Ensminger says “It’s a shame that Mayor Mulder promised the voters a citizen-run Government, but what I'm seeing instead is a citizen run-around Government.”

Read the emails

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