Angered by a six-month delay in fulfilling a simple public records request, Judge Jeffrey Levenson ordered the School Board of Broward County to produce records and text messages of Board Members and employees including Broward Teachers Union (BTU) president Anna Fusco. Judge Levenson also ordered the Board to use its best efforts to produce the text messages of controversial former employee Jillian Harring. Last April, the Broward Principals and Assistants Association (BPAA) made a public records request for the records.
Under Florida law, public records are to be produced in a timely manner unless such records fall under a legal exemption. The Broward School District never claimed the records were exempted.
Tired of the delays and excuses, the BPAA filed a case in Broward County Circuit Court in October.
On November 21, 2022 a hearing was held in front of Judge Levenson. A transcript of the hearing was filed by the lawyers for the School Board.
A lawyer for the School Board said they did provide “batches” of records to the BPAA but they were having trouble securing other records. The lawyer said problems arose when individuals no longer had records on their personal phones, upgraded their phones or got a new phones. “Those text messages no longer exist,” she said.
The attorney for BPAA told Judge Levenson that BTU President Anna Fusco is a public employee paid by the School Board and by law, must produce her records. “So, this distinction they’re attempting to make between private phone and public phone is meaningless here,” he said. “[T]hey simply don’t want to produce them.”
When the Judge suggested giving the School Board ten days to produce the records, their attorney said, “Well, here’s the thing. The Broward School Board doesn’t have access to these things.”
Judge Levenson responded, “Then [Fusco & Harring] need to produce it themselves, but somebody needs to produce it. The reason why Florida has the public records requirements…is because they believe in openness. And you can’t hide behind, you know, this one or that one; you have to produce the records.”
Judge Levenson continued, “So, I will give you ten days. I want you to notify the two individuals, plus the School Board, you need to respond. They need to respond specifically, either provide the records or explain why you don’t have the records. And it should be verified, so there’s someone taking responsibility.”
After learning that text messages provided by Board Chair Lori Alhadeff proved existence of communications with Fusco and Harring, Judge Levenson said, “So, when they say, no, I can’t do it, or I don’t have any, it’s not intellectually honest.”
Judge Levenson told the School Board attorney they were “getting to the end” of this matter.
“And the power that I have is, things like contempt, fines, sanctions and so forth. I don’t want to do that. I want them to cooperate,” Jude Levenson said. “But they should also comply with the law, the public records law and the court.”
Levenson said, “And I want personal responses. And if these people do not respond, they need to get a lawyer, okay. Or they need to have the School Board lawyer come in, or somebody that’s going to basically explain why they haven’t complied.”
Judge Levenson said everything must be done under oath. He said, “I want some skin in the game here, all right. It’s been since April. That’s just too doggone long.”
On Tuesday, Judge Levenson signed the order in the BPAA matter. The order says the School Board of Broward County shall produce the public records on or before December 5, 2022. The defendant “must produce” the text messages of Anna Fusco on or before December 5th. The defendant must use its “best efforts” to produce the text messages of former employee Jillian Harring.
Judge Levenson’s order states counsel for the defendant shall specify all efforts to secure these records. The orders states Defendant shall file certification under oath that all records were provided.
A hearing is scheduled for December 14, 2022 where the Court may issue an order to show cause should any records not be produced.
Lisa Maxwell, Executive Director of the BPAA, called Judge Levenson’s ruling a “Great day for the Sunshine Law and the public records act.” She told REDBROWARD a public entity such as the School Board of Broward County needs to allow the public to understand the communications of its leaders and its employees.
Anna Fusco was unavailable to comment.
School Superintendent Vickie Cartwright’s office directed our inquiries to another office at the School Board.