Escambia lawsuit over Bergosh texts dismissed, county must pay PNJ's attorneys fees
An Okaloosa County judge ruled that Escambia County "ran afoul of the First Amendment" when it sued the Pensacola News Journal and others to seek the return of Commissioner Jeff Bergosh's leaked text messages.
Okaloosa County Court Judge Jonathan Schlechter dismissed the county's lawsuit against the News Journal's parent company, Gannett, and two county residents, Jonathan Owens and Alex Arduini, on Thursday and found the lawsuit violated Florida's Anti-SLAPP law, or strategic lawsuit against public participation. The Anti-SLAPP law allows people to collect court cost and fees against governmental entities who try to use lawsuits to shut down discussion of matters of public interest.
"The Court finds that Escambia County failed to prove that its claims were with merit and not primarily because a party has exercised its right to free speech in connection with a public issue," Schlechter wrote in his order.
Schlechter also wrote that specifically to the News Journal, the county was "attempting to impose a prior restraint of speech on the press which, under these facts, runs afoul of the First Amendment."
"The county is disappointed in the outcome and is reviewing its options," Escambia County spokesperson Davis Wood said in a written statement to the News Journal.
Carol Jean LoCicero, an attorney with the Thomas and LoCicero law firm that represented the News Journal in the case, said they were grateful for the judge's ruling.
"Free speech won today," LoCicero said. "Your government sued your local newspaper at the behest of one of your elected officials using your tax dollars. That’s all kinds of wrong. The judge recognized that, threw out the lawsuit, and is making the county reimburse the fees the paper expended defending itself from its own government."
Escambia County sued the News Journal, Owens and Arduini in November under a replevin action, which is a type of lawsuit that is typically used to return physical property.
The News Journal had published multiple articles detailing Bergosh's desire to have the county medical director fired and passing redistricting plans to a political donor while asking they be forwarded to other commissioners. A grand jury later found no probable cause existed that Florida's Sunshine Law had been violated.
The messages also showed Bergosh has pre-existing relationships with the two write-in candidates who filed to run in District 1 in the 2024 election cycle. Their entrance in the race closed the primary to only Republican voters.
The text messages came from a 2022 backup of Bergosh's personal iPhone that he asked county employees to make a copy of to preserve public records. Later that year, Owens said a thumb drive with the messages was left on his desk. Owens was a longtime aide of former District 2 Commissioner Doug Underhill and unsuccessfully challenged Bergosh in the Republican primary in 2020.
The messages' existence became public knowledge last year as part of a lawsuit against the county by former county medical director Dr. Rayme Edler alleging the county falsely billed Medicare and other government agencies for ambulance services by uncertified personnel. Escambia County ultimately settled the lawsuit for $5 million with $3.5 million being paid to the U.S. government.
Owens provided Edler's attorneys with a copy of the text messages and a federal judge ruled that some of the messages were relevant to the lawsuit.
After the News Journal reported on the lawsuit in August, an anonymous source provided copies of the messages. Owens verified to the News Journal that the file appeared identical to the one he had provided to Edler's attorneys.
Arduini's only connection to the messages appears to be comments he made on a Facebook discussion page where he said, "Don't worry, we have them all" and "There are way more than a 'few' messages pertaining to county business on that thumb drive!"
Besides the handful of Facebook comments, the county presented no evidence Arduini ever possessed a copy of the messages. Arduini testified in court he never had a copy of the messages.
Bergosh told the News Journal in a written statement he would advocate for the county to appeal the ruling.
"All we have attempted to do with this lawsuit, which the Board filed filed under advice from our attorneys, was to recover confidential, privileged, data that was stolen from the county's IT department," Bergosh said in his written statement. "Social Security numbers, bank accounts, medical information, Driver's licenses — full color pictures of all of these, etc. This was never an attempt to silence anyone — because ALL of the files that were public records were already released by the county, months ago."
The county filed a redacted version of the text messages as part of the lawsuit, but many messages of public interest that would not necessarily be subject to Florida's public records law remain redacted.
Bergosh said he disagreed with the judge's decision to classify the case as a SLAPP lawsuit.
"The board will meet in executive session on Sept. 5, and I will strenuously advocate for an appeal — because this is a disappointing ruling," Bergosh said. "The court got it wrong here. This is a young judge — and I believe this will be overturned on appeal. Separately — criminal investigations and ethics investigations/proceedings continue against those who unlawfully, gleefully admit they have this stolen data — as the mere possession of this information by those who are not entitled to it is unlawful under 817.5685 Florida Statutes."
With Schlechter ruling on Thursday, all three parties are entitled to seek their court cost and attorney's fees from the county.
This article originally appeared on Pensacola News Journal: Escambia County must pay News Journal attorneys fees lawsuit dismissed