County Commissioners’ Personal Social-Media Communications About County Business Are Florida “Public Records,” and Fee Liability Attaches Absent PHH-Style Reasonable-Uncertainty Clarification

I. Introduction

Case: David Bear v. Douglas Underhill, No. 24-12285 (11th Cir. Apr. 1, 2026) (per curiam) (not for publication).
Parties: David Bear (plaintiff-appellee) and Douglas B. Underhill (defendant-appellant), a former Escambia County Commissioner; the Escambia County Board of County Commissioners was also a defendant below.
Context: A political rivalry spilled into public-records litigation when Bear sought access to Facebook posts and messages connected to Underhill’s commissioner-related communications, including content Underhill had filtered/hidden.

Key issues under Florida’s Public Records Act, Fla. Stat. § 119.011 et seq.:

• Whether an individual county commissioner qualifies as an “agency” (or a “person…acting on behalf of any public agency”) for public-records purposes.
• Whether Facebook messages/posts on a personally owned account, when tied to commissioner duties, are “public records.”
• Whether attorney’s fees are mandatory upon an “unlawful refusal,” and whether the PHH “reasonable uncertainty” exception applies to a public official in these circumstances.

II. Summary of the Opinion

The Eleventh Circuit affirmed the district court’s order requiring Underhill to pay Bear’s attorneys’ fees as a sanction under Fla. Stat. § 119.12(1) for unlawfully withholding public records.

The court held:

• Agency status: Underhill qualified as an “agency” under § 119.011(2), at minimum as a “person…acting on behalf of any public agency,” when he communicated with constituents about county matters within his commissioner role.
• Public-record status: The disputed Facebook communications were “public records” because they were made/received “in connection with the transaction of official business” under § 119.011(12).
• Fees: Once the court found an unlawful withholding, fees were required; good faith/reasonableness did not negate “unlawfulness.” The New York Times Co. v. PHH Mental Health Services., Inc. exception did not apply because there was no reasonable uncertainty as to Underhill’s status and he did not act quickly to clarify it (e.g., by declaratory judgment).

III. Analysis

A. Precedents Cited

1) Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583 (11th Cir. 2015) & Belanger v. Salvation Army, 556 F.3d 1153 (11th Cir. 2009)

These cases supplied the methodological rule: federal courts interpret state statutes using the state’s interpretive rules where they differ from federal rules. The panel used them to justify a de novo, Florida-law-faithful reading of Chapter 119.

2) O'Boyle v. Town of Gulf Stream, 257 So. 3d 1036 (Fla. 4th DCA 2018)

The district court applied O'Boyle’s “scope of employment” framework to determine whether an individual is acting “on behalf of” an agency. The Eleventh Circuit approved that approach, emphasizing that Underhill used social media as a means of carrying out commissioner duties—interacting with constituents on county matters tied to Board action.

3) City of Sunny Isles Beach v. Gatto, 338 So. 3d 1045 (Fla. 3d DCA 2022)

Gatto was used to rebut Underhill’s attempt to narrow “agency” to exclude individual officials. The Eleventh Circuit cited it for the proposition that “agency” includes a “municipal officer” such as a city commissioner—supporting the broader view that individual elected officials can be agencies for Chapter 119 purposes.

4) Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633 (Fla. 1980)

Shevin provided the foundational distinction between:

• Public records: communications that transmit knowledge connected with official business (e.g., letters/memoranda intended to communicate); and
• Non-public “precursors”: certain drafts or personal notes not intended as final communications.

The panel analogized Underhill’s constituent messages to Shevin’s “letters”—final communications—rather than internal notes or drafts, reinforcing their status as “public records.”

5) Butler v. City of Hallandale Beach, 63 So. 3d 278 (Fla. 3d DCA 2011)

Underhill invoked Butler to argue that social-media-related information is not necessarily a public record. The Eleventh Circuit distinguished it: Butler concerned a blind-copy recipient list for an email not connected to transaction of official city business, whereas Underhill’s messages were directly about county issues, votes, agenda items, and constituent service.

6) Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, 189 So. 3d 120 (Fla. 2016)

Lee did the decisive work on fees: “unlawfully refused” is satisfied by a violation of the Act and does not require a showing that the agency acted unreasonably or in bad faith. The panel adopted this to uphold mandatory fees once withholding was adjudicated unlawful.

7) New York Times Co. v. PHH Mental Health Services., Inc., 616 So. 2d 27 (Fla. 1993)

PHH provides a narrow escape hatch from fee shifting where (1) there is reasonable uncertainty whether the defendant is an “agency,” and (2) the defendant acts quickly to clarify status (e.g., declaratory judgment). The Eleventh Circuit held Underhill failed both prongs: the statute and case law made his status clear, and he did not promptly seek clarification.

B. Legal Reasoning

1) “Agency” status extends to an individual commissioner acting on behalf of the Board

The panel anchored its analysis in the text of § 119.011(2), which defines “agency” broadly to include not only governmental units and officers, but also “any other public or private agency, person…acting on behalf of any public agency.”

Two independent pathways supported agency status:

• Officer-based: The court treated a county commissioner as a county “officer” within the ordinary statutory landscape (citing Florida statutes addressing commissioner compensation as “county officers”), rejecting Underhill’s attempt to rely on a Florida constitutional list that did not expressly name commissioners.
• On-behalf-of: Even if Underhill were not an “officer,” his conduct—communicating with constituents about Board matters within the “scope of employment” under O'Boyle—made him a “person…acting on behalf of” the Board.

Notably, the court did not allow a compliance-evasion theory: an official cannot conduct official communications through a personal account and then reclassify them as private merely because the account is personally owned or because use of that account violated internal social-media policy.

2) “Public records” include constituent-facing social media messages connected to official business

The court applied § 119.011(12), focusing on the “in connection with the transaction of official business” prong. It agreed the messages were not “created pursuant to a particular law or ordinance,” but held that was unnecessary because the “official business” prong was independently satisfied.

The content categories compelled (requests for action, informational requests and replies, complaints, expressions of disagreement, and Underhill’s positions on matters to be decided by the County) were treated as quintessential “official business” communications—especially where the messages referenced votes, budgets, civic center investment, and agenda coordination for the TPO.

Using Shevin, the court characterized the records as final communications meant to convey information and positions, not private drafts or internal notes.

3) Fee shifting is mandatory upon unlawful refusal; PHH is narrow and requires prompt clarification

Under § 119.12(1), once the agency “unlawfully refused” access, the court “shall” award reasonable enforcement costs including attorney’s fees.

With Bd. of Trs., Jacksonville Police & Fire Pension Fund v. Lee, the panel treated “unlawfulness” as essentially “a violation occurred,” not a fault-based standard. That foreclosed Underhill’s reliance on reasonableness or claimed uncertainty as a general defense.

The opinion then confined New York Times Co. v. PHH Mental Health Services., Inc. to its terms: even where uncertainty exists, the defendant must act quickly to clarify status (commonly by declaratory judgment). Underhill did not.

C. Impact

1) Practical reach: personal accounts can generate public records

The decision reinforces a functional approach: when an elected official uses a personal social-media account as a vehicle for constituent service, policy advocacy, vote explanations, or agenda-related coordination, the resulting communications can be public records. The ownership of the account or device is not dispositive.

2) Incentives: strong fee exposure for withholding

By relying on Lee, the opinion underscores that fee liability is not avoided by good-faith misunderstanding once a violation is found. That increases incentives for:

• early compliance with requests involving social media and messaging platforms; and
• prompt pursuit of declaratory relief if the official genuinely believes Chapter 119 does not apply.

3) Governance and records management

The case pressures local governments and officials to implement retention, search, and disclosure processes that account for:

• direct messages and comment-moderation tools (including hidden/filtered content);
• platform exports and preservation procedures; and
• clear separation (where possible) between purely personal communications and official business.

IV. Complex Concepts Simplified

• “Agency” (Chapter 119): Not just the governmental body; it can include an individual official or even a private person when acting “on behalf of” a public entity.
• “Public record”: A broad category covering documents/messages made or received in connection with official business, regardless of format (paper, email, social media, DM).
• “Scope of employment” (as used via O'Boyle): A functional test asking whether the conduct furthers job duties—here, constituent communications about county matters.
• “In camera” review: The judge privately examines disputed documents to decide what must be disclosed.
• Motion to compel: A request for a court order requiring production of withheld materials.
• Mandatory fee shifting: Under § 119.12, once unlawful refusal is found, the court must award enforcement costs/fees (subject to narrow exceptions like PHH).

V. Conclusion

Bear v. Underhill strengthens a practical, anti-evasion reading of Florida’s Public Records Act in the social-media era: an elected official’s personally controlled Facebook communications can be “public records” when they relate to official county business, and an official who withholds such records faces mandatory attorney’s-fee exposure once a violation is adjudicated. The PHH exception remains narrow—requiring genuine, reasonable uncertainty and swift action to obtain clarification—conditions the court found absent for a county commissioner engaging constituents about public matters.