Miami Herald: Public Service Commission halts own BlackBerry texting

This article was published by the Miami Herald on September 10, 2009

Public Service Commission Chairman Matthew Carter Wednesday ordered his agency to disable all text messaging on state-issued Blackberrys as questions continued about whether PSC staff used the devices to skirt public records laws.

And another commissioner, Nathan Skop, asked the PSC’s inspector general to take additional measures to squelch such communication, including banning all handheld electronic communications devices from the PSC hearing room and purchasing software to allow the commission more carefully monitor Blackberry use.

The commission has been under fire for weeks. The Florida Department of Law Enforcement is investigating the PSC for potential ethics violations, and the Senate president has said he is open to holding hearings to investigate the commission’s relationships with the utilities it regulates, such as Florida Power & Light and Progress Energy. Both utilities are seeking rate increases of about 30 percent beginning next year.

Three staff members who have been asked to resign or placed on administrative leave for exchanging private messaging codes with an FPL attorney were allowed to continue using their Blackberrys — which public records experts say will make it difficult to recover the instant messages, if there are any.

“This is extremely troublesome to me,” said Barbara Petersen, executive director of the Florida First Amendment Foundation, who said the messages remain on the internal memory of Blackberry phones.

“Such memory can be intentionally destroyed, however. Allowing the staffers to take their BlackBerrys could be extremely problematic,” she said.

PSC General Counsel Booter Imhof, however, said that wasn’t a concern. “I don’t see that as a problem,” he said. “Everybody has been very cooperative in meeting public records requests. I haven’t seen anybody do any of that kind of thing.”

Each BlackBerry has a personal identification number known as a PIN, which users can share with others to communicate through instant messages. PIN messages are unique to BlackBerry users. The messages are not routed through e-mail servers, so no paper trail is created.

Petersen said forensic technology experts can recover PIN messages by examining residual memory of the individual Blackberry or through special software that captures the messages.

Larry Harris and Cindy Muir — two of the four staff members who gave their PINs to FPL attorney Natalie Smith — told the Herald/Times they never exchanged PIN messages with anyone.

Roberta Bass, the aide to Commissioner Lisa Edgar who gave Smith the PIN to Edgar’s phone, could not be reached. Nor could Carter’s aide, William Garner, who gave his own PIN to Smith.

Bass and Garner have been placed on administrative leave. Muir has received no administrative penalties.

And Harris, aide to Commissioner Nancy Argenziano, was asked by his boss to resign on Saturday.

On Wednesday, Imhof hired him as a senior attorney in the PSC general counsel’s office, where he had worked previously.

Edgar has asked that the commission review its policies for handling instant messages. She told the Herald/Times she is unfamiliar with the technology and could not recall ever receiving a PIN message from FPL.

“I don’t PIN,” she said.

The PSC considers PIN messages and Blackberry text messages “transitory,” and does not have a policy of recording them. Carter’s order on Wednesday was aimed at stopping such communication because it is “not captured through our existing e-mail system.”

Carter said he believed the commission’s policy was consistent with how other agencies approach Blackberry record-keeping.

The continuing turmoil at the agency has prompted one PSC commissioner and a state senator to call for investigations and reforms. Senate President Jeff Atwater said Wednesday through a spokeswoman that it may be time for the Legislature to revamp the way to PSC works.

And the FDLE said its investigation of the agency is a top priority. The department will issue a report “in the near future,” FDLE spokeswoman Heather Smith said.

The PSC is an arm of the Legislature that is run by five commissioners, each of whom is nominated by a 12-member panel of legislators and citizens and then appointed by the governor.

“The Legislature sets up the process and it’s possible there are flaws in the process,” said Jaryn Emhof, spokeswoman for Atwater.