Burning Question: Can an Employer Obtain Text Messages Between a Member and their Union Rep as a Public Record?

Today’s Burning Question: Since all reports, documents, and correspondence created or received by public employees in the performance of their work qualify as public records, and since emails and text messages qualify as correspondence, could a public employee’s text messages with his/her union representative about a work-related matter qualify as a public record that must be disclosed when duly requested?

Answer: That question is now at the center of a lawsuit filed in federal court by the Florida State Lodge of the Fraternal Order of Police (FOP) against the City of Pembroke Pines and Chief Jose Vargas. The suit, originally filed on August 11, 2025, and later amended on September 8, 2025, seeks to determine whether the city can compel two officers, one of whom is the union president, to turn over text messages exchanged on their personal cell phones concerning a workplace matter.

According to the amended complaint, the dispute began in June 2025 when Sergeant Joel Cuarezma, assigned to the Bicycle Patrol Team, sent an email to fellow officers seeking volunteers to cover staffing shortages caused by training assignments. After the message went out, Detective Scott Kushi, president of the local FOP Lodge 197, contacted Cuarezma by text message to discuss whether the solicitation complied with the collective bargaining agreement (CBA).

The two officers, both off duty, exchanged text messages using their personal phones, which the city neither owns nor pays for. The messages, according to the complaint, focused entirely on interpretation of the CBA’s provisions regarding shift changes and other labor-related issues.

The conflict arose after Captain Adam Feiner learned of the exchange and asked Cuarezma to provide copies of the text messages. Cuarezma declined, saying any follow-up would be handled through official city email. Shortly thereafter, Internal Affairs Sergeant Robert Sorensen opened an investigation and ordered Cuarezma to preserve “any correspondence” related to the incident.

On July 24, 2025, Sorensen emailed Cuarezma directing him—under Florida’s Public Records Law, Chapter 119—to produce “any and all documents, including but not limited to texts, emails, notes, or anything else in writing” related to the volunteer request. Sorensen cited §119.10, Florida Statutes, which provides criminal penalties for willful violation of public records requirements, and warned that noncompliance could be treated as insubordination.

The FOP questioned the city’s authority to demand the messages, asserting that the communication between Cuarezma and his union representative was confidential and outside the scope of public records law. In response, Sorensen emailed that the text messages were “absolutely not ‘private communications’” and stated that “the failure of Sergeant Cuarezma to produce these documents will be directly contrary to an official order and subject to the penalties listed in Section 119.10.”

The original complaint, filed in August, sought an injunction on Cuarezma’s behalf, arguing that forcing him to disclose private communications violated his Fourth Amendment right against unreasonable searches and seizures. The amended complaint, filed September 8, added Detective Kushi as a plaintiff after the city made similar demands of him.

According to the amended filing, Sorensen emailed Kushi on August 20, 2025, ordering him to produce “any and all documents” related to the same incident and warning that failure to do so would violate both the public records statute and department policy. Through counsel, Kushi responded that the city’s request was improper, stating that the records “are not public records as defined by Chapter 119, Fla. Stat.,” and that the demand was “nothing more than a request by the city to itself to obtain cell phone data of one of its employees, in violation of the Fourth Amendment.”

Days later, on September 3, 2025, Kushi was notified that he was now the subject of an internal investigation “as a result of [his] failure to provide the records requested.” The amended complaint asserts that both officers face the threat of discipline or even arrest for refusing to surrender their personal text messages.

The lawsuit seeks preliminary and permanent injunctive relief, asking the court to bar the city from proceeding with any internal or criminal action against either officer until the issue is resolved. The petitioners argue that the city’s public records requests were a pretext to sidestep Fourth Amendment protections, and that both officers had a reasonable expectation of privacy in their off-duty, union-related communications.

For firefighters and other public employees, the case highlights an emerging question in the digital age: when are private, off-duty communications about workplace issues considered public records, and when are they constitutionally protected? The US Supreme Court held in 2014 that people’s expectation of privacy in their cellphones EXCEEDS the expectation of privacy they have in their homes due to the voluminous information that modern smartphones contain, Riley v. California, 573 U.S. 373 (2014).

The court’s decision could have implications for how departments handle electronic communications involving union representatives, particularly when those exchanges occur outside of work and on personal devices. For reasons that are unclear, the suit does not allege that obtaining the text messages would infringe on employees’ rights to engage in concerted activities, thus violating state collective bargaining laws. However, that would appear to be a strong argument in most jurisdictions.

In any event, the court’s eventual ruling could clarify whether off-duty, privately conducted communications between union members about collective bargaining matters fall within the scope of a “public record” under Florida law.

Prior to drafting this post, I did reach out to a number of labor attorneys and union reps for their comments on the case. Former New Haven Firefighters IAFF Local 825 President Frank Ricci provided the following:

• It is an affront to good governance when public officials weaponize the law. This isn’t some novel legal argument that has been untested— this is a direct assault on union activity and the Constitution.
• In the end this lawfare will result in more sunshine that will draw public scrutiny on the public individuals who attempted to abuse law and the taxpayers who will be forced to pay for this absurdity.

Here are copies of the complaint and amended complaint.