The best laws are only as good as the motives of those who are supposed to uphold them. Florida’s once-proud “Government in the Sunshine,” having survived under eight previous governors, is now endangered by Gov. Ron DeSantis.
He’s the first Florida governor to claim an “executive privilege” exists to allow him to withhold public records, a pretext nowhere found in Florida’s Constitution, which says every governmental record is subject to public disclosure unless the Legislature has created a specific exemption for it.
There are 1,159 exceptions and counting to the open meeting and open records laws, according to the Florida First Amendment Foundation. None recognizes an executive privilege.
A Tallahassee Circuit judge named Angela Dempsey, who may soon be on the short list for a Supreme Court appointment from DeSantis, created executive privilege for him. An attorney who had filed suit to demand that DeSantis turn over documents warned Dempsey that to rule for DeSantis “would render Florida’s Public Records Acts meaningless and impotent.”
She did it anyway, ruling on Dec. 20 to allow the governor to use executive privilege in that Tallahassee court case.
Dempsey’s decision is being appealed. If it’s sustained, DeSantis could maintain that all agencies under his control have the same privilege, which would elevate a disaster for government transparency in Florida into a catastrophe.
The governor’s office also routinely slow-walks freedom of information requests, holding them for “review” for months at a time, and has created a highly contentious relationship with the capital press.
Further, DeSantis signed legislation shielding university presidential searches from public view. The law calls for three finalists to be identified in the process, but that requirement has been gamed when universities name only one finalist, effectively quashing public debate over the decision. That’s how Ben Sasse, a Republican senator from Nebraska, became president of the University of Florida.
DeSantis has virtually nullified public access to the elected state Cabinet, whose meetings are supposed to be an open window into much of the government, simply by rarely calling any meetings at all.
Now, there’s pending legislation to exempt any of the travel records maintained by the Florida Department of Law Enforcement, which is responsible for his security, that would reveal where he’s been traveling and shed light on whether he is reimbursing the state for using his official jet to sell his new book and pursue the presidency.
Those new laws (SB 1616, HB 1495) would be retroactive, deep-sixing all pending requests. They would apply also to the records of the governor’s family, the Cabinet, legislative leaders, the chief justice and people traveling with them.
When the Miami Herald and Tampa Bay Times asked FDLE last year for several weeks’ worth of DeSantis’s travel records, the newspapers said the agency released a few heavily redacted ones and withheld others with the excuse that there was a backlog of requests.
The legislators fronting for DeSantis say the bills would help protect the governor, those traveling with him and the agents who guard them. That doesn’t explain why historical data should also be exempt.
(Disclosure: The Florida Center for Governmental Accountability is in litigation with DeSantis over records dealing with his use of state funds to fly migrants from Texas to Martha’s Vineyard.)
To appreciate how radically reactionary DeSantis is, let’s look back at Florida’s open government history.
Governor LeRoy Collins, Florida’s first great reformer, urged the 1955 Legislature to pass an open meetings law for all state or local policy-making boards. He had been fighting with the Board of Control, which ran the universities, over its secret meetings.
The people, Collins told the Legislature, “have yielded to us no right to decide what is good for them to know or for what it is bad for them to know.”
The Legislature initially didn’t agree, but one legislator who had heard Collins say that, J. Emory “Red” Cross of Gainesville, tried session after session to ban secret meetings. Each bill was dead on arrival in the rural-dominated Legislature.
Cross’s “Government in the Sunshine” bill finally passed in 1967. It was the first session after the U.S. Supreme Court ordered the Legislature reapportioned to represent people, not pine trees, taking away inordinate power from the more rural areas of the state.
The same session also updated and significantly strengthened Florida’s open public records law—Chapter 119 of the statutes—which dates back to 1909.
Three future governors—Reubin Askew, Bob Graham and Lawton Chiles—were legislators in the 1967 session. So was Robert Shevin, a Miami senator who became attorney general and a fierce advocate of liberally interpreting government transparency laws. He and the courts gave expansive interpretations to both the Sunshine and public records laws.
Claude R. Kirk Jr., the first Republican governor in Florida since Reconstruction, was a showman who enjoyed vetoing Democratic bills. But he didn’t veto those.
As a U.S. senator, Chiles used Florida’s open government laws as a model for national legislation that Congress enacted in 1976. But after his election to governor in 1991, some of the reporters had quarrels with him over documents he didn’t want released.
Chiles was governor when the Legislature adopted a constitutional amendment forever guaranteeing public access to meetings and records. It came in response to a Florida Supreme Court decision that appeared to exclude agencies established in the Constitution, like the governor and Cabinet, from such access.
Then-Attorney General Bob Butterworth strongly pushed for the amendment, which voters approved by a record 87 percent in the 1992 election.
Ten years later, the public ratified another amendment requiring a two-thirds vote in each House to create or renew an exemption from the public record or open meetings laws. That majority was 77 percent.
Those referenda proved that open government is enormously popular with the people. It is as helpful to individual citizens as to the media.
From Kirk to DeSantis, governors of both parties generally understood that self-evident truth and complied with the Sunshine laws, albeit with occasional lapses and frayed relations with the Tallahassee press corps.
Askew, who served as governor from 1971 to 1979, appropriated the word “Sunshine” for his 1976 initiative amending the Constitution to include a strict ethics code for public officials that requires them to disclose their personal finances. The people passed it with 78.9 percent of their votes.
Graham, who served two terms as governor beginning in 1979, and Gov. Bob Martinez, his successor, were respected by the media for their commitment to open government.
Republican Jeb Bush, elected in 1999, and his staff occasionally had contentious relations with the media. On taking office, he refused to reveal his calendar and insisted on meeting in private with legislative leaders. But he did not stiff public records requests like DeSantis is doing, and he showed respect to the Sunshine laws.
Bush’s successor, Charlie Crist, had extolled government sunshine as attorney general. On his first day in the governor’s office, Crist publicly signed an executive order creating an Office of Open Government.
Crist’s successor, Rick Scott, had become a millionaire running a private hospital company. He was unaccustomed to public disclosures, didn’t take easily to Florida’s, and cracked the door to the ugliness we see today from DeSantis.
Steve Bousquet, a Times capital bureau chief during Scott’s regime, says Scott and his agencies “routinely foot-dragged” Chapter 119 requests. He flew on his own airplane, having sold the state’s, leaving no official record trail of his travels, and opted out of a national “Flight Aware” program, making it impossible to track the private aircraft.
But unlike DeSantis, Scott did not try to weaken the laws.
Mike DeForest, an Orlando television investigative reporter, discovered in February that DeSantis’s office has been reviewing— and delaying— Chapter 119 requests sent to agencies under the governor’s command, including the Department of Corrections, the Department of Health, and the FDLE.
More than 280 batches of records were sent to the governor’s office in 2021, wrote DeForest, with dozens returned to the agencies more than two months later and a few kept for nine months or more. This appears to be in complete contradiction to the Public Records Act, which demands government- agencies turn over public records in a “reasonable” amount of time and makes unjustified delays unlawful.
The “executive privilege” decree Dempsey signed, which was essentially drafted by DeSantis’s lawyers, is the greatest threat to open government in Florida since the 1992 amendment engraved Sunshine into the Constitution.
In that case, an anonymous petitioner identified only as J. Doe sought documents pertaining to a secret committee of “six or seven pretty big legal conservative heavyweights” that DeSantis said helps him vet candidates for appointments to the Supreme Court.
Other sources have revealed that one member of the shadow committee is Leonard Leo, the Federalist Society guru who effectively controls federal judicial appointments under Republican administrations.
Doe sued for relevant documents that weren’t forthcoming. Asserting executive privilege, the governor’s lawyers argued that executive privilege is “rooted in the separation of powers.” They also claimed that “the privilege is not for the executive but for the benefit of the public to ‘protect the effectiveness of the overall governmental system at stake.’”
It is as LeRoy Collins objected 68 years ago. Government is once again telling the public what is good or not good for them to know.
About the author: Martin Dyckman retired in 2006 from the St. Petersburg Times, where he wrote primarily about government and politics for 46 years as a reporter, state capital bureau chief and editorial writer. He lives in Asheville, NC, where he continues to observe Florida politics and writes editorials on assignment from the South Florida Sun Sentinel.