In a case that could have far-reaching implications for the state’s public-records laws, an appeals court heard arguments Tuesday in a challenge to a judge’s ruling that “executive privilege” shields Gov. Ron DeSantis’ administration from releasing records.
The appeal stems from a public-records request, filed by someone identified in court documents as J. Doe, seeking information from DeSantis’ office about people involved in discussions about appointing Florida Supreme Court justices. In a subsequent lawsuit, Leon County Circuit Judge Angela Dempsey rejected the public-records request on a series of grounds, including executive privilege.
During Tuesday’s arguments before a three-judge panel of the Tallahassee-based 1st District Court of Appeal, the plaintiff’s attorney, Phil Padovano, said that a constitutional amendment adopted in 1992 to provide public access to government records does not include an exemption for the governor’s records. No other chief executive in the state’s history has invoked such an exemption, Padovano argued.
“The concept of executive privilege has no application whatsoever in the field of public records. It never has. The right to examine a public record is a fundamental constitutional right that is subject only to the exceptions that are created by statute,” Padovano, a former judge on the appeals court, said.
The only way exemptions to the “self-executing” constitutional amendment can be established is by the Legislature passing a law or through changes to the Constitution, Padovano added.
“It is not the place of a circuit judge or even this court to create an exemption by judicial decision,” he said.
The records request is rooted in an Aug. 25, 2022, interview in which DeSantis told conservative commentator Hugh Hewitt that a group of “six or seven pretty big legal conservative heavyweights” had helped him screen candidates for appointment to the Florida Supreme Court.
Nathan Forrester, a state senior deputy solicitor general, told the appeals-court panel that executive privilege encompasses “documents whose disclosure would threaten the confidentiality that is necessary to perform an enumerated constitutional duty.”
Judge Clay Roberts pressed Forrester, who works for Attorney General Ashley Moody’s office, on the issue, asking if that would apply to correspondence between the governor, the governor’s chief of staff and the governor’s general counsel.
“Just emails back and forth talking about policy matters. You would agree that all those are public records, or do you think that there is an executive privilege that makes them exempt” from the constitutional amendment, Roberts asked.
“At that level of generality, I’m not prepared to say that they would all be covered,” Forrester said.
Roberts asked if emails between the governor, the chief of staff and the general counsel about the appointment of a Supreme Court justice would be off-limits.
“That would be executive privilege, because it’s specifically asking for a question, for information about judicial appointment, which is an enumerated constitutional duty of the governor,” Forrester replied.
Tuesday’s arguments also addressed whether Doe should have been required to reveal his or her identity in the lawsuit.
J. Doe “hasn’t met his burden to justify anonymity,” Forrester said.
“There is a strong presumption of openness in court proceedings,” he added.
Roberts asked Padovano about the issue, saying litigants have to demonstrate a need to proceed without using their names.
Padovano argued that anonymity in the legal challenge is derived from the Constitution, which allows people to make public-records requests anonymously.
“If you were going to accept the state’s position on that … you would almost have to say that you have the right to request records anonymously but that right just evaporates into thin air as soon as the government denies the request,” he said.
State and national media organizations and open-government advocacy groups have filed friend-of-the-court briefs in the case, arguing that such use of executive privilege would undermine the state’s broad public-records laws.
One brief filed by a coalition that includes groups such as the League of Women Voters and the Florida Center for Government Accountability said the circuit-court ruling “upends decades of jurisprudence interpreting” the laws.
Urging the panel to reject Dempsey’s ruling, Padovano pointed to a public-records exemption related to judicial nominating commissions, which create lists of judicial nominees for the governor. Only the votes on the nominees and the deliberation about them are shielded, he added.
“And now the governor has created by his own admission, what appears to be a shadow JNC (judicial nominating commission) of people we don’t know, we don’t know who they are. I just don’t think that that’s appropriate, under our constitutional right to public records,” he said. “It doesn’t make any sense that the governor of Florida could convene a secret meeting to help him appoint justices to our Supreme Court and that somehow the records of that meeting — I mean, just what happened, who went where — could somehow evade the constitutional right to access public records. I don’t think that makes sense.”
Speaking to reporters after the hearing, Padovano pointed to a 2022 law passed by the Republican-controlled Legislature that shielded DeSantis’ travel records from scrutiny. The travel-records exemption “supports our argument” that the records being sought by Doe are not off-limits, he said.
“If the governor wanted to, he could have asked the Legislature to pass a new set of exemptions for these private meetings that he has, but he didn’t do that,” he said.
A blanket exemption sought by DeSantis “opens the door, really, to what I would think is the destruction of the right to view executive branch government records, because they’re always going to go, ‘That’s you know, that’s my my record,’” Padovano said.
Padovano said he hoped the court would make a definitive ruling on the issue of executive privilege.
“I’d like them to put it to rest permanently. I think the one fear I have is that the court might want to, in order to avoid the question, dismiss the case on some other ground. But I don’t think it would take a great deal of courage to say that there is no such thing as executive privilege in the context of public records,” he said. “It’s never been the case in Florida. We’ve been a state since 1845. No one has ever said that.”
–Dara Kam, News Service of Florida
Carol Fisher says
Obviously he learned from his buddy Donald Duck
Larry says
Just more evidence that we have two different justice systems, one for the rich, powerful & privileged and the rest of us. The Florida legislators are stacked with Republicans doing the bidding of DuhSantis and his extreme bills and politics.
Enough says
And there it is!! DUH Santis is just like his daddy Trump!! And just like the dick-tator that Chump is, so is his peon! Above the law! Do whatever you want and keep the public in the dark. Free Reign!! We are all aware that the Repubs are corrupt and don’t care about the people. Even the “make believe Fox News” is getting wise!!
Jane Gentile-Youd says
Freedom? DeSatan is a totalitarian nut-cake. He needs to go; in my opinion,. In my 48 years living in Florida I have never seen a governor as tyrannical as this self-centered jackass of a narcissistic. Ask me my opinion and I’ll tell ‘ya…
R.S. says
Gosh! The micro-Trump now thinks he, too, is above the law? We have got to get rid of this guy and send him out to pasture.
Callmeishmael says
He’s hell bent on becoming Dark DeSatan. And this guy wants to be President someday.
Joe D says
Well…not sure why ANYONE should be surprised…if our Governor doesn’t LIKE a law he has his puppet legislators CHANGE the law to what our Governor WANTS!
Those PESKY SUNSHINE LAWS again!?! Designed to prevent “back room” deals, and government MISCONDUCT, by insisting that records of meetings and government proceedings be open and accessible within a reasonable time after the fact. Of course these would not involve SECURITY PLANNING issues, and other meetings, until sometime later (30-60 days perhaps), once having the information be made public, no longer poses a SAFETY threat ( like knowing the people the Governor has met with and his schedule of official activities 30-60 days after the fact). He has refused to do this in the past year.
The laws are designed so that meetings and official government proceedings are open and visible to the citizens who ELECTED him, and to outside authorities whose job it is to prevent misuse of PUBLIC power for PERSONAL GAIN or to favor a SPECIAL INTEREST group.
Of course our Governor is not NEW in wanting deals to be conducted in SECRET …like using Florida taxpayers money to secretly pay (?something about the money being left behind a dumpster?) for transporting TEXAS migrants from TEXAS, to northern Democratic run Cities. An activity (at the time) was an ILLEGAL USE of Florida taxpayers money…. but PRESTO CHANGEO.. the law was CHANGED at the Governor’s request by the current Florida Legislators (see how EASY that was)! NO PROBLEM…that PESKY LAW is now GONE! Now let’s start UNDOING the REST!***that was SARCASM ***
But as Florida VOTERS, we have no one to BLAME but OURSELVES…it’s not like he wasn’t ALREADY in office for PRIOR terms, it wasn’t like Floridians didn’t ALREADY know how this Governor BEHAVES…and he was re-elected ANYWAY.
The ONLY good thing about the last year, is that we will NOT have a PRESIDENT DeSANTIS (at least not in 2024)…but 2028….hummm?
Deborah Coffey says
Welcome to Florida, the First Fascist State in America! Sun and fun if you obey Dear Leader.
The dude says
Floriduh is definitely NOT the sunshine state… from the Flagler county school board, to the Palm Coast city council, all the way up to meatball Ron’s office.
They all want operate in the dark. Like the rats they are.
Me says
Corruption at its finest.
Edith Campins says
Republicans,..turning us into a third world dictatorship one politician at a time.
Nephew Of Uncle Sam says
You want change? Start Voting Blue or more to center republicans, why keep whining when many other choices are around. Start by Voting for Adam Morley for the State House seat to replace Renner who allowed many of the things people yell about in Florida. While you’re at it go to Katie’s site and sign up for a Mail In Ballot, you’ll thank yourself later.
Laurel says
Nephew: While you were on Kaiti’s website, did you look at the upcoming roster of potential, local candidates? Fifteen Republicans, one Democrat and one NPA. All the other seats do not have party shown. Anyone running for election here in Flagler County knows they cannot be elected unless they are Republican. Most of them, I would guess, are somewhat affiliated.
I hope that changes. There is much to whine about.
Samuel says
Once again DeathSantis thinks he is above the law, he is not but he will do his usual corruption tactic to make him above the law. Can’t wait until he is history as governor and then the State of Florida will be a place once again where people want to move to.
Ed P says
Hey Sammy,
Oh yah, Florida also ranks #1 for net migration. After Florida, Texas and North Carolina rounded out the top 3 states for migration.
Ask yourself why?
Pogo says
@It is known
Misery loves company, and a fool is born every minute.
The dude says
Because the olds are easily duped.
Laurel says
How about young and dumb? Back to your phone.
Skibum says
DeatSantis has much to hide, and much to be politically and personally embarrassed about, so it is no wonder he is now trying so hard to put his despicable record of “governance” under lock and key. While he may be temporarily able to keep Floridians and the public’s right to know hidden, I hope the courts will rule in the public’s favor as the law intended because there was absolutely no exception carved out just for him. As much as he railed against the orange Jesus during his run for prez, he is a mini-trump and thinks he is above the law. When will this stop?!
Pogo says
@FWIW
DeSantis is merely expanding the natural progression of this new dark age that after all is funded by dark money.
No deposit, no return, no receipt, no one to name — no one to blame (except ourselves)
https://www.google.com/search?q=dark+money
Sherry says
Growing FASCISM one step at a time!
Laurel says
“Penalties for Violations: The Florida Sunshine Law enforces penalties for violations, including misdemeanors and fines. Individuals found in breach of the law may face legal consequences as prescribed by the statutes governing public access to governmental proceedings and records.” – Wikipedia
The Sunshine Law was created to stop people like Ron DeSantis. He is destroying Florida.
Ed P says
Not very many fans of Governor Ron DeSantis posting here at Flagler Live. And may I point out so respectfully and eloquently.
May 7th 2024, Florida again ranked #1 in the nation for education. Two years in a row.
U.S. News ranked Florida’s economy #1, natural environment #13 , crime and corrections #13, and #9 state overall and all without an income tax.
Of course not everything is perfect but Florida ranks in the top 25 percentile in most categories and consistently above 50 percent in EVERY category.
Guess there just no pleasing some people.
FlaglerLive says
Ed P’s figures are owed a bit of a corrective. The USNews numbers are based on self-reported data from in-state testing and in-state standards. Florida has been notorious in weakening its K-12 standards (which even USNews recognizes). The state is benefiting from a pre-DeSantis focus that started more than a couple o decades ago to strengthen the state university system. That’s certainly borne fruit, though DeSantis is damaging that catastrophically by causing a net migration out of the system by a large proportion of faculty who prefer not to have their academic freedom corrupted by a censoring imbecile. More to the point of education scores at the K-12 level: SAT, ACT and National Report Card scores, all of which are standardized across states, show a very different picture for Florida, with the state ranking dismally low in SAT scores, quite low in ACT scores, and higher in National Report Cards only in a couple of regards, with most scores on that test finding Florida students near or below the national average.
Ed P says
If corrections are the soup de jour, ( I like mine hot ) Florida still outperformed the nation k-12 in 15 of 18 categories and is ranked 2nd for improving the high school graduation rate.
It’s still nothing to scoff at and certainly outperforms either New York or California.
When you look at liberal accomplishment do you parse, slice, dice, and critique every part? It’s okay to heap a little praise upon the other team instead of always throwing cold water on them.
FlaglerLive says
Nothing to do with “teams,” liberal or conservative. Facts and accurate analysis matter. And again, in your response, you re-state the same tendentious categories from the USAToday ranking that does not hold up when the three nationwide standards referred to previously apply.
Sherry says
Now, now Flaglerlive . . . some people look very, very hard for any kind of evidence to back up their agenda. LOL! LOL!
The dude says
#1 in education???
This state is in no way shape or form anywhere near the number one when it comes to education.
That is unless you are only counting the confederate states…
We moved away specifically because of the schools. We owe our last school age child better than what the Flagler county or St. John’s county schools offered.
MAGA on dude… by all means, but check your math in the future before spouting off such foolishness.