A Mostly Bleak Legislative Session for Open Government and the First Amendment in Florida

New legislation (SB 400), which still requires Gov. Ron DeSantis’ signature, would end the practice by agencies of seeking declaratory judgements concerning public-records requests — that is, asking a court to decide whether the information sought is confidential or exempt from release.

“This practice drags out requests and makes access to government information more expensive,” the foundation wrote in in a report summarizing the recently concluded regular session.

“The press and individuals seeking records may be left with costly legal fees even if a court finds that the records are subject to disclosure. Declaratory actions restrict access to public records to only those with the time and money to defend their public records request,” the report says.

The foundation is an organ of the Florida Press Association, the Florida Society of News Editors, and the Florida Association of Broadcasters intended “to ensure that public commitment and progress in the areas of free speech, free press, and open government do not become checked and diluted during Florida’s changing times.”

By the foundation’s count, the Legislature approved 14 new exemptions and renewed eight.

Among exemptions the foundation decried are House Bill 1311, which closes Public Service Commission meetings in which confidential business information is discussed in the interest of allowing companies “to fairly compete within the marketplace.” However, the foundation notes: “Utilities in Florida are regulated monopolies — there is no competitive marketplace. This argument is meritless.”




Another, House Bill 1055, removes a requirement that companies contracting with state agencies formally request trade-secrets protection regarding the money they are paid and their pricing, thereby imposing automatic shields. “The bill undermines confidence in government spending and transparency,” the foundation said.

Still: “One of the biggest threats to transparency this legislative session was not an overbroad public records or Sunshine Law exemption but the limited participation at committee meetings and restricted access to legislators,” the report says.

That was because of protocols intended to restrict COVID transmission.

“Spirited protests and debates were absent. Lawmakers did not have to face constituents at the Capitol. All while the rest of the state was open for business. The Capitol eventually reopened to the public — the week immediately following the end of session.”

The foundation highlighted other restrictions on First-Amendment rights, including House Bill 1, the DeSantis-led initiative to criminalize participation in protests that turn violent, even if a participant had no hand in that violence. The governor has already signed it into law.

“The overbroad definition of riot and increased penalties may deter protestors and journalists from exercising their First Amendment rights, fearing criminal sanctions for mere presence at a peaceful protest that involves violence or a public disturbance, as determined by law enforcement officers at the scene of the protest,” the report says.

It also cited Senate Bill 7072, the social media crackdown legislation that the governor signed on Monday.




“The bill prohibits companies from removing (deplatforming) candidates for office and censoring ‘journalistic enterprises,’” the foundation noted.

“The bill is likely preempted by Section 230 of the federal Communications Decency Act of 1996. In addition, by forcing social media websites to carry speech that violates companies’ terms of use policies, the bill runs afoul of the First Amendment freedom of speech.”

A related exemption classifies information gathered during attorney general investigations into tech companies confidential,  even after these investigations are concluded, the foundation said.

–Michael Moline, Florida Phoenix