Florida was once a leader in open records and open meetings. It enacted its original Sunshine Law in 1909. Democratic Sen. J. Emory “Red” Cross of Gainesville sponsored a major expansion every year for 10 years until it became law in 1967. Voters enshrined the law in the state Constitution in 1992. Other states modeled their own reforms on Florida’s.
There was a time in the early 1990s, and I remember it well from my days in Bartow, when you could walk into any government office, ask to examine any correspondence, any document, any bills, and the people behind the counter would have to produce the material for you right then and there. No costs, no redactions, no fuss. Even in Polk County.
Agencies were not allowed to have gatekeepers. Any government employee was expected to comply with the Sunshine Law. Once a year news organizations across the state would send reporters in droves–back when there were more than a dozen reporters in the state and there were such things as newspaper buildings–to test the agencies’ compliance, and to report back to readers.
That was before the state became the retirement home of half of America’s reactionaries. Open government in a one-party state is now a losing battle. The Sunshine Law is dying.
There were more than 1,100 exemptions to the law by the time Ron DeSantis took office. He has been among its biggest enemies. Last year lawmakers made the travels of DeSantis and anyone who uses the state plane secret, even after the travel was completed. The travel logs of leaders are also secret in Syria, North Korea and Iran. That gives you an idea of the kind of government DeSantis identifies with. It’s not open government, and his down ballot minions in local government are following his lead.
There may be closer to 1,200 exemptions by the time he leaves office, with 20 approved last year and more than a dozen (so far) filed this year. With rare exceptions, these are very bad bills. There’s an entirely unconstitutional attempt to upend defamation laws and give government or powerful officials a fast track to suing their critics–the sort of thing you’d expect in authoritarian countries, or maybe in the fiefdom of Mar-a-Lago, not in an American state. But our expectations about open government appear to be out of date.
Secrecy by process has replaced a presumption of openness, crippling the Sunshine Law.
Some of the proposals in the current legislative session are just absurd, like one to keep government bidding secret, or an attempt to shield the identity of people who adopt pets from government run shelters. The legislation claims it would prevent someone from harassing a new pet owner. There are no such cases. It’s secrecy for secrecy’s sake. We saw this with Marsy’s Law, which was intended to give a measure of privacy to some actual crime victims. It’s ended up being a license for government and police agencies to black out entire histories from government reports, often illegally, whether the identity being protected is a victim of a crime or not.
The agencies have nothing to worry about. They’re rarely challenged. If anyone does challenge–as a few organizations did successfully challenge the ridiculous claim that cops shooting others are “victims” and so should not be identified–lawmakers will just file yet more exemptions, as they have under Marsy’s Law this session. They’ve also filed an exemption to autopsy reports of suicide victims. There’s no rationale for it except to revert back to 19th century stigmas that won’t help us understand trends and develop preventive measures.
The focus on each year’s additional exemptions is important. But it’s missing the forest. The battle, mostly lost, is not those individual exemptions. It’s the totality of what’s been lost over the years: a presumption of openness has been replaced by the reverse, thanks to an unspoken but very effective bureaucracy of secrecy by process. The secrecy isn’t explicit. Most of your average government gatekeepers would never think of themselves as suppressing information. But the rules they have in place, allowing them to delay, obfuscate, censor and charge a ton of money before they comply, amount to the same thing: secrecy as standard operating procedure.
On their own, the exemptions may not be much. But the cumulative effect has upended the purpose of Florida’s Sunshine Law. In its original form anything shielded from the Sunshine Law had to be justified and narrowly limited to the exemption. It’s now the reverse. The burden is on anyone looking for records to scale the obstacles, put up with infuriating bureaucratic delays, and pay the price, which can be very steep. Agencies should be the ones facilitating openness: it’s their job. Instead, they now give you innumerable reasons why you’re out of luck, by rote.
With so many exemptions on the books, government agencies are required to review every requested record to make sure its release doesn’t violate one of those 1,100 exemptions. The reviewing process is necessary. But it’s turned into an obstacle of its own, enabling agencies automatically and methodically to hold a record hostage on the excuse that it must be reviewed and censored. But that’s just an excuse. The purpose is to delay, obscure, wear down, deny. The agency doesn’t just hold all the records. It improvises the rationales for suppression at will.
If you persist, it’ll cost you. Since agencies have to review records, they now bill staff time for the review to the person requesting the records, even though it’s the agency’s burden to conduct the review, not the requester’s problem. They’re supposed to bill at the lowest clerical cost. But they can interpret those costs, too, and claim they put in 20 or 30 hours when they really put in 20 minutes. There’s no way to verify those records without yet more requests.
The bills can add up quickly. Most people cannot pay. What news organizations are left can hardly afford the kind of legal bills they once could, when they’re not even holding on to their staff. Lawmakers know that. They also know that public record exemptions have become a built-in device to deny not only exempt records, but all records, now that even releasable records can be held hostage to legalized obstacles and costs.
Yet we still pretend we have open records. The Sunshine Law may have some verbal similarities with the law Cross sponsored in 1967 and voters approved in 1992. In everyday applications–in the routinely censoring hands of government agencies–it has been shredded by process and shielded by arrogance. Short of suing, you’re out of options, and sunshine.
Pierre Tristam is the editor of FlaglerLive. A version of this piece airs on WNZF.