DeSantis clouding Florida’s sunny open record laws?
Florida has long been known for sunshine—not just for the warm rays that illuminate its beaches, but for the light of public attention provided by some of the nation’s strictest collections and archives laws.
While years of kickbacks have gradually overshadowed the effect, supporters are sounding the alarm that this year poses the biggest threat to transparency in the state, which has coined the name “Sunshine Law” for its open government rules.
Florida Republican Gov. Ron DeSantis, weighing in on the presidential nomination, is pursuing a home state agenda that could make it hard for people to know what government officials are doing or speak out against them. In an unprecedented move for the Sunshine State, DeSantis asserted the executive branch’s right to keep key government documents secret. It also seeks to weaken nearly 60 years of national legal precedent protecting journalists and others who publish critical comments about public figures.
The Republican-led Florida Legislature appears eager to make his vision a reality. As their annual session began last week, lawmakers filed dozens of bills that would add to the state’s long list of exceptions to open government.
“The state of sunlight is at risk,” warned Barbara Petersen, executive director of the Florida Center for Government Accountability, which has tracked state public access laws for three decades.
DeSantis, who is expected to run for president after the session, has thrilled conservative activists across the country by taking on the Republican Party’s perceived political adversaries: health officials, so-called “awakened” business and public education leaders—and the press. . .
Former President Donald Trump, a potential rival and compatriot from Florida, is also well known for his criticism of the press, calling the American media “enemies of the people.” Such criticism often works well in today’s Republican Party, where the mainstream media is seen as pro-Democratic and liberal.
But that belies Florida’s historic reputation as a place where reporters and curious members of the public can unearth government data and documents that shed light on decisions made by elected officials.
Florida’s law making state records open to the public dates back to 1909, long before similar measures were taken in many other states. In 1967, he added a sunshine law requiring public gatherings. Then, in 1992, Florida voters approved a constitutional amendment guaranteeing the public’s right to access records and meetings. Ten years later, as lawmakers added exceptions, voters approved another constitutional amendment, making it harder for lawmakers to approve future exceptions.
Florida newspapers launched the first “Sunny Sunday” in 2002 to highlight the importance of public access to government information. This one-day event has since grown into the annual Sunshine Week, celebrated by media and First Amendment supporters across the country.
When Sunny Week began on Sunday this year, lawmakers in state capitals came up with a variety of proposals: some excluded additional government documents from public scrutiny; others increase the ability of the people to follow their government. But perhaps nowhere did Sunny Week get as much attention as in Florida, thanks in no small part to DeSantis’ powerful platform in which he voiced his grievances against the media.
Last month, DeSantis hosted a live “defamation panel” in an attempt to garner support for his plan to make it easier to bring defamation lawsuits against media outlets or people who post information about government officials and employees online.
“You’re slandering someone, it’s a lie, and you didn’t do your homework, you’ll have to take responsibility for it,” DeSantis said as he concluded the event. “I hope you see more and more of these around the country.”
DeSantis is trying to undermine a 1964 U.S. Supreme Court ruling that protected news outlets from libel judgments unless it can be proven they were published with “real malice”—knowing something was false, or acting with ” reckless disregard” as to whether it was true. Florida’s legislation to implement the DeSantis plan would eliminate the need to prove “actual malice” when allegedly libelous statements do not relate to the reason someone is a public figure.
Other provisions in the law suggest that anonymous news statements are false for the purposes of defamation lawsuits and treat allegations of racial, sex, or gender discrimination as inherently libelous.
Petersen said such provisions appear to be a first at the national level and could have a freezing effect on free speech.
But Republican Rep. Alex Andrade, who is the sponsor of the bill, said it was “a sincere attempt to address the problems that exist in this type of law.”
“This bill will make it easier for those who are truly affected by the defamatory statement to seek justice in the Florida courts,” Andrade said.
Defamation legislation is just one of several DeSantis administration policies of concern to the media.
Earlier this year, a Florida trial judge upheld DeSantis’ claim of “executive privilege” by refusing to provide information requested under the state’s public record law about his screening of potential state Supreme Court nominees. The case is being followed by the national media as it is being appealed.
Florida’s constitution does not specifically mention “executive privilege”. As did the US Constitution, although the courts upheld the president’s prerogative not to release documents to protect the confidentiality of advice received in the decision-making process. Governors in Oklahoma, Tennessee and Washington have also previously asserted the franchise.
Another DeSantis administrative policy has slowed access to some public records. Television station WKMG reported last month that requests for public recordings to some government agencies are sent to the governor’s office for review, sometimes delaying publication by weeks or months.
Public protests outside the Capitol were also limited. Under a DeSantis administration rule that went into effect March 1, demonstrations at the Capitol Complex are only allowed outdoors. Requests for the use of space in the Capitol Complex must come from government agencies, the Legislative Assembly, or the judiciary, must be “consistent with the official purpose of the agency” and cannot include displays of “gratuitous violence or gore” that “clearly offend the prevailing standards in the community.”
Florida’s reputation for open government was already fading before DeSantis took office in 2019, but the trend has gained momentum. In its first year, lawmakers expanded the list of personal data that should not be disclosed about various government employees. Last year, DeSantis signed into law legislation protecting information about college and university presidential candidates.
About five dozen bills have already been filed this year to propose more exemptions for open government, Petersen said. Some of them forbid the DeSantis security agency from disclosing information about the governor’s travels – even after the fact.
While DeSantis said he doesn’t support it, another bill filed this year would require bloggers to submit periodic reports to the state if they are paid to post about the governor, lieutenant governor, cabinet ministers, or legislative officials.
The cumulative effect is that “open government and public records laws are now under scrutiny,” said Bobby Block, executive director of the First Amendment Foundation, a Florida nonprofit that advocates the public’s right to open government.
“Every year we see the original intent being abandoned on a massive scale—sometimes bit by bit, sometimes bit by bit,” Block said, “and it’s definitely not like it used to be.”
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