The audacity of DeSantis and ‘executive privilege’ | Editorial

Florida's broad public record law does not offer the governor "executive privilege" claims as a trial court allowed, a claim that is now being defended on appeal by Attorney General Ashley Moody, who should be defending the law instead.

A few former Florida governors cared no more for open government than Ron DeSantis does, but he’s the first one to claim an “executive privilege” to conceal public records that the Constitution and the laws say he should disclose.

The pure audacity at work here is the issue in an enormously consequential case, J. Doe v. Ron DeSantis, that was recently argued before a three-judge panel of the First District Court of Appeal. The case will reverberate long after the end of DeSantis’ reign, 20 months from now.

So will the bad precedent that Attorney General Ashley Moody is setting by representing the governor in this case rather than the people of Florida.

She has a legal duty to defend challenged Florida laws and to represent state agencies in court, but this is not that sort of case.

Serving the wrong master

DeSantis’ personal abuse of his office is the issue, and Moody is attacking the public records law and a constitutional guarantee that the people ratified. She should have told DeSantis to hire his own lawyers or use his general counsel to defend the indefensible.

Moody is an independently elected constitutional officer. She doesn’t work for DeSantis.

“It is, after all, the people’s government,” said former Attorney General and Governor Charlie Crist, in an interview with the Sun Sentinel Editorial Board.

If he were still attorney general, Crist said, he would have declined to represent DeSantis because access to public records is a constitutional right and there is “a public interest in protecting it.”

Since 1992, when voters amended the Florida Constitution to expressly overrule a bad Supreme Court decision, it has guaranteed “every person” the right, with exemptions, to inspect or copy any public record “made or received” by all three branches of government.

The exemptions are either specified in the Constitution, which are few, or those enacted by two-thirds votes of both houses of the Legislature, of which there are now more than 1,000 — including the DeSantis-inspired retroactive secrecy over the governor’s travel and security.

Blanket claims of ‘privilege’

None of those exemptions are relevant to this case, nor have any hinted at any “executive privilege,” with its faint echoes of Richard Nixon and Watergate.

The Sun Sentinel and Orlando Sentinel are represented with other news organizations in a friend-of-the court brief supporting the anonymous plaintiff, J. Doe, who appealed Tallahassee Circuit Judge Angela Dempsey’s trial court decision in DeSantis’ favor.

Dempsey’s justification of “executive privilege” was on shaky ground during the appeals court’s oral arguments. The court also expressed concern with Dempsey’s conclusion that “Doe” wasn’t entitled to sue anonymously.

Phil Padovano, a former DCA judge representing Doe, pointed out that the law allows citizens to make public records requests anonymously. To say they can’t sue anonymously to enforce it would mean that the “right just evaporates into thin air as soon as the government denies the request,” he said.

The heart of the matter

The court should not use Doe’s anonymity as a procedural excuse to avoid the real issue here. Doe sued to get records identifying members of an unofficial panel that has advised DeSantis on appointing a record seven Florida Supreme Court justices.

Two appointees, now on a federal appeals court, confirmed to the U.S. Senate Judiciary Committee that the secret panel was chaired by the Federalist Society’s Leonard Leo, who orchestrated the right-wing takeover of the U.S. Supreme Court.

DeSantis told conservative commentator Hugh Hewitt about the unnamed “six or seven pretty big legal conservative heavyweights” screening his Supreme Court candidates.

Without knowing who those secret advisers are, there’s no clue as to what clients or causes they might be promoting.

Conspicuous hostility

The DeSantis administration has been conspicuously hostile to public records requests generally.

American Oversight, one of several public interest groups that filed briefs in the Doe case, is suing the governor separately over his stalling tactics.

The litigation, filed two months ago, itemizes 12 requests that it said had been pending for at least 11 months and as long as three years.

The Washington Post is also suing for DeSantis’ travel records.

Public records requests have long been instrumental in Florida news organizations, revealing what politicians and bureaucrats prefer to hide. Examples include the incompetence that led to the deaths of hundreds of children in state care, the exposé of an outrageously overpriced “Taj Mahal” courthouse, and abuses in school voucher programs.

A former legislator’s lawsuit compelled DeSantis’ Department of Health to again begin posting critical COVID-19 data last year. That settlement also cost the state more than $152,000 for the plaintiff’s legal fees.

Former Attorney General Robert Shevin (1971-1979) made his office into Florida’s leading champion of government in the sunshine, and his successors mostly followed that example.

Moody’s preference for “executive privilege” over the public’s right to know doesn’t just erase the tradition. It also forecasts what kind of governor she would be.

The Sun Sentinel Editorial Board consists of Opinion Editor Steve Bousquet, Deputy Opinion Editor Dan Sweeney, editorial writer Martin Dyckman and Editor-in-Chief Julie Anderson. Editorials are the opinion of the Board and written by one of its members or a designee. To contact us, email at letters@sun-sentinel.com.