By Jim Saunders ©2023 The News Service of Florida
TALLAHASSEE — State and national media organizations and open-government advocacy groups last week urged an appeals court to reject arguments that “executive privilege” shields Gov. Ron DeSantis’ administration from releasing records.
Two friend-of-the-court briefs, filed by media organizations and groups ranging from the Associated Press to the League of Women Voters of Florida, said the 1st District Court of Appeal should overturn a Leon County circuit judge’s decision that backed DeSantis’ arguments on executive privilege.
The briefs said such an executive privilege would undermine Florida’s longstanding public records law.
“Put simply, Florida’s black-letter law holds that courts may not judicially create exemptions to Florida’s constitutional right of access to public records,” attorneys for 13 media organizations and the First Amendment Foundation wrote in a brief filed Monday.
Another brief filed Monday 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 public-records law.
“In the 178 years that Florida has existed, not a single (other) court decision has recognized the existence of any executive privilege,” attorneys for the groups wrote.
The issue went to the Tallahassee-based appeals court in January after Circuit Judge Angela Dempsey rejected a public-records lawsuit on a series of grounds, including executive privilege. Dempsey wrote, in part, that the “purpose underlying the executive privilege supports its recognition here.”
“To effectively discharge his constitutional duty, the governor must be permitted to have access to candid advice in order to explore policy alternatives and reach appropriate decisions,” she wrote, citing rulings from the U.S. Supreme Court and other states. “The interest in maintaining the confidentiality of the executive is vital to the public, as it fosters informed and sound gubernatorial deliberations and decision making.”
The case 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.
A person identified in court documents as J. Doe filed a public records request seeking information from DeSantis’ office about the group of people involved in the Supreme Court appointment process.
The anonymous requester, after not receiving records, filed a lawsuit in circuit court.
In a Jan. 3 decision, Dempsey rejected the lawsuit on a series of grounds, including saying the requester did not provide a “sufficiently specific” request for records. But the part of the ruling that backed the DeSantis administration on executive privilege has spurred most of the interest in the case.
As an example, partially quoting from a federal court precedent, Dempsey wrote that what is known as the communications privilege “allows a chief executive to withhold materials that reflect executive decision making and deliberations and that the chief executive believes should remain confidential. The privilege applies not only to materials viewed by the chief executive, but also to records solicited or received by the chief executive or his or her immediate advisers who have ‘broad and significant responsibility’ for advising the chief executive. The privilege is rooted in the separation of powers doctrine and ‘derives from the supremacy of the Executive Branch within its assigned area of constitutional responsibilities.’”
But attorneys for J. Doe wrote in a June 29 brief at the appeals court that Dempsey “invented something previously unknown to Florida law: an ‘executive privilege’ against the constitutionally mandated disclosure of public records. In doing so, the trial court disregarded the unambiguous text of the Florida Constitution, which creates a right of access to public records in the absence of specified circumstances that are not present here.”
The media organizations and other groups that filed briefs this week were the Associated Press; Cable News Network, Inc.; CMG Media Corp., doing business as Cox Media Group; Gannett Co., Inc.; Graham Media Group, Inc.; The McClatchy Company LLC, doing business as the Miami Herald; The New York Times Co.; Nexstar Media Group, Inc.; Orlando Sentinel Media Group; The E.W. Scripps Co.; Sun Sentinel Media Group; Times Publishing Co.; NBC Universal Media, LLC; the First Amendment Foundation; the Florida Center for Government Accountability; Integrity Florida Institute, Inc.; the League of Women Voters of Florida and the League of Women Voters of Florida Education Fund; and American Oversight.
Neither the News Service of Florida nor WMNF are involved in the case.
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