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District Court of Appeal weighs 'executive privilege'

1st District Court of Appeal
1st District Court of Appeal

TALLAHASSEE — In a case that could have far-reaching implications for the state’s public-records laws, an appeals court heard arguments Tuesday in a challenge to a judge’s ruling that “executive privilege” shields Gov. Ron DeSantis’ administration from releasing records.

The appeal stems from a public-records request, filed by someone identified in court documents as J. Doe, seeking information from DeSantis’ office about people involved in discussions about appointing Florida Supreme Court justices. In a subsequent lawsuit, Leon County Circuit Judge Angela Dempsey rejected the public-records request on a series of grounds, including executive privilege.

During Tuesday’s arguments before a three-judge panel of the Tallahassee-based 1st District Court of Appeal, the plaintiff’s attorney, Phil Padovano, said that a constitutional amendment adopted in 1992 to provide public access to government records does not include an exemption for the governor’s records. No other chief executive in the state’s history has invoked such an exemption, Padovano argued.

“The concept of executive privilege has no application whatsoever in the field of public records. It never has. The right to examine a public record is a fundamental constitutional right that is subject only to the exceptions that are created by statute,” Padovano, a former judge on the appeals court, said.

The only way exemptions to the “self-executing” constitutional amendment can be established is by the Legislature passing a law or through changes to the Constitution, Padovano added.

“It is not the place of a circuit judge or even this court to create an exemption by judicial decision,” he said.

The records request 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.

Nathan Forrester, a state senior deputy solicitor general, told the appeals-court panel that executive privilege encompasses “documents whose disclosure would threaten the confidentiality that is necessary to perform an enumerated constitutional duty.”

Judge Clay Roberts pressed Forrester, who works for Attorney General Ashley Moody’s office, on the issue, asking if that would apply to correspondence between the governor, the governor’s chief of staff and the governor’s general counsel.

“Just emails back and forth talking about policy matters. You would agree that all those are public records, or do you think that there is an executive privilege that makes them exempt” from the constitutional amendment, Roberts asked.

“At that level of generality, I’m not prepared to say that they would all be covered,” Forrester said.

Roberts asked if emails between the governor, the chief of staff and the general counsel about the appointment of a Supreme Court justice would be off-limits.

“That would be executive privilege, because it's specifically asking for a question, for information about judicial appointment, which is an enumerated constitutional duty of the governor,” Forrester replied.

Tuesday’s arguments also addressed whether Doe should have been required to reveal his or her identity in the lawsuit.

J. Doe “hasn’t met his burden to justify anonymity,” Forrester said.

“There is a strong presumption of openness in court proceedings,” he added.

Roberts asked Padovano about the issue, saying litigants have to demonstrate a need to proceed without using their names.

Padovano argued that anonymity in the legal challenge is derived from the Constitution, which allows people to make public-records requests anonymously.

“If you were going to accept the state’s position on that … you would almost have to say that you have the right to request records anonymously but that right just evaporates into thin air as soon as the government denies the request,” he said.

State and national media organizations and open-government advocacy groups have filed friend-of-the-court briefs in the case, arguing that such use of executive privilege would undermine the state’s broad public-records laws.

One brief filed 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 laws.

Urging the panel to reject Dempsey’s ruling, Padovano pointed to a public-records exemption related to judicial nominating commissions, which create lists of judicial nominees for the governor. Only the votes on the nominees and the deliberation about them are shielded, he added.

“And now the governor has created by his own admission, what appears to be a shadow JNC (judicial nominating commission) of people we don't know, we don't know who they are. I just don't think that that's appropriate, under our constitutional right to public records,” he said. “It doesn't make any sense that the governor of Florida could convene a secret meeting to help him appoint justices to our Supreme Court and that somehow the records of that meeting — I mean, just what happened, who went where — could somehow evade the constitutional right to access public records. I don't think that makes sense.”

Speaking to reporters after the hearing, Padovano pointed to a 2022 law passed by the Republican-controlled Legislature that shielded DeSantis’ travel records from scrutiny. The travel-records exemption “supports our argument” that the records being sought by Doe are not off-limits, he said.

“If the governor wanted to, he could have asked the Legislature to pass a new set of exemptions for these private meetings that he has, but he didn’t do that,” he said.

A blanket exemption sought by DeSantis “opens the door, really, to what I would think is the destruction of the right to view executive branch government records, because they're always going to go, ‘That's you know, that's my my record,’” Padovano said.

Padovano said he hoped the court would make a definitive ruling on the issue of executive privilege.

“I’d like them to put it to rest permanently. I think the one fear I have is that the court might want to, in order to avoid the question, dismiss the case on some other ground. But I don't think it would take a great deal of courage to say that there is no such thing as executive privilege in the context of public records,” he said. “It's never been the case in Florida. We've been a state since 1845. No one has ever said that.”