ANNALS OF DeSANTISTAN: In 'big deal' case, DeSantis argues he can invoke 'executive privilege' to conceal records. (GANNETT)

On August 4, 1822, James Madison wrote "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors."  DeSANTIS is a dangerous man.  From GANNETT: 

In 'big deal' case, DeSantis argues he can invoke 'executive privilege' to conceal records

Douglas Soule

USA TODAY NETWORK – FLORIDA

Gov. Ron DeSantis wants to invoke “executive privilege” to conceal records from public view. 

Open records advocates and media groups say how an appeals court rules on that could dramatically affect the public’s ability to get information in Florida, a state long known for transparent records laws.

DeSantis' interpretation "runs afoul of the virtually unfettered right of access and serves no public purpose," wrote organizations including the Florida Center for Government Accountability and the League of Women Voters of Florida in a friend-of-the-court brief. “In the 178 years that Florida has existed, not a single court decision has recognized the existence of any executive privilege.”

Not a single court decision, at least, until January 2023, when a Leon County circuit judge sided with DeSantis in a public records case.

Quest to find 'heavyweights' prompts case

It all started with a podcast.

Hugh Hewitt, a conservative talk show host, interviewed DeSantis on Aug. 25, 2022. They discussed, in part, the governor’s appointments to Florida's now-conservative Supreme Court. 

In selecting judges, DeSantis said he convened “a group of people I trust” to help. He described them as “six or seven pretty big legal conservative heavyweights.” But the governor added that he wasn't going to name them, because it’s “private.”

More than a month later, someone sent an anonymous public records request to the governor’s office to try to figure out those "heavyweights'" names.

After not getting the information within several weeks, that person, listed as J. Doe with the email "FloridaSupremeCourtPRR@protonmail.com,"  sued the governor.

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In response, DeSantis’ attorneys argued the request was vague and seeks information, not what’s statutorily defined as public records. They also say that an unnamed person can’t use the courts to get public records, and even if they could, the records in question would be protected by “executive privilege.”

“The Florida Constitution assigns to the Governor alone the authority to appoint justices to the Supreme Court of Florida,” they wrote. “Because of the Constitution's separation of powers, information about the Governor's deliberations involving the exercise of this authority is protected by the executive privilege.”

The governor's office did not respond to a media request.

DeSantis’ legal team maintained that releasing that information would be “contrary to the public interest” and would have a chilling effect by “limiting the Governor's ability to seek advice from others.”

“Should Respondents be required to turn over the requested information, it would undoubtedly impact the judicial appointment process,” they wrote.

The anonymous person shot back in a filing that the governor’s arguments were all wrong and accepting them “would render Florida's Public Records Act meaningless and impotent.”

“Respondents advance arguments as if Governor DeSantis were the president of the United States,” wrote an attorney for the individual. “They invite the Court to invent a broad, seemingly absolute executive privilege in Florida law against the required disclosure of public records by trying to cloak records of his official business in a privilege found in the United States Constitution and federal common law.”

But Leon County Circuit Judge Angela Dempsey ruled in favor of DeSantis.

“The power vested in the executive branch, and particularly in the chief executive, would be severely compromised if it were required to disclose confidential information concerning its decision making and deliberations as it relates to its constitutionally mandated duties,” Dempsey said, echoing wording previously used by the governor’s team.

The anonymous filer appealed, sending the case to the Florida First District Court of Appeal.

Executive power: ‘It’s a big deal’

In a separate friend-of-the-court brief, local and national news media and the First Amendment Foundation said the decision constituted a judicially-created public records exemption.

Florida’s Constitution enshrines access to public records, though the Legislature can add exemptions.

“The right to access public records is codified in Florida’s statutes and enshrined in its constitution, which establishes the sole mechanism by which the legislature may carve out discrete and narrow exemptions — an exacting process ignored by the trial court,” wrote attorneys for the media groups, which include the Associated Press and Gannett, the parent company of the USA TODAY NETWORK-Florida.

Michael Barfield, the Florida Center for Government Accountability’s director of public access initiatives, said the decision is unprecedented. 

“We’ve done exhaustive research, and there’s never been an attempt to assert or wield executive privilege in this manner in the history of the state of Florida,” Barfield said.

But, he added, the idea had been floated by the governor’s team shortly before making it in the “heavyweights” litigation, in a public records lawsuit his organization had filed regarding DeSantis’ migrant relocation program. In a controversial, headline-grabbing move in September, DeSantis flew nearly 50 Venezuelan migrants from San Antonio, Texas, to Martha's Vineyard, Massachusetts.

Barfield pointed to an October legal filing in that case in which the governor’s team argued “executive privilege” could be used to quash subpoenas, but also stated it was “not yet specifically recognized in Florida.”

“In the migrant flights case, where they first asserted this issue of executive privilege as far as we can tell, they acknowledge that no Florida court had ever weighed in on this area before,” he said. 

Barfield said if the appeals court does not overturn Dempsey’s decision, it would take Florida “down a dangerous path of secrecy."

“The ability of the public to find out what its government is up to would be eroded beyond measure,” Barfield said. “The broadness of this ruling of the trial judge would exempt from inspection anything the governor wants, and for that matter, anything any of the state [executive] agencies want."

Those include the Department of Health and the Department of Corrections.

That’s a concern, too, for Bobby Block, executive director of the First Amendment Foundation. 

“Is there a possibility that the governor could extend executive privilege to executive agencies?” Block said. “That’s a very good question. I don’t know the answer. It’s also a really frightening question.”

And it’s a question that’s only now being asked, Block said, because of a reluctance by the governor’s office to provide public records. 

“There does appear to be a pattern that when the governor’s office is being held to scrutiny or questions are being asked, he makes an appeal for some kind of exemption so he doesn’t have to give up the information,” Block said.

He pointed to recent legislation DeSantis signed into law shielding his past and future travel records and records about who makes unofficial visits to the governor's mansion.

The executive privilege case "obviously affects DeSantis right now and his run for president,” said Aubrey Jewett, a University of Central Florida political science professor, who added, the governor's team “would prefer to keep a lot of behind-the-scenes information private for fear it might look damaging to some to his presidential run.”

Still, he said it would have an effect far past the presidential race, with every future governor likely to invoke executive privilege if the circuit judge’s decision is upheld.

“It’s a big deal,” Jewett said. 

Anonymity an issue

Another sticking point between the sides is whether someone requesting public records anonymously can also use the courts to compel government entities to provide them.

“In sum, while a citizen may seek public records anonymously, the right to seek an extraordinary writ is very different,” the governor’s team said.

“If a requester can request records anonymously, it follows they can enforce the public-records laws the same way,” the anonymous person countered in a legal filing.

Ruling otherwise, the person said, would embolden governmental agencies to ignore anonymously-filed public records requests. 

“An agency could simply deny the request... and force the individual to identify themselves by filing a lawsuit,” Barfield said. “That makes no sense whatsoever. It’s impractical.”

Yet, Dempsey ruled otherwise, and now it’s up to the First District Court of Appeal.

This reporting content is supported by a partnership with Freedom Forum and Journalism Funding Partners. USA Today Network-Florida First Amendment reporter Douglas Soule is based in Tallahassee, Fla. He can be reached at DSoule@gannett.com. Twitter: @DouglasSoule.