A partial DeSantis court victory means less sunshine | Editorial

The worst fears did not happen when a Florida appeals court sidestepped Gov. Ron DeSantis’ preposterous claim to have an “executive privilege” to flout the public records law.

Even so, the outcome leaves state government in more shadow and less sunshine than before.

On balance, it was a win for DeSantis in the First District Court of Appeal. He lost only in the sense that he did not get blanket approval for executive privilege as an excuse to refuse to share his secrets with citizens to whom the Florida Constitution and laws entitle them.

The court’s refusal to rule on the point leaves him free to raise it again whenever he’s sued to make him obey the law. Sooner or later, a higher court may put him in his place. But until then, a court has handed him a free ticket to delay, delay and delay.

So what’s DeSantis hiding? We still don’t know.

Request was too broad

The worst part of this ruling was that J. Doe, the anonymous plaintiff who sued to find out who secretly advises DeSantis on Supreme Court appointments, did not make the original public records request specific enough.

“What I’m more concerned about is the ruling on specificity,” said Michael Barfield of the Florida Center for Government Accountability, in an e-mail to the Sun Sentinel Editorial Board. “Never before has a Florida court applied a specificity requirement to the Public Records Act. That will have much broader implications for requesters. It will also allow an agency to dither about what a requester is seeking and lead to increased fees assessed by an agency.”

The three-judge panel objected that Doe had “broadly requested records between many people during an unspecified period of time,” which would have required the records custodian “to consult with the Governor to determine exactly who he was referencing.”

“This is akin to an interrogatory seeking information, not a request to produce public records,” the court said.

So? It was obvious what Doe wanted and shouldn’t have been difficult to produce. The request was for any documents revealing the “six or seven pretty big legal heavyweights,” as DeSantis described them in an interview, who were secretly vetting his Supreme Court nominees.

It’s well-known that one “heavyweight” is Leonard Leo, the Federalist Society guru who stacked the U.S. Supreme Court to overturn Roe v. Wade.

The governor’s secrets

But it’s still DeSantis’ secret as to who else has been helping him rig the Florida Supreme Court, and what causes or clients they may be serving.

In any case, the governor himself is the official custodian of his records under Chapter 119 of Florida laws. He may hire someone to manage them, but the responsibility to release them is his.

Moreover, the court gave no credit to a 2014 precedent set by the Fourth District Court of Appeal in West Palm Beach.

In that case, the court held that people have the right to request public records anonymously. While that case, Chandler v. City of Greenacres, didn’t deal with suing anonymously, the language in DeSantis’ favor effectively undermines it. There is no value in a legal right if one can’t go to court to enforce it.

The 2014 case cited an opinion by former Attorney General Bob Butterworth that people seeking records can’t be required to disclose their identities unless a law specifically requires it.

The Fourth District seemed to be saying that Doe should have simply asked the governor’s office to say who the secret advisers are.

Fat chance (cue the laughter from the Governor’s Office).

Some saw last week’s decision as a defeat for DeSantis and Attorney General Ashley Moody, because it did not uphold the poisonous concept of executive privilege. But it didn’t dispose of it either.

The Constitution embraces no such notion; neither does any state law. Nor had any judge imagined it before Circuit Judge Angela Dempsey accepted it as DeSantis’ defense against Doe’s lawsuit.

The appeals court held that Dempsey had other grounds to dismiss Doe’s case, and shouldn’t have ruled on the privilege defense.

The other grounds had to do with whether Doe’s request was too broad and whether he or she shouldn’t have been allowed to sue anonymously without articulating a strong reason. The door remains ajar, if barely so, for anonymous requests.

Transparency takes a hit

The danger is to the requests themselves.

The appeals court avoided the executive privilege issue by invoking the old fundamental judicial principle that “normally the court will not decide a constitutional question if there is some other ground on which to dispose of the case.”

DCA Judge Clayton Roberts, a former deputy attorney general and state elections official, wrote the opinion, and judges Stefanie Ray and Susan Kelsey concurred.

Twelve media groups, including the Sun Sentinel, Orlando Sentinel, the Associated Press, the Miami Herald and the New York Times, had filed friend-of-the court briefs on Doe’s side. So did four public interest groups, including the League of Women Voters and Florida Center for Governmental Accountability.

Such broad public and media interest reflects the significance of DeSantis’ attempts to undermine Florida’s constitutional open government.

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.