The argument made by Governor Ron DeSantis claiming the right to shield public records due to executive privilege has been declined by a Florida appeals court. Previously unrecognized under state law, this right could have significantly expanded the Governor’s power to keep records from the public. However, the court’s decision has denied this expansion and affirmed the public’s right to access such records.
In a blow to Governor DeSantis and Attorney General Ashley Moody, the three-judge panel of the 1st District Court of Appeal delivered a resounding setback. They rejected the notion that the governor’s office possesses the constitutional power to withhold records related to internal discussions and deliberations, a stance that the Attorney General had insisted upon.
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The DeSantis administration scored an early victory as the court dismissed the lawsuit that aimed to reveal the identities of “legal conservative heavyweights” advising DeSantis on his selections for the Florida Supreme Court. However, the panel’s decision was based on procedural grounds, and did not address the executive privilege argument put forth by the DeSantis administration, which a circuit court judge had supported.
Judge L. Clayton Roberts of the 1st District Court of Appeal stated that despite denying the petition for procedural reasons, the court went on to examine the merits of the petition and ruled that the executive privilege protects the identities of the legal conservative heavyweights. However, the panel made it clear that they did not find it necessary or relevant to make a ruling on the propriety of this decision.
Back in 2022, before DeSantis’ presidential bid, a legal battle that garnered attention from various media outlets had already been brewing. It all started when a person, who remains anonymous, requested records that would reveal the names of the “six or seven pretty big legal conservative heavyweights” that DeSantis had mentioned to radio host Hugh Hewitt as having helped him in appointing members to the state Supreme Court. Since then, DeSantis has managed to completely transform the court with him having appointed five out of the seven justices during his term in office.
In the face of a lawsuit, the governor’s office chose not to provide any details on the individuals who were aiding the governor. This decision led to a legal battle, which was eventually dismissed by Circuit Court Judge Angela Dempsey in January of 2023. The dismissal was based on several grounds, one of which was the ability of the DeSantis administration to keep certain records confidential under executive privilege.
The ruling carries immense significance because, unlike the federal government and even under the previous administrations of former President Richard Nixon, Florida had never acknowledged the governor’s executive privilege. It is noteworthy because the power of the governor’s office has grown considerably in the past 25 years of Republican control. Furthermore, Florida voters have instituted a constitutional provision that ensures public access to records. This amendment mandates that any public record exemptions must be approved by a supermajority vote of the Florida Legislature.
According to the appeals court, the lawsuit ought to have been dismissed since it was filed by an anonymous plaintiff. They noted that such lawsuits should only proceed in “exceptional circumstances.” The judges further stated that the underlying request was too broad and would have compelled the plaintiff’s office to directly ask the governor about the subject of discussion.
During a hearing in May, the judges had expressed skepticism about the executive privilege argument, so the final decision was not unexpected.
Numerous news outlets, such as the Miami Herald, CNN, Gannett, the Associated Press, the Tampa Bay Times, and the Orlando Sentinel, have provided their insights on the matter. The legal representatives of the media coalition have emphasized that preserving Dempsey’s decision would weaken the transparency of the government and establish a risky precedent by interfering with the legal process of creating new exemptions for public records.
