Secrecy based on ‘executive privilege’ is chilling
By tradition, the attorney general is the symbolic keeper of Florida’s public records and protector of open government.
For a time, that Cabinet office was the public’s passionate ally. It still publishes the annual Government-in-the-Sunshine Manual listing legal precedents and the ever-growing list of exceptions that the Legislature almost habitually creates to move more and more information into the shadows.
“Florida is nationally recognized for its strong support for government in the sunshine and the commitment is reflected in our statutes and Constitution,” Attorney General Ashley Moody declared in the 2022 manual. “…I remain committed to the principles of transparency embodied in these laws and the benefits they secure for our state.”
But Moody is not committed enough to oppose Gov. Ron DeSantis’ drastic claim to an “executive privilege” to ignore the public records law whenever it suits him.
Instead, she’s helping DeSantis hide public information from Floridians. Moody, the so-called “people’s lawyer,” should be on our side — not his.
On the wrong side
Two of Moody’s assistants and two staff members of the Solicitor General, who reports to her, have filed appearances on DeSantis’ behalf in a case before the First District Court of Appeal. A trial court ruled that DeSantis could refuse to divulge the names of a secret panel of “six or seven pretty big legal conservative heavyweights,” as he described them in a radio interview, that helped to screen Supreme Court nominees for him.
“The information demanded is shielded by the executive privilege,” DeSantis argues in court papers.
Executive privilege is a principle in common law derived from the separation of powers as a way to protect the confidentiality of the internal workings of the executive branch. But it has also been called a myth, and the words “executive privilege” are not in the U.S. or Florida Constitution.
It is common knowledge that the influential conservative judicial activist Leonard Leo is one of those “heavyweights.” Two Florida Supreme Court justices revealed that to the U.S. Senate Judiciary Committee as it considered their nominations to a federal appeals court.
J. Doe v. Ron DeSantis
An unidentified party cited in court documents only as “J. Doe” sought the other names and sued when the governor’s office did not release them. (By law, a person who requests public records in Florida is not required to identify themselves.)
A coalition of 18 news media and public interest groups, including this newspaper, the Associated Press, the New York Times and the League of Women Voters of Florida will file friend of the court briefs supporting Doe’s public records appeal.
Doe lost round one in January when Circuit Judge Angela Dempsey signed an order drafted by the governor’s lawyers.
The stakes here are enormous. As stated in the News Media Coalition’s petition for friend of the court status, it is “a fundamental clash between Florida’s longstanding commitment to open government and the governor’s ability to hide newsworthy information from the public under the guise of ‘executive privilege.’”
The Florida Constitution says all meetings and documents are public unless exempted by the Constitution itself or by a law the Legislature must enact by a two-thirds vote of each house. There is no provision for “executive privilege.”
DeSantis is wrong, Dempsey was wrong, and Moody is on the wrong side.
“It is the duty of our office to represent the state in legal matters,” Kylie Mason, Moody’s deputy communications director and press secretary, said in an email to the Sun Sentinel.
Two notable cases
The law does say that, but there have been exceptions.
Former Attorney General Robert Shevin refused in 1973 to defend a state law that required newspapers to publish verbatim replies from political candidates they criticized. Pat Tornillo, executive director of the United Teachers of Dade, sued the Miami Herald after it endorsed his opponent and criticized him.
A circuit judge ruled the law unconstitutional, which gave Shevin the nominal duty to defend it on appeal, but he wouldn’t. The Florida Supreme Court ruled for Tornillo, but the U.S. Supreme Court later unanimously struck down the state law for violating freedom of the press.
“Shevin decided the case was indefensible and against the public interest, his standard for considering everything,” said Sharyn Smith, who was an assistant attorney general. “He took the ‘people’s attorney’ title seriously, even in private.”
Soon after he was sworn in in 1971, Shevin was confronted with the death row appeal of Freddie Pitts and Wilbert Lee, Black men who had been framed and beaten into confessing to the murders of two white service station attendants at Port St. Joe.
Shevin told an appeal court that Pitts and Lee had been denied a fair trial and supported their attorney’s request for a new one. Pitts and Lee were spared the electric chair in 1972 by the U.S. Supreme Court, and Gov. Reubin Askew pardoned both men with Shevin’s vital support.
A higher duty under law
Shevin, a Democrat from Miami, paid a steep political price. He was bitterly denounced in the Panhandle in his unsuccessful 1978 campaign for governor, a race won by Bob Graham. But in both the Herald case and with Pitts and Lee, Shevin recognized a higher duty than to blindly support a bad law and a bad verdict.
Moody would be a better attorney general if she followed his example.
Shevin consistently advocated for broad interpretation and enforcement of the 1967 laws that established the public’s right to attend meetings and strengthened the public records law. Moody has been invisible as the Legislature and DeSantis have carved out major exemptions to both.
The “people’s lawyer” should not be the protector of a governor’s secrets.
The Orlando Sentinel Editorial Board includes Editor-in-Chief Julie Anderson, Opinion Editor Krys Fluker and Viewpoint Editor Jay Reddick. The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page Editor Dan Sweeney and Anderson. Send letters to the editor to insight@orlandosentinel.com.