For longer than most Floridians have been alive, the slogan “Sunshine State” stood for more than warm weather. It symbolized a broad and historic commitment to open government.
Florida was a beacon to the nation. Was. It’s no longer true.
The Legislature has riddled the public records laws with more than 1,000 exemptions, easily hurdling the two-thirds supermajorities of both houses that the Constitution requires.
That includes corrupting clouds of darkness over university presidential searches and the extensive travels of Gov. Ron DeSantis as he seeks the presidency.
Why these loopholes persist
Already, 28 new exemption requests and seven renewals await the legislative session that begins Jan. 9. Some are innocuous, others not. It makes no sense to seal forever the home addresses of assistant city attorneys and military personnel (SB 308, HB 319) or the financial bona fides of people applying for bank charters (HB 85).
But year after year, those loopholes persist because people ask for them and legislators have forgotten how to say no.
DeSantis and other state officials have perfected the obstruction of freedom-of-information requests by slow-walking rather than denying them outright. The law requires prompt compliance but doesn’t impose deadlines; it should. The law requires judges to rule expeditiously on open government cases, but at their discretion. The Legislature should impose bright-line deadlines.
The governor persuaded a state judge that he has “executive privilege” to withhold whatever information he wants, an audacious and unfounded claim never dared by his predecessors. Attorney General Ashley Moody supports him against an appeal of that disastrous decision. Her office is supposed to be the guardian of “sunshine,” not its saboteur.
Government has a duty to listen to what citizens say. But legislative committees and public agencies from city councils and school boards to the university system Board of Governors have subverted that right, limiting public comments to as little as 30 seconds. Politicians who refuse to give the public a fair say are unworthy of their offices.
A thin sliver of hope
A ray of sunshine in the darkness is the unanimous Florida Supreme Court ruling Thursday that Marsy’s Law, the 2018 victims’ rights amendment, does not require the withholding of names of crime victims.
It applies only to information, such as addresses, that could be used to locate and harass them.
The decision allows the city of Tallahassee to identify two police officers who claimed to be victims of people they had shot to death. It should end the Florida Highway Patrol’s absurd policy of withholding names of all accident victims.
However, the opinion frees the Legislature, under another provision of the Constitution, to conceal names by a two-thirds vote. It should not do that. It should review the entire amendment to require, among other things, an actual request from a living victim before any other information, such as a crime location, is withheld.
How to restore ‘sunshine’
The 2024 session should undertake to restore open government by imposing a moratorium on new exemptions. They used to expire at periodic intervals unless renewed. That fail-safe has been effectively erased and converted to one-time reviews after five years, which the Legislature rubber-stamps. “Sunset” reconsideration should be perpetual once again.
The Legislature should also repeal the two most recent abuses of public record law, secret presidential searches and secret gubernatorial travel.
There is only one plausible reason to conceal where and how governors and their bodyguards travel. That’s for their safety, a concern that is moot once they have returned.
But a law passed last session (SB 1616) sealed everything, past, present and future. The Washington Post is suing to have the law held unconstitutional for being overbroad. The case is before the same Tallahassee judge, Angela Dempsey, who gave the governor “executive privilege” protections.
The Post’s lawyers argue a simple truth: “The exemption sweeps from public view every record relating in any way to the expenditure of millions of taxpayer dollars each year, including the most basic information needed to inform the public about what those services are for, when they were provided, who received them and why. The Florida Constitution prohibits such a gaping disconnect between the narrow justification for an exemption and its sweeping coverage.”
The university presidential search exemption does more than spare embarrassment to self-important applicants who face rejection. It also conceals raw politics that have no proper place in higher education.
The law requires names of three finalists to be public, but applicants have been gaming the system by refusing to be any finalist other than the only one.
That’s how Ben Sasse, a Nebraska senator who had presided over a small college, became president of the flagship University of Florida. The law also concealed state Rep. Randy Fine’s interest in the presidency of Florida Atlantic University, which was exposed only after the search committee rejected him. State Rep. Fred Hawkins, R-St. Cloud, with no higher education experience, was the only finalist for president of South Florida State College. Richard Corcoran, a former House speaker and Florida commissioner of education, was the sole finalist at New College of Florida.
DeSantis and other public officials bear no personal liability for stiffing the public’s right to open government even while they run up hefty legal bills. The public pays those, as well as fees and costs granted to citizens who sue successfully. There need to be personal fines for repeated, willful violation of the public records laws.
In an out-of-court settlement of a case it would surely lose, DeSantis’ Department of Health agreed to pay $152,000 for the legal fees of plaintiffs who sought COVID-19 mortality data the agency had improperly withheld. That was to help DeSantis’ campaign, and he should have been required to pay it.
Fourteen years after Gov. Charlie Crist created a commission on open government reform, many of its recommendations remain unfulfilled, such as prohibiting state agencies from charging unreasonable fees for copies of documents.
The Legislature should revive those proposals and let the sunshine back in.
Editor’s Note: This is the first in a series of editorials in advance of the 2024 session of the Florida Legislature.
The Sun Sentinel Editorial Board consists of Editorial Page Editor Steve Bousquet, Deputy Editorial Page 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 .
