FLCGA Files Amicus Brief in Appeal Challenging Gov. DeSantis’ ‘Executive Privilege’ Claims

The Florida Center for Government Accountability partnered with American Oversight, a national foundation for open records and government accountability, and several of Florida’s advocacy groups, to file an amicus brief with an appeals court to reverse a lower court’s order that allowed DeSantis to block the release of public records by claiming “executive privilege.”  J. Doe v. Governor Ron DeSantis, Case No. 1D2023-0149

The claim of executive privilege is unprecedented in Florida. The action taken by Governor DeSantis contradicts Florida’s constitution, which famously guarantees a right of access to the records of all three branches of state government.

In October 2022, an anonymous requester made a public record request for records relating to the Governor’s appointments to the Florida Supreme Court. When the request was denied, the requester filed suit in civil court, alleging a violation of the Public Records Act. The trial judge ruled in favor of DeSantis, based on the Governor’s claim of executive privilege.

“That a court would block the release of public records absent a specific statutory exemption is worrisome, to say the least,” said Barbara Petersen, FLCGA Executive Director. “Our constitution is quite clear – only the Legislature can create exceptions to the constitutional right of access to public records, and there is no executive privilege exemption. The trial court’s decision in support of the Governor’s assertion of executive privilege flies in the face of our constitutional right of access.”

The amicus brief filed Monday contends the lower court improperly rejected the public records request and disputes the lower court’s aberrant upholding of DeSantis’ executive privilege, stating this decision “upends decades of jurisprudence” and interprets the state’s public records law, which specifies that only the Legislature — not the courts or the executive branch — can create exemptions from disclosure.” FLCGA was joined in the amicus brief by American Oversight, Integrity Florida, the League of Women Voters of Florida and its Education Fund.

“Access to records about the governor’s decision-making process for appointing a member of the judiciary serves a critical role in democracy,” the brief reads. “[T]he trial court’s ill-defined and overly broad recognition of an executive privilege opens the door for the Executive Branch to incrementally increase the scope of the privilege over time.”

FLCGA is your partner in protecting Florida’s constitutional right of access to the records of all three branches of state government. Please consider donating in support of our 2023 Defend Democracy Campaign to aid our efforts in ensuring our government remains accountable to its people.