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Does Executive Privilege Exist in Florida?

At the national level, executive privilege is the power of the president to withhold documents from congress and the courts – and by extension, from the people and the press. It is chiefly meant to protect vital national security, military and diplomatic secrets.

But does it exist in a separate legal form at the state level in Florida? That question has come to fore as the governor’s attorneys argue in recent court filings that he should enjoy the same privilege at the state level.

In a recent trial court order, a Tallahassee trial judge agreed. The order says in essence that Florida’s governor has an executive privilege similar to the president’s power and can use it to defeat a “sunshine law” public records request related to state judicial appointments.

But do the reasons behind the federal privilege even exist here?

The idea of creating an executive privilege for the first time in Florida deserves serious debate. It is a departure from longstanding Florida legal precedent with big implications. It also undermines Florida’s strong commitment to government in the sunshine – a serious issue that should not be undertaken lightly.

The ability of the public and the press to review public records in Florida is a state constitutional right that promotes government openness and thus encourages public trust and confidence in government institutions.

That right is far broader than federal law and was added to our constitution in 1992 at a time of intense debate over limits on public access to state government records. It reinforced a century-long tradition of state government in the sunshine that has no full counterpart at the federal level.

The specific records in question in the Tallahassee order involved talks with unnamed outside experts the governor publicly said he consulted while choosing new judges for the state supreme court.

When asked to produce any records of this consultation, the governor’s lawyers said he had a right to withhold them. The trial court agreed for several reasons, including executive privilege.

At the national level, even some presidential claims of executive privilege have been rejected by the courts.

While many people broadly agree that national secrets should be kept from foreign enemies and that presidents are entitled to candid discussions with advisers, some past claims of executive privilege fell short of this goal. Some seemed aimed more at covering up the facts behind domestic, partisan controversies than anything else.

That was the case with former President Richard Nixon’s efforts to cloak details of the Watergate scandal behind “executive privilege” in the 1970s. It was an effort the federal courts rejected. Presidents, the courts effectively said, cannot escape full accountability for controversial political decisions merely by claiming executive privilege.

In light of Florida’s 1992 amendment to its own state constitution, the attempt to recognize executive privilege here is even more suspect. The 1992 amendments were enacted by an overwhelming vote of the state’s people. These amendments overruled prior state law and court decisions to the contrary.

Accountability is an important value in government. Courts in the past have rightly rejected claims of secrecy that seemed more designed to evade a full accounting to the people.

No one seriously wants to undermine vital national interests. But we need to ask whether government records here in Florida should qualify for such a sweeping form of secrecy, especially on matters like state judicial appointments.

Craig Waters is a Tallahassee attorney who worked for 35 years in programs designed to improve openness & accountability in Florida government before he retired last year. Waters is also a member of FLCGA’s board of trustees.