Open government watchdog barks at privacy measure

The Tallahassee-based First Amendment Foundation, the state’s public records and open meetings watchdog, is giving a thumbs down to a proposed Constitution Revision Commission (CRC) amendment on “privacy” for the 2018 ballot.

Foundation President Barbara Petersen, in a letter this week to Lisa Carlton, chair of the CRC’s Declaration of Rights Committee, said her group is “most alarmed by the dramatic impact this proposal would have on the constitutional right of access to public records.”

The committee will meet Wednesday afternoon for a right-to-privacy workshop but won’t yet consider the measure, its schedule shows.

Constitution Revision Commissioner John Stemberger, the committee’s vice-chair, is sponsoring the proposed amendment in question, drafted by former state Supreme Court Justice Kenneth Bell. It would clarify that the right to privacy in the state constitution applies to “privacy of information and the disclosure thereof.”

Here’s how we got here: At public hearings across the state, anti-abortion activists had urged the commission to change the constitution to undo a 1989 Florida Supreme Court decision striking down a state law that required parental consent before a minor can get an abortion.

Speakers complained that the constitutional right to privacy had been misconstrued to apply to abortion rights instead of a right to “informational privacy” against the government.

Stemberger, an attorney and president of the conservative Florida Family Policy Council, did not use the word “abortion” in a response to Petersen’s letter, which he released Tuesday evening. 

“The language will require Florida courts to interpret the privacy clause in the manner intended by its original drafters and the people who adopted it,” he said. “The intent being to protect the people from the government’s collection and more importantly, disclosure, of personal and private information.”

In her letter, Petersen said if the proposal is adopted, “legislative powers would be broadly expanded, and the Legislature could ‘provide by law’ that certain ‘private’ information is not public record. This would give the Legislature the power to selectively pull existing public records from the public domain.”

She added: “Equally troubling is the potential for the courts to hold that certain information is ‘private’ pursuant to the revised privacy right and thus not subject to disclosure under Florida’s public records law.” She urged the committee to vote down the amendment. 

Stemberger countered that the “rapid growth of technology” has resulted “in the increased invasion of personal and private information through various forms of surveillance and the monitoring of personal electronic devices.

“This information can be collected directly by government or obtained by them from private corporations,” he said. “This alone warrants the amendment.”

The main concern, however, “raised by people speaking during the CRC’s ten public hearings around the state was fixing the privacy clause so that it could no longer be hijacked by Florida’s high court and used for purposes other than what it was intended,” he said in his statement. “Concerned citizens wanted the privacy clause returned to its original purpose – to protect informational privacy.”

The CRC’s Declaration of Rights Committee meets 1-5 p.m. today. It will hear presentations on constitutional rights to privacy from Major B. Harding, a retired Florida Supreme Court chief justice, and Sandy D’Alemberte, law professor and past president of Florida State University.