Washington Post lawsuit reaches beyond specific requests, challenges constitutionality of records exemption

A law book with a gavel - Constitution

A fight over public records at one point would have pitted Florida’s newspapers against state government, generating headlines for months. But a records exemption for Gov. Ron DeSantis’ private travel logs prompted The Washington Post to quietly sue the state.
The Florida Legislature last year voted along party lines to exempt the records weeks before DeSantis launched a presidential campaign. Attorneys for the Post now say enforcing that law violates the state constitution.
The Post in July filed a lawsuit regarding records requests, some submitted as early as February, that had been denied by the Florida Department of Law Enforcement. A lawsuit filed by Ballard Spahr attorney Charles Tobin suggests DeSantis’ administration unlawfully delayed answering those requests, then withheld information based on a law DeSantis signed in May.
“The Department’s delay in disclosing the requested public records is unreasonable and without lawful justification and thus constitutes an unlawful refusal to disclose public records,” Tobin writes.
Part of the issue is that the law applies retroactively. State Sen. Jonathan Martin, a Fort Myers Republican who championed the law (SB 1616) in the Legislature, said that’s important because the Governor’s travels, even within the state, can reveal patterns that compromise the security of the state’s chief executive.
“It can make it easy to breach a lot of protections if you can see where a Governor’s detail stays in certain cities,” Martin said.
Particularly when public officials travel with a contingent of people, Martin said, that can impact the hotels used for a variety of reasons, whether because of the number of hotel rooms or the way visitors can access large spaces within the facility. Under the prior law, Martin said, individuals who intend to do harm could use that information and glean weaknesses in security protocols.
He notes the legislation applies to not only the Governor, but the Lieutenant Governor, Senate President, House Speaker and Florida State Supreme Court Justice, too.
“We have to have protections available in some situations,” he said.
But the exemption came into play just as the Governor suddenly engaged in a significant amount of out-of-state travel that was of high public interest. When the law was signed, DeSantis had already embarked on a national tour promoting his book, “The Courage to Be Free.” That served as a precursor to his campaign for President.
Just two months after the law was signed, a car crash in Tennessee served to publicly reveal DeSantis had traveled to that state with a security detail comprised of Florida state agents.
But as documented in the Post suit, the law has interfered as national news outlets follow with interest one of the top presidential campaigns in the country.
Beth Reinhard, a reporter for The Post, on Feb. 16 requested records involving security agreements regarding travel to the Tampa Convention Center from Oct. 1 to Nov. 9 last year. That’s the earliest records request cited in The Post lawsuit, filed about three months before DeSantis signed the law, seeking information that was public at the time and which had been generated more than seven months prior to the law going into effect.
In late October, Tobin filed papers making clear the newspaper wants to challenge the constitutionality of the law, not simply to have its records request met.
That’s a welcome development for transparency advocates in Florida.
“Our records laws, once the envy of the nation, have been the victim of the proverbial thousand cuts,” said Bobby Block, executive director of the First Amendment Foundation. “There’s more public records exemptions every year, and that’s weakening our entire system.”
On top of that, newspapers don’t have the same robust ability to take officials to court if they withhold records wrongly, Block said. That has resulted in a national news outlet now stepping up to fill that role, a development likely occurring only because of the national interest in DeSantis’ campaign.
“It’s good to see a newspaper, albeit a national one, taking up the mantle,” Block said.
In the lawsuit, attorneys for the Post argue the law violates public records protections approved by voters in the state constitution in 1992.
The language in the constitution allows exemptions to public records access to be approved by the Legislature through a two-thirds vote, highlighting the less-discussed significance of Republicans winning supermajorities in the Florida House and Senate.
But the same clause requires such exemption laws to “state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law.”
Barbara Petersen, director of the Florida Center for Government Accountability, has said the retroactivity especially calls into question the bill’s constitutionality. “How is there a security issue for travel that’s already occurred?” she asked as the bill advanced through the Legislature, as reported by The New York Times.
The Post’s lawsuit argues the law simply isn’t tailored enough, and is being enforced in a way that reaches beyond the Legislature’s intent.
But Martin said the bill was intended both to protect elected officials’ privacy and ensure security. While DeSantis’ private political activity may be of high interest right now, he said the reality is elected officials need details, but having state-funded security shouldn’t force their movement into the public record.
“It’s 100% narrowly tailored for personal issues,” Martin said. “We had a couple examples just in the last Session where senators needed special security attention because of threats from nutcases that didn’t like the legislative process.”