DeSantis is squeezing the sunshine out of Florida’s public records law, critics say

As Florida Gov. Ron DeSantis campaigns for the White House, government accountability watchdogs are pointing to the long shadow of secrecy cast by his administration.

In the four years since DeSantis took office, his administration has routinely stonewalled the release of public records, approved a slew of new legal exceptions aimed at keeping more information out of the public eye, and waged legal battles against open government advocates, the press and other watchdogs.

DeSantis, a Harvard-educated lawyer and former U.S. attorney, is the only Florida governor known to use “executive privilege” to keep records hidden, transparency advocates and experts said.

His travel records, previously under scrutiny by the media, are now secret, thanks to a new legal exemption — one of a record number created in 2023 by the Republican-led Legislature and approved by the governor.

DeSantis also has fought to conceal information about some of the most significant events during his tenure, including withholding Covid infection data and blocking release of records about the controversial relocation of dozens of migrants to Martha’s Vineyard, legal filings show.

It’s difficult to compare DeSantis to past Florida governors on transparency issues — in part because his administration has withheld some key information sought by NBC News and other media organizations that would show how often it denies requests for records and how long it takes to disclose them.

Still, DeSantis’ transparency track record has alarmed open government advocates, particularly since he could carry the same ethos into the White House, if he’s victorious in 2024.

“I’ve never seen anything like it,” Michael Barfield, director of public access for the Florida Center for Government Accountability, a nonprofit open government watchdog. “It’s stunning, the amount of material that has been taken off the table from a state that many have considered to be the most transparent. We’ve quickly become one of the least transparent in the space of four years.”

Barfield called the DeSantis administration the least transparent “of all that I’ve witnessed in the nearly 35 years I’ve been doing transparency work in Florida.”

DeSantis, a fierce media critic who typically avoids mainstream reporters, declined NBC News’ requests for an interview to discuss his record on transparency issues for this story and did not respond to written questions.

Adam Marshall, a lawyer for the national nonprofit Reporters Committee for the Freedom of the Press, said transparency in Florida had fallen before DeSantis, but that “decrease is now accelerating.” He added that transparency at the federal level is already bad and likely would not improve under a DeSantis presidency. “Could it get much worse? Yes,” he said.

Testing the law

Florida has long had a reputation for government transparency, boasting some of the nation’s broadest public records and open meetings laws. In 1992, Floridians overwhelmingly approved an amendment to enshrine citizens’ access to public records and open meetings as rights in the state’s constitution — the first state to do so.

Such rights include access to records held by the state’s governor. Only Florida’s Legislature is constitutionally authorized to make exceptions to the state’s Public Records Act, as long as it can justify each exemption as a “public necessity” and make it “no broader than necessary.”

Since taking office in 2019, DeSantis has repeatedly tested the letter and spirit of Florida’s sunshine laws and constitutional guarantees, sometimes bypassing the Legislature in novel ways, experts say.

In legal filings, lawyers for the governor have contended DeSantis can exercise executive privilege to withhold records at his discretion, although such an exemption isn’t cited in the state’s laws or its constitution.

In a January ruling on one of those lawsuits — a case involving an anonymous requester who sought the names of DeSantis’ advisers for deciding his picks for the state supreme court — a Leon County judge agreed he could invoke the authority. The ruling — a first in DeSantis’ favor on the issue — isn’t binding to other courts, but some open government activists and media groups fear it will embolden DeSantis’ use of executive authority.

Catherine Cameron, a media law professor for Stetson University College of Law who has researched the issue, said DeSantis is among a handful of governors to use executive privilege to withhold public records — and appears to be the only Florida governor in history to do so.

“I could find no instance of any Florida governor ever claiming executive privilege before DeSantis did,” Cameron told NBC News.

The issue had never landed before a Florida court, as other governors “probably didn’t want to rock the boat,” she added.

'The biggest threat to free speech'

In February, DeSantis livestreamed a panel discussion calling for reforms to defamation law. Afterward, GOP lawmakers introduced legislation to make it easier for elected officials and other public figures to sue the media for defamation over critical news stories and commentary.

Among other changes, the measures aimed to strip reporters’ legal privileges to keep anonymous sources confidential and lower the “actual malice” standard required for public officials to prove defamation. That standard, set by a landmark 1964 U.S. Supreme Court ruling, requires public figures to prove that journalists knowingly published false information or did so in “reckless disregard of whether it was false or not.”

The First Amendment Foundation, a Tallahassee-based open government advocacy group, viewed DeSantis’ attempt to reframe defamation law as “the biggest threat to free speech and a free press” during the state’s legislative session, said Bobby Block, the group’s executive director.

The bills failed to advance out of committee.

But other legislative efforts to chip away at public access proved successful. By the foundation’s count, Florida’s Legislature created 23 public records exemptions this session and reinstated nine others that were about to sunset. It’s been nearly a decade since lawmakers came anywhere near that — when they introduced 22 public records exemptions in 2014, Block said.

One of them bars disclosure of the governor’s travel records and the visitor logs for his mansion.

At a public appearance in May, DeSantis said the bill was “not necessarily something that I came up with,” adding it was “motivated by a security concern.”

Freshman state Rep. Jeff Holcomb, a Republican who introduced the legislation, told NBC News that the project “was given to me by leadership” to address security “glitches.”

“I would run this bill for a Democratic governor,” said Holcomb, who called characterizations that the exemption keeps the public in the dark about vital information “garbage.”

Block said lawmakers could have narrowly tailored a measure to redact specific details about security personnel and strategies. But instead, they approved a “wholesale exemption” that now keeps secret details such as where the governor went, who he met with, the reason for his trip and how much it cost.

Disclosure of such information in the past has helped identify taxpayer-funded travel abuses by at least two governors and other state officials, he said. What’s more, the exemption was applied retroactively, keeping hidden details of DeSantis’ past trips where security concerns are no longer an issue, Block said.

Battling for secrecy

DeSantis’ office has denied that any records exist in response to some public records requests — including one related to Hurricane Ian, a mass-casualty natural disaster.

Late last year, the Executive Office of the Governor denied a public records request from NBC News for any communications — texts, emails, voice messages or other exchanges — sent or received by DeSantis in the days just before and after the hurricane made landfall, becoming one of the deadliest tropical storms in modern history. The office closed the request after less than a business day, saying a search “produced no documents responsive” to the request.

DeSantis made national headlines in September, when his administration flew nearly 50 mostly Venezuelan migrants from Texas to Martha’s Vineyard, Massachusetts, and left them there in protest of President Joe Biden’s immigration policies. After the Florida Center for Government Accountability filed requests seeking communications and other records about the controversial flights, DeSantis’ office responded 2½ weeks later by releasing documents unrelated to what the group had asked for, court records show.

Only after the watchdog group sued did DeSantis’ office start releasing some responsive records, though portions of those were blacked out. On Oct. 25, a trial court judge ruled DeSantis’ office had violated the Public Records Act by improperly redacting some records and failing to turn over others within a reasonable time frame.

The judge ordered DeSantis’ office to pay the group’s legal fees and costs, and to turn over any remaining records within 20 days. But DeSantis’ office failed to release all the records by the court’s deadline, according to the judge’s order.

Since then, the office has disclosed some records, including those showing a top administration official sent emails via a private Gmail account while seeking to help a former legal client win a contract to oversee the migrant relocation program. DeSantis’ office is now appealing the judge’s ruling that it violated the state’s record law by failing to disclose records in a reasonable time frame.

“It’s outrageous. They’re using private electronic devices and accounts to conduct official business,” Barfield said. “And when they’re challenged, they fight tooth and nail.”

Likewise, Florida’s state health department under DeSantis continues to fight a two-year-old lawsuit contending it violated the state’s records act by failing to make Covid-19 data available during the height of the pandemic.

DeSantis’ administration, which has touted lifting pandemic restrictions in Florida before most other states, became a national outlier when it stopped publicly posting daily, detailed Covid-19 data in June 2021, just as infections surged amid the delta variant.

Carlos Guillermo Smith, then a Democratic state representative from Orlando, later sued, contending the information was “vital to the ability of citizens to understand the risks and make informed decisions about their lives.”

The case remains pending amid state appeals.

“When they violate the Public Records Act, we need to hold them to account,” Guillermo Smith said.

This article was originally published on NBCNews.com