Editorial: Florida’s fabled Sunshine is under attack. Who will defend it?

Once upon a time, Florida’s open-government laws — crowned by constitutional guarantees against secrecy — were regarded as a national model. State leaders boasted of their openness and backed their play with decisive action: Former Gov. Charlie Crist (then a Republican) and former Attorney General Bob Butterworth (a Democrat) formed a strong partnership to defend public access. Lawmakers like the late Sen. Dorothy Hukill, R-Port Orange, and former Senate President Don Gaetz, R-Niceville, took pride in their defense of public integrity.

That didn’t keep lawmakers from filing hundreds of public records exemptions. But those that didn’t pass constitutional muster usually didn’t pass — often dying after one sharply worded communique from advocates like Barbara Petersen, former director of the Florida First Amendment Foundation. The laws that did pass were often quickly challenged and struck down if they didn’t clear the high bar for exemptions.

Those days are over, says Bobby Block, current head of the First Amendment Foundation. “Litigation is a fraction of what it used to be,” he acknowledges.

As a result, Florida state and local officials seem to be emboldened to ignore the law.

A shifting culture

The defiance starts at the top. Public records requests to Gov. Ron DeSantis’ office and some state agencies rarely draw a quick response, and often go unacknowledged — an attitude that seems to be filtering down to some local governments, accountability experts say. Meanwhile, the Legislature seems to have forgotten about the Florida Constitution’s requirement that public-records and open-meetings laws be narrowly tailored and serve a defined public necessity.

At one point, attempts to block out the Sunshine would have drawn immediate — and usually successful — challenges. Yet those are down as well, largely because they’ve often been pursued by media organizations and public-interest groups that no longer have the resources to legally challenge governmental secrecy every time it rears its head.

The longer flagrant violations go unchallenged, the more widespread they become and the harder they are to fight. And without these open-government provisions, attempts to hold elected officials and governmental employees crumbles. Incompetence and self-dealing become increasingly protected. Tax dollars are misspent. Corruption seeps in.

Everyone suffers. Businesses lose predictability and the guarantee that they will be treated fairly. Residents don’t have the information they need to fight against decisions they don’t agree with, and often can’t afford the fight to gain access to something that is theirs by right.

Victories are rare

We can think of a few recent examples that point out how bad things have become.

The first, you’ve probably heard about: Last week’s pileup on a Tennessee highway involving multiple state vehicles being used to transport DeSantis to a campaign event. Florida officials refused to answer questions about it, citing a new law that puts a cone of silence over where the governor travels, who he meets with, and when he is using state resources to cover travel that has no bearing on his official duties.

Fortunately, Tennessee officials aren’t bound by that law. They provided the records that strongly suggest the governor was using state resources for personal gain — something that is also banned by the Florida Constitution.

The second comes from a recent court victory by the Florida Center for Governmental Accountability, which sued to unseal records in an investigation of two Daytona Beach Shores police officers accused of using handcuffs and a city holding cell to potty-train their 3-year-old son. “Somebody thought that they were entitled to a special form of justice that doesn’t exist,” said Michael Barfield, FLCGA director of public access initiatives in a press release. “That’s a road into darkness. Today there’s been a U-turn.”

But as fewer cases are litigated, those slam-dunk rulings become less predictable.

Instead, we’re seeing judges sign off on abuses of governmental openness, including a January decision — by a Tallahassee trial judge with an anti-Sunshine track record — that casually leapfrogged the lack of an official public-records exemption. Circuit Judge Angela Dempsey created a presumption that DeSantis had “executive privilege” to withhold official communications from his office. That’s as big a threat to open government as we can imagine, which is why the Orlando Sentinel is among the groups challenging that ruling in appellate court.

The Sentinel, like other media organizations around the state, will continue to demand public records and produce strong journalism detailing governmental abuses. But media companies , no longer have bottomless resources. And that’s making a big difference, Block says. For a long time, residents and businesses in Florida depended on the media, along with advocacy groups like the FLGCA and the First Amendment Foundation, to fight these battles. They can’t depend on that any more.

Time to rally

When the cause is right, Florida finds the resources for advocacy. Groups that fight for responsible growth management and defend environmental treasures, those who advocate for seniors, the LGBTQ community and vulnerable children, organizations that defend the homeless and people with disabilities, all draw support from corporate and individual donors. But many of those organizations will find their missions much more difficult if the integrity of state and local government continues to erode due to increasing secrecy.

That’s why we’re calling on Florida’s corporate leaders and leading philanthropists to join this fight — either by supporting nonprofits like the First Amendment Foundation, FLGCA, League of Women Voters, Integrity Florida, Common Cause and others, or through direct litigation that goes beyond self-interest to defend good public policy.

Florida, it’s use-it-or-lose it time. The Sunshine is under attack, and everyone has a stake in defending it.

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The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Editor-in-Chief Julie Anderson and Viewpoints Editor Jay Reddick. Contact us at insight@orlandosentinel.com.