American Oversight and Other Public Interest Groups File Amicus Brief Challenging Gov. DeSantis’ ‘Executive Privilege’ Claims
American Oversight and several government accountability organizations urged an appeals court to reverse a lower court’s order that allowed DeSantis to shield records from release by claiming “executive privilege.”
On Monday, American Oversight and several public interest groups filed an amicus brief challenging Gov. Ron DeSantis’ dubious assertion of executive privilege to withhold communications sought under Florida’s public records law.
The brief urges the appeals court to reverse a lower court’s ruling that allowed DeSantis to withhold certain records under claims of “executive privilege.” No previous court has recognized the existence of such an exemption in Florida law nor is it mentioned in the state’s constitution, which enshrines the public’s right to records — including those belonging to the executive branch.
In October 2022, an anonymous requester sought the release of records related to previous statements by DeSantis regarding appointments to the Florida Supreme Court. The requester went to court to compel the release of the records, and a judge in Tallahassee agreed with DeSantis’ claims of executive privilege despite such privilege never having been recognized by a court with regard to Florida’s governor.
The court also imposed a specificity requirement for requests that is at odds with both the spirit and the letter of Florida’s public records law, and signals to Florida agencies that they can reject valid public records requests in a way that puts a prohibitively heavier burden on the public.
“Gov. DeSantis’s aggressive efforts to block the release of public records prevents people from holding his government accountable and poses a danger to democracy,” said American Oversight Executive Director Heather Sawyer. “The Leon County Circuit Court’s decision to accept the governor’s novel claim of ‘executive privilege’ is legally suspect and flies in the face of Florida’s commendable history of openness and transparency. We urge the appeals court to reverse this ruling and ensure Floridians’ robust right to public records.”
In Monday’s amicus brief, American Oversight, the Florida Center for Government Accountability, Integrity Florida Institute, and the League of Women Voters of Florida and its Education Fund argued that the lower court improperly rejected the public records request pursuant to a privilege not previously recognized in the state, and in doing so diluted the public’s constitutional right of access to the governor’s records.
As the brief outlines, the lower court’s novel recognition of executive privilege “upends decades of jurisprudence” interpreting the state’s public records law, which specifies that only the Legislature — not courts or the executive branch — can create exemptions from disclosure. Such an exemption both stifles the public’s ability to be informed about the government’s actions and runs contrary to precedent requiring that courts interpret the law in favor of openness over secrecy.
“Access to records about the governor’s decision-making process for appointing a member of the judiciary serves a critical role in democracy,” the brief reads. “[T]he trial court’s ill-defined and overly broad recognition of an executive privilege opens the door for the Executive Branch to incrementally increase the scope of the privilege over time.”
In addition to DeSantis’ executive-privilege claims, several other measures in recent months have chipped away at the Sunshine State’s transparency laws, widely considered among the most open in the U.S. Not only has the governor’s office stonewalled the release of public records and fought in court to shield other documents from the public, he also approved a number of new legal exemptions designed to keep information hidden, including regarding his travel.
In the spring, American Oversight sued the Florida Department of Education for the release of records related to the governor’s ongoing attacks on education, including communications with DeSantis’ office and external groups about topics like critical race theory and social-emotional learning, as well as guidance and other internal documents related to the decision to ban the AP African American Studies course.