MIAMI — Lawyers for Gov. Ron DeSantis on Tuesday argued that because his administration was busy dealing with Hurricane Ian last year, it didn’t violate the state’s public records law when it failed to turn over documents related to its plan to fly migrants from Texas to Massachusetts in September.
Nathan Forrester, Florida’s senior deputy solicitor general who is representing the governor, urged a three-judge panel of the 1st District Court of Appeal to reverse a lower court’s decision that concluded the state had violated that law and ordered the state to turn over records, emails, phone logs and contracts related to the flights that garnered national attention.
The governor’s office received “three, sizable, multifaceted records requests” two days before Hurricane Ian made landfall, Forrester argued. “At the time, EOG [executive office of the governor] was already handling more than 150 pending records requests, and that number would balloon to more than 260 in the next couple of weeks.”
The non-profit Florida Center for Government Accountability sued the state last year after a month of delays and receiving only partial documents about the flights, alleging that the administration had violated the public records act.
Leon County Circuit Judge J. Lee Marsh ruled that the administration improperly delayed release of some documents and ordered the governor’s office to turn them over. Marsh also concluded that the governor’s office redacted some documents without providing proper exemptions and ordered the details released.
But Andrea Flynn Mogensen, a lawyer for the watchdog center, countered that the governor’s office has provided no evidence that the hurricane interfered with the center’s month-long effort to obtain the documents last fall.
Instead, she said, the governor’s office wrote in an email that because of a backlog of pending record requests, it “would be reasonable for EOG to take several months to fulfill (the center’s) request” but would endeavor to complete production by Dec. 1, 2022.
Where is the evidence?
“When you don’t bring evidence to the hearing, you can’t rely on those arguments in the trial court or on appeal,’’ Mogensen told the court.
She argued that the state “has a constitutional responsibility” to produce documents sought by Florida citizens and the governor’s office’s backlog of 150 public records requests is no excuse for delaying the release of documents.
“If you accept what they say that they’ve had that kind of a backlog for over two years and had failed to address it, that doesn’t mean that the public’s right to access goes away,’’ Mogensen said. “It means that they lose in litigation like this.”
The case is the latest development in the nine-month-old saga over the DeSantis’ administration’s decision to use Florida taxpayer funds to transport 49 migrants from San Antonio to Martha’s Vineyard last year.
The governor’s inner circle orchestrated the flights, with DeSantis’ public safety czar, Larry Keefe, relying on a Gmail account with the name “Clarice Starling” (after the Jodie Foster character in the movie “Silence of the Lambs”) to secretly communicate with the handpicked vendor, Vertol Systems Company of Destin. Vertol and its chief executive, James Montgomerie, had been Keefe’s legal client in private practice.
After a month of delays and receiving only partial documents, the center filed a lawsuit alleging that the administration had violated the public records act when it did not turn over requested records.
Some documents but not all
Only after Marsh’s ruling did the governor’s office turn over the documents revealing Keefe’s secret email account and text messages relating to the recruitment of asylum seekers, mostly from Venezuela. Because Florida law required that state money could be used only to transport migrants out of Florida, the governor’s office had to fly the migrants from San Antonio into Florida in order to pay to have them sent to Martha’s Vineyard.
The center said that the simple requests were produced but alleges that some significant documents have still not been released, including the emails and text messages used by the governor’s chief of staff, James Uthmeier, who used an encrypted email application held on servers in Switzerland.
“The records to this day have not been produced, as ordered by the court, because the agency disputes that the phone logs are public records,’’ Mogensen told the court. “So had the center not filed within 30 days, there would be no opportunity for any judicial resolution of that issue.”
The three judges on the panel asked several questions. Judge Thomas D. Winokur noted that the court allowed the center to “jump its place in line ahead of other pending records requests” and asked what the rule going forward should be. Judge Brad Thomas, a former public safety policy coordinator for Gov. Jeb Bush, chastised Marsh for making no mention of Hurricane Ian.
“The court order did not even mention Hurricane Ian, did not mention the other public records requests,’’ Thomas said. “The circuit court order basically just said that you had to fulfill these demands quite promptly.”
Mogensen countered, however, that the way the Legislature has written the law creates a chicken-and-egg dilemma for the public. If the public does not file a complaint within 30 days of failing to receive its public records request, it loses the opportunity to complain.
But, Forrester argued, by requiring the governor’s office to turn over documents promptly, the court violated the separation of powers by ordering the executive branch to change how much it spends on producing public records.
“The court is effectively forcing a a reallocation of resources on the part of the governor’s office at the expense of other constitutional and statutory duties that the governor also bears,’’ he said.
Mogensen countered that the constitutional responsibility to provide the public access to government documents is a “responsibility of the highest order.” The law does not allow agencies to argue that it can’t produce records promptly because “we haven’t staffed properly, because we haven’t budgeted properly,’’ she said.
Thomas agreed that producing records is a “constitutional duty of the highest order” and asked Forrester “how long can an agency delay a request?,” and if the governor’s office “had an obligation to request additional appropriations” to produce records without a significant delay?
Forrester responded that agencies “don’t have infinite time and resources to respond to public records requests” but the court can’t tell the governor how to spend money.
“We are entering into potentially perilous separation of power territory,’’ he said.
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