First Amendment News
March 2020
In this issue:
  • Reporter Excluded from COVID-19 Briefing
  • Legislative Report for 2020
  • Open Government in the Age of COVID-19
  • Award Nominations Open through April
REPORTER SHUT OUT OF GOVERNOR’S BRIEFING:
On Saturday, Governor Ron DeSantis excluded reporter Mary Ellen Klas from a press briefing on COVID-19. As chief of the combined Miami Herald-Tampa Bay Times bureau in Tallahassee, Klas is an experienced reporter who writes for organizations at the epicenter of the pandemic. Losing her keen insight is a loss for the public.
 
Our leaders should never hand-select a group of journalists who won’t ask difficult questions and exclude the rest. This can never be tolerated in a nation that reveres freedom of speech and a free press -- but especially not in the middle of a public health crisis. The whole state needs to be informed with the most up-to-date accurate information available.
 
With the legislative session over, there is plenty of space in the Capitol to hold a briefing that respects social distancing and accommodates the media. The floor of the House and Senate chambers, the press box, and galleries are all open. We stand with the Florida Society of News Editors in calling for the governor’s office to give adequate advanced notice of all briefings, use video conferencing, and take reporters’ questions. Journalism, accountability, and our constitutional rights cannot be put "on hold" until the end of crisis. 
AT THE CAPITOL:
The Florida 2020 legislative session was fast-paced and challenging, as usual. The Foundation tracked 123 bills that would have either created new open government exemptions or extended current exemptions, this year. However, the conclusion of Session was soberingly not business as usual, due to the realities of COVID-19's arrival in our state.
 
The good news for Open Government is that our legislature passed only eight new exemptions. This is a decrease from the last several years and, based on the First Amendment Foundation’s tracking, the first time we've seen single digits in eight years and the lowest number of new exemptions passed since 2012.

Notably, none of the bills exempting home addresses and personal information for certain professionals passed. Lawmakers introduced many exemptions for the home addresses of professionals, including legislators and cabinet officials, judicial assistants, and emergency room workers, to name a few. Columnists across the state raised concerns that these bills would undermine Florida’s revered Sunshine Laws and government oversight . Governor DeSantis rightly joined in expressing concerns , reasoning that the public should know whether lawmakers live in the community they were elected to represent. Our bottom line: the exemptions provide a false sense of security; if a person truly wants to cause harm, information is already available on the internet; an exemption does nothing but place an expensive burden on the public and government employees.

Two other bills failed that the First Amendment Foundation strongly opposed, with support from critical allies. Senate Bill 774 would have shielded the search for college and university presidents from public scrutiny. Similar bills have been proposed -- and have all failed -- in several prior sessions. We noted that this would have permitted a less qualified, hand-picked favorite to lead our state institutions. As the Brechner Center for Freedom of Information argued, there is no evidence that secrecy leads to better candidates ; in fact, closed door searches in other states have resulted in shorter, less successful presidential terms. There was opposition to this bill all across Florida, and editorial boards and columnists called on lawmakers to keep these searches in the Sunshine. United Faculty of Florida and the ALF-CIO organized critical advocacy efforts to help defeat the measure. We are grateful for the collaborative effort and energy of all who helped in successfully opposing the bill.

The other bill we opposed was House Bill 7, which would have eliminated the requirement that governmental agencies publish legal notices in newspapers and permitted notice to be published exclusively on government websites. This move would have particularly affected Floridians with limited internet access. As our partners at the Florida Press Association noted, the bill would have reduced the reach of notice and led to a less informed public. While the House passed the bill, the Senate version died in committee. We extend our deep appreciation to the FPA for organizing and leading the opposition efforts.

All in all, 2020 marked a successful legislative session for Open Government. It was a team effort and your investment in our work made all the difference. Thank you for continuing to give generously to our mission!
THE IMPORTANCE OF OUR MISSION -- NOW MORE THAN EVER:
As governments, big and small, make decisions remotely and in isolation, access to government records and open meetings remains essential. The First Amendment Foundation has the following recommendations to protect the public’s right to know during this crisis.

Because nothing in this crisis is "business as usual," government business should not be conducted "as usual." Meetings should be limited to only essential, imminent business that must be made during the state of emergency. Boards and councils should postpone all non-essential decisions which can be considered in the future, at meetings that can be open and accessible to all members of the public and ensure meaningful participation. We know students and teachers are finding ways to use new technologies to engage and interact in real time -- governments should follow their lead.
 
Cities and counties are wisely issuing “stay at home” or lock-down orders to slow the spread of the virus. When issuing such orders, local governments should classify newspapers, television, radio and other media services as essential businesses that are exempt from restrictions and may remain open. Here is an example of an order issued by Miami-Dade County, exempting the press from closure. During this time, the work of the media is critical to providing updated health information and to provide oversight of the government’s response to COVID-19.
 
While working from home on personal computers, government officers and employees should continue to use their official work email addresses. If that is not possible, employees should "cc" (or copy) their work emails on all correspondence, so all emails relating to government business are properly archived. All governmental bodies subject to public records law, if feasible, should consider using an application to capture and archive text messages sent by public officials. These apps are readily available and easy to use. They should be mandatory for state and local government entities.
 
Executive Order 20-69 modified in-person quorum requirements for public meetings. Notably, Florida’s Government-in-the-Sunshine requirements remain in place: municipalities and boards must provide reasonable notice of a meeting; the public must be allowed to attend and comment; and minutes must be taken.
 
If meeting through telephonic or video conferencing, as permitted by Executive Order 20-69, municipalities should make those meetings accessible to the public, telephonically or electronically. In addition, municipalities should livestream meetings online and request television and radio stations to broadcast these meetings for the community. Governments should provide a means to accept public comment before meetings by email or phone. If livestream or broadcast is not possible, governments must preserve a record of the proceedings and make the record available online as quickly as possible.  
 
For additional information on maintaining access to records and meetings during this time, please see the letter the First Amendment Foundation signed along with 132 organizations. 
NOMINATIONS NOW OPEN FOR FAF AWARDS:
Unfortunately, we were unable to hold our usual Sunshine Week festivities this year. But that doesn't mean we won't celebrate Open Government warriors who deserve to be honored for their work.
 
Please send in your nominations for our three awards no later than May 1, 2020:
 
  • The Pete Weitzel - Friends of the First Amendment Award;
  • The James C. Adkins / Sunshine Litigation Award; and
  • The Lucy Morgan Award for Open Government Reporting

Read more about the awards here .

First Amendment Foundation