In this issue:
  • FAF Podcast Launch: Open Government in Florida
  • Open Meetings Are Not So Open During Pandemic
  • FAF Fights for Your Right to Know in Court
FAF PODCAST IS LIVE: "Open Government in Florida"
As an addition to our newsletter, the First Amendment Foundation is thrilled to announce we will have a monthly (or maybe even semi-monthly) 15-minute podcast, posted on Apple Podcasts, Spotify and Stitcher. The purpose of the podcast is to feature stories of victories obtained using open records or open meetings laws. The President of FAF, Pamela Marsh, will interview citizens, journalists, leading state advocates, and elected officials. Discussion will center around transparency in government, access to government records and participatory democracy in the Sunshine State.
 
We will announce each new podcast posting in our newsletters and tell you about FAF's guest on the podcast and issues discussed.
 
In our first episode, we are excited to announce that First Amendment Foundation interviews Mary Ellen Klas about investigative reporting and the state of the news media in Florida. Mary Ellen is the capital bureau chief for the Miami Herald, covering state government and the legislature in Tallahassee for nearly 30 years. We will talk about where she gets her leads and discuss how the capitol city has become a perfect storm of politics, power and influence manipulating billions of taxpayer dollars. Mary Ellen will share her thoughts on changes in the way we receive our news and why that is killing local newspapers. What can you do to find accurate news sources, prevent news deserts, and support freedom of the press in Florida? Listen in and find out!
 
You can find "Open Government in Florida" on
 
The podcast is also posted under the Podcast Tab on FAF’s website : www.floridafaf.org
 
We welcome your ideas regarding future guests and topics at info@floridafaf.org .
 
OPEN GOVERNMENT STRUGGLES DURING COVID-19
OPEN GOVERNMENT STRUGGLES DURING COVID-19
As you know from our March newsletter, on March 20, 2020, Governor Ron DeSantis issued Executive Order 20-69 . EO 20-69 allowed local governments and boards to meet quorum requirements for public meetings by video or telephone conference. 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 written minutes must be taken.
 
And although Governor DeSantis moved to open restaurants, retail and gyms in Phase 1 and Phase 2, he continued to extend the life of EO 20-69—allowing local government to continue meeting remotely. Most recently, the Governor extended permission for local officials to meet quorum requirements virtually through August 1, 2020, in Executive Order 20-150 .
 
The problems with virtual local government meetings abound. First, lots of local governments are simply live streaming video of themselves discussing and deciding issues, allowing public comment only when written to and received by the commission or council far in advance of the meeting. Then, the written comment is read by an disinterested administrator, which generally takes less than thirty seconds. It is a poor excuse for public comment, and not at all similar to the passionate, look-me-in-the-eye engagement that we previously expected under Florida's Sunshine Law. This is a paltry, pathetic excuse now passing for public participation.
 
There are much better virtual meeting options available, and some municipalities and counties are putting them to good use. They use teleconferencing and videoconferencing together, and they offer real-time participation by opening individual lines to citizens for public comment, taking comments that are written in real-time using the "chat" function, and muting lines when the meeting moves to commission discussion and voting. The online technologies are great—when they work; but they often fail. That's why it's good to have multiple options: belt and suspenders. Citizens in Miami-Dade County, for example, have been quite happy with the additional accommodation and participation provided by telephone conferencing and video conferencing, along with live-streaming. Telephones almost always work and nearly everyone has access to a phone. Obviously, this is not true of adequate Wi-Fi and ownership of internet-connected devices, which are not so universally available.
 
Here are just a sprinkling of the stories we here about from all over the state:
  • One commission redrew districts, which forced two commissioners who had often worked together against the other three commissioners into the same district. The result is that now these two commissioners will have to compete for re-election against each other.
  •  Several commissions have taken advantage of having no real-time live audience to fire mayors, managers and long-time public servants.
  •  Another commission quickly voted to bring a statue of Confederate General Kirby-Smith to its courthouse museum—at a time when many cities are taking down confederate monuments. After a successful grassroots movement and media attention, the commission reversed its decision.
  • An enormous comprehensive development plan was nearly railroaded through by a local government with no real-time public participation. The vote was stalled only after citizens called and wrote to commissioners, penned op-eds, spoke on radio shows, and sent letters to the editor of the local newspaper. Commissioners quickly realized that the public demanded to be heard.
 
We bet you know of more of these stories. As cases rise in Florida and communities again close beaches and businesses, so may our governments grow more confident. We hope we are wrong, but some commissions may grow bolder, believing they can do business behind closed doors as the only safe option. If we allow this to happen, it will continue to happen and, ultimately, become the norm.
 
Our rights to open government are constitutional rights that grow stronger with exercise and weaker with neglect.

Please help us push back. Help us help you stand up for your right to know.
FIGHTING FOR YOUR RIGHT TO KNOW AND FOR JUSTICE
The First Amendment Foundation has been proud to join with other non-profits and news organizations in bringing lawsuits against Florida government agencies and municipalities that have failed to provide public records regarding data pertaining to the pandemic or have violated open meetings laws. In late April, our lawyers at Thomas & LoCicero filed a lawsuit against the Agency for Health Care Administration, the Department of Health, and the Executive Office of the Governor for failing to comply with Florida’s Public Records Law. In bringing the lawsuit against these agencies, the First Amendment Foundation joined the Associated Press, Gannett Co., Inc., Miami Herald Media Company, The New York Times Company, Orlando Sentinel Communications Co., Scripps Media, Inc., Sun-Sentinel Company, LLC, Times Publishing Co., and WP Company LLC. The pressure brought by this broad media coalition and the tenacity of our legal team led to success without full-blown litigation; requested data—regarding long-term care facility COVID-19 testing, positive test results, and fatalities at particular facilities —has been released. While the lawsuit remains open, data continues to be updated and released.
 
We have also recently intervened in a lawsuit brought to keep the identity of law enforcement officers secret, in which the Police Benevolence Association (PBA) claims that officers who were involved in on-duty shootings that resulted in fatalities are victims under Marsy's Law.
 
The issues at stake in this lawsuit are paramount. The memorandum of law filed by Thomas & LoCicero explains: "As recent times have made abundantly clear, transparency in law enforcement is critical for accountability, and the public has a state constitutional right to examine records documenting the on-duty actions of the officers sworn to protect and serve their communities." FAF couldn't agree more.
 
As our filing concludes:
 
The public has a vital right to evaluate the conduct of government agents who are empowered to arrest our civil liberties and use deadly force. The Petitioners [the PBA] seek to eviscerate that right by molding themselves into “victims” under Marsy’s Law in order to prevent public scrutiny of their actions. That is not what Marsy’s Law intended and not how it should be interpreted.
As you know, lawsuits are expensive and required resources, but they are necessary (now more than ever, it seems) to hold the government's feet to the fire when it comes to transparency and the public's legal rights. Rest assured that your support of FAF allows us to continue to battle for enforcement of open government laws.
First Amendment Foundation