Republican Florida Gov. Ron DeSantis' administration is once again trying to carve out broad new exemptions to the state's celebrated government transparency law.
This time, lawyers for DeSantis are arguing that call logs from a high-ranking staffer's phone aren't public record, even though the staffer was conducting government business, because it was a private phone.
The Tampa Bay Timesfirst reported Thursday that lawyers for the DeSantis administration argued in court this week before a Leon County judge that the governor's office shouldn't be compelled to turn over call logs from DeSantis' Chief of Staff James Uthmeier's private cellphone.
The Florida Center for Government Accountability sued the DeSantis administration in 2022 for records concerning the migrant flights to Martha's Vineyard that DeSantis organized that year using state resources. The governor's office has turned over many records so far—and disclosed that Uthmeier and other staff used personal email addresses and phones rather than their state-issued ones—but it is currently defying a court order to release Uthmeier's phone logs.
"Florida is no longer the Sunshine State when it comes to transparency," says Michael Barfield, the Center's director of public access. "The public's right to know is headed into darkness."
Public records laws are commonly interpreted at both the federal and state levels, including in Florida, to cover records created on private devices and accounts if they concern government business. For example, the 2023 edition of the Florida attorney general's Government-in-the-Sunshine Manual states that "the mere fact that an e-mail is sent from a private e-mail account using a personal computer is not the determining factor as to whether it is a public record; it is whether the e-mail was prepared or received in connection with official agency business."
The manual also notes that "a public official or employee's use of a private cell phone to conduct public business via text messaging 'can create an electronic written public record subject to disclosure' if the text message is 'prepared, owned, used, or retained…within the scope of his or her employment or agency.'"
But DeSantis' lawyers are arguing that Uthmeier's call logs are "tertiary data," the Tampa Bay Times reports:
"If you hold that these tertiary data points are somehow public records that also have to be captured by a public records custodian, that is a sweeping — sweeping — interpretation of public records," DeSantis lawyer Christopher Lunny told Leon County Circuit Judge Lee Marsh on Tuesday.
But under that argument, Marsh said, all government business could be shielded from the public.
"We ought to just put out word, 'Let's do all of our business on private, bring-your-own cellphones," Marsh said. "Then we don't need public records laws because there'll be no public records, right?"
As Reason described in a magazine feature last year on Florida's Sunshine Law, the DeSantis administration is not just chipping away at the once-powerful public records law; it's taking a sledgehammer to it. State lawmakers have made the governor's travel records secret, and the DeSantis administration has also tried to invoke executive privilege over other documents, a privilege that is found nowhere in Florida's Sunshine Law and has never been claimed by previous governors.
DeSantis' office did not immediately respond to a request for comment.
WikiLeaks founder Julian Assange has been imprisoned in London for five years, while Texas journalist Priscilla Villarreal was only briefly detained at the Webb County Jail. But both were arrested for publishing information that government officials wanted to conceal.
Assange and Villarreal argue that criminalizing such conduct violates the First Amendment. In both cases, the merits of that claim have been obscured by the constitutionally irrelevant question of who qualifies as a "real" journalist.
Assange, an Australian citizen, is fighting extradition to the United States based on a federal indictment that charges him with violating the Espionage Act by obtaining and publishing classified documents that former U.S. Army intelligence analyst Chelsea Manning leaked in 2010. He has already spent about as much time behind bars as federal prosecutors say he would be likely to serve if convicted.
President Joe Biden says he is "considering" the Australian government's request to drop the case against Assange. But mollifying a U.S. ally is not the only reason to reconsider this prosecution, which poses a grave threat to freedom of the press by treating common journalistic practices as crimes.
All but one of the 17 charges against Assange relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Yet all the news organizations that published stories based on the confidential State Department cables and military files that Manning leaked are guilty of the same crimes.
More generally, obtaining and publishing classified information is the bread and butter of reporters who cover national security. John Demers, then head of the Justice Department's National Security Division, implicitly acknowledged that reality in 2019, when he assured reporters they needn't worry about the precedent set by this case because Assange is "no journalist."
The U.S. Court of Appeals for the 5th Circuit took a similarly dim view of Villarreal in January, when it dismissed her lawsuit against the Laredo prosecutors and police officers who engineered her 2017 arrest. They claimed she had violated Section 39.06(c) of the Texas Penal Code, an obscure law that makes it a felony to solicit or obtain nonpublic information from a government official with "intent to obtain a benefit."
The cops said Villarreal committed that crime by asking Laredo police officer Barbara Goodman to confirm information about a public suicide and a fatal car crash. As interpreted by the Laredo Police Department, Section 39.06(c) sweeps even more broadly than the Espionage Act, making a felon out of any reporter who seeks information that is deemed exempt from disclosure under the Texas Public Information Act.
Gliding over the alarming implications of making it a crime for reporters to ask questions, the 5th Circuit dismissed the idea that Villarreal is "a martyr for the sake of journalism." The majority opinion by Judge Edith Jones dripped with contempt for Villarreal, an independent, uncredentialed journalist who posts her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.
Seemingly oblivious to what quotidian news reporting across the country entails, Jones faulted Villarreal for relying on a "backchannel source" and for "capitaliz[ing] on others' tragedies to propel her reputation and career." But like the judgment that Assange is "no journalist," such criticism fundamentally misconstrues freedom of the press, which applies to anyone who engages in mass communication.
The 5th Circuit's decision provoked four dissents authored or joined by seven judges, and it is not hard to see why. "If the First Amendment means anything," Judge James C. Ho wrote, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment."
In a petition it filed on Villarreal's behalf last week, the Foundation for Individual Rights and Expression urges the U.S. Supreme Court to vindicate that right. "Villarreal went to jail for basic journalism," it notes. "Whatever one may make of Villarreal's journalistic ethics, they are of no constitutional significance."
The CIA is so known for its unabashed secrecy that, when it joined Twitter in 2014, its first tweet was: “We can neither confirm nor deny that this is our first tweet.” This non-response response is known as a “Glomar,” and while the intelligence community likes to poke fun at how often they invoke it, this inane phrase has allowed the CIA to skirt meaningful transparency and accountability for decades.
In 1966, over the Johnson administration’s opposition, Congress enacted the Freedom of Information Act (FOIA), giving all of us the right to ask the government for documents and have the government respond, as it believed such access was a prerequisite to a functioning democracy. Soon after FOIA was passed, a Soviet nuclear submarine went missing somewhere in the Pacific Ocean, and the CIA took an early opportunity to undermine this new law.
The Soviet Union and the United States raced to locate the missing sub and extract the intelligence likely inside. But first, the U.S. needed to build a ship that could actually extract the sub once it was found — and the government wanted no one to know about it. The CIA contracted this mission out to Howard Hughes, a billionaire with little concern for government transparency, who told the media that the purpose of the ship (named the Hughes Glomar Explorer) was to extract manganese nodules from the ocean floor. Six years later, in 1974, the extraction began. Unfortunately for the U.S., the extracted sub broke into pieces and what the government most wanted was lost: the ship’s code machine and two nuclear missiles. Details of this secret, bungled extraction started to leak, inaccuracies and half-truths swirled, and people rushed to file FOIA requests hoping to answer the many outstanding questions.
Worried about the geopolitical consequences, and obsessed with controlling information about its activities, the CIA came up with a novel way to keep the mission secret without telling an all-out lie. The agency decided it would refuse to confirm or deny whether records about the Glomar Explorer’s mission existed, despite the mounting public evidence that they did. And so the “Glomar response” was born. And, in the case of the Glomar Explorer, it worked: Historians claim many documents remain hidden to this day.
Unfortunately, in the decades since the submarine debacle, and especially in the post-9/11 era, we’ve repeatedly seen the CIA use the Glomar response to evade responsibility. They have used it to claim they could not say whether they had information about the government’s use of drones to carry out lethal strikes overseas, and when asked about legal justifications for the verified extrajudicial killing of three U.S. citizens. They’ve even used it to side-step questions about whether they’ve spied on Congress.
We’re even seeing state agencies attempt to use the CIA’s non-response to circumvent local public records requests. For example, in 2017, the New York Civil Liberties Union filed a public records request seeking documents regarding the NYPD’s monitoring of protesters’ social media activity and cell phones. The NYPD initially responded with a blanket statement that it could “neither confirm nor deny” whether such records existed, saying that even revealing the existence of records could harm national security. A New York court rejected this argument and ordered the NYPD to respond to the request in full.
And the CIA’s penchant for secrecy continues to expand, with the agency using Glomar to obstruct attempts to obtain records that would publicly shine a light on the agency’s failures and abuse, even when that abuse is well documented by the CIA itself and other sources.
Take, for instance, the CIA’s torture program. After the 9/11 attacks, the agency abducted dozens of Muslim men and boys, held them incommunicado, brutally tortured them, and denied the due process in sites around the globe. Once the program was exposed, 14 of the government’s “high-value detainees” were taken to the U.S. military prison at Guantánamo Bay, and detained at a notorious facility known as “Camp VII.” Attorney James G. Connell III, who represents Ammar al Baluchi, one of the men subjected to the CIA torture program and sent to Camp VII, filed a FOIA request with the CIA seeking information about the agency’s “operational control” over the facility. That “operational control” is hardly a secret: it was highlighted in the Senate Torture Report and in CIA and military commissions documents. But instead of processing Mr. Connell’s request, the agency issued what it called a “partial” Glomar response, producing three records, withholding a fourth in its entirety, and refusing to confirm or deny whether any other responsive records exist.
Given the extensive public record about the CIA’s connection to Camp VII, its refusal to acknowledge that it has responsive records both violates the law and defies common sense. That’s why we’re representing Mr. Connell in his appeal in federal court. To uphold its response, the CIA must demonstrate that it is logical or plausible that it has no responsive records in light of the entire record. That’s simply not possible here. We know this because there is an overwhelming amount of public evidence about Camp VII — from the Senate Torture Report, to court documents from the Guantánamo proceedings, to other documents the CIA itself released — that has left no doubt of CIA involvement. And yet, the CIA continues to avoid its legal obligations under FOIA through gaslighting and Glomar.
Connell v. CIA offers a real chance to not only break the CIA’s bad habit of using Glomar to evade transparency and accountability, but also issue a warning to other government agencies that hope to follow in the CIA’s footsteps by leaning into excessive secrecy.
WikiLeaks founder Julian Assange has been imprisoned in London for nearly five years, pending extradition to the United States so he can be prosecuted for violating the Espionage Act by publishing classified information. Since that amount of time behind bars is about the same as the four-to-six-year prison term that Justice Department lawyers have said Assange would be likely to serve if convicted, you might think the Biden administration would be ready to reconsider this case, especially since it poses an alarming threat to freedom of the press. Instead, the U.S. government's lawyers are back in London for yet another hearing, which Assange's attorneys describe as a last-ditch attempt to block his extradition.
Recognizing the First Amendment implications, the Obama administration declined to prosecute Assange for obtaining and disclosing confidential State Department cables and military files leaked by former Army intelligence analyst Chelsea Manning in 2010. After all, leading news organizations in the United States and around the world had published stories based on the same documents, and those acts of journalism likewise could be construed as felonies once this precedent was established. So could the routine practices of reporters who cover national security, which commonly involves divulging information that the government prefers to keep secret.
Despite those concerns, the Trump administration decided that Assange should be locked up for doing things that The New York Times et al. do on a regular basis. All but one of the 17 counts in Assange's latest federal indictment relate to obtaining or disclosing "national defense information," which is punishable by up to 10 years in prison. Theoretically, Assange could face 160 years in prison for those counts alone, although the government's lawyers say it probably would be more like the amount of time he already has served in the United Kingdom. Manning herself—who, unlike Assange, violated the terms of her government employment—received a 35-year sentence but was released after seven years thanks to Barack Obama's commutation.
"Some say that Assange is a journalist and that he should be immune from prosecution for these actions," John Demers, then the head of the Justice Department's National Security Division, told reporters after the Assange indictment was announced in May 2019. "The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department's policy to target them for reporting." There is no need to worry, Demers suggested, because Assange is "no journalist."
This line of argument misconstrues the "freedom…of the press" guaranteed by the First Amendment, which applies to mass communication generally, not just the speech of people whom the government deigns to recognize as journalists. Demers' assurance is similar to the reasoning that the U.S. Court of Appeals for the 5th Circuit recently applied in counterintuitively concluding that treating journalism as a crime is not "obviously unconstitutional."
That case involved Priscilla Villarreal, a Laredo, Texas, gadfly and citizen journalist who was arrested in 2017 for violating Section 39.06(c) of the Texas Penal Code. Under that previously obscure law, a person who "solicits or receives" information that "has not been made public" from a government official "with intent to obtain a benefit" commits a third-degree felony, punishable by two to 10 years in prison.
Texas defines "benefit" as "anything reasonably regarded as economic gain or advantage." According to the arrest affidavits, the "benefit" that Villarreal sought was a boost in Facebook traffic. Section 39.06(c) defines "information that has not been made public" as "any information to which the public does not generally have access" that is also "prohibited from disclosure" under the Texas Public Information Act. The arrest affidavits did not address the latter requirement at all.
Like the Espionage Act, Section 39.06(c) purportedly criminalizes common reporting practices—in this case, obtaining information about a public suicide and a fatal car accident from a "backchannel source" at the local police department. Writing for the 5th Circuit majority in Villarreal v. Laredo, Judge Edith Jones did not try to hide her disdain for Villarreal, an independent, uncredentialed journalist who files her unfiltered reports on Facebook instead of publishing vetted and edited stories in a "mainstream, legitimate" news outlet.
"Villarreal and others portray her as a martyr for the sake of journalism," Jones wrote. "That is inappropriate. She could have followed Texas law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others' tragedies to propel her reputation and career."
Although Jones implies that Villarreal's arrest was prompted by concern for "the families of decedents," Villarreal plausibly argued that it was actually punishment for her outspoken criticism of local law enforcement agencies. In any case, there is no First Amendment exception for reporting that might offend or disturb people. And Jones' characterization of Villarreal's work as "capitaliz[ing] on others' tragedies to propel her reputation and career" is an apt, if cynical, description of what many journalists do, even when they work for "mainstream, legitimate media outlets." Jones apparently is unfamiliar with the bread and butter of local news organizations and has never heard the expression, "If it bleeds, it leads."
The seven dissenting judges saw the situation differently. "If the First Amendment means anything," Judge James C. Ho wrote in a dissent joined by five of his colleagues, "surely it means that citizens have the right to question or criticize public officials without fear of imprisonment." Judge James E. Graves Jr. likewise complained that "the majority opinion will permit government officials to retaliate against speech while hiding behind cherry-picked state statutes."
Judge Stephen A. Higginson noted that Thomas Paine, who wrote "the pro-independence pamphlet that historian Gordon Wood describes as 'the most incendiary and popular pamphlet of the entire revolutionary era,'" was, like Villarreal, a "citizen-journalist." Upholding "the text of the Constitution, as well as the values and history that it reflects," he said, "the Supreme Court guarantees the First Amendment right of engaged citizen-journalists, like Paine, to interrogate the government." Jones, by contrast, presumably would view Paine as disreputable, since he did not work for a "mainstream, legitimate media outlet."
Assange's critics, including some professional journalists, have proposed a similar distinction, arguing that he does not deserve the First Amendment's protection because he is not a "real" journalist. But whatever you might think of Assange's opinions, his tactics, or the care he exercised in publishing classified material, that distinction is not grounded in the Constitution and will not hold in practice.
The editors and publishers of The New YorkTimes, The Guardian, Le Monde, Der Spiegel, and El País recognized as much in 2022, when they urged the Justice Department to drop the case against Assange. In ignoring that advice, the Biden administration seems bent on establishing a dangerous precedent that replaces the First Amendment's guarantee with the whims of prosecutors.
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