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 Times first 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.

The post Ron DeSantis Won't Stop Trying To Gut Florida's Public Records Law appeared first on Reason.com.

Very few governments and government agencies value the transparency and accountability that robust open records laws create. It took an act of Congress to even establish a presumptive right of access to government records. And all across the United States, state governments are always trying to find some way to limit access without getting hit with an injunction from courts that seem far more respectful of this right than the governments and agencies obliged to conform with statutory requirements.

Not for nothing is it pretty much de rigueur to engage in litigation to obtain records from entities legally required to hand them over. New Jersey is the latest state to help itself to more opacity while placing more obligations on the public — you know, the people who pay their salaries. While there have been a few moves towards the positive side of this equation over the past decade, legislators and Governor Phil Murphy have decided the public only deserves to know what the government feels like telling it.

As Matt Friedman reports for Politico, the new normal in New Jersey is discouraging people from suing after their records requests have been blown off by state agencies. This isn’t anything state residents want. This is the governor protecting the government from the people it’s supposed to be serving.

The problematic law doesn’t dial back any obligations to respond to requests. Instead, it’s a bit more nefarious. It assumes government entities will fail to comply with their statutory obligations, but passes that cost on to the people directly by making it far more expensive to force records out of agencies’ hands.

Here’s the impetus:

The push for the bill has largely come from lobbyists for county and local governments, who say records custodians are burdened by commercial and unreasonable requests by a small number of people.

And here’s the outcome:

Most controversially, the legislation would end the current practice of mandatory “fee shifting,” in which governments pay the “reasonable” legal costs for any requester who successfully challenges a records denial in court. It would instead leave it up to a judge, who would only be required to award the legal costs to the plaintiff if they determine the denial was made in “bad faith,” “unreasonably,” or the government agency “knowingly or willfully” violated the law.

That places the burden of litigation almost entirely on records requesters. If they decide to initiate litigation to obtain what the law says the state must turn over, they’re now faced with the possibility of not being able to recover their litigation costs even if a judge rules a government agency must turn over the requested records. All the government needs to demonstrate (and a judge needs to trust its narrative) is that any failure to provide records wasn’t a “knowing” violation of the law. This is the government seeing all the litigation non-compliant agencies generate and somehow arriving at the conclusion that it just must be too easy to sue the government for refusing to uphold its end of the public records bargain.

And that’s not all. The law also grants a presumptive fee burden on requesters, requiring them to demonstrate (to agencies already unwilling to comply with requests) that the requested fees are “unreasonable.” More specificity is also demanded of requesters, which is insane because requesters in some cases can’t possibly know the specifics of the records they’re requesting and will likely only have those specifics if the government agency actually hands over the records.

Bizarrely, it also bars requesters from sharing any photo or video received via a public records request if it contains “any indecent or graphic images of the subject’s intimate part” without getting direct permission from the person captured in the recording or photo. And that makes it pretty easy for the government to bury photos and recordings it doesn’t want to have shared by refusing to redact or blur any footage/photos containing an “intimate part.”

That means things like a violent arrest of person suffering a mental health crisis could be buried just because (as happens frequently in cases like these) the person being violently subdued by cops is underclothed or naked. If nothing else, it passes on the expense of redacting footage to those receiving the recordings, rather than place that obligation on those releasing records that might violate the stipulations of the revised public records law.

The gist of the law — and definitely the gist of the governor’s statement [PDF] in support of his own signature on said law — is that the government is real victim here. It’s being steadily crushed under the litigious heel of requesters who sue when the government violates the law, refuses to hand over records it’s obligated to hand over, or just make what the government considers to be too many records requests.

After a thorough examination of the provisions of the bill, I am persuaded that the changes, viewed comprehensively, are relatively modest.

Hmmm. Except that no one but government entities seeking greater opacity (or at least angling for a lower obligation for responses) is in favor of this law. Anyone actually engaged in transparency and accountability efforts doesn’t see this as “modest” revision of the state’s public records law, much less as a win for the general public. This is the government doing what it does with its greatest enthusiasm: protecting itself from the people it’s supposed to be serving.

Police and sheriff's departments across Florida spent thousands of dollars sending officers to training conferences that have been banned in nine other states after being accused of promoting unconstitutional tactics and glorifying violence.

Reason obtained invoices through public records requests showing that a dozen of Florida's largest law enforcement agencies spent $31,377 on training seminars hosted by Street Cop Training, a New Jersey-based company, between 2020 and 2023.

The company has been under intense scrutiny since the New Jersey Office of the State Comptroller issued a scathing report in December detailing a 2021 Street Cop Training conference in Atlantic City where instructors made discriminatory and unprofessional remarks. At the conference, one instructor flashed a picture of a monkey when talking about an elderly black man, and the founder of the company said that refusing to consent to a police search was justification for prolonging an investigation. Since then, New Jersey has ordered retraining for all officers who attended Street Cop conferences, and the company has declared bankruptcy.

The Florida invoices shed light on Street Cop's foothold in one of the most populous states. Despite the turbulent times for the company, it is soldiering on in the Sunshine State. As Florida Today's John Torres noted in a recent op-ed, Orlando is hosting the 2024 Street Cop Conference this week.

Not only that, but Brevard County Sheriff Wayne Ivey is a speaker at the conference.

Torres noted with disdain that taxpayers were footing the bill to send officers to these conferences.

"Locally, at least one Melbourne officer is attending the training with the department paying for it," Torres wrote. "Palm Bay and Cocoa have none and the Brevard County Sheriff's Department did not respond to my inquiry about how many deputies were attending. The Florida Department of Law Enforcement could not tell me how many officers were attending."

It would probably not surprise Torres to learn that the Brevard County Sheriff's Office spent the most out of any agency that has so far responded to Reason's records requests. Street Cop invoices to the agency total $7,825 between 2020 and 2023.

The next biggest spender was the Osceola County Sheriff's Office with $7,085, followed by the Seminole County Sheriff's Department at $6,604.

Six Florida Highway Patrol officers attended Street Cop training seminars during that time period, according to records.

To compile this report, Reason filed 28 public records requests to the largest police departments and sheriff's offices in Florida. Nine agencies said they had no responsive records. Seven requests are still pending, including from populous jurisdictions such as Broward and Orange County.

Street Cop Training was founded in 2012 by Dennis Benigno, a former New Jersey police officer. It runs training conferences for thousands of police officers around the country, but flew under the radar until New Jersey Comptroller Kevin Walsh's December report. The report documented dozens upon dozens of lewd and discriminatory remarks by instructors and comments glorifying violence.

More concerning than the constant middle-school jokes about penis size, though, were the substance of the presentations. For example, Benigno and other instructors at the Atlantic City conference insisted that refusing to consent to a search of one's vehicle—a constitutional right under the Fourth Amendment—was suspicious and should be used as justification for prolonging a search or detention.

The comptroller investigation found that there was "an entire section of Benigno's training during the Conference dedicated to an 'I Do Not Consent Game,' during which Benigno shows a montage of people refusing consent in an attempt to illustrate that a motorist's refusal to consent is a suspicious factor that justifies further prolonging an investigative detention."

The comptroller's office found that multiple instructors told officers to use a "reasonable suspicion" checklist to decide whether to find a reason to pull someone over or extend a traffic stop. The checklist included a long list of vague and contradictory behavior, including the driver not looking at a police car when passing, looking too long at a police car when passing, wearing a hat, removing a hat when an officer approaches, looking back at their vehicle, leaning against their vehicle, smoking, stretching or yawning, and licking their lips.

"Because none of these factors are more consistent with guilt than innocence, a stop based on a combination of those factors alone—without some additional factor that suggests criminality—would be unconstitutional," the New Jersey Comptroller's Office concluded.

Benigno also mocked people who record the police during traffic stops, saying that person was about to "get pepper sprayed, fucking tased, windows broken out, motherfucker." Recording the police is a First Amendment right.

One Street Cop instructor in Louisiana livestreamed himself shooting at a fleeing vehicle and later bragged about it at the Atlantic City conference. "Run from me, somewhere along the chase becomes, pow, pow, pow, pow, pow, pow, pow," he said. The deputy has since been charged with illegal discharge of a firearm and obstruction of justice.

The report found that at least New Jersey spent at least $75,000 in public funds sending officers to the Atlantic City conference.

Benigno said in the wake of the report that he was tightening professional standards for the conferences and making other changes, but he denied that the company promoted unconstitutional tactics.

In a lengthy statement to Florida news outlet WESH last week, Benigno said in part: "The context of the Fourth Amendment training at the October conference and the implications that the training was unconstitutional is completely baseless. Officers in attendance have already completed police academy and understand the context in which the training is provided."

Not all of the public records identify which seminars officers attended, but at least some of them involved traffic stops and interdiction. One officer from the Tallahassee Police Department attended a 2021 Street Cop Training class titled "identifying criminal vehicles and occupants," and a Duval County Sheriff's deputy attended "interdiction mastermind."

The Volusia Sheriff's Office paid for five deputies to attend seminars that included "unmasking facial expressions" and "body language for law enforcement."

The ability to reliably detect lies or guilt by reading facial expressions and body language has never been replicated in controlled studies. It's pseudo-science, but it has nevertheless remained popular among law enforcement because it gives officers a wide-ranging and often contradictory list of cues to confirm their suspicions. (Walsh's report also notes that "some other controversial factors [on the checklist] are observing 'micro-expressions' as taught through free online videos and assessing 'blink rate.'")

The controversy over Street Cop Training has led some Florida sheriff's offices to distance themselves from the company.

A spokesperson for the Seminole County Sheriff's Office says none of its members will be presenting or attending this year. The Volusia County Sheriff also told local media that he wouldn't be sending deputies to the conference.

Meanwhile, Brevard County Sheriff Wayne Ivey remains a staunch defender of the company.

"This is all a bunch of crap," Ivey said of Walsh's report. 

Ivey was a paid consultant at a Street Cop conference last year in Nashville.

The post Florida Police Departments Spent Thousands on Training Seminars Banned in 9 States appeared first on Reason.com.