Perspective: Sunshine Laws remain intact -- so far

As of today, Florida's citizens still have the right to know what their government is up to. Open government laws are still intact and the public still has access to records. As of today, sunshine still illuminates most of the dark corners of the state Capitol.

Tomorrow, however, conditions may get cloudier.

The special legislative session, an unedifying spectacle of brinkmanship and hissy fits, has ended in Tallahassee. House Speaker Tom Feeney and Senate President John McKay were so busy trading tantrums that lawmakers flounced out of town without seriously wounding Florida's civil liberties, progressive public records laws and tradition of open government.

It wasn't for lack of trying, though. Sens. Ginny Brown-Waite, R-Brooksville, and Rod Smith, D-Gainesville, sponsored a measure that would deny Floridians the right to know whether public health authorities have stockpiled enough smallpox vaccine or anthrax-treating antibiotics in case of an outbreak. And it would be almost impossible to find out if officials were responding to a public threat responsibly. We'd just have to take the state's word for it.

It gets worse. Another bill would let the Florida Department of Law Enforcement delay access to records normally open to inspection, as long as the FDLE executive director certifies that suppressing the record is necessary for an active criminal or intelligence investigation to do with a terrorist threat. FDLE could require a state agency to seal a public record for up to seven days in the first instance. Then FDLE could go to a judge and, in a closed hearing, extend the seal for up to two more weeks.

FDLE executive director Tim Moore, along with Florida's sheriffs, lobbied legislators hard over this one, arguing that public access to information -- even information the public is used to having -- could compromise law enforcement's ability to thwart terrorist activities. Sometimes, he complains, the media get to a suspect or a material witness before the police do, alerting others who may be involved in terrorist activity and allowing them to escape.

This might be a reasonable worry -- if it were true. Florida's public records law already exempts information directly relating to ongoing criminal or intelligence investigations. If the police can't reach a suspect or a witness before a reporter does, the police might want to brush up on their technique.

What FDLE really wants is to take for itself the authority to decide which records to keep secret. Not only does this violate the Florida Constitution, which says that only the Legislature can create exemptions to public records law, it might let FDLE deny access to, say, normally open arrest records. The police could lock up people for suspected terrorist activities who just happened to come from the wrong place, or maybe had the wrong skin color, and it would be nearly impossible for the media or anyone else to find out about it -- let alone make a fuss -- for up to three weeks. Barbara Petersen, president of the First Amendment Foundation, warns, "Access delayed is access denied."

And as if this expansion of police power didn't smell unconstitutional -- even un-American -- enough, FDLE also wants the right to detain suspects and material witnesses for up to four days without charging them or even showing probable cause. Civil libertarians have been particularly alarmed by this move, calling it a blow to democratic principles. Such an expansion of police powers would, according to Petersen, "virtually preclude any opportunity for public oversight" and is "completely antithetical to our tradition of justice."

It would be nice to report that cooler, wiser heads prevailed during the special session, and that's why the Florida Legislature has not yet passed any of these bad bills. It's true that Feeney signaled early on that he preferred to wait and take up public records laws during next year's regular session. And some Cuban-American legislators, usually among the most conservative, worried out loud about law enforcement's potential new prerogatives, perhaps slowing the momentum in the House. Rep. Marco Rubio, R-Coral Gables, recently said the "measures we are talking about implementing are the very same ones that were forced on the people of Cuba right after Castro took over."

But it was really political brawling among Republicans that helped the state avoid a meltdown of its sterling public records laws. Feeney was most interested in a slash-and-burn budget that protected last year's cut in the intangibles tax. McKay favored fewer cuts to social services and education but was prepared to give law enforcement what it wanted on "security matters." Some of this may have to do with the cushy Republican congressional district Feeney hopes will be drawn just for him next year. Perhaps he wants to look like a champion of open -- if very much smaller -- government.

Meanwhile, McKay, who usually positions himself as the moderate to Feeney's rabid right-winger, actually increased the secrecy of the Senate. At his request, the Senate gave the president the power to close portions of meetings that "address security, espionage, sabotage, attack and other acts of terrorism" and to keep secret all information in such meetings -- including recorded votes.

And where, Floridians may ask, is Gov. Jeb Bush on these issues? The governor has been like the Cheshire Cat during the budget pique-fest, with only the faintest glimmer of his presence during a special session that seemed more like a WWF throwdown than the dignified exercise of democracy. He expressed puzzlement over what he called the Senate's "secret vote thing," but generally seemed to support FDLE's desire for hermetically sealed public records. After all, his name was with Tim Moore's on the FDLE report, issued last month, titled "Assessing Florida's Anti-Terrorism Capabilities."

Before and during the Tallahassee donnybrook, Bush concentrated on trying to get the tourists -- and the billions they spend -- to come back. He jetted around the country, assuring jittery would-be visitors that all is well in the Sunshine State. He talked up the glories of a Florida vacation at a Disney store in Skokie, Ill., and appeared on CNN's Larry King Live, calling for a "return to normalcy."

But it's not just another day at the beach. What the governor didn't say was that Florida is technically under a state of emergency. On Sept. 11, Bush signed an executive order giving the state almost unrestricted power for 60 days to "regulate the movement of any and all persons to or from any location" as well as "seize and utilize any and all real or personal property."

The state of emergency lasts until the end of this week. Then the governor can either let it expire or issue a new one.

Obviously, martial law is not being declared. Disney is still open. But a chill wind is blowing. The governor has never been particularly fond of "government in the sunshine." Indeed, in 1999 he was criticized for talking behind closed doors with legislative leaders on his very first day in office, a violation of Florida's constitutional requirement mandating open meetings. Bush said sorry, claiming he was new to the office, new in town, and didn't understand the ways of the capital.

But now Bush has been governor for nearly three years and he is still hostile to the free flow of information. He and lawmakers may be willing to use the events of Sept. 11 as cover for weakening public records laws in the same way the Senate has already used it to give itself the option of holding secret votes.

As for this special session, civil libertarians are saying it could have been worse. Come January -- at the latest -- it will be worse.

-- Diane Roberts, a former Times editorial writer, is a professor of English at the University of Alabama.

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