TALLAHASSEE — Lawyers for Gov. Ron DeSantis told a judge on Tuesday that records of phone calls about state business made on an official’s private cellphone were not public, a dramatic new interpretation of the state’s public records law and the administration’s latest attempt to shield information from the public.
During a nearly two-hour hearing about records relating to DeSantis’ 2022 migrant flights to Martha’s Vineyard, lawyers acknowledged that DeSantis’ chief of staff, James Uthmeier, was using his personal phone, instead of his state-issued one, to conduct official taxpayer-funded business.
But they argued that a log of phone calls, like the ones on a billing statement, are “data points” that aren’t subject to the state’s broad public records law because they weren’t produced on state property or with funds paid for by the state.
“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?”
The watchdog group Florida Center for Government Accountability sued DeSantis’ administration in 2022 to obtain public records about the migrant flights that sent 44 people from Texas to Martha’s Vineyard on Sept. 14 that year.
So far, the administration has turned over records showing that DeSantis’ top deputies used personal, nonstate-issued emails and phones to find a contractor and organize the flights.
DeSantis’ then-public safety czar, Larry Keefe, used an email address with the alias “Clarice Starling” — a reference to the Hannibal Lecter serial killer novels. Uthmeier used a personal cellphone to text Keefe and officials in Texas.
But DeSantis’ lawyers are refusing to turn over the call log for Uthmeier’s personal phone, even after Marsh ordered them to do so.
On Tuesday, Marsh rubbed his eyes and held his head in his hands in apparent exasperation while debating Florida’s public records law with DeSantis’ lawyers.
Marsh noted the state’s definition of “public records” said nothing about data points or whether records needed to be on state property. It defines a public record as “any material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.”
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Explore all your optionsMarsh said the way the administration communicated about the migrant flights “appears to be an end around Florida’s public record laws.”
“This is supposed to be the open free state of Florida, where it’s transparency, and this was done with, you know, Clarice Starling and private emails,” Marsh said. “This smacks of trying to not be open with the records.”
Marsh then questioned why Uthmeier, who described himself in an affidavit in the case as “the highest-ranking nonelected official in the State of Florida,” was using his personal phone for state calls. Records released in the case showed that Uthmeier didn’t use his state-issued phone to make a single call between Sept. 1 and Sept. 15, 2022.
“Why is this individual using a private cellphone and thus avoiding public records?” Marsh asked.
“Your honor, I don’t have an answer for that,” Lunny said.
Marsh said that DeSantis’ office had not complied with his order to produce the records, but he dismissed the Florida Center for Government Accountability’s motion to hold the office in contempt of court on a technicality.
DeSantis spokespeople didn’t respond to multiple questions about why Uthmeier was using a personal phone instead of his state-issued one. After this story initially published online, DeSantis spokesperson Bryan Griffin sent a statement.
“This was just another activist attempt to attack the DeSantis Administration, and like others, it failed,” Griffin said.
It’s been long understood that emails, texts or phone calls about state business made on public officials’ personal phones can be requested from the public under Florida’s public records law.
Courts have affirmed it multiple times. In 2003, for example, news outlets sued to obtain the call logs of five House of Representatives staffers whose cellphones were paid for by the Republican Party of Florida. An appellate court ruled that the state-related phone logs, but not personal calls, were public record.
Since taking office in 2019, DeSantis’ administration has pursued a level of secrecy around records not seen by his predecessors.
His administration and state agencies take months or years to respond to requests for records made by the Times/Herald. ClickOrlando discovered that DeSantis has state agencies forward requested records to his office for an enhanced “review” that delays the release by months.
He pushed the Legislature to make his use of the state planes a secret. And his lawyers have also argued that he has “executive privilege” that shields the release of some information, including about whom he consulted when making decisions on appointments to the Florida Supreme Court. No such privilege is mentioned in state law or the Florida Constitution.
If DeSantis’ interpretation of private cellphone records were to become law, it would encourage employees of state agencies and local government to do business on their personal phones, said Michael Barfield, public access director at the Florida Center for Government Accountability.
“It would spell the end of the public records act,” Barfield said.
