Florida Court Rejects Pseudonymous Petition to Get Public Records

The case involved a public records request to identify the "six or seven pretty big legal conservative heavyweights" whom Gov. DeSantis labeled as "trusted advisors for his judicial appointments to the Florida Supreme Court."

From today's decision of the Florida Court of Appeal in Doe v. DeSantis, in an opinion by Judge Clayton Roberts, joined by Judges Stephanie Ray and Susan Kelsey:

In an August 2022 interview, Governor DeSantis referenced a group of "six or seven pretty big legal conservative heavyweights" who were trusted advisors for his judicial appointments to the Florida Supreme Court.

In October 2022, Appellant emailed an anonymous public records request to the Governor's Office. The request asked for:

Any and all materials, on official devices or personal devices used for official business, in whatever form, including but not limited to call logs, emails, or texts, between or among Governor Ron DeSantis, Casey DeSantis, the governor's chief of staff, his executive or personal assistants or aides, his general counsel or anyone within the general counsel's office, the director of appointments or anyone within the director of appointment's office, and the "six or seven pretty big legal conservative heavyweights" described by the governor in an interview with Hugh Hewitt on August 25, 2002 [sic].

The Governor's Office acknowledged that the request was in the queue along with a high volume of other requests. Over the next twenty days, Appellant attempted to have the Governor's Office expedite a response. On October 26, Appellant conveyed intent to file suit and suggested the Governor's Office just provide the names of the "heavyweights" to resolve the request.

The next day, Appellant, "J. Doe, anonymously and individually, a/k/a '[e-mail]'" filed a petition for writ of mandamus, a complaint to enforce the Public Records Act, and an ex parte motion for alternative writ of mandamus in the circuit court.

The court agreed with the trial court that plaintiff wasn't entitled to seek mandamus anonymously in this situation:

Appellant sought mandamus relief in the circuit court under Florida Rule of Civil Procedure 1.630, which requires a petition to be filed in the name of the petitioner and not on the relation of the state. Fla. R. Civ. P. 1.630(b)(3). Because the petition was filed anonymously, the circuit court concluded it failed to meet the rule requirements and denied mandamus.

Appellant argues the rule does not prohibit anonymous filings and should not be read to do so particularly in the public records context. We disagree that Appellant justified maintaining anonymity in the circuit court.

Along with rule 1.630, Florida Rule of Civil Procedure 1.100(c)(1) requires every pleading to have a caption containing the name of all the parties. The 2016 committee notes to rule 1.100(c) note its similarity to Federal Rule of Procedure 10(a), which requires the title of the complaint to name all parties. Federal case law is instructive here. Federal case law recognizes rule 10(a) is not just for administrative convenience, but also serves to protect "'the public's legitimate interest in knowing all of the facts involved, including the identities of the parties.'" There is a strong presumption in favor of parties proceeding under their own names….

While anonymous filings are not prohibited in Florida, they should be reserved for those exceptional circumstances that outweigh the public interest in open proceedings. Appellant did not seek leave to file anonymously by filing a motion in circuit court. Even after the court mentioned the issue at the hearing, Appellant did not pursue the issue. Appellant vaguely referenced a need to prevent a chilling effect on public records requests and a need to protect Appellant's livelihood, reasons that may or may not be found exceptional were they properly presented to the court. We agree that Appellant's petition failed to comply with rule 1.630 and affirm the denial of mandamus relief on this ground.

The court also rejected the petition on the merits:

To be entitled to a writ of mandamus, a petitioner must demonstrate a clear legal right to the performance of a clear legal duty by a public officer and have no other legal remedies available. Appellant failed to demonstrate a clear legal right to have the Governor's Office fulfill his request as submitted.

Appellant broadly requested records between many people during an unspecified period of time. While the records custodian could possibly intuit some contextual parameters, the core information Appellant sought was a list of names Governor DeSantis referenced in a particular interview. Fulfilling such a request would require the records custodian to consult with the Governor to determine exactly who he was referencing in this interview. This is akin to an interrogatory seeking information, not a request to produce public records…. "Nothing in the plain language of [section 119.01, Florida Statutes] or the Florida Constitution requires agencies to pore through their own records to answer specific questions." …

But the court added:

After denying the petition for procedural reasons, the [trial] court unnecessarily considered the merits of the petition and ruled the identities of the legal conservative heavyweights are protected by executive privilege. We expressly decline to rule on the propriety of this ruling as it was irrelevant and unnecessary.

Comments

[SimonP]

Imagine looking at this episode and thinking that the interesting thing about it is the fact that someone is seeking extraordinary relief on a FOIA request anonymously, rather than the fact that the governor admitted that significant decisions about the Florida judiciary are being influenced by a small circle of presumed campaign donors, whose identity is being shielded from public view by that very governor’s office and that judiciary.

Meanwhile, the anonymity granted to many conservative activist litigants while they challenge (if I recall correctly) DEI-promoting practices goes without any comment or explanation at all.

“Well, that’s just what I’m specializing in…” (Yes, peanut gallery, I can anticipate your response.) But the question is why the topic is even of interest. As the court here put it, anonymous litigation is an exception to the general rule that the public has a “legitimate interest in knowing all of the facts involved, including the identities of the parties.” Publicity serves the interest of the rule of law, good order, and on the margins bringing meritorious claims. Is this not more true, when we’re talking about the right-wing kleptocrats who have bent the ear of Meatball Ron, and are by his own admission informing his shaping of the judiciary?

Sure, there may be some public interest in knowing the identity and motives of this muckraker. Perhaps it’s another Rolling Stone “journalist”; maybe it’s a summarily ousted DA with time on his hands. Any number of ad hominem attacks designed to excuse indifference and complacency about what he’s trying to find out could be possible. But isn’t there a greater public interest in transparency and accountability, in knowing the identity of this group of “advisors”? Aren’t Floridians entitled to know the identity of the very people who are making it hard to learn their identity?

[Bob from Ohio]

"Aren’t Floridians entitled to know the identity of the very people "

No. The plaintiff here just want to harass them.

Executive officers are entitled to get frank advice from whoever they want, without exposing these citizens to harassment.

[SimonP]

The possibility of harassment doesn't justify proceeding anonymously in litigation, much of the time, does it?

I get so fucking sick of you authoritarians. The governor isn't some unaccountable autocrat. He's an elected official, charged with the duties of his office. Granting him some degree of privilege so that he can get "frank advice" on policy questions is one thing, but we're literally talking about judicial appointments here. The only reason to shroud those discussions in secrecy is to enable corruption.

Of course, you know that, and would take the completely opposite position if we were talking about Newsom or Hochul, and will yimmer-yammer your way to further justify a corrupt, authoritarian approach to state government, blah blah blah. Bobbie, you're just a troll with a schticky hard-on for a corrupt man-baby to crack some liberal heads, be damned the consequences for everyone else.

[mulched]

No. Next question.

[SimonP]

Have you stopped beating your wife?

[mulched]

The identity of these advisors is critical for the public to know. All it takes is for one person to put their name on the FOIA suit.

Do it, SimonP! Be that man! Get those names and expose this corruption!

[y81]

Yeah, I don't think "SimonP" is enough of an identifier to satisfy FRCP 1.630.

[mulched]

A man as brave as SimonP would boldly put his real name on the suit, knowing how much corruption he would be about to uncover.

[SimonP]

Have you stopped beating your wife?

[Kleppe]

"But the question is why the topic is even of interest."

Prof. Volokh routinely posts about litigation involving pseudos. He clearly finds it interesting, and as this is his blog, that's all that's required. He isn't exactly hiding the ball, lol.

[Rev. Arthur L. Kirkland]

Mr. Volokh’s position on pseudonymity flutters, principle-free, with the partisan winds. He isn’t exactly hiding that ball, either. Which is why he is a better fit at a mouthpiece shop for right-wingers than he was on the faculty of a legitimate, mainstream law school.

He also seems to have a thing for cases involving transgender parents, drag queens, transgender sorority drama, lesbians, transgender artificial intelligence, and transgender everything and anything. Can someone explain that?

[SimonP]

It is always fascinating to me how, even when I anticipate and expressly address the peanut-gallery response, there is always some mouth-breather who needs to offer that response.

[David Nieporent]

Meanwhile, the anonymity granted to many conservative activist litigants while they challenge (if I recall correctly) DEI-promoting practices goes without any comment or explanation at all.

I mean, you're just lying here.

And doing the "People need to blog about what I want them to blog about" idiocy.

Also, your substantive point is stupid, for two reasons: (1) no, the identity of the people who DeSantis consulted with really isn't very interesting at all; what matters is who he ultimately nominated and the merits thereof; and (2) if anyone actually cares about this pretend issue, he or she is free to bring a case under his own name or make an argument as to why pseudonymity is necessary/justified in this particular case.

[SimonP]

I mean, you’re just lying here.

Go fuck yourself, Chip. I may not be remembering the right posts. But I’m not lying about the fact that Eugene has posted about cases involving anonymous plaintiffs pursuing culture-war issues, in order to make some other point, without saying or explaining anything about the anonymous plaintiffs.

And doing the “People need to blog about what I want them to blog about” idiocy.

Which is just a variation of the peanut-gallery response I had anticipated.

The rest of your response is just, “Well, I don’t think the underlying controversy is very interesting,” so you get a little tu quoque yourself, too, you little fartnugget.

Every one of your comments to me is utterly asinine. I don’t understand why you bother.