A court backs Ron DeSantis on migrant flight records

migrants at the U.S. border, American flag, barbed wire — By Stadratte via iStock for WMNF News.

TALLAHASSEE — An appeals court Wednesday overturned a circuit judge’s ruling that Gov. Ron DeSantis’ administration took too long in providing public records about a controversial 2022 decision to fly migrants from Texas to Massachusetts.

A three-judge panel of the 1st District Court of Appeal backed DeSantis’ administration in the dispute with the non-profit Florida Center for Government Accountability, which made two public records requests in September 2022 and filed a lawsuit in October 2022 after it did not receive all of the documents.

Leon County Circuit Judge J. Lee Marsh in late October 2022 said the administration did not properly comply with the state’s public records law and gave it 20 days to provide records. But the appeals court panel ruled Wednesday that Marsh erred in concluding that the administration’s “response was unreasonable and in violation of Florida’s public records.”

“Here, the final hearing (not initiation of the lawsuit) occurred only 35 days after the first public records request,” appeals court Judge Rachel Nordby wrote in an opinion joined by Judges Brad Thomas and Thomas Winokur. “The public records sought were not singular documents or already composed files (like a court file where the records custodian merely accesses it electronically or pulls it off the shelf). This was a comprehensive request that, due to its scope, was going to take some time.”

The opinion also pointed to issues such as Hurricane Ian hitting the state in September 2022 after the Florida Center for Government Accountability, an open-government group, made the public records request.

“The (governor’s) office has a duty to timely fulfill all public records requests, but considering the magnitude and scope of the center’s request — which coincided with the ongoing statewide emergency of a major hurricane — the office’s response time cannot be considered unreasonable,” Nordby wrote. “The center’s demand that its two robust records requests be completed within a week was unfeasible and impractical given the breadth of the requests and the circumstances surrounding it. Given the record before us, the center has failed to demonstrate that the office’s response constituted an unreasonable delay that violated the Public Records Act.”

The case focused, at least in part, on requests by the center for phone or text logs that could provide information about communications by DeSantis’ then-chief of staff, James Uthmeier, related to the flights. Uthmeier was sworn in Monday as attorney general, after DeSantis appointed him to replace former Attorney General Ashley Moody.

The center filed records requests Sept. 20, 2022, and Sept. 21, 2022, and alleged in the Oct. 10, 2022, lawsuit that the administration had not provided all of the records sought. The flights, which involved 49 migrants going from San Antonio, Texas, to Martha’s Vineyard, occurred Sept. 14, 2022.

In his Oct. 27, 2022, order, Marsh wrote that the governor’s office “has presented no evidence to the court of what direct steps it took to identify or produce records responsive to the public records request dated September 20, 2022, some of which have yet to be produced to the plaintiff.”

“The court finds that the EOG (the Executive Office of the Governor) is not in compliance with (the public records law),” Marsh wrote. “EOG’s partial production and response to the record requests were unreasonable. Specifically, the EOG has not made any production of a text or phone log of James Uthmeier as requested in the records request dated September 20, 2022.”

But in Wednesday’s opinion, the appeals court said the request for Uthmeier’s phone and text logs appeared to include his personal communications devices and that presumably, “not all phone calls or text messages from any personal devices would be public records.”

“Sorting the public from the private in two weeks’ worth of text messages and phone calls would not be quick,” Nordby wrote.

The appeals court said the governor’s office did not challenge another part of Marsh’s ruling that the administration made unnecessary redactions to records.

Marsh also ruled that the center was entitled to recoup its attorney fees and costs. Wednesday’s opinion sent the case back to circuit court.