When the leaders of the Florida Bar meet in Coral Gables on Friday, they will signal what they stand for: open governments or ones that actively hide their business from taxpayers. The Board of Governors is scheduled to consider whether to support a proposal to expand the secrecy permitted when public officials discuss legal matters with government attorneys. The governor's Commission on Open Government Reform rejected this offensive notion in January; so should the Bar.
Under current Florida law, government attorneys may meet with public boards or commissions behind closed doors to discuss litigation, but the right is limited. Legal action against the public body must be pending, not just threatened. Only the attorney, the public board and its chief administrative officer may attend the closed session. Only settlement negotiations or strategy related to legal costs may be discussed. A transcript of the closed meeting must be produced by a court reporter and made available to the public after the litigation is over.
But that's just too much exposure for some members of the Florida Bar. The Public Sector Subcommittee of the bar's Task Force on Attorney-Client Privilege is pushing for even more secrecy by making it easier to hold secret meetings and bury their records. Chaired by Gainesville City Attorney Marion Radson, the subcommittee wants the Bar to ask the Legislature to amend Florida's Government-in-the-Sunshine and open records laws in these ways:
• Closed-door sessions could be held even when no lawsuit has been filed, but is merely anticipated.
• The allowed attendees at such meetings would be expanded to include others who have "relevant information."
• Work product prepared by the attorney for a lawsuit could be withheld from the public permanently if it contained "factual information."
• A transcript of the closed session still would be created, but it would be permanently sealed unless opened by court order.
The Bar subcommittee argues that these changes promote better legal representation and communication between the attorney and client. Its members forget that the client in these cases is the public — not the elected officials. Government lawyers are paid by the taxpayers and work on the public's behalf.
Closed-door sessions should be uncommon events in a democracy, their very rarity reflecting Florida's constitutional protection that the public's business will be done in public. In the Tampa Bay area, the closed sessions have been used to discuss the partial collapse of the Lee Roy Selmon Crosstown Expressway, cracks in a Tampa Bay Water reservoir that have contributed to a dire water shortage, and a costly legal battle between Pinellas County and 21 Pinellas cities over the county charter. But current law gives the public the right to see a transcript at a later time.
However, if these proposed amendments became law, the number of closed meetings would increase and the public would find it virtually impossible to determine what happened. What's more, the proposed changes would open the process to unchecked abuse and even corruption by officials whose actions were shielded from disclosure.
The role of government attorneys is substantially different from that of private attorneys serving private clients, and the rules governing their relationship with their clients — the public — should reflect that difference. The Florida Bar should be on the side of promoting, not blocking, access to information about how the public is served by its attorneys and officials.