Judge upholds prison 'gag order,' dismisses lawsuit

Published March 18, 2015

TALLAHASSEE — In another blow to the inspectors at the Department of Corrections, who have attempted to call attention to abuse and coverups in the prison system, a Tallahassee judge ruled Tuesday that the agency did not violate the law when it ordered employees to sign a new confidentiality agreement.

Judge James C. Hankinson dismissed a lawsuit brought by Inspectors Aubrey Land, John Ulm, Stacy Harris, David Clark and Doug Glisson, who believed that the so-called gag order was intended to have a chilling effect on their ability to speak out about corruption at the troubled agency.

Each of them have sought and been denied whistleblower protection by the governor's Chief Inspector General Melinda Miguel, and last week a federal judge dismissed a whistleblower lawsuit by them. They are seeking an appeal.

At issue was a confidentiality agreement ordered by DOC Secretary Julie Jones just days after a legislative committee started an aggressive investigation into her agency and her inspector general. Jones said later that the timing was coincidental and told a House committee "we have no policy and we have no confidentiality agreement."

However, Jay Vail, the agency's lawyer, entered as evidence two confidentiality agreements he said were routinely used by DOC and signed by the inspectors who brought the lawsuit.

Land, one of the inspectors who brought the lawsuit, said he was disappointed in the ruling.

"The gag order was and is intended to prevent OIG staff from exposing agency wrongdoing and coverup by command staff,'' he said. "We repeatedly reported criminal acts committed by Inspector General (Jeffery) Beasley and other high-ranking officials within the agency."

Vail called Beasley as a witness to testify that the department required staff to sign the confidentiality agreements to prevent confidential information from becoming public but it was limited to those who had access to the case database system and not to the entire department.

Steven R. Andrews, lawyer for the plaintiffs, argued that rather than impose the same agreement on additional employees, Jones broadened it to include new language that defined confidential information as "not limited to confidential information as defined by law."

He said the language amounted to an expansion of the public records law by the executive branch, something that only the Legislature can do. He compared it to the Obama administration's executive actions on immigration as an unconstitutional use of executive authority and urged the court to follow the precedent of a Texas judge who temporarily blocked the rules.

"It's a use of executive power that cannot stand,'' Andrews said.

Andrews argued that by expanding the definition of confidential documents to include documents that otherwise would be open to the public, DOC employees could be punished for releasing or discussing information in a public document that could benefit the public.

"There is a compelling public interest which should allow FDOC inspectors, or anyone, to report misconduct in the agency outside their chain of command,'' he said. "They could be fired if they did that."

He argued that the gag order caused "irreparable harm" and noted that two weeks after the confidentiality agreement was issued, his clients were served notice of eight internal investigations against them by their own agency.

"This does not follow the law,'' Andrews said. "They can be terminated for lawful activity."

Beasley denied that the intent of the new agreement was to change the law and argued that anything that currently may be released as a public record will continue to be released as a public record. He told the court that the goal of the agreements is to establish a trust with sources that the information they share about investigations "is not going to be taken out and spread."

He said Jones asked him to issue the new confidentiality agreement to capture a broader swath of employees in his department in an effort to protect the privacy of information.

That response satisfied Hankinson, who concluded that it was a "plausible interpretation" of the confidentiality agreement and did not appear to violate the constitutional protections of the public records law, as the plaintiffs alleged.

"Clearly, the Department of Corrections cannot redefine the public records law,'' Hankinson said. "I do not find that they have attempted to redefine the public records law. They can, and properly have, controlled the method in which public records are disseminated."

Land said he hoped that Jones will follow through on her commitment to cleaning up the agency and listen to the concerns brought by the inspectors.

"For too long the agency has turned a deaf ear to the problems we face,'' he said in a statement, but noted that Jones has "never spoken to us nor asked if we had any proof to support our complaints."

He urged Jones to release all draft reports, documents and recorded interviews relating to the attempt by the agency to investigate them for calling attention to allegations of corruption and coverups.

"Hopefully Secretary Jones' commitment to transparency will result in the release of this information,'' Land said.