Update: A House committee announced late Monday that the bill would not be considered, after a prominent senator announced he would not support it.
A bill making its way through the Florida House of Representatives would give state legislators total immunity against providing testimony or producing records in civil court proceedings, which would include open records lawsuits, according to First Amendment advocates.
The bill, which passed the House Judiciary Committee last week, will face a vote before the Rules and Calendars Committee. If it passes the rules committee, the proposed bill goes before the full House.
The bill would provide current and former legislators, as well as legislative staff, “an absolute privilege in any civil action, judicial administrative proceeding or executive branch administrative proceeding against compelled testimony or the compelled production of any document or record in connection with any action taken or function performed in a legislative capacity.”
Under federal law, legislative immunity protects legislators from being sued for decisions made or actions related to their duties as members of either the U.S. House of Representatives or the Senate, though it does not relate to actions performed outside of Congress.
Katie Betta, spokeswoman for the Florida House of Representatives, said some members of the Florida House have been subpoenaed regarding legislative intent, and their immunity from such proceedings must be reconfirmed by a judge each time this happens. This bill is meant to provide overarching language ensuring legislative immunity for state representatives and bring the state in line with others, according to Betta.
However, Barbara Peterson, president of the Florida First Amendment Foundation, said the bill infringes the public’s right to know and could have far-reaching implications for persons examining the legislative process.
“We say ‘Give us the records.’ They say ‘Sue us.’ And we can’t,” she said. “The bill says that this absolute privilege will not affect or alter access. I don’t know how it doesn’t affect right of access.”
Peterson said information relating to redistricting may become inaccessible if the bill is passed. Florida officials have taken some criticism over the redistricting plan, and there's at least one lawsuit concerning the legality of the new districts. The Florida constitution states “no apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent.”
“It was very clear from sitting in the committee meeting Thursday that this has everything to do with reapportionment,” Peterson said. “If this bill becomes law, how do we determine intent?”
The bill would also discourage government whistleblowers from speaking out, according to Peterson. The bill contains a provision that does not allow legislative staff members to waive their privilege unless given a written waiver by a legislator.
“You may have a whistleblower, a staff member, who looks at redistricting and says ‘This isn’t right.’ Under this, she can’t testify and she can’t produce documents,” she said.
At Thursday’s committee meeting, legislators insisted that the bill will not infringe upon the public right to know or interfere with the public’s right to view government documents, according to Peterson, and the bill contains language stating it will not affect public access to government documents. However, Peterson said she does not agree.
“I’m dumbstruck by it — and they kept sitting there saying, of course it doesn’t, of course it doesn’t,” Peterson said. “I don’t see how this doesn’t affect right of access. How can that be if we can’t compel them?”