Secrecy on Steroids: How Overzealous State Confidentiality Laws Expose Leakers and Whistleblowers to Retaliatory Prosecution

Authors

Frank D. LoMonte, University of Florida’s Joseph L. Brechner Center for Freedom of Information
Anne Marie Tamburro, Foundation for Individual Rights and Expression

Abstract

It is well-documented that the federal government has a secrecy problem. Thousands of times a year, inconsequential documents are needlessly stamped “classified,” which can mean prison for anyone who leaks them. But the addiction to secrecy doesn’t stop with the Pentagon. State public-records statutes are riddled with their own local version of “classified information” that puts people at risk of prosecution even for well-intentioned whistleblowing.

The problem is particularly acute in Florida, where one of the state’s highest-ranking elected officials spent almost two years as the target of a criminal investigation for releasing records about an unresolved sexual harassment complaint against a state regulator. While the case was ultimately closed without charges, merely being the target of a prolonged criminal investigation can itself be profoundly intimidating—particularly for low-level public employees who lack the resources to defend themselves.

This Article describes the results of a research project by the Brechner Center for Freedom of Information at the University of Florida, which found more than 400 categories of records that state law treats as “confidential,” meaning that a person who releases the record is potentially committing a crime. These categories go well beyond the narrow handful of sensitive documents that everyone agrees cannot safely be publicly disseminated, such as medical records, and encompass entirely mundane information, including the identities of donors to performing-arts venues, or the names of horses that are banned from racing.

The needless proliferation of confidentiality laws creates an intimidating climate for whistleblowers. The fear of a retaliatory prosecution is no illusion: The authors examine a recent Texas case, Villarreal v. City of Laredo, in which a journalistic blogger was arrested and charged with violating a state confidentiality law analogous to Florida’s, demonstrating that overzealous use of “state classification” can empower government officials to make selective, viewpoint-based enforcement decisions. The authors conclude that "confidential" designation should be applied advisedly to only the narrowest subset of information that would genuinely cause harm if disclosed—and even then, only after the public's countervailing interest in transparency is considered.

Recommended Citation

Frank D. LoMonte and Anne Marie Tamburro, Secrecy on Steroids: How Overzealous State Confidentiality Laws Expose Leakers and Whistleblowers to Retaliatory Prosecution, 78 U. Mia. L. Rev. 1100 (2024)
Available at: https://repository.law.miami.edu/umlr/vol78/iss4/7