Florida appeals court weighs COVID-19 data fight

The question: Should the Florida Department of Health still be required to provide daily COVID-19 data?

Electron microscope picture of a SARS-CoV-2 virus particle. The prominent projections (green) seen on the outside of the virus particle (yellow) are spike proteins. Image captured at the NIAID Integrated Research Facility (IRF) in Fort Detrick, Maryland.

Electron microscope picture of a SARS-CoV-2 virus particle. The prominent projections (green) seen on the outside of the virus particle (yellow) are spike proteins. Image captured at the NIAID Integrated Research Facility (IRF) in Fort Detrick, Maryland. Photo by: NIH/NAID/IMAGE.FR/BSIP/Universal Images Group via Getty Images

More than a year after the lawsuit was filed, an appeals court Tuesday waded into a fight about whether the Florida Department of Health should be required to provide daily COVID-19 data.

The lawsuit in Leon County circuit court has been on hold since January amid an appeal about testimony and information that could provide a window into the Department of Health’s refusal to release the data.

Circuit Judge John Cooper on Jan. 3 issued an order rejecting a Department of Health request for a protective order to prevent a deposition of a department representative about details of the agency’s decision-making. A three-judge panel of the 1st District Court of Appeal heard arguments Tuesday in the department’s appeal of that order.

The Florida Center for Government Accountability and state Rep. Carlos Guillermo Smith, D-Orlando, filed the lawsuit Aug. 31, 2021, and alleged that the department violated the state’s public-records law by turning down requests for daily COVID-19 data. The lawsuit was later joined by several media organizations. The data, in part, would provide county and demographic information about COVID-19 cases.

But department attorneys contend that the data is shielded by another state law that says epidemiological information is confidential and exempt from the public-records law and is “to be made public only when necessary to public health.” They also point to a department rule carrying out the law about confidentiality.

The department contends that the rule gives it authority to determine whether the epidemiological data should be released. As a result, it argues that the plaintiffs should be required to challenge the rule in an administrative proceeding, rather than seeking the information in circuit court.

“All of this material is confidential and exempt,” Erik Figlio, an attorney for the department, told the appeals court Tuesday.

But the plaintiffs argue that the circuit judge should decide whether the department is justified in taking the position that the COVID-19 data is exempt from the public-records law. As part of that, they are seeking testimony from a department representative in what is known as the information-gathering “discovery” process.

“119 (Chapter 119, the public-records law) contemplates an evidentiary hearing and that a trial court makes a determination on the merits of the case after an evidentiary hearing, indeed an accelerated evidentiary hearing,” plaintiffs’ attorney Andrea Flynn Mogensen said Tuesday. “And in order to get to that evidentiary hearing, we’re entitled to engage in some discovery.”

In his January order rejecting a protective order, Cooper said the department had not “cited a single case that allows an agency to redefine a statutory exemption from disclosure through an administrative rule.”

“Only the Legislature can create statutory exemptions from disclosure under the Public Records Act,” Cooper wrote. “It is well established that a court may not create or expand a statutory exemption from disclosure. It follows that an agency may not redefine a statutory exemption from disclosure through an administrative rule.”

It is unclear when the Tallahassee-based appeals court will rule.

The department issued daily COVID-19 reports until June 2021 but then shifted to posting weekly information that was less detailed. It now posts information every other week.

Smith and the non-profit Florida Center for Government Accountability made public-records requests in July 2021 and August 2021 seeking daily information about COVID-19 cases, positivity rates, hospitalizations, deaths and vaccinations. They filed the lawsuit after the department denied the requests.

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