TALLAHASSEE – More than a yr after the lawsuit was filed, an appeals court Tuesday waded right into a fight about whether or not the Florida Department of Health must be required to supply every day COVID-19 data.
The lawsuit in Leon County circuit court has been on maintain since January amid an attraction about testimony and information that would present a window into the Department of Health’s refusal to launch the data.
Circuit Judge John Cooper on Jan. 3 issued an order rejecting a Department of Health request for a protecting order to stop a deposition of a division consultant about particulars of the company’s decision-making. A 3-judge panel of the first District Court of Appeal heard arguments Tuesday within the division’s attraction 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 division violated the state’s public-records regulation by turning down requests for every day COVID-19 data. The lawsuit was later joined by a number of media organizations. The data, partially, would supply county and demographic information about COVID-19 instances.
But division attorneys contend that the data is shielded by one other state regulation that claims epidemiological information is confidential and exempt from the public-records regulation and is “to be made public only when necessary to public health.” They additionally level to a division rule finishing up the regulation about confidentiality.
The division contends that the rule offers it authority to find out whether or not the epidemiological data must be launched. As a end result, it argues that the plaintiffs must be required to problem the rule in an administrative continuing, quite than searching for the information in circuit court.
“All of this material is confidential and exempt,” Erik Figlio, an lawyer for the division, advised the appeals court Tuesday.
But the plaintiffs argue that the circuit decide ought to resolve whether or not the division is justified in taking the place that the COVID-19 data is exempt from the public-records regulation. As a part of that, they’re searching for testimony from a division consultant in what is called the information-gathering “discovery” course of.
“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’ lawyer Andrea Flynn Mogensen stated Tuesday. “And in order to get to that evidentiary hearing, we’re entitled to engage in some discovery.”
In his January order rejecting a protecting order, Cooper stated the division 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 division issued every day COVID-19 reviews till June 2021 however then shifted to posting weekly information that was much less detailed. It now posts information each different week.
Smith and the non-profit Florida Center for Government Accountability made public-records requests in July 2021 and August 2021 searching for every day information about COVID-19 instances, positivity charges, hospitalizations, deaths and vaccinations. They filed the lawsuit after the division denied the requests.
