Florida Says Judge Should Dismiss COVID-19 Public Records Lawsuit


TALLAHASSEE, Florida – The Florida Department of Health is trying to defeat a public lawsuit seeking information on COVID-19, arguing that the requested reports do not exist and that the underlying data is confidential.

Lawyers for the department filed two motions on Friday in Leon County Circuit Court, arguing that a judge should dismiss the lawsuit, filed last month by the nonprofit Florida Center for Government Accountability and representative of the ‘State Carlos Guillermo Smith, D-Orlando. Several state and national news organizations intervened in the case to support the plaintiffs.

Until early June, the state posted daily reports on its website providing detailed data on issues such as cases and deaths, with information also broken down by county. But Gov. Ron DeSantis’ administration halted daily reporting in June and switched to publishing much less detailed weekly information.

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Smith and the Florida Center for Government Accountability made public document requests in July and August for daily information on COVID-19 cases, positivity rates, hospitalizations, deaths, and vaccinations. They filed a complaint after the ministry rejected the requests.

In Friday’s motions, lawyers for the department argued, in part, that the state does not generate the reports requested by complainants and, therefore, cannot be required to provide them.

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“(The) plain language of Chapter 119 (the State Public Archives Act) makes it clear that there is no obligation for a public entity to create or compile public records that are not systematically developed. or retained by the entity ”, a request for dismissal of the mentioned case. “Rather, the decision to do so is inherently discretionary and cannot be the basis for liability under the Public Records Act.”

In addition, lawyers for the department have claimed that the underlying information, which health care providers and laboratories submit to a state database, is confidential under another law and that the surgeon general has the discretion to disclose the information. The new surgeon general Joseph Ladapo is also secretary of the Ministry of Health.

“Certainly the department is the custodian of the raw and granular data relating to the cases and outcomes of COVID-19 in the state of Florida,” said a summary judgment motion filed by department attorneys at Tallahassee Ausley & McMullen . “This data meets the definition of a public record. However, this data, regardless of its format, is confidential and exempt from public disclosure in the absence of a decision by the State Surgeon General that specific disclosures of confidential data are required.

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The lawsuit, filed on August 30, challenges the state’s arguments.

“No exemptions from the Public Records Act apply that would prevent inspection or copying of documents sought by plaintiffs,” the lawsuit said. “The exemption set out (in an article of law cited by lawyers for the ministry) specifically states that records should” be made public only when necessary for public health. ” The ministry had previously disseminated and published daily the very information sought by the complainants. In addition, the department and the governor have recognized that the need for the public to be informed of the spread of the virus is essential to ensure public confidence in COVID-19 mitigation strategies. “

The lawsuit alleges the department violated the public records law at a time when the delta variant of the coronavirus has caused an increase in cases, hospitalizations and deaths.

“Due to the highly contagious nature of COVID-19 and its ‘continuing threat’ to Floridians, records revealing information about its impact, prevalence and mortality are of obvious public importance,” the lawsuit said. . “Floridians have an immediate need to access information about the virus, its impact and its spread in particular communities. This information is vital for the ability of citizens to understand risks and make informed decisions about their lives. The purpose of this action is to obtain critical files that the ministry previously posted daily on its website so that the public has knowledge and the ability to examine their government’s response to the raging virus. This is the overarching goal of open government laws. “

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Circuit Judge John Cooper has scheduled a hearing to begin Wednesday in the case. But the plaintiffs filed an emergency request for an extension on Friday afternoon due to a death in the family of senior lawyer Andrea Flynn Mogensen. An online court record did not indicate how the case would unfold on Saturday.

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