Judge who overturned Gov. DeSantis’ mask order to oversee lawmaker’s public records challenge

Image via Colin Hackley.

Rep. Carlos Guillermo Smith’s lawsuit against the Florida Department of Health and outgoing Surgeon General Scott Rivkees now has a judge, according to records from the Leon County Clerk’s office. And his name might be familiar to those who have been following Florida politics during the pandemic.

Judge John Cooper of the 2nd Judicial Circuit, the same judge who invalidated Gov. Ron DeSantis’ ban on school mask rules, has been assigned to oversee Smith’s public records suit, which was filed Aug. 30.

The nonpartisan Florida Center for Government Accountability (FLGCA) joined Smith in the suit, which came more than a month after the Orlando Democrat submitted a public records request for daily COVID-19 pediatric hospitalization and case counts from Orange County.

“(FLGCA) and I have asked for an immediate hearing and eagerly await a formal date!” Smith wrote on Twitter Tuesday.

Smith said the Department of Health and Rivkees denied him the data “and falsely stated they were ‘confidential’ under state law, even after making those same records available for nearly a year on the Department’s daily COVID dashboard.”

FLGCA had previously requested COVID-19 data for all 67 counties and was similarly denied.

The lawsuit demands the state again allow the public to view information it previously released daily, including county-level information and other sociodemographic data on the number of COVID-19 cases, hospitalizations and deaths.

Cooper, a Florida native, has served on the court since 2003 and is in his fourth six-year term, which ends in 2027. He has frequently ruled in favor of past Florida governors, including Jeb Bush and Rick Scott, he explained Wednesday when he lifted a stay to allow schools to require facial coverings on campus before a pending appeal ruling.

Andrea Mogensen is named on court filings as the attorney representing plaintiffs in Smith’s suit. She and fellow FLGCA lawyers Victor Chapman and Steven Ruta filed the lawsuit.

Smith sent the Orange County Health Department a public records request July 23. The information he requested would not have identified anyone, but it “would illustrate the larger impacts of the virus on Orange County — including the ages, sex, ethnic and racial demographics of those with confirmed cases of the virus, and vaccination rates for the county,” his office said.

The state Health Department denied the request on Aug. 16, citing state rules exempting “confidential” information concerning research of a disease with public health significance from public disclosure. The statutes in question say information from epidemiological research may be “made public only when necessary to the public health.”

The state ended daily updates to its COVID-19 dashboard in early June, switching to weekly reports with fewer details. Medical and state leaders have since called for a return to daily reporting.

Since then, the delta variant of the virus has ravaged Florida, hitting the state harder than any other state except possibly Louisiana. Florida averaged more than 200 new COVID-19 deaths per day in August, marking the worst period of mortality since the pandemic struck in March 2020. On perhaps a related note, DeSantis’ office announced in August that Rivkees will exit the administration this month.

But even though DeSantis himself said resuming data on a day-by-day basis “might not be a bad idea going forward,” the Health Department has yet to change its practice.

“That’s why we’re suing them — to obtain the public records our constituents are entitled to under the Florida Constitution and to force the state to resume daily COVID dashboard reporting and avoid future litigation on this matter,” Smith said upon seeking legal action.

The lawsuit seeks no punitive or monetary remedies, only injunctive relief in the form of the information Smith and FLGCA requested from the department.

DeSantis press secretary Christina Pushaw said by email that the department reports data “routinely and automatically” to the Centers for Disease Control and Prevention, which updates its national COVID-19 dashboard every weekday.

She told Florida Politics by email: “Public health surveillance and controlling the spread of infectious diseases have always been core functions of the Florida Department of Health.”