The Florida Department of Health and plaintiffs in a lawsuit seeking daily COVID-19 data that the state once published online must meet this week to clarify their wishes and potentially reach a resolution, the judge overseeing the case ordered.
Judge John Cooper of the 2nd Judicial Circuit ordered Rick Figlio of law firm Ausley McMullen, which is representing the state, and Andrea Mogensen of the Florida Center for Government Accountability (FLCGA) to engage in “informal remediation” no later than noon Friday.
Cooper did not stipulate that the two parties must reach a resolution, only that they explain to each other what their respective positions and wants are in advance of a final hearing scheduled Nov. 9-10.
The order came after more than an hour’s discussion over whether Mogensen and the parties she represents — Rep. Carlos Guillermo Smith and an alliance of media companies, including the Associated Press, New York Times and Washington Post — could subpoena former Surgeon General Scott Rivkees in an ongoing lawsuit over accessing state COVID-19 information made confidential on his watch.
The Health Department and current Surgeon General Joseph Ladapo — whose position is pending confirmation by the Florida Senate — filed a motion to prevent Rivkees from being subpoenaed and keep him from “being compelled to testify at a deposition or the final hearing in this matter…”
The state’s argument against Rivkees’ deposition, Figlio said, hinges on an apex doctrine in the Florida Rule of Civil Procedure protecting high-level government or corporate officers, including current and former agency heads, from having to testify unless the party seeking their testimony demonstrates it has exhausted all other means by which to get the information and that the person in question “has unique, personal knowledge” of the subject at hand.
Figlio maintained that Rivkees decided the Health Department should stop publishing daily COVID-19 data, including demographical information broken down by county, based on advice from staff. As such, he said, Rivkees’ knowledge was neither unique nor personal.
Mogensen countered that Health Department Chief of Staff Cassandra Pasley and other high-ranking officials in the department had said in depositions it was Rivkees’ decision alone to cease publication of detailed, daily COVID-19 reports and they could not say why it was done. Further, she said, the department had turned over no documents showing why the decision was made.
Figlio called that a mischaracterization of what had happened. He also offered what may be the clearest explanation from the state for why the Health Department stopped publishing the daily information, which it still turns over daily to the Centers for Disease Control and Prevention.
The department stopped daily by-county reporting, Figlio said, because of worries over inadvertently identifying individuals. In large counties like Miami-Dade, releasing the age, gender and race of a person who died wouldn’t be an issue, he said. But in small counties like Liberty, where there are about 8,200 people, releasing such information could result in people figuring out who it was.
When COVID-19 was more novel — before there were vaccines and other treatments available, when the only protection people could avail themselves of was to avoid crowds and populations where it was spreading — the department provided more detailed and frequent information. As vaccines rolled out, however, the department reined the info in to protect people’s identities.
“It wasn’t worth exposing the kid in Liberty,” he said. “The department made the decision to balance the public’s need for information on COVID against their central premise of providing privacy to individuals, and this is where they’ve come out in that resolution.”
Cooper noted the case was over the state’s compliance with a public information request. Mogensen agreed. Filio did not. Mogensen’s clients requested public records, he said, but the state has a rule for exemption.
But that rule, Cooper said, relies on documents or officials below Rivkees being able to provide the information sought — a condition the plaintiffs argue hasn’t been met. He said he would read the depositions with Pasley and others that Mogensen cited to determine if that argument is valid.
In the meantime and before the hearing, he said, both parties need to sit down in person or virtually and parse the matter over more.
Another complication arose during the discussion: Rivkees, whose testimony at the hearing remains tentative, is undergoing eye surgery this week and may not be fully recovered by next Tuesday.
As such, Cooper said, the hearing may need a continuance.
The lawsuit, which Smith and the Florida Center for Government Accountability filed in August amid more than 200 new COVID-19 deaths per day, came after months of denied information requests. Rivkees still led the department at the time but had announced plans to exit the administration in September.
Smith, a Democrat from Orlando, submitted requests for daily COVID-19 pediatric hospitalization and case counts from Orange County. FLCGA requested similar data for all 67 Florida counties. Both were told the information was “confidential and exempt from public disclosure” in accordance with state rules concerning research of diseases with public health significance, which say information from epidemiological research may be “made public only when necessary to public health.”
The Health Department discontinued daily updates of its COVID-19 dashboard in early June, switching to weekly reports with far fewer details. Medical and state leaders have since called for a return to daily reporting.
Gov. Ron DeSantis said resuming day-by-day reporting “might not be a bad idea going forward” but issued no directives calling for such action.
On Sept. 15, eight news organizations — the AP, New York Times, Washington Post, Gannett Co., The McClatchy Company, Scripps Media, Sun-Sentinel Company and Times Publishing Co. — and the charitable First Amendment Foundation filed a motion to join Smith and the FLCGA’s lawsuit. They sought similar public records information from the Health Department and had also been denied, the motion said.
DeSantis’ administration and the department objected to the move. Figlio argued including the companies would create “unmanageable political theater.”
Cooper disagreed, overruling the state’s objection Sept. 21 to allow the groups to intervene as plaintiffs.