The Florida Center for Government Accountability and House Rep. Carlos Guillermo Smith, an Orlando Democrat, late Monday sued the Florida Department of Health and Surgeon General Scott Rivkees over the department’s refusal to provide Covid-related statistical records it used to make public daily.
The lawsuit was filed in Leon County Circuit Court, and demands the release of previously available reports. (See the full complaint below.)
The state Health Department abruptly ended the publication of the detailed reports on June 4, near the time when the state ended its public health emergency–but just as Covid’s delta wave, the most virulent yet, was gathering momentum.
Smith, a member of the House Pandemics and Public Emergencies Committee, submitted in late July a public records request to the Department of Health for daily Covid-19 pediatric hospitalizations, deaths and case counts occurring in Orange County. The Center for Government Accountability submitted a similar request for information applying to the state’s 67 counties. The requests were denied.
“The specific data you have requested are considered confidential and exempt from public disclosure pursuant to sections 381.0031(6), Florida Statutes and Rules 64D-3.036, 64D-3.028(12), and 64D-3.041, Florida Administrative Code,” Kendra Washington, the department’s public records manager, wrote in an Aug. 20 email to the center, which replicated an Aug. 9 response to Smith. Washington referred the requesters to the department’s now-weekly report, issued each Friday, about covid conditions in the state. That report provides scant and at times misleading information. For example, it does not differentiate between first and second vaccine shots, giving a misleading picture of the actual number of Floridians who have completed their vaccine cycle. It no longer provides county-by-county reports of fatalities, age of the deceased or date of death. It does not provide any figures relating to children who have either been infected or hospitalized, nor does it indicate whether any children have died, or where.
“The effect of this omission is that members of the public are unable to assess or determine important information relating to the public health threat posed by Covid-19 in particular communities,” Andrea Flynn Morgensen, a Sarasota attorney, wrote Louise St. Laurent, the general counsel at the state Health Department, noting the inexplicable difference between the department’s suppression of information since June compared wit its previous liberal issuance of daily and county-by-county reports.
“We are at a loss to understand why the Department previously determined that the release of this information was warranted and served the best interests of the public to be informed by the threat of Covid-19, but now refuses to release this information,” Morgensen wrote. “This is particularly concerning because other information demonstrates that the threat of Covid-19 has significantly increased since June 2021. For example, there are reports that more than half of the state’s ICU capacity is filled with coronavirus patients as of this week, which dwarfs the national average of 27 per cent. Additionally, more than 10,000 students in Florida have been quarantined or isolated during the first week of the school year.”
In Flagler, the school district is issuing daily reports of infections among students and staff. The report issued on Monday showed 166 student infections for the previous three days (including the weekend), for a total of 612 in the three weeks since school reopened–nearing twice the total number of student infections accumulated all of last year. Buddy Taylor Middle School and Flagler Palm Coast High School had 30 infections each in that single report, and Belle Terre Elementary had 25. There were also seven infections among staff, for a total of 66. Over 50 Flagler County residents have died of the disease in August alone, according to the local health department. The state is recording an average of 242 deaths per day as of Aug. 27. The local department’s chief. Bob Snyder, has said that his own information has been limited.
“Providing citizens with more information about the rampaging virus is not only consistent with public health, but with the reasons why Floridians overwhelmingly passed open government laws,” said Michael Barfield, the Director of Public Access at the Center for Government Accountability. “Virus politics should not dictate what information is made available to citizens so they can then make informed choices about their activities.”
The state law Washington cites exempts “Information submitted” for epidemiological reports that the department provides, but not the reports themselves. The law also states that the information itself “is to be made public only when necessary to public health,” while “A report so submitted is not a violation of the confidential relationship between practitioner and patient.”
The 14-page lawsuit includes 453 pages of exhibits, among them examples of the lengthy statewide and county-specific reports the department used to issue, along with reports on assisted living facilities and group homes, pediatrics, state prisons, and detailed county-by-county vaccine reports.
The first administrative rule Washington cites states that “All information contained in laboratory reports, notifiable disease or condition case reports and in related epidemiological investigatory notes is confidential as provided in Section 381.0031(6), F.S., and will only be released as determined as necessary by the State Health Officer or designee for the protection of the public’s health due to the highly infectious nature of the disease, the potential for further outbreaks, and/or the inability to identify or locate specific persons in contact with the cases.” In covid’s case, every factor that would justify releasing the information, as cited by the rule, applies: covid is highly infectious, a pandemic is ongoing, and because of the volume of infected persons, the Health Department has lost the ability to conduct contact tracing beyond a certain level. (The two other rules cited define terms and the meaning of epidemiological investigations.)
“The Department has provided inconsistent responses to these requests,” the lawsuit states, “stating that the information is exempt but, alternatively, claiming it does not have the information despite recognizing that the federal CARES Act as well as Florida law mandates daily reporting of all Covid-19 test results to the Department who in turn is obligated to report de-identified data to the CDC.”
The Florida Center for Government Accountability is a nonprofit focused on civic engagement, government access and the facilitating of investigative journalism.