A Leon County circuit judge Wednesday rejected an attempt to shield a Florida Department of Health official from testifying in a public-records case that seeks to force the state to provide COVID-19 data.
But Judge John Cooper immediately placed a stay on his ruling, as the department will challenge it at the 1st District Court of Appeal.
Cooper’s decisions were the latest developments in a lawsuit filed in August by the Florida Center for Government Accountability and state Rep. Carlos Guillermo Smith, D-Orlando, that alleged the Department of Health violated public-records laws by turning down requests for daily COVID-19 data. The data, in part, would have provided county and demographic information about COVID-19 cases. Several major news organizations later joined the lawsuit.
The two sides have been tangled in disputes about testimony of department officials. The plaintiffs sought to question former state Surgeon General Scott Rivkees in a deposition, but the department objected, citing what is known as the “apex doctrine.” That legal doctrine generally shields high-ranking government officials from testifying if information can be obtained from other sources.
Cooper held a hearing last month on the requested Rivkees deposition but did not make a decision. He called for a deposition to be taken of an unidentified “corporate representative” of the department.
The department, however, later filed a motion for a protective order to prevent such a deposition about details of the agency’s decision-making, arguing in part that the plaintiffs sought “information well beyond the scope of permissible discovery.”
In the motion and during a hearing Wednesday, department attorney Erik Figlio also contended that the underlying dispute about the COVID-19 data should be handled through an administrative proceeding, rather than in circuit court, because it involves a department rule related to the confidentiality of information.
“If there’s a problem with the rule, that’s a rule challenge,” Figlio said.
But Andrea Flynn Mogensen, an attorney for the plaintiffs, said the case is about a state law that requires access to public records.
“Our cause of action is not a rule challenge,” she said.
Cooper denied the department’s motion for a protective order but immediately placed a stay on his ruling, effectively putting it on hold until the 1st District Court of Appeal can address the deposition question. He said the Tallahassee-based appeals court has consistently granted stays to state agencies in such situations.
“I think if I denied the stay, I would be reversed in about two days (on the stay issue),” he said. Amid the wrangling, it was not clear Wednesday when Cooper could take up the underlying issues about the COVID-19 data.
The state until early June posted on its website daily reports that provided extensive data about issues such as cases and deaths, with information also broken down by county. But the Department of Health halted the daily reports in June and shifted to posting weekly information that is far less detailed.
Smith and the Florida Center for Government Accountability made public-records requests in July and August seeking daily information about COVID-19 cases, positivity rates, hospitalizations, deaths and vaccinations. They filed the lawsuit after the department denied the requests.
The department’s attorneys have argued, in part, that the detailed information, which health-care providers and laboratories submit to a state database, is confidential. Rivkees stepped down in September as surgeon general and secretary of the Department of Health and was replaced by Joseph Ladapo.