October 9, 2023

2-Year Battle over Withheld COVID-19 Records Ends with Settlement

Media contact: Monday, October 9, 2023

Michael Barfield

(941) 228-1575

FOR IMMEDIATE RELEASE

2-Year Battle over Withheld COVID-19 Records Ends with Settlement

TALLAHASSEE, FL — After winning a decisive appellate court battle that required the Florida Department of Health to turn over COVID-19 data withheld from the public during the height of the pandemic, the legal battle over the records has ended with a settlement agreement.

The Florida Center for Government Accountability (FLCGA) and former Rep. Carlos Guillermo Smith (D-House District 49) agreed to the settlement that requires the Department to publish detailed COVID-19 data on its website and pay $152,250 in legal fees to attorneys representing FLCGA and Rep. Smith.

Access to COVID-19 data was restricted after Governor DeSantis decided to open Florida for business in June 2021 just as the Delta variant spread throughout the state. During the information blackout, thousands of Floridians died from COVID-19 in the summer and early fall of 2021.

“The Department lied about the existence of these public records in court and did everything to restrict information and downplay the threat of COVID even while the Delta variant ripped through Florida — a decision that cost many lives,” said Rep. Smith. “The DeSantis administration settled in our favor because they knew what they did was wrong. We held them accountable, we required them to be more transparent and to hand over records they claimed didn’t exist, and we protected the public’s constitutional right to know.”

The settlement agreement requires the Department to provide detailed COVID-19 data for the next 3 years, including vaccination counts, case counts, and deaths, aggregated weekly, by county, age group, gender, and race.

While the litigation was pending, the Department claimed in court that the records requested did not exist. But after the appellate court upheld the trial court’s order requiring the Department to produce a corporate representative for deposition, the records were produced in March 2023.

“The settlement agreement vindicates the position of Rep. Smith and FLCGA. The Department hid public records during the height of the pandemic to fit a political narrative that Florida was open for business,” said Michael Barfield, Director of Public Access Initiatives at FLCGA. “Transparency and accountability are not negotiable. The Constitution mandates it.”

FLCGA will continue to monitor the Department’s compliance with its legal obligations under the settlement agreement to keep the public informed about COVID-19 data. FLCGA also intends to release the COVID-19 data to the public for educational and research purposes.

Background

In late July 2021, Rep. Smith, then a member of the House Pandemics & Public Emergencies Committee, submitted a public records request to the Department for detailed COVID-19 information in Orange County. Before June 3, 2021, this information was released online by the Department in daily reports and included detailed information for each county. The information sought would illustrate the larger impact 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.

The Department denied Rep. Smith’s request and said the information he sought was confidential and exempt from public disclosure.

On Aug. 16, 2021, FLCGA made the same public records request of the Department for all of Florida’s 67 counties and was denied for the same reasons.

On Aug. 31, 2021, the FLCGA and Smith filed suit against the state health department over the denied release of public records.

Later, news outlets including the Associated Press, USA Today, New York Times and the Washington Post filed a motion to intervene in the case to support the FLCGA and Rep. Smith in their pursuit of public records that detail COVID-19’s spread throughout Florida. The parent companies for the Miami Herald, the South Florida Sun-Sentinel, the Tampa Bay Times, and television company Scripps Media joined in the motion. The First Amendment Foundation also joined.

The Department appealed a ruling requiring a corporate representative to sit for a deposition about the decision to restrict the release of COVID-19 data. In October 2022, the First District Court of Appeal ruled against the Department and allowed the deposition of the corporate representative to proceed.

In March 2023, the Department released significant records to comply with the appellate court order. A review of those records by FLCGA indicated the Department circulated detailed COVID-19 data on a daily basis despite telling a judge that such records did not exist.

After FLCGA informed the Department that the records released in March 2023 satisfied the public records requests made in July 2021, the parties negotiated a settlement.

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The Florida Center for Government Accountability (FLCGA) is a nonprofit dedicated to helping enforce open government laws. To learn more, visit www.flcga.org.