The Florida Department of Health has gone to an appeals court in a battle about whether it should provide daily COVID-19 data, as it seeks to be shielded from explaining officials' decision-making about releasing the information.

Attorneys for the department filed a petition late Wednesday at the 1st District Court of Appeal as part of a lawsuit filed in August by the Florida Center for Government Accountability and state Rep. Carlos Guillermo Smith, D-Orlando, and later joined by several media organizations.

The underlying lawsuit alleges 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.

But the two sides have tangled for months about depositions of department officials and the plaintiffs' attempts to get information about why the department decided against releasing daily COVID-19 data. The department issued daily reports until June but then shifted to posting weekly information that is far less detailed.

The appeal this week stemmed from an order that Leon County Circuit Judge John Cooper issued Jan. 3. That order rejected a department request for a protective order to prevent a deposition of a department representative about details of the agency's decision-making.

The department contends that a state rule gives it authority to determine whether confidential epidemiological data should be released. As a result, it argues that the plaintiffs should be required to challenge the rule in an administrative proceeding, rather than seeking the information in circuit court.

"(The rule) provides, unambiguously, that the department has the authority to determine when the exception to the public records exemption at issue should be applied, i.e., when otherwise confidential epidemiological information may be released as necessary for public health," the 46-page petition said. "There can be no serious question that by arguing that the trial court, not the department, should determine what otherwise confidential epidemiological data must be disseminated in the interest of public health, respondents (the plaintiffs in circuit court) seek to interject a quintessential challenge to administrative action that is subject to administrative exhaustion requirements."

But Cooper, in his Jan. 3 order, rejected such arguments and pointed to part of the Florida Constitution that guarantees access to public records.

"Only the Legislature can create statutory exemptions from disclosure under the Public Records Act," Cooper wrote. "It is well established that a court may not create or expand a statutory exemption from disclosure. It follows that an agency may not redefine a statutory exemption from disclosure through an administrative rule."

In the petition, the department also argued that requiring it to provide information about the decision-making would violate the constitutional separation of powers.

"Respondents seek information not only about the thoughts and actions of the department's high-ranking officials, but also all verbal communications between the department, its sister agencies and the office of the governor concerning discretionary acts," the department's attorneys wrote. "Unambiguous First District (Court of Appeal) precedent makes clear that this level of inquiry into the rationale underpinning the thoughts and actions of high-ranking executive branch officials would also violate separation of powers principles."

Anticipating the appeal, Cooper placed a stay on the underlying case until the issues about the department's decision-making are resolved.

Smith and the non-profit 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.

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