Filing # 134679425 E-Filed 09/15/2021 03:55:17 PM

IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA

CARLOS GUILLERMO SMITH, and FLORIDA CENTER FOR GOVERNMENT

ACCOUNTABILITY, INC.,                                                    Case No.: 2021-CA-1499

Plaintiffs,

v.

FLORIDA DEPARTMENT OF HEALTH,

and DR. SCOTT RIVKEES, in his official capacity as State Surgeon General and State Health Officer of the Florida Department of Health,

Defendants.

                                                                      /

MOTION TO INTERVENE FOR THE LIMITED PURPOSE OF SUPPORTING

PLAINTIFFS’ REQUESTED RELIEF AND PROVIDING LEGAL POSITION ON THE PROPER INTERPRETATION OF THE SUBJECT PUBLIC RECORDS EXEMPTION

The Associated Press; the First Amendment Foundation; Gannett Co., Inc.; The McClatchy Company, LLC d/b/a the Miami Herald; The New York Times Company; Scripps Media, Inc.; Sun-Sentinel Company, LLC; Times Publishing Co.; and WP Company LLC (collectively, the “News Media”)¹ hereby move to intervene and be heard in this action for the limited purpose of supporting Plaintiffs’ requested relief that the Florida Department of Health (the “Department”) and State Surgeon General Dr. Scott Rivkees (collectively, the “Defendants”) return to their previous practice of making public more detailed information regarding COVID-19 case and fatality numbers, and to revert to doing so on a more regular basis. Such richer and more timely information is critical to the public and local governmental policymakers in evaluating current health risks so to make better informed decisions.

¹ Additional news media parties may hereafter seek to join this coalition.

The legal issues raised by this litigation mirror those confronted by the News Media in seeking similar public record information from the Defendants that Plaintiffs seek here. Indeed, the Defendants have repeatedly cited the same public records exemption at issue (§ 381.0031(6), Fla. Stat. (2021)) to repeatedly deny public records requests seeking COVID-19 information once made available to them. The News Media therefore, seek to intervene to provide this Court with their unique collective experience on how Defendants’ curtailment of providing information to the public has impacted their ability to keep the public informed, and to also provide their position on how the subject public records exemption should be interpreted.

It cannot reasonably be disputed that public records relating to COVID-19 – its spread (including variant spread) and effect, and efforts to prevent it – are of crucial importance for the public health. The Defendants cannot be the sole determiner of what the public is permitted to know, and when. As further grounds for this motion, the News Media parties state:

1. The Associated Press (“AP”) is an independent, not-for-profit corporation that operates in more than one hundred countries and provides news content, including original AP reporting, to its members. AP uses public records, including the records of the Defendants, as important newsgathering
2. The First Amendment Foundation (“FAF”) is a charitable organization dedicated to open government and public access, headquartered in Tallahassee, Florida. FAF is headquartered in Tallahassee, Florida and has operated since
3. Gannett Co., Inc. (“Gannett”) is the largest local newspaper company in the United States. Its 260 local daily brands in 46 states and Guam—together with USA TODAY— reach an estimated digital audience of 140 million each month. Gannett properties in Florida include: Daily Commercial, Daytona Beach News-Journal, Florida Today, Herald-Tribune,

Naples Daily News, Northwest Florida Daily News, Ocala Star Banner, Panama City News Herald, Pensacola News Journal, Tallahassee Democrat, TC Palm, The Destin Log, The Florida Times-Union, The Gainesville Sun, The Ledger, The News-Press, The Palm Beach Post, The Star, The Walton Sun, and Washington County News. Gannett uses public records, including the type of records at issue in this action, as important newsgathering sources.

4. The McClatchy Company, LLC d/b/a the Miami Herald (the “Herald”) publishes the Miami Herald, a newspaper of general circulation in Miami-Dade County, Florida. The Herald also maintains a news website at miamiherald.com. The Herald uses public records, including the type of records at issue in this litigation, as important newsgathering sources.
5. The New York Times Company (the “NYT”) publishes The New York Times, a newspaper of general circulation nationwide. The NYT also maintains a news website at nytimes.com. The NYT uses public records, including the type of records at issue in this litigation, as important newsgathering sources.
6. Scripps Media, Inc. (“Scripps”) operates five Florida television stations: WFTS (Tampa Bay), WFTX (Ft. Myers-Naples), WPTV (West Palm Beach), WSFL (Miami-Ft. Lauderdale) and WTXL (Tallahassee) and their associated news Scripps uses public records, including records of the Defendants, as important newsgathering sources.
7. Sun-Sentinel Company, LLC (the “Sun Sentinel”) publishes the South Florida Sun Sentinel, a newspaper of general circulation, primarily in Broward County, Florida. The Sun Sentinel also maintains a news website at sun-sentinel.com. The Sun Sentinel uses public records, including records of the Defendants, as important newsgathering sources.

8. Times Publishing Co. (“TBT”) publishes the Tampa Bay Times, a newspaper of general circulation in the greater Tampa Bay area. TBT also maintains a news website at tampabay.com. TBT uses public records, including records of the Defendants, as important newsgathering sources.
9. WP Company LLC (“The Post”) publishes The Washington Post, a newspaper of general circulation nationwide. The Post also maintains a news website at washingtonpost.com. The Post uses public records, including records of the Defendants,

as important newsgathering sources.

10. As stated in Plaintiffs’ Complaint, between June 30, 2020, and June 3, 2021, the Department maintained a website that displayed a COVID-19 data “dashboard” that was updated daily with data including, but not limited, to positive and negative test results and corresponding age, gender, zip code, and county, as well as emergency room visits, deaths, and
11. Despite the continued challenges the COVID-19 pandemic presents to Florida residents, the Department ceased publishing the daily data on or about June 3, 2021. Instead, it now publishes a weekly COVID-19 “Situation Report,” which excludes several of the key data points originally included in the former daily reports. Critically missing from this weekly data is, for example, county-by-county COVID-19 fatality numbers.
12. Like the Plaintiffs in this case, members of the news media have requested that the Department release records of county-level death statistics – the same type of data that was made available to the public on a daily basis up until only three months
13. For instance, counsel for the News Media communicated with counsel for the Department less than two weeks after it had stopped publicly reporting daily COVID-19 At that time, the News Media informed the Department of their request that it resume

“[d]aily COVID reporting on cases, deaths, hospitalizations –all broken down geographically as in past daily reports.” See News Media Counsel’s email to Department counsel on June 17, 2021, summarizing their June 16, 2021 phone conference, incorporated here as Exhibit A, at ¶ 7.

14. In response to the News Media’s request for clarification on the Department’s “position on the public nature of this non-identifying data,” , the Department responded that it

“is currently releasing the information only as determined necessary by the [State Surgeon

General]” and that it no longer publicly reports the data. Id. at ¶¶ 5, 7. In other words, the

Department denied the request on the basis that it determined that disclosure of the data was not necessary to the public health (see § 381.0031(6), Fla. Stat. (2021)).

15. In follow-up communications between the Department’s counsel and counsel for the News Media, the News Media renewed its request to the Department to resume county-level COVID-19 death reporting. For example, on August 12, 2021, counsel for the News Media informed Department counsel “that Governor DeSantis has come out in support of Florida reporting more detailed information than the casa [sic] data published daily by the CDC. Specifically, he seemed to suggest that going back to the public release of county-level COVID

data is a good idea.” See News Media counsel’s email to Department counsel, following up on

their August 11, 2021 phone conference, incorporated here as Exhibit B.

16. Again, on August 27, 2021, in an email with the subject heading “County-level COVID reporting,” the News Media’s counsel sent a message to Department counsel, stating: “As we previously discussed, our clients are seeking county-level data to be included, at least, in the weekly reports. And given the uptick in COVID cases, they are asking whether DOH is considering going back to daily ” See News Media counsel’s August 27, 2021 email to

Department counsel, incorporated here as Exhibit C. Counsel for the Department responded the

same day, indicating they had “not been notified of any decision on a change in reporting plans/

timeframes/ content.” Id.

17. Individual members of the News Media have also made separate attempts to obtain the subject data at issue in this case. For instance, on August 30, 2021, Gannett’s TC Palm reporter Laurence Reisman submitted a public records request to the Department seeking data reflecting the number of COVID-19 deaths of Indian River County residents as of August 28, See email string between Mr. Reisman and the Department, incorporated here as Exhibit
18. D. After being pressed for a response, the Department informed Mr. Reisman on September 3, 2021, that the Department provided the CDC with “county COVID-19 data since March 2020,” and directed him to the page on the CDC’s website that displays deaths by county. However,

according to the Department, “these data are displayed by location of death, not residence.” Id.

The next day, Mr. Reisman informed the Department that the link did not provide the specific public records he requested. Id. In response, on September 7, 2021, the Department denied the

request, stating that the specific data requested “are considered confidential and exempt from public disclosure pursuant to section 381.0031(6) of the Florida Statutes, and Rules 64D-3.036, 64D-3.028(12), and 64D-3.041, Florida Administrative Code. The confidential and exempt data are provided to necessary community partners for planning purposes.” Id.

18. Similarly, on September 8, 2021, the Department sent an identical email to Gannett’s USA TODAY reporter Mike Stucka, denying two-weeks’ worth of his daily public records requests for Florida’s complete line list of COVID-19 cases, providing information on every COVID-19 case in the state, including data on the person’s county, age, gender, jurisdiction/resident of Florida flag, whether the case is travel related, origin, emergency department visit flag, hospitalization flag, death flag, case flag, contact flag, event date, and

chart date. See Composite Exhibit E.² The line list of cases, including county-level information, was previously released by the Department from June 30, 2020, to June 3, 2021.³

19. The above examples are illustrative of the difficulties the News Media have continually faced to obtain records that the Defendants once freely disclosed. The News Media therefore have a direct interest in the outcome of this litigation and submit that their perspective on why disclosure of this information is in the interest of public health is one that should be
20. The law generally recognizes that the news media have standing to intervene in cases where issues impacting their access rights to public records will be See, e.g.,

WESH Television, Inc. Freeman, 691 So. 2d 532, 535 (Fla. 5th DCA 1997) (media must be

permitted to intervene and be heard on motion seeking to prevent access to public records); News-Press Publ’g Co. v. State, 345 So. 2d 865, 866 (Fla. 2d DCA 1977) (press was properly

permitted to intervene where the order in question had the “practical effect of making it more difficult for the press to obtain information about the case which it may wish to publish.”); Times

Publ’g Co. v. Penick, 433 So. 2d 1281 (Fla. 2d DCA 1983) (“Notice must be given to at least one

representative of the local news media when a motion for closure is filed and when it is heard by

the court.”) (internal quotation omitted); Miami Herald Publ’g Co. v. McIntosh, 340 So. 2d 904,

908 (Fla. 1976) (news media has standing to challenge orders that directly impair or curtail its ability to gather news).

² Composite Exhibit E consists of a public records request by Mr. Stucka to the Department, the

Department’s response to the request, and an example of the requested “line-list” data.

³ See the Department’s own archive of these daily line list reports, available at http://ww11.doh.state.fl.us/comm/_partners/covid19_report_archive/cases-monitoring-and-pui- information/state-linelist/.

21. Counsel for the News Media conferred with counsel for the Plaintiffs, who stated they do not object to the relief requested herein. Counsel for the News Media also conferred with counsel for the Defendants (Louise Laurent). Defendants currently oppose the requested relief.

WHEREFORE, the News Media respectfully move this Court for an order: (1) granting their request to intervene; (2) permitting them to more fully brief the issues raised in this motion in a memorandum of law, and (3) permitting them to be heard in this matter at any related hearing, along with any additional and further relief this Court deems just and proper.

Dated: September 15, 2021

Respectfully submitted, THOMAS & LOCICERO PL

/s/ Mark R. Caramanica                    

Carol Jean LoCicero Florida Bar No. 603030 Mark R. Caramanica Florida Bar No. 110581 Linda R. Norbut

Florida Bar No. 1011401 601 South Boulevard

Tampa, FL 33606

Telephone: (813) 984-3060

Facsimile: (813) 984-3070

Primary e-mail: clocicero@tlolawfirm.com Secondary e-mail: tgilley@tlolawfirm.com Primary e-mail: mcaramanica@tlolawfirm.com Secondary e-mail: dlake@tlolawfirm.com

Attorneys for Proposed News Media Intervenors

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 15th day of September, 2021, I caused a true and correct copy of the foregoing to be served electronically upon counsel for the parties listed below via the Florida Courts E-Filing Portal, with counsel for the Defendants also being additionally served by regular mail:

Law Office of Andrea Flynn Mogensen, P.A. Andrea Flynn Mogensen

677 N. Washington Blvd., Suite 128

Sarasota, FL 34236 andrea@sarasotacriminallawyer.com

BARRETT, CHAPMAN & RUTA, P.A.

Victor L. Chapman

1. Steven Ruta 18 Wall Street

Orlando, FL 32801

Tel.: (407) 839-6227

Fax: (407) 648-1190

bcrservice@bcrlaw.net victor@bcrlaw.net shannon@bcrlaw.net steve@bcrlaw.net

Counsel for Plaintiffs

Florida Department of Health Louise St. Laurent, General Counsel

Virginia Edwards, Chief Legal Counsel 4052 Bald Cypress Way, Bin A-02 Tallahassee, FL 32399-0002 louise.stlaurent@flhealth.gov virginia.edwards@flhealth.gov

Counsel for Defendants

/s/ Mark R. Caramanica                    

Attorney

EXHIBIT A

Linda Norbut

From:                                                                St Laurent, Louise R <Louise.StLaurent@flhealth.gov>

Sent:                                                                  Thursday, June 17, 2021 1:34 PM

To:                                                                      Mark R. Caramanica

Cc:                                                                       Harkins, Renee; Edwards, Virginia

Subject:                                                            RE: COVID/Vaccine data requests

Attachments:                                                General – Variant Report 2021-05-02_Redacted.xlsx; Vaccination report – facility

2021-01-09 (draft).xlsx; Weekly report inquiry.pdf

See below.

For number 3, I am not sure that we ever required schools to report to us, as we wouldn’t have that authority over them.

We’ll keep working on the rest of the outstanding items. Thanks,

Louise St. Laurent General Counsel

Office of the General Counsel Florida Department of Health 4052 Bald Cypress Way, A-02 Tallahassee, FL 32399

(850) 245-4956 (Office)

(850) 597-3531 (Cell)

(850) 245-4790 (Fax)

Please note:

Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. Your e- mail communications may therefore be subject to public disclosure.

Please consider the environment before printing this e-mail.

From: Mark R. Caramanica <mcaramanica@tlolawfirm.com>

Sent: Thursday, June 17, 2021 12:21 PM

To: St Laurent, Louise R <Louise.StLaurent@flhealth.gov>

Cc: Harkins, Renee <Renee.Harkins@flhealth.gov>

Subject: COVID/Vaccine data requests

Louise,

Thanks for speaking yesterday. I’ve summarized below what we discussed and what we agreed would be next steps. Since we covered a lot and so we are on the same page here, could you reply and confirm or correct each point. Thanks!

• Zip code-level data released on June 9, 2021:

1. For entries where 00000 appears in the zip code field it is a default when no number was

1. Race and ethnicity demographics: DOH will be providing us a cost estimate to conduct review of the data set to determine if adding the race and ethnicity field to the data would result—in DOH’s

determination—in the data for those entries being personally identifying. DOH’s position is that if adding the race field results in less than 10 people having the same other attributes in the database it could be personally identifying. While we reserve on whether that would be personally identifying we look forward to receiving the estimate.

1. Zip codes and site location for where a shot was administered: this data is not contained/entered by providers when a shot is given. DOH has been providing separate daily vaccination reports that contain that data but it is not linked to individual shot administrations. DOH agreed to provide us a screenshot of the interface where providers upload shot information for the data we received on June 9 so we can see what fields that are

• Department of Corrections COVID reporting – DOH is no longer receiving reports from DOC on infections/deaths of inmates or staff at DOC facilities, and believes DOC is no longer collecting that data (we are not certain and would defer to DOC). There is therefore nothing to presently disclose going

• School COVID reporting – DOH is no longer separately tracking that data outside of case investigations. There is therefore nothing to presently disclose going

• LTCF COVID reporting – DOH is no longer separately tracking that data outside of case investigations and ESS is no longer operational in requiring long term care facilities to report numbers on resident and staff infections or There is therefore nothing to presently disclose going forward. You mentioned that CMS may be continuing to receive some of this data (I am unsure since we don’t regulate these facilities).

• Daily variant case number requests – We have been making requests for daily COVID case variant reports, and have been receiving ones like the attached. The last one we received was the report for June 3. You said that DOH was no longer creating these Can you confirm whether the raw information for these reports

resides in MERLIN and solely in MERLIN, and how DOH was extracting it to make the daily reports? If not solely in MERLIN, what other DOH data sources contain it? (will look into these questions) Can you also confirm that the SSG has concluded that disclosure of the information is not necessary for public health concerns. (the Department is currently releasing the information only as determined necessary by the SSG, it is no longer being publicly reported or gathered outside of case investigations). We must reserve our rights on the public nature of this data, regardless of the form in which it resides, but would appreciate clarity on DOH’s position as to the same.

• Daily vaccination reports – We have been making requests for daily COVID vaccination reports detailing total vaccinations distributed by type and location, like the one attached. The last one we received was the report for June Again, you stated that DOH is no longer producing these daily reports. We would like to continue

requesting the raw data comprising the reports, which should not be exempt. If there is a preferred way to structure that request to make it clear to DOH what we are seeking please let us know. (will find out)

• Daily COVID reporting on cases, deaths, hospitalizations—all broken down geographically as in past daily

reports. You again stated that DOH is no longer creating these reports. Can you clarify DOH’s position on the

public nature of this non-identifying data, and where it resides? Also, whether the SSG has again made a

determination that it is no longer in the public interest to release this information to the public? (see above at 5). We would again reserve rights with respect to the public nature of this data but you were going to look into how and from what sources DOH was pulling data to create the daily COVID reports, and whether it was still sending information/reports to the CDC on daily numbers. We would be interested in obtaining copies of whatever is being sent to the CDC. (Will find out the rest)

• Breakthrough data – You mentioned that pending requests for breakthrough data were fulfilled in that

requesters were told there was nothing to release. After we spoke, one of our coalition clients received an

email denying the request for breakthrough data: “Pursuant to section 381.0031(6), Florida Statutes, and Rules 64D-3.036 and 64D-3.041, Florida Administrative Code, the requested information is confidential and exempt from disclosure, and will only be released as determined as necessary by the State Health Officer or

designee.” Can you confirm this is DOH’s position as to all public records requests for breakthrough data? Has the SSG specifically determined disclosure of that information is not necessary for public health concerns? The news media had requests pending for months for that data, can you confirm when a decision was made to

withhold the information based on 381.0031(6)? The SSG has not determined that release of this data is publicly necessary to protect public health.

I’m also attaching some questions the Miami Herald has been seeking answers to regarding the new weekly reports, and some apparent discrepancies they have observed. Would you mind passing along again to folks who can answer their questions? They have not been able to get a response. (will send to our Comms office)

Thanks, and let me know if anything above is unclear or I have misstated DOH’s position on anything,

-Mark

Mark R. Caramanica

Thomas & LoCicero PL

Focused on Business Litigation, Media and IP Law

Member of The National Association of Minority and Women Owned Law Firms, Inc. (NAMWOLF®)

mcaramanica@tlolawfirm.com | tlolawfirm.com

ph: 813.984.3060 | direct: 813.984.3073

fax: 813.984.3070 | toll-free: 866.395.7100

601 South Boulevard, Tampa, FL  33606

Tampa | South Florida

EXHIBIT B

Linda Norbut

From:                                                                Linda Norbut

Sent:                                                                  Thursday, August 12, 2021 1:08 PM

To:                                                                      ‘Edwards, Virginia’; ‘St Laurent, Louise R’

Subject:                                                            RE: Outstanding variant/vaccine data issues

Dear Louise and Virginia,

Just as a short follow up to our conversation yesterday, I wanted to make you aware, if you aren’t already, that

Governor DeSantis has come out in support of Florida reporting more detailed information than the casa data published daily by the CDC. Specifically, he seemed to suggest that going back to the public release of county-level COVID data is a good idea.

Just thought I would pass this news along in case you could also pass along it along to the decionmakers for consideration.

Thanks,

Linda Riedemann Norbut

Thomas & LoCicero PL

Focused on Business Litigation, Media and IP Law

Member of The National Association of Minority and Women Owned Law Firms, Inc. (NAMWOLF®)

lnorbut@tlolawfirm.com | tlolawfirm.com

ph: 813.984.3060 | direct: 813.984.3077

fax: 813.984.3070 | toll-free: 866.395.7100

601 South Boulevard, Tampa, FL  33606

To upload large documents, please click here.

Tampa | South Florida

CONFIDENTIALITY NOTICE: The information contained in this email message is intended for the personal and confidential use of the recipient(s) designated above. This message may contain information that is privileged, confidential and exempt from disclosure under applicable law and any unauthorized or inadvertent use, receipt, disclosure, dissemination or distribution of such information shall not waive any such privilege. If you are not an intended recipient of this message, and/or you have received this message in error, then please notify the sender at (813) 984-3060. Any unauthorized and/or unintended review, use, dissemination, distribution or reproduction of this message, or any of the information contained in it, is

strictly prohibited.

From: Linda Norbut

Sent: Monday, August 9, 2021 10:20 AM

To: ‘Edwards, Virginia’ <Virginia.Edwards@flhealth.gov> Cc: ‘St Laurent, Louise R’ <Louise.StLaurent@flhealth.gov> Subject: RE: Outstanding variant/vaccine data issues

Seems my assistant jumped the gun and sent our conference number instead, so let’s just use that. Thanks!

Linda Riedemann Norbut

Thomas & LoCicero PL

Focused on Business Litigation, Media and IP Law

Member of The National Association of Minority and Women Owned Law Firms, Inc. (NAMWOLF®)

lnorbut@tlolawfirm.com | tlolawfirm.com

EXHIBIT C

Linda Norbut

From:                                                                St Laurent, Louise R <Louise.StLaurent@flhealth.gov>

Sent:                                                                  Friday, August 27, 2021 1:45 PM

To:                                                                      Linda Norbut

Cc:                                                                       Edwards, Virginia; Mark R. Caramanica

Subject:                                                            RE: County-level COVID reporting

Good afternoon, Linda,

My office has not been notified of any decision on a change in reporting plans/timeframes/content.

Louise St. Laurent General Counsel

Office of the General Counsel Florida Department of Health 4052 Bald Cypress Way, A-02 Tallahassee, FL 32399

(850) 245-4956 (Office)

(850) 597-3531 (Cell)

(850) 245-4790 (Fax)

Please note:

Florida has a very broad public records law. Most written communications to or from state officials regarding state business are public records available to the public and media upon request. Your e- mail communications may therefore be subject to public disclosure.

Please consider the environment before printing this e-mail.

From: Linda Norbut <lnorbut@tlolawfirm.com>

Sent: Friday, August 27, 2021 10:03 AM

To: St Laurent, Louise R <Louise.StLaurent@flhealth.gov>

Cc: Edwards, Virginia <Virginia.Edwards@flhealth.gov>; Mark R. Caramanica <mcaramanica@tlolawfirm.com>

Subject: County-level COVID reporting

Good morning, Louise.

Reaching out to follow up on our question regarding county-level COVID death data. As we previously discussed, our clients are seeking county-level data to be included, at least, in the weekly reports. And given the uptick in COVID cases, they are asking whether DOH is considering going back to daily reporting.

We understand that there might be some relevant discussions underway at the department. Can you tell us what the status of this is? Any plans to resume county-level reporting?

Thanks,

Linda

Linda Riedemann Norbut

Thomas & LoCicero PL

Focused on Business Litigation, Media and IP Law

Member of The National Association of Minority and Women Owned Law Firms, Inc. (NAMWOLF®)

lnorbut@tlolawfirm.com | tlolawfirm.com

ph: 813.984.3060 | direct: 813.984.3077

fax: 813.984.3070 | toll-free: 866.395.7100

601 South Boulevard, Tampa, FL  33606

To upload large documents, please click here.

Tampa | South Florida

CONFIDENTIALITY NOTICE: The information contained in this email message is intended for the personal and confidential use of the recipient(s) designated above. This message may contain information that is privileged, confidential and exempt from disclosure under applicable law and any unauthorized or inadvertent use, receipt, disclosure, dissemination or distribution of such information shall not waive any such privilege. If you are not an intended recipient of this message, and/or you have received this message in error, then please notify the sender at (813) 984-3060. Any unauthorized and/or unintended review, use, dissemination, distribution or reproduction of this message, or any of the information contained in it, is

strictly prohibited.

EXHIBIT D

Linda Norbut

From: “Moran, Megan” <Megan.Moran@flhealth.gov>

Date: Tuesday, September 7, 2021 at 2:58 PM

To: Larry Reisman <larry .reisman@tcpal m.com>

Cc: “Khoury, Weesam” <Weesam.Khoury@fl healt h.gov>, “Feedback, NewsMedia”

<NewsMedia@flhealth.gov>, “Hawker, Miranda C” <Miranda.Hawker@flhealth.gov>, “Brock, Stacy S”

<Stacy.Brock@flhealth.gov>, Adam Neal <adam.neal@tcpalm.com>, Pamela C Marsh

<pmars h@fl oridafaf.org>

Subject: RE: UPDATED REQUEST: public records request — basic COVID-19 data

Good afternoon,

The specific data you have requested are considered confidential and exempt from public disclosure pursuant to section 381.0031(6), Florida Statutes, and Rules 64D-3.036, 64D-3.028(12), and 64D-3.041, Florida Administrative Code. The confidential and exempt data are provided to necessary community partners for planning purposes.

As previously mentioned, the data on the Centers for Disease Control and Prevention’s (CDC) website are displayed by location of death, not residence. COVID-19 data have been reported to CDC as it has been throughout the entirety of the pan demic.

Prior COVID-19 reporting protocols included case data submissions to CDC Monday through Fri day. This was per guidance they issued on June 18, 2021 . As such, data from Friday, Saturday, and Sunday were reported on Mondays. This resulted in some weekends being inaccurately displayed on the CDC website .

As a result of data discrepancies that have occurred with CDC displayed data, the Department worked quickly and efficiently with CDC to ensure accurate display of data on their website.

We also now submit retrospective COVID-19 data Monday through Friday, which started earlier this month as a result of issues with CDC display of our reported data. This ensures that continuous epidemiological analyses provide the most updated data to the public.

Data are provisional, and as the Department conducts daily data analyses, Florida data displayed on the CDC website may change slightly as data are provided. Sending a retrospective file daily provides the most accurate and up-to-date data to the public through the CDC.

The CDC has started displaying the Department’s submitted retrospective file twice a week on Mondays and Thursdays, which updates previous day deaths that were subsequently reported to the Depart ment. Separately, we have a weekly report that focuses on trend analyses of these dat a. You can find that here: Flori daHealt hCOVID19.gov .

Public health surveillance and controlling the spread of infectious diseases have always been core functions of the Department . In addition to this, the Department has and will continue its efforts in promoting COVID-19 vaccination, working with community partners, and messaging and outreach to the public. The Department remains dedicated to providing Floridians with information on both a daily and weekly basis, either through our weekly report or via the CDC where states can be compared, and widespread surveillance data can be accessed.

As we continue to move forward through this response, we must ensure COVID-19 resources are widely available to anyone who needs them. Please continue to educate your audiences on COVID-19 resources available to t hem.

Individuals can find these resources via our website Flori daHealt hCOVID19.gov, which is a one-stop shop for COVID-19 vaccine, testing, and treatment information and locations.

Thank you,

Megan Moran, MPH, FCCM Deputy Communications Director Florida Department of Health

From: Reisman, Laurence <Larr y.Reisman@tcpalm .com>

Sent: Saturday, September 4, 2021 10:28 AM

To: Moran, Megan <M egan.M oran@fl healt h.gov>

Cc: Khoury, Weesam <Weesam.Kh oury@fl health .gov>; Feedback, NewsMedia <NewsMedia@flhealth.gov>; Hawker, Miranda C <Miran da.Hawker@ fl healt h.gov>; Brock, Stacy S <St acy .Brock@ fl healt h.gov >; Adam Neal

<ada m.neal@tc pal m.com>; pmarsh@flori dafaf.org

Subject: RE : UPDATED REQUEST: public records request — basic COVID-19 data

Thank you for responding, Megan. I appreciate your directing me to this specific page, which is the first time I’ve seen it .

These, however, are not the specific public records I requested -from DOH. Can you please respond to my specific request?

Also, the numbers I found on the link you provided seem inconsistent with those reported previously by local health department s. Would you (or someone) be able to comment on why?

From: Moran, Megan <M egan.M oran@fl healt h.gov >

Sent: Friday, September 3, 2021 7:24 PM

To: Reisman, Laurence <Larr y.Reisman@tcpal m.com>

Cc: Khoury, Weesam <Weesam.Khour y@fl healt h.gov>; Feedback, NewsMedia <NewsMedia@fl healt h.gov >; Hawker, Miranda C <Miranda.Hawker@fl healt h.gov >; Brock, Stacy S <Stacy.B ro ck@fl health.gov >; Neal, Adam

<Adam. Neal@tcpaIm .com >; pmarsh@fl oridafaf.org

Subject: RE : UPDATED REQUEST: public records request — basic COVID-19 data Hi Larry,

The Florida Department of Health has provided the Centers for Disease Control and Prevent (CDC) with county COVID-19 data since March 2020 . This has not changed . There is a page on the CDC’s website that displays deaths by county; however, these data are displayed by location of death, not residence.

We appreciate your patience as we continue to review your request. Thanks,

Megan Moran, MPH, FCCM

Deputy Communications Director Florida Department of Health

From : Reisman, Laurence <Larry .Reisman@tcpal m.com>

Sent: Friday, September 3, 2021 4:28:11 PM

To: Brock, Stacy S <Stacy.B rock@fl healt h.gov >

Cc: Hawker, Miranda C <Miranda.Hawker@ fl healt h.gov >; Adam Neal <adam.neal@tc palm.com >; Feedback, NewsMedia <NewsM edia@fl healt h.gov>; Khoury, Weesam <Weesam.Kh oury@fl healt h.gov>; Pamela C Marsh <pmarsh@fl oridafaf .org>

Subject: UPDATED REQUEST: public records request — basic COVID-19 data

Stacy:

For the record, it has been nearly four full work days since I made my last two public records requests, one of which was for a limited amount of data you routinely produced and shared with others and should have had easy access to .

The requests were made, pursuant to Florida statues and its constitution, in an effort to better inform the people of Indian River County during a pandemic.

Neither you nor Miranda have returned my phone calls, and I am unable to get through to you on your ce llphone .

You have not provided me with a reason why these requests were not fulfilled in a reasonable amount of t ime.

On Aug . 12, you sent me this message with regard to a public records request made July 27:

“We are working on getting you the data you requeste d. I just wanted to let you we received your records request locall y. I should have an answer for you today. I apologize for the delay.”

I still have not received that data or a reason why these requests were not fulfilled. Please let me know how this can be resolved ASAP.

Thank you, Larry

From: Reisman, Laurence

Sent: Wednesday, September 1, 2021 4:09 PM

To: ‘Brock, Stacy S’ <Sta cy.Bro ck@fl healt h.gov>

Cc: ‘Hawker, Miranda C’ <Miranda.Hawker@fl health.gov >; Neal, Adam <Adam.Neal@tc palm.co m>; ‘Feedback, NewsM edia’ <NewsMedia@fl healt h.gov >

Subject: RE : public records request — basic COVID-19 data

Importance: High

Any luck on getting this public information taxpayers not only paid for, but are entitled to under Florida law?

Larry

From : Reisman, Laurence

Sent: Tuesday, August 31, 2021 8:03 PM

To: Brock, Stacy S <Stacy.B rock@fl healt h.gov >

Cc: Hawker, Miranda C <Miranda.Hawker@fl  healt h.gov >; Neal, Adam <Adam.Neal@tcpalm.com  >; Feedback, NewsMedia <NewsM edia@fl healt h.gov>

Subject: RE : public records request — basic COVID-19 data

Based on my understanding of the law, if you and the head of the local DOH have this in your office – electronically or otherwise -you (not state officials) are responsible for turning over the public records.

I encourage you to consider how a judge or jury would look at my simple requests and how reasonable, in terms of time, your responses have been.

I hope you can get this information to me early tomorro w. Larry

From : Brock, Stacy S <Stacy .Brock@fl healt h.gov >

Sent : Tuesday, August 31, 2021 6:16 PM

To: Reisman, Laurence <Larry .Reisman@tcpalm.com>

Cc: Hawker, Miranda C <Miranda.Hawker@ fl healt h.gov >; Neal, Adam <Adam .Neal@tcpalm .com >;

Feedback, NewsMedia <NewsM edia@fl healt h.gov>

Subject: Re: public records request — basic COVID-19 data Larry,

I am continuing to forward your request to the state level. Any requests for data other than what was provided to you on Monday are being and have been forwarded to the state. Their email address is newsmedia@ fl healt h.gov .

Stacy Brock

Get Outlook for iOS

From: Reisman, Laurence <Larry .Reisman@tcpal m.com>

Sent: Tuesday, August 31, 2021 5:39:56 PM

To: Brock, Stacy S <Stac y.Brock@fl healt h.gov >

Cc: Hawker, Miranda C <Miranda.Hawker@ fl healt h.gov >; Adam Neal <adam.neal@tc palm.com >

Subject: RE: public records request — basic COVID-19 data

You claimed earlier today you were working on fulfilling my public records request. I assume you are aware of this litigation.

https://www.tcpaIm.com/story/news/state/2021/08/31/state-accused-breaking-laws-refusing-release­ covid-data/5664891001/

Please send me the information I’ve requested ASAP.

I trust you know the law and who can be held responsible in case it is not followed. Larry

From : Reisman, Laurence <Larry .Reisman@tcpalm.com >

Sent: Tuesday, August 31, 2021 1:45:39 PM

To: Brock, Stacy S <Stac y.Brock@fl healt h.gov >

Cc: Hawker, Miranda C <Miranda.Hawker@ fl healt h.gov >; Adam Neal <adam.neal@tc palm.com >

Subject: RE : public records request — basic COVID-19 data

Can you please give me the estimated time when I might receive the first two items below?

From : Brock, Stacy S <Stacy .Brock@fl healt h.gov >

Sent: Tuesday, August 31, 2021 12:44 PM

To: Reisman, Laurence <Larry .Reisman@tcpalm.com>

Cc: Hawker, Miranda C <Miranda.Hawker@ fl healt h.gov >; Neal, Adam <Adam .Neal@tcpalm .com >

Subject: RE : public records request — basic COVID-19 data

Larry,

We are still working on your request . We apologize for the delay.

Stacy Brock

Government Operations Consultant II Public Health Preparedness Coordinator Public Information Officer

Safety Coordinator

Florida Department of Health in Indian River County 1900 27th Street, Vero Beach, Florida 32960

Ph: 772-794-7479 / Fax: 772-794-7453

htt p:// indianriver .floridahealt h.gov

M ission: To protect, promote & improve the health of all people in Florida through integrated state, county & community effo rts.

Vision : To be the Healthiest State in the Nation

Please Note: Florida has a very broad public records law. Most written communication to or from state officials regarding state business are public records available to the public and media upon request. Your e-mail communications may, therefore, be subject to public disclosure.

From: Reisman, Laurence <Larry .Reisman@tcpal m.com>

Sent: M onday , August 30, 202111:53 PM

To: Brock, Stacy S <Stac y.Brock@fl healt h.gov >

Cc: Hawker, Miranda C <Miranda.Hawker@fl healt h.gov >; Adam Neal <adam.neal@tc palm.com >

Subject: public records request — basic COVID-19 data

Importance: High

Stac y:

Thank you for sending me unsolicited data today on cases.

Maybe I missed it, but I did not see data on hospitalizations or deat hs. Please send to me pursuant to public records law by noon Tuesday Aug. 31 :

1. A chart similar to the one above: COVID DEATHS BY CALENDAR WEEK COUNTED 15 MARCH 2020 {WEEK 12) THROUGH 28 AUGUST 2021 {WEEK 34)

INDIAN RIVER COUNTY RESIDENTS

2. A chart similar to the one above: COVID-19 Deaths Indian River County Residents Through 28 August 2021

If you no longer are creating those charts, please explain why and send me data you have on the number of COV ID-19 of Indian River County residents deaths as of 28 August 2021.

ALSO: Pursuant to public records law by noon Friday Sept . 3, please send me your data that includes age breakdowns of the deaths from June 3, 2021, through Au g. 28, 2021.

(BTW: I am still waiting on a response on total deaths from a public records request I emailed you in July and, at one point, you said you would reply to. Maybe  I missed your reply. Our back and forth emails have become part of a record I am keeping.)

Thank you.

Larry

Laurence Reisman Community editor/columnist Member,  editorial  board Cell: 772.473.9062

Fac ebook : Fac ebook.com/ larry .reisman Twitter: @laurencereisman

Snapchat: vblar

TCPalm.com I Treasure Coast Newspapers

PART OF THE USATODAY NETWORK

COMPOSITE EXHIBIT E

8 September 2021

PUBLIC RECORDS REQUEST

Pursuant to Article I, section 24 of the Florida Constitution and Chapter 119, Florida Statutes, I request copies of the following public records:

Florida’s complete COVID-19 case line listing as of Sept. 7, 2021. As you know, this data was previously released on a daily basis. I am requesting records that contain no more information than the state previously released, to include the person’s county; age; gender; jurisdiction/resident of Florida flag; whether the case is travel related; origin; emergency department visit flag; hospitalization flag; death flag; case flag; contact flag; event date; and chart date.

If you deny this request in whole or in part, I request that you advise me IN WRITING, as required by

section 119.07(1)(e) and (f), Fla. Stat., of the particular statutory exemption upon which you are relying and that you state with particularity the reasons for your conclusion that the record is exempt. If an

asserted exemption applies to only a portion of a record, please delete the portion that you claim is exempt and release the remainder of the record as required by section 119.07(1)(d).

I request these records be provided in an electronic format that can be imported into standard database software, as the state has already proven it can do with regularity.Examples of such formats include a

text-delimited file such as .csv.

If you can simply post this data publicly, as you used to on a daily basis, I can stop filing records requests for it.

Florida Statutes Section 119.011(1) allows the “actual cost of duplication” of the public records to be charged. Please advise me of any such costs before taking any billable steps.

In light of the nature and importance of the records, I request that the records be made available within no more than seven (7) days. If any questions arise please contact me at 561-820-4497 office, or

mstucka@gannett.com.

Sincerely, Mike Stucka

From: Feedback, NewsMedia <NewsMedia@fl healt h.gov>

Sent: Wednesday, September 8, 2021 3:14 PM To: Stucka, Mike <MStucka@gannett.com> Subject: FDOH public records request

Mike:

The specific data you have requested are considered confidential and exempt from public disclosure pursuant to section 381.0031(6), Florida Statutes, and Rules 64D-3.036, 64D-3.028(12), and 64D-3.041, Florida Administrative Code. The confidential and exempt data are provided to necessary community partners for planning purposes.

As previously mentioned, the data on the Centers for Disease Control and Prevention’s (CDC) website are displayed by location of death, not residence. COVID-19 data have been reported to CDC as it has been throughout the entirety ofthe pandemic.

Prior COVID-19 reporting protocols included case data submissions to CDC Monday through Friday. This was per guidance they issued on June 18, 2021. As such, data from Friday, Saturday, and Sunday were reported on Mondays. This resulted in some weekends being inaccurately displayed on the CDC website.

As a result of data discrepancies that have occurred with CDC displayed data, the Department worked quickly and efficiently with CDC to ensure accurate display of data on their website .

We also now submit retrospective COVID-19 data Monday through Friday, which started earlier this month as a result of issues with CDC display of our reported data. This ensures that continuous epidemiological analyses provide the most updated data to the public.

Data are provisional, and as the Department conducts daily data analyses, Florida data displayed on the CDC website may change slightly as data are provided. Sending a retrospective file daily provides the most accurate and up-to-date data to the public through the CDC.

The CDC has started displaying the Department’s submitted retrospective file twice a week on Mondays and Thursdays, which updates previous day deaths that were subsequently reported to the Department. Separately, we have a weekly report that focuses on trend analyses of these data. You can find that here: Flori daHealt hCOVID19.gov .

Public health surveillance and controlling the spread of infectious diseases have always been core functions of the Department . In addition to this, the Department has and will continue its efforts in promoting COVID-19 vaccination, working with community partners, and messaging and outreach to the public. The Department remains dedicated to providing Floridians with information on both a daily and weekly basis, either through our weekly report or via the CDC where states can be compared, and widespread surveillance data can be accessed.

As we continue to move forward through this response, we must ensure COVID-19 resources are widely available to anyone who needs them. Please continue to educate your audiences on COVID-19 resources available to t hem.

Individuals can find these resources via our website Flori daHealt hCOVID19 .gov, which is a one-stop shop for COVID-19 vaccine, testing, and treatment information and locations.

Office of Communications

Florida Department of Health

850-245-4111

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58 55-64 years Female

FL r es i de nt

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40 35-44 years Female

FLr es i de nt

No                    NA                 NO                       NO

NA                  Yes  YES                      2021/02/2405:00:00,00 2021/02/2413:52:17<00 2021/02/2405:00:00,00

• Osceola
• Seminole

29 25 -34 years Female

22 15-24 years Male

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FLr es i de nt

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No                    NA

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7 Indi an River

64 55-64 years Male

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• Broward

19 15-24 years Male

56 55-64 years Female

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84 75-84 years Male

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