As governor cherry-picked data, the pandemic took a toll on Florida Sunshine laws
For months, Thomas Hladish, a research scientist at the University of Florida’s Emerging Pathogens Institute, asked the Florida Department of Health to let him use information from thousands
Open-government advocates say the state of Florida’s Sunshine laws is darker because of Gov. Ron DeSantis’ incomplete and selective release of COVID-19 data.
of contact tracers the state had hired to interview Floridians who tested positive for COVID-19.
He and his colleagues wanted to better understand where transmission was occurring in Florida so officials could put more effective policies in place.
But Hladish, who was on FDOH’s payroll for part of last year building statistical forecasting models about the disease, was stonewalled. He was then told not to even acknowledge the state had a set of data that showed when and where people tested negative for COVID-19 in Florida.
“They said, if it was brought to the attention of anyone that the data set exists, then the state has to release it,’’ Hladish recalled last week. “It was presented to me that I should not acknowledge they have that data.”
As Gov. Ron DeSantis prepares to give his third State of the State speech on Tuesday when lawmakers convene for their annual 60-day session, many open-government advocates say the state of Florida’s Sunshine laws is darker this year because of the governor’s selective release of information and his attempt at times to actively shield critical details about the depths of the crisis from becoming public.
“This administration doesn’t want to put negative information out there,’’ said Pamela C. Marsh, president of the First Amendment Foundation. “If there’s good news, we’ll share it, and if there’s bad news, we’ll hold onto it for a while until we are pushed and shoved to release it.”
Most of the public isn’t worried about people testing negative for COVID-19, but for researchers that data is an essential tool to understanding the path of the virus as it courses through Florida, killing more than 30,000 and infecting more than 1.9 million people.
“They’re definitely not releasing everything,’’ Hladish said last week. “It has a huge impact on scientists’ ability to understand what’s going on.”
The Herald/Times interviewed more than two dozen researchers, journalists and legislators about their experience with open records in the last year and the common conclusion was: Florida health officials are reluctant to release new data related to COVID-19 that contradicts the governor’s upbeat narrative and they frequently withhold information until they are either threatened with a lawsuit, or convinced the trend lines have improved.
In addition to releasing only selective health data, the state has withheld records for millions of dollars in purchase orders signed by the state with vendors. Legislators also complained about the lack of transparency relating to how the state has spent nearly $5 billion in federal funds and the botched unemployment compensation system that took months to get money to eligible Floridians.
Marsh said the motive for the secrecy “comes down to politics.”
LITIGATION AND STRUGGLE
DeSantis has passed the midpoint in his four-year term and is positioning himself for reelection in 2022. Many believe he also hopes to run for president in 2024, and his approach to the coronavirus has been shaped by both politics and unfounded scientific theories advanced by former President Donald Trump.
He spent much of the summer and fall helping engineer Trump’s win in Florida, playing up his own response to the virus and downplaying the summer surge in Florida’s COVID caseload.
“I think we’re at a low point as far as access to public information in this state,’’ said Ben Wilcox of Integrity Florida, a nonprofit research organization focusing on government accountability. “It was bad under Gov. [Rick] Scott, but I would argue it’s gotten worse under Gov. DeSantis.”
Wilcox said his organization often submits public records requests to the governor and his agencies to get basic information “that you would think would be online anyway but isn’t.”
“There’s no expectation they are going to be fulfilled in a timely manner,’’ Wilcox said. “We get hit with fees for copying records, even though we request them in electronic form. There’s the slowwalking of public records requests, and it’s almost as if they hope we will just forget about it.”
Marsh, of the First Amendment Foundation, has been involved in helping news organizations and nonprofit advocacy organizations obtain medical examiners’ reports on COVID-19 deaths and DOH reports on COVID-19 cases in nursing homes, assisted living facilities, prisons, day-care centers and hospitals. They have sought data on testing, personal protective equipment and copies of contracts and purchasing. The latest quest for information has been to get the DeSantis administration to completely release details on vaccine distribution.
“We have had to litigate and struggle every step of the way to get every piece of data we’ve ever gotten,’’ Marsh said, adding that in a handful of those cases, it took the threat or filing of a lawsuit to force the administration to comply.
Florida’s landmark public records law doesn’t allow the state to decide which data set is public and which is not. Instead, the law states: “It is the policy of this state that all state, county, and municipal records are open for
personal inspection and copying by any person.”
DeSantis, who rarely gives interviews to reporters from Florida news outlets and limits his questions at press conferences, has touted his “swift and decisive action to protect our state’s most vulnerable populations, including those over the age of 65” and said those early actions “saved thousands of lives and have inspired similar policies in other states and at the federal level.”
Although the governor would not grant the Herald/Times an interview to discuss his approach to Florida’s Sunshine laws, his spokesperson, Meredith Beatrice, responded. “Florida has been one of the most transparent states in the nation during the COVID-19 public health emergency,’’ she said.
“Executive agencies provide daily updates regarding public health information, including the COVID-19 Data and Surveillance Dashboard through the Florida Department of Health; daily COVID-19 vaccination reports (both statewide and county level); and AHCA’s Hospital Bed Capacity Dashboard. Additionally, regular updates regarding reemployment claims are made available through DEO’s Reemployment Assistance Claims
Dashboard.”
SOME SAY FLORIDA IS OPEN ABOUT COVID DATA
Not everyone is unhappy with Florida’s COVID-19 data release.
Jason Salemi, associate professor of epidemiology at the University of South Florida, commends FDOH for “releasing a lot of data that people like me can use to make sense of cases, testing, hospitalizations, deaths, and vaccines.”
But rather than rely on the data visualizations provided on the state dashboard, which many researchers consider incomplete and therefore misleading, Salemi has produced his own Florida COVID-19 Dashboard, using numbers augmented by federal data.
One glaring example of where the failure to release records may have shaped public policy is in the area of contact tracing.
According to the FDOH, the state’s contact tracing program uses public health case investigators to interview people who have tested positive for COVID-19 to see who else they may have exposed to the virus. Contact tracers then create a list of people they’ve been in contact with and attempt to reach them to prevent further spread.
Although many states do not have a good record of releasing contact tracing data, an NPR survey found that 14 states make contact tracing information public. By contrast, Florida’s program has been particularly opaque.
NO CONTACT TRACING DATA
For months, the Herald/ Times and other news outlets have made repeated requests for basic information about the contact tracing program. We have asked how many contact tracers have been hired, the contact rates and success rates, and we asked for details about their findings.
With every request, FDOH has refused to release any of the documents, saying only the requests “have been received.”
Hladish said researchers have been stymied as well. Since April, he has been asking for aggregated contact tracing data to understand where transmission was occurring, how transmission was changing as the state reopened businesses, and to provide feedback on what policies were working.
The goal, the UF researcher said, was to put a contact tracing program in place that could quickly inform policy makers about whether the decisions to reopen businesses, restaurants and gyms were exacerbating the spread of the virus or having an imperceptible impact.
“I was told the people in charge of the contact tracing strategy didn’t have time to talk to me,’’ Hladish said last week. He said that when he pressed them to explain why during conference calls with the team at DOH, “I was shot down.”
OTHER STATES DO BETTER
Other states had used contact tracing data to impose a more nuanced approach to lockdowns, tailoring restrictions to match outbreaks, or requiring restaurants to keep a tally of customers so they could be reached more easily to prevent the spread of the infection.
In Washington, D.C., and Louisiana, for example, health officials list the settings where outbreaks are happening and how many cases are arising from those outbreaks. And in Maryland, the state website provides detailed reports on contact tracing results, even providing testimonials from people who have been interviewed to overcome the mistrust arising from people who don’t want to talk to the contact tracers.
The experience in those states, however, may also explain why DeSantis didn’t want the information collected or publicly released in Florida because it may have increased pressure on him to close down restaurants, fitness clubs or other businesses.
Illinois Gov. J.B. Pritzner, for example, said that the state’s contact tracing data, along with scientific studies, led him to shut down indoor dining in
October, the Chicago Tribune reported.
When the Miami Herald obtained a copy of Miami-Dade County’s contact tracing results for September and October, the data showed that despite the governor’s claims that his policies had successfully protected the elderly, cases among that group rose 150% in Florida and investigators reached only half of the people ages 65 and up who had been exposed to the virus.
Hladish said he and other researchers wanted the contact tracing detail to know if “poor people — who may not have medical insurance and may be wary about what their expenses are going to be if they show up with symptoms at a hospital — were not getting tested at the same rate as others.”
The goal was to try to shape policy for better outreach to those communities and for months he tried to get the data, he said.
“I was told FDOH was interested in this topic, but I wasn’t able to get an answer about whether I was allowed to use that data,’’ he said.
‘BETTER HAVE DAMN GOOD REASON’
Sharyn Smith, the former chief judge at the Florida Division of Administrative Hearings who helped draft the 1976 Sunshine law relating to financial disclosure, said the public records provisions in the law were intended to be broad, and exceptions difficult to obtain.
“It’s all about the public having access to accurate information to be able to make informed decisions,’’ Smith said last week. “If you’re going to deny them access to information, you better have a damn good reason for doing it because this is their information. It belongs to them. It doesn’t belong to any politician.“
Any attempt to shield information from the public “that could affect their ability to make the best decision possible, is a threat to our democracy,’ Smith added. “That’s how we saw it.”
For their part, the Republican leaders who control Florida’s Legislature have been content to let DeSantis make all the decisions about what information is being released under Florida’s public records laws during the pandemic, and when.
Sen. Kathleen Passidomo, a Naples Republican and the Senate Rules Committee chair, said it “would be my druthers to provide the information that you are legally obligated to provide and to do it as expeditiously as possible.” But, for now, she added: “I’m giving the governor the benefit of the doubt.”
Coral Gables officials looking for a key to unlocking redevelopment on ailing Miracle Mile without obliterating its small-scale charm say they may have found it: A consensus measure that would cap new construction at four stories.
That’s taller than most existing buildings on the Mile, but two stories shorter than current rules permit. At the same time, city commissioners and planners appear to have settled on an outright ban on parking within the footprint of any new buildings on the retail street.
Together, they say, the contemplated new rules will protect the Mile’s pedestrian-first ambience while promoting mixed-use development at the right scale to revitalize one of South Florida’s signature streets, long plagued by vacant shops and a lack of foot traffic.
That fresh compromise, forged during a two-hour public city commission workshop last week, may resolve a sometimes heated, months-long debate over the fate of the Mile that was sparked by a broader update of the Gables’ stringent zoning code. The commission is scheduled to take a first vote on the Miracle Mile measure March 9. A second and final vote would follow on March 23.
Commission members were at pains to point out that the consensus reached will lower height caps on the Mile compared to what’s allowed now.
“We are lowering the height on Miracle Mile — that’s h, e, i, g, h, t,” Gables Mayor Raul Valdes-Faui said during the Wednesday workshop, adding later: “Whatever we get, it’s going to be an improvement over what we have today.”
Commissioners approved the broader, mostly technical zoning update on Feb. 8 by a 4-1 vote, with vice mayor Vince Lago dissenting. But they agreed at the time to put off a final vote on proposed tweaks to rules governing Miracle Mile, by far the most contentious piece of the zoning rewrite, to consider alternatives.
The Miracle Mile measure has become a bone of contention in a crowded city election with few other issues to fire up voters.
Candidates for two open commission seats have dominated public hearings and community meetings on the question, accusing incumbents of ramming through the rezoning proposed by city planners while ignoring public consternation over an intense development boom in the city.
The original Miracle
Mile proposal developed by city planning director Ramon Trias and consultant Elizabeth Plater-Zyberk, a noted architect and University of Miami professor, sought to tweak existing zoning on the street to spur small-scale redevelopment.
The key, they concluded, is to allow owners of the often obsolete, one- and two-story buildings on small lots that dominate the street to redevelop while providing required parking somewhere else nearby. The small lots can’t accommodate the required parking, effectively encouraging any owners wanting to redevelop to aggregate property and build big with on-site parking garages — something city officials want to prevent.
To avoid litigation from property owners over potential downzoning claims, that original plan kept height limits at currently allowed levels of 70 feet, or six stories, while requiring new buildings to step back at four stories to preserve the street’s intimate feel. Nothing has been built at that height on the street, however, in part because of the difficulty in accommodating on-site parking on shallow lots.
The proposal raised the hackles of residents and preservationists who feared it could lead to a uniform, 70-foot-high “concrete canyon” along the Mile — a concern some commission members, including Lago, seconded.
The debate boiled down to precisely how tall any new construction on the Mile should be, a question that’s anything but straightforward because it depends on complex technical and legal variables.
All five commissioners agreed on allowing developers on the Mile the option of so-called “remote parking” within a 1,000foot radius of their property. Ample parking is available near the Mile in both public and private garages, and the supply will be enough to meet demand for about a decade even as redevelopment occurs, city administrators assured commissioners.
Lago and Commissioner Patricia Keon, both vying for the retiring ValdesFauli’s seat, each released an alternative proposal, as did Commissioner Michael Mena. At this week’s workshop, Coral Gables’ five elected officials weighed four proposals, including a slightly tweaked plan from city planners, before settling on the four-story compromise substantially along the lines of Mena’s alternative.
This time, only a handful of people turned up on Zoom to oppose the Mile changes.
The proposals were designed to avoid directly downzoning the Mile, something Gables City Attorney Miriam Soler Ramos warned could open
up the municipality to property-rights lawsuits.
To keep a lid on heights, all proposals banned the use of additional “air rights” on the Mile. Those development rights can be purchased by developers from owners of historically designated properties to add stories to projects in the downtown Gables over what basic zoning allows, but their use must be approved by the commission. Because the approval is discretionary, Soler Ramos said barring them doesn’t constitute a property “taking.”
Lago, however, proposed also prohibiting the use on the Mile of the city’s socalled Mediterranean bonus, a measure that allows developers who adopt the Gables’ trademark architectural style to add stories to downtown projects. That ban would effectively reduce development capacity and limit heights to four stories on the street. Lago also proposed still allowing developers to build a garage if they chose to, providing them flexibility to skirt property-rights concerns.
But Lago’s plan ran into concerns from other commissioners that it would still encourage developers to aggregate property and build street-killing garages and access ramps fronting the Mile.
Keon proposed no hardand-fast height cap, saying small lot sizes effectively
would keep most new building heights under six stories, since development capacity is dependent on the property footprint. Avoiding a hard cap also preserves creative flexibility for architects by not constricting a building’s shape, she argued. Keon persuaded fellow commissioners to embrace city planner’s proposal for ground-floor stories of up to 15 feet to satisfy requirements from high-end retailers.
Mena proposed a strict four-story cap, or about 50 feet, with a step-back at the fourth floor. That means building owners could have terrace restaurants or other uses on the fourth floor, promoting activity on the street, he said. Mena also proposed requiring remote parking for new buildings on the Mile instead of making it optional, an idea other commissioners appeared to embrace along with the four-story height limit.
Trias, the planning director, said the proposal will work if the city also eliminates building setbacks on the Mile. The ability to build to the property line means redevelopment or expansion projects could still use the full capacity allowed under current rules while hewing to a 50-foot cap, avoiding any takings issue, Trias said. Again, commissioners agreed.
Commissioners noted that there is ample precedent
on the Mile for 50foot heights — such as the large building at 55 Miracle Mile that houses the new Gramercy restaurant, among other businesses. The building, which occupies multiple lots, was the last significant construction on the street, made possible because required parking is in a garage in a companion condo high-rise at its rear.
At roughly that same 50-foot height, Mena said, the cap in his proposal respects property rights and the Mile’s modest scale while encouraging new development that enhances and modernizes the street.
“I appreciate the fundamental concern about the Mile, that it not be developed into something that is out of scale with what residents expect Miracle Mile to be,” Mena said in an interview before the workshop. “But we have to be cognizant of the property rights of those owners. We can’t just come in and say, ‘Hey, you can only do two stories now.’ ”
But Mena said he wanted to avert the possibility of parking decks on the street by any means possible.
“I think that would be a travesty on the Mile,” he said. “No one wants to see development on that scale. What I’m trying to do is foreclose this possibility.”