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Judge postpones a decision on the state's request to toss Rivkees' subpoena in COVID data case

Circuit Judge John Cooper, bottom right, speaks during a hearing over Zoom on Tuesday afternoon. Image: YouTube
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Circuit Judge John Cooper, bottom right, speaks during a hearing over Zoom on Tuesday afternoon.

A broader hearing in the case is scheduled to start next Tuesday. The judge raised the possibility that the hearing might have to be delayed if he decides former Surgeon General Scott Rivkees should be deposed.

A judge on Tuesday delayed a ruling on the state Department of Health's request to throw out a subpoena for former Florida surgeon general Scott Rivkees in a public records lawsuit over COVID-19 data.

Orlando State Rep. Carlos Guillermo Smith filed the lawsuit in August trying to get the department to release daily local COVID information, as it did earlier in the pandemic. The Florida Center for Government Accountability and media companies have join the suit.

A broader hearing in the case is scheduled to start next Tuesday. Cooper raised the possibility that the hearing might have to be delayed if he decides Rivkees should be deposed. Also, Rivkees says he may not be available because he is scheduled for eye surgery next week.

At a hearing Tuesday, the health department cited what is know as the “apex doctrine,” which shields top executives from testifying if the relevant information is available from other sources.

In the filing Monday, department attorneys wrote that Rivkees “does not have necessary or unique information related to the existence of daily COVID-19 reports.”

Smith, however, says Rivkees’ testimony is important. Department of Health Chief of Staff Cassandra Pasley previously testified in a deposition that Rivkees was the “ultimate decision-maker.”

“The state can’t claim that the surgeon general is the sole decider on what is a COVID-19 public record and what is not and then muzzle him and block him from being able to give us answers on why he made that decision,” Smith said Tuesday. “That’s why it’s important for us to hear from our former surgeon general.”

Cooper ordered both sides to try informal mediation nefore noon Friday while he reviewed Pasley's deposition.

Rivkees stepped down in September as surgeon general, a position that doubles as secretary of the Department of Health. He nominated replacement, Joseph Ladapo, is acting department secretary.

Information from News Service of Florida was used in this report.

Copyright 2021 WMFE. To see more, visit WMFE.