For the second time, a Tallahassee judge has sided with an embattled nursing home in a public-records dispute with the Florida Department of Health, saying the agency did not comply with his order to turn over death certificates from across the state.
Lawyers for The Rehabilitation Center at Hollywood Hills, which incurred the wrath of Gov. Rick Scott after elderly residents died following Hurricane Irma last year, asked Leon County Circuit Judge Terry Lewis to hold the department in contempt in a legal tangle over copies of death certificates.
Lewis in April ordered the Department of Health to hand over the documents, but lawyers for the nursing home later accused the state of dragging its feet in producing the records. The nursing home also challenged costs that the department wanted to impose for the public documents.
In part, the nursing home objected to a May 7 invoice from the department for $5,928, including $5,907 for “review & redaction” of about 6,000 death-certificate records. The Broward County nursing home contended that there is not a need for the agency to review and redact information from the death certificates, a process that the invoice indicated would require 492.25 hours.
Tim Elliott, a lawyer representing the nursing home, told Lewis on Tuesday that the health department is refusing to comply with the judge’s order to produce the records and instead is “going through a lengthy, time-consuming process of redacting 17 fields of information on each death certificate.”
Under Florida law, all of the information except the cause of death is available to anyone who requests a death certificate, Elliott said.
“The information that we need, that’s critical, that they’re deleting, includes the residence of the persons who died,” Elliott told the judge. “Without that, the records are useless.”
Florida law also limits state agencies to charging “reasonable” fees to produce records, Elliott said.
“I say as a matter of law the $6,000 cannot be reasonable, given that we’re entitled to it without all that redaction,” he said.
But Department of Health attorney Michael Williams argued that the cost of the documents —- and the amount of redaction involved —- varied, depending on whether they were being requested as a “public record” or under a law governing the issuance of death certificates.
“The issue here is … that there’s a comingling of two different statutes,” Williams said.
Under one law, the cost for a death certificate, without a cause of death, is $5 per record, Williams said. But the lawsuit filed by the nursing home focused on Chapter 119, the Florida statute that deals with public records, he added.
“The department cannot just put away its duties” when complying with the public records law, Williams said.
“It states that we have to redact all personal information,” he said.
“I’m having a hard time grasping the rationale that says this information is not confidential, it’s not exempt, it does not need to be redacted if you ask for it under this statute, but under the public records act, it is,” Lewis said.
“I understand that, but that’s the quandary here,” Williams answered.
But the judge said he did not see why it would be necessary to redact information that is available to the public, especially when Florida’s public records law “is geared even more towards the public having access” to government documents.
“I would say you’re relieved of your obligation to review and redact anything other than cause of death,” Lewis told Williams.
Elliott also objected to the possibility of having to pay more than $30,000 for the 5,097 death certificates, saying that was “inherently unreasonable” since the nursing home was not seeking paper copies of the documents.
Lewis agreed and also said the nursing home should not have to pay the $5,097 the health department was trying to charge to review and redact the records.
“It would make it silly, to me” to require the health department to redact information that the public could otherwise get, Lewis said, saying the costs to produce the records should be “very, very minimal.”
Lewis has not entered a formal order in the case yet, but the state could be required to turn over the documents within 48 hours, unless the health department appeals.
The nursing home has faced intense scrutiny —- and a state move to revoke its license —- after residents died following Hurricane Irma. The Sept. 10 storm knocked out the nursing home’s air-conditioning system, creating sweltering conditions that led to the evacuation of residents on Sept. 13. Authorities have attributed 12 deaths to the problems at the nursing home.
The nursing home and the state have been locked in a legal battle about the license revocation and other issues, and The Rehabilitation Center at Hollywood Hills filed a public-records lawsuit Jan. 31, alleging that the department had improperly refused to provide copies of death certificates for people across the state from Sept. 9 through Sept. 16 —- a week-long period that included Hurricane Irma and its immediate aftermath.
Court documents have not spelled out why the nursing home wants the death certificates, but Elliott indicated Tuesday that the facility is seeking the addresses of locations where other people died during and after the deadly storm.
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