First District Court of Appeal State of Florida Case No
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FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA CASE NO. 1D18-3951 Lower Court Case No. 2018-CA-001648 EXECUTIVE OFFICE OF THE GOVERNOR, Appellant, v. AHF MCO OF FLORIDA, INC. d/b/a AHF FLORIDA HIV/AIDS SPECIALTY PLAN, Appellee. __________________________________________________________________ APPENDIX TO ANSWER BRIEF OF APPELLANT __________________________________________________________________ ON APPEAL IN THE SECOND JUDICIAL CIRCUIT, LEON COUNTY, FLORIDA Steven R. Andrews, Esquire Florida Bar No. 0263680 Ryan J. Andrews, Esquire RECEIVED, 10/2/20183:58PM,Kristina Samuels,FirstDistrict CourtofAppeal Florida Bar No. 0104703 Brian O. Finnerty, Esquire Florida Bar No. 0094647 The Law Offices of Steven R. Andrews, P.A. 822 Monroe Street Tallahassee, Florida 32303 Tel: (850) 681-6416 Fax: (850) 681-6984 Counsel for Appellee Page 01 INDEX TO APPENDIX Date Document Description Appendix Page 07/26/2018 Petition For Writ of Mandamus/Complaint for 3 Declaratory Relief 08/02/2018 Order to Show Cause 15 08/17/2018 EOG Response to Order to Show Cause 17 08/20/2018 Exhibit List 26 08/20/2018 Petitioner’s Hearing Exhibits: Exhibit 1 – “Governors Schedule” (Unredacted) 28 Exhibit 2 – Governor’s “Schedule” 32 (Unredacted) Exhibit 3 – Governor’s LBL and Regular 60 Calendar (unredacted) Exhibit 4 – Governor’s Line by Line (Redacted) 80 Exhibit 5 – Governor’s Line by Line (Redacted) 92 Exhibit 6 – Governor’s “Personal Schedule” 124 (Unredacted) Exhibit 7 – Governor’s Schedule for Press 132 Office Exhibit 8 – Governor’s Scheduler 137 Exhibit 9 – Governor’s Schedule on 143 “Scheduling Share Drive” Exhibit 10 – Instant Messages referring to 145 Governor’s Calendar Exhibit 11 – Correspondence re Public Records 159 Request to EOG for Governor’s Calendars Exhibit 12 – Governor’s Appointments 171 scheduled by Diane Moulton Exhibit 13 – Won’t Go on the Public Calendar 174 Exhibit 14 – Correspondence from Positive 176 Healthcare re Public Records Request related to Governor Rick Scott’s Calendars and Meetings 08/20/2018 Transcript of Proceedings before Judge Dodson 179 09/05/2018 Order on Public Records Request 235 09/18/2018 Petitioner’s Emergency Motion to Vacate Stay 238 Page 02 Filing # 75548244 E-Filed 07/26/2018 12:02:53 PM IN THE JUDICIAL COURT, SECOND JUDICIAL CIRCUIT, IN AN FOR LEON COUNTY, FLORIDA AHF MCO OF FLORIDA, INC. d/b/a PHC FLORIDA HIV/AIDS SPECIALTY PLAN Petitioner, vs. CASE NO: 2018 CA 001648 EXECUTIVE OFFICE OF THE GOVERNOR Respondent. _______________________________________/ PETITION FOR WRIT OF MANDAMUS, AND COMPLAINT DECLARATORY RELIEF COMES NOW Petitioner, AHF MCO of Florida, Inc. d/b/a PHC Florida HIV/AIDS Specialty Plan (“PHC”), pursuant to Art. I, § 24, Fla. Const.; §119.07, et seq., Fla. Stat.; and Fla. R. Civ. P. 1.630, sues Respondent, Executive Office of the Governor (“EOG”) in this Petition for a Writ of Mandamus and Complaint for Declaratory Relief pursuant to § 86.011, .021, Fla. Stat., for relief, and as grounds therefore alleges: Jurisdictional Allegations 1. Petitioner, PHC, is a nationally accredited managed care plan and is the current contractor for HIV/AIDS Specialty Plans for Regions 10 and 11 in Florida under the Florida’s Statewide Medicaid Managed Care program (the “SMMC”). PHC is a not-for-profit health plan providing comprehensive medical care to thousands of enrollees with HIV/AIDS in Miami-Dade and Broward Counties, the epicenter of the HIV epidemic in Florida. 2. Respondent EOG is an agency subject to The Florida Public Records Law, Chapter 119, Florida Statutes and maintains public records defined therein. Section 119.011(12), Fla. Stat. defines “public records” to include: all documents, papers, letters, maps, books, tapes, Page 03 photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency. See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980); see also Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979); Art. I, § 24, Fla. Const. 3. The fact that the records are part of a preliminary process does not remove them from the definition of “public record.” When material falls within the statutory definition of “public record” in § 119.011(12), Fla. Stat., and has been prepared to “perpetuate, communicate or formalize knowledge, the record is subject to disclosure even if the agency believes that release of the non-final product could be detrimental. See, e.g., Gannett Corporation, Inc. v. Goldtrap, 302 So. 2d 174 (Fla. 2d DCA 1974) (county’s concern that premature disclosure of a report could be harmful to the county does not make the document confidential); cf. Grapski v. City of Alachua, 31 So. 3d 193 (Fla. 1st DCA 2010). 4. This Court has jurisdiction and venue is appropriate in Leon County because Respondent EOG maintains its offices in Leon County and by Florida Statute can be sued in Leon County. 5. This is an action for a Declaratory Judgment and for Writ of Mandamus. 6. This Court has jurisdiction over the relief requested by PHC pursuant to Chapter 119, Florida Statutes. General Allegations 7. EOG has failed to provide Petitioner access to public records as required by Chapter 119, Florida Statutes. Public records are defined to include: “...all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other 2 Page 04 material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” § 119.011(12), Fla. Stat. (2013). Background 8. PHC has been a contracted Specialty Health Plan with the State of Florida through the Agency for Health Care Administration (“AHCA” or the “Agency”)) since 2013. AHCA’s contract with PHC and other managed care providers expires at the end of 2018. 9. On July 14, 2017, AHCA issued a solicitation seeking vendors to provide SMMC services for a new five year period starting in 2019 (AHCA ITN 011-17/18). The SMMC program is divided into eleven regions. All of the solicitations contemplated multiple contract awards including awards for comprehensive plans, long term care plans, managed medical assistance plans, and certain specialty plans including the HIV/AIDS Specialty Plan. PHC submitted a timely and complete proposal to continue serving as an HIV/AIDS Specialty Plan for Regions 10 and 11 (i.e., Miami-Dade and Broward Counties). 10. Florida suffers from the third highest rate of HIV cases among the 50 states at 24 cases per 100,0001 with the Miami and Ft. Lauderdale areas being the worst areas in the nation for HIV cases.2 According to Florida’s Department of Health, there are over 135,000 Floridians living with HIV. And the epidemic continues to get worse as state officials have turned away federal funding for prevention and care, limited sex education, and generally downplayed the problem.3 11. Despite the critical state of the HIV/AIDS epidemic in South Florida, PHC was not selected to negotiate a new SMMC contract for the upcoming contract period. PHC is 1 HIV Surveillance Report 2016, Vol. 28, Table 24 (HIV Data for all 50 states) http://www.cdc.gov/hiv/topics/surveillance/resources/reports/index.htm. 2 Id. at Table 28 (HIV data for metropolitan statistical area). 3 http://www.sciencemag.org/news/2018/06/we-re-mess-why-florida-struggling-unusually-severe-hivaids-problem 3 Page 05 protesting this decision pursuant to Florida’s procurement laws and has an initial hearing on this matter before the Department of Administrative Hearings scheduled for August 7, 2018. The decision to eliminate PHC as an HIV/AIDS Specialty Plan in the epicenter of the state’s epidemic threatens to disrupt the care of thousands of people living with HIV/AIDS at a time when Florida continues to pull back on other resources devoted to combatting this problem. Thus, time is of the essence for these records to be produced by EOG to PHC. 12. In order to vindicate its rights under Florida law, PHC is seeking certain public records clearly available under the Act. On July 19, 2018, PHC submitted a request for public records to EOG seeking records showing meetings and travel plans involving Governor Scott for the period July 20, 2018 through October 31, 2018. PUBLIC RECORDS REQUEST 13. On or about July 19, 2018, PHC requested certain public records from EOG. See PHC’s Public Records Request, attached as Exhibit A. The Public Records Request asked specifically for: a. A copy of Governor Scott’s electronic calendar showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018; b. A copy of any hardcopy calendars or other documents showing all meetings, events, and appearances involving the Governor for the period July 20, 2018 through October 31, 2018; c. All documents and records that indicate where Governor Scott will travel during the period July 20, 2018 through October 31, 2018; 4 Page 06 d. All documents and records that indicate where Governor Scott will reside during the period July 20, 2018 through October 31, 2018; and e. A list of all campaign and fundraising events Governor Scott will attend as part of his campaign for U.S. Senate during the period July 20, 2018 through October 31, 2018. 14. Nonetheless, on July 20, 2018, PHC received a short email from the Director of Office of Open Government for EOG stating simply that the Governor’s office is “unable to provide these records at this time as they are exempt pursuant to 119.071(2)(d) F.S.” See attached Exhibit B.