Herald drafted a suit seeking ALF records. DeSantis aide pressured law firm not to file it

Apr. 12--Florida Gov. Ron DeSantis' general counsel called a representative of the Miami Herald's law firm seeking to quash a public records lawsuit that would force the state to divulge the names of all elder-care facilities that have had a positive test for the coronavirus.

The back-door pressure -- through an attorney that had no involvement in the case -- paid off.

The law firm, Holland & Knight, told Sanford Bohrer, a senior partner with decades of representing the Miami Herald, to stand down and abandon the lawsuit.

The suit will still be filed, but by another law firm, said Miami Herald publisher and executive editor Aminda Marqués González.

"We are disappointed that the governor's office would go so far as to apply pressure on our legal counsel to prevent the release of public records that are critical to the health and safety of Florida's most vulnerable citizens," Marques said. "We shouldn't have had to resort to legal action in the first place. Anyone with a relative in an elder care facility has a right to know if their loved ones are at risk so they can make an informed decision about their care."

The lawsuit did not seek the names of residents or staffers who tested positive.

For people with parents and grandparents in group homes, the frustration of not knowing which facilities are affected has been compounded by a ban on visitation put in place early in the coronavirus pandemic.

The state has yet to provide a legal justification for its refusal to provide records. Under Florida's public records law, records are considered public unless the custodian can provide a legal basis for withholding them.

Helen Ferré, a spokeswoman for the governor, denied any effort to strong-arm the Herald through its law firm.

The Herald formally notified the state of Florida in writing on Thursday that the lawsuit was coming. Such five-day notice is a prerequisite to filing suit.

General Counsel Joe Jacquot sought to short-circuit the litigation. He didn't call the lawyer who drafted the lawsuit and had sent the letter, but rather another Holland & Knight lawyer, George Meros.

Meros has represented the state on numerous matters, including its recent efforts to defend legislation that undermines the intent of Amendment 4, the ballot measure -- passed overwhelmingly -- that gives felons the right to vote after they have served their sentences. Records show he has represented the Department of Health, Department of Education, Department of Transportation, Department of Environmental Protection, Department of Business and Professional Regulation, Office of Insurance Regulation, Department of Financial Services, and Department of Children & Families, although some of that may have predated his affiliation with Holland & Knight.

Shortly after that conversation, the Herald's attorney, Bohrer, received a phone call from inside Holland & Knight, instructing him to stand down.

"They asked us not to file this lawsuit on behalf of the Herald," Bohrer said. "They did not want Holland & Knight to represent the Herald."

Holland & Knight managing partner Steven Sonberg could not be reached for comment Saturday.

Ferré, the spokeswoman for the governor, said "it is patently false to say that the governor's office contacted Holland & Knight to ask that the firm not file a lawsuit on behalf of The Miami Herald."

She said: "It is normal practice for attorneys to use the filing of the five-day legal notice to see if there is a possible resolution to avoid unnecessary litigation. That was the reason General Counsel Joe Jacquot made a call to Holland & Knight attorney George Meros."

Marques said it is "up to a judge and not the governor" to decide whether a lawsuit is "unnecessary."

Meros, who is based in Tallahassee, did not respond to a phone call and emails seeking comment.

The Herald's lawyers had drafted the lawsuit this past week and planned to file the petition in Leon County, the home venue for the defendants in the lawsuit, including DeSantis' office, the Florida Department of Health and the Agency for Health Care Administration.

Jacquot acknowledged he called Meros even though Bohrer is the Holland & Knight attorney who signed the draft lawsuit on behalf of the Herald.

"He's the Holland & Knight attorney that we work with all the time," Jacquot said of Meros.

Jacquot described the conversation with Meros as brief and said that he never mentioned other state business with Holland & Knight and that he never asked the firm not to represent the Herald.

"I said, 'Hey, we got this letter and it's a pre-suit letter. Let me know if Holland & Knight wants to discuss it'," Jacquot said. "George just said, 'OK, I'll get back to you'."

The Herald's lawsuit stems from a March 23 public records request to the Florida Department of Health and the Agency for Health Care Administration from Carol Marbin Miller, deputy investigations editor, who was following up on the deaths of three residents of a Fort Lauderdale assisted living facility.

For about two weeks, DeSantis' office has refused to release information about where long-term care residents and staff have been exposed to the contagious infection despite repeated requests from journalists and elder advocates. The governor's office initially named only one facility: Atria Willow Wood, a 180-bed ALF in Fort Lauderdale where at least six residents have died.

Other long-term care centers in South Florida have reported outbreaks of COVID-19, the disease caused by the coronavirus, including the Jackson Memorial Long-Term Care Center in Miami, a 180-bed skilled nursing facility in Miami where eight residents and three workers have tested positive for the disease.

As of Saturday, the health department reported that 787 residents and workers at long-term care facilities have tested positive for COVID-19. The bulk of infections are in facilities in Miami-Dade, where 111 residents and workers have tested positive; Broward, which has 79 cases; and Palm Beach, which has 74.

There are 691 licensed nursing homes in Florida, representing about 84,448 beds -- and another 3,080 licensed ALFs, representing about 106,103 beds.

Miami Herald Tallahassee Bureau Chief Mary Ellen Klas contributed to this report.

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