This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7031z.SAC.docx
DATE: 3/17/2022
HOUSE OF REPRESENTATIVES STAFF FINAL BILL ANALYSIS
BILL #: HB 7031 PCB SAC 22-01 OGSR/Alleged Victim or Victim of Sexual Harassment
SPONSOR(S): State Affairs Committee; Chaney
TIED BILLS: IDEN./SIM. BILLS: SB 7024
FINAL HOUSE FLOOR ACTION: 112 Y’s
0 N’s GOVERNOR’S ACTION: Pending
SUMMARY ANALYSIS
HB 7031 passed the House on March 4, 2022, as SB 7024.
The Open Government Sunset Review Act requires the Legislature to review each public record and each
public meeting exemption five years after enactment. If the Legislature does not reenact the exemption, it
automatically repeals on October 2nd of the fifth year after enactment.
Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful to discriminate against someone on the
basis of race, color, national origin, sex, or religion. The Equal Employment Opportunity Commission has
defined harassment on the basis of sex as a violation of Title VII. The Florida Civil Rights Act also protects
against sexual harassment in the workplace.
Current law provides a public records exemption for personal identifying information of the alleged victim in an
allegation of sexual harassment.
The bill expands the public record exemption to include personal identifying information of a victim of sexual
harassment. It clarifies that such information is only confidential and exempt if it identifies the person as an
alleged victim or victim of sexual harassment. The bill allows the alleged victim or victim to waive confidentiality
in writing.
The bill may have a minimal fiscal impact on state or local governments.
Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2022.
STORAGE NAME: h7031z.SAC.docx PAGE: 2
DATE: 3/17/2022
I. SUBSTANTIVE INFORMATION
A. EFFECT OF CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act (Act)
1
sets forth a legislative review process for newly
created or substantially amended public record or public meeting exemptions. It requires an automatic
repeal of the exemption on October 2nd of the fifth year after creation or substantial amendment,
unless the Legislature reenacts the exemption.
2
The Act provides that a public record or public meeting exemption may be created or maintained only if
it serves an identifiable public purpose. In addition, it may be no broader than is necessary to meet one
of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.
3
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded (essentially
creating a new exemption), then a public necessity statement and a two-thirds vote for passage are
required.
4
If the exemption is reenacted with grammatical or stylistic changes that do not expand the
exemption, if the exemption is narrowed, or if an exception to the exemption is created
then a public
necessity statement and a two-thirds vote for passage are not required.
Sexual Harassment
Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 (Title VII) makes it unlawful to discriminate against someone on
the basis of race, color, national origin, sex, or religion.
5
The Equal Employment Opportunity
Commission has defined harassment on the basis of sex as a violation of Title VII.
6
Unwelcome sexual
advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute
sexual harassment when:
Submission to such conduct is made either explicitly or implicitly a term or condition of an
individual’s employment;
Submission to or rejection of such conduct by an individual is used as the basis for employment
decisions affecting such individual; or
Such conduct has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive work environment.
7
The Florida Civil Rights Act also protects against sexual harassment. The Florida Civil Rights Act
makes it an unlawful employment practice for an employer to discriminate against any individual with
1
Section 119.15, F.S.
2
Section 119.15(3), F.S.
3
Section 119.15(6)(b), F.S.
4
Section 24(c), Art. I, FLA. CONST.
5
U.S. Department of Justice, Laws Enforced by the Employment Litigation Section, Title VII of the Civil Rights Act of 1964, available
at https://www.justice.gov/crt/laws-enforced-employment-litigation-section (last visited January 15, 2022).
6
29 C.F.R. Section 1604.11(a); see also U.S. Equal Employment Opportunity Commission, Sexual Harassment, available at
https://www.eeoc.gov/laws/types/sexual_harassment.cfm. (last visited January 22, 2022).
7
Id.
STORAGE NAME: h7031z.SAC.docx PAGE: 3
DATE: 3/17/2022
respect to compensation, terms, conditions, or privileges of employment because of such individual’s
race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.
8
This right against
sexual discrimination in the workplace has been extended to include protection against sexual
harassment in the workplace.
9
State Agency Sexual Harassment Policies
Current law regarding employment at state agencies declares sexual harassment a form of
discrimination.
10
The Department of Management Services, which is the state’s personnel agency,
adopted rules on sexual harassment that are applicable to all state agencies. Rule 60L-40.001, F.A.C.,
provides that:
Sexual harassment means unwelcome sexual advances, requests for sexual
favors, or other verbal or physical conduct of a sexual nature from any person
directed towards or in the presence of an employee or applicant when:
(a) Submission to such conduct is either explicitly or implicitly a term or condition
of an individual’s employment;
(b) Submission to or rejection of such conduct by an individual is used as the basis
for employment decisions affecting such individual; or
(c) Such conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or offensive
working environment.
Public Record Exemption under Review
In 2017, the Legislature created a public records exemption for personal identifying information of the
alleged victim in an allegation of sexual harassment.
11
Such records are confidential and exempt from
public record requirements.
12
The personal identifying information of the alleged victim in an allegation
of sexual harassment may be disclosed to another governmental entity in the furtherance of its official
duties and responsibilities.
13
The 2017 public necessity statement
14
for the exemption provides that the Legislature finds that:
The disclosure of such information could harm alleged victims by placing them at
risk of further harassment and retaliation. Additionally, the potential for disclosure
of such information could create a disincentive for alleged victims to report
instances of alleged harassment. The Legislature finds that the potential harm that
may result from the release of such information outweighs any public benefit that
may be derived from the disclosure of such information.
15
8
Section 760.10(1)(a), F.S.
9
Byrd v. Richardson-Greenshields Securities, Inc., 552 So. 2d 1099, 1102 (Fla. 1989).
10
Section 110.1221, F.S.
11
Chapter 2017-103, L.O.F., codified in s. 119.071(2)(n), F.S.
12
There is a difference between records the Legislature designates as exempt from public record requirements and those the
Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So. 2d
1015 (Fla. 2004); City of Riviera Beach v. Barfield, 642 So. 2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So. 2d
687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may
not be released by the custodian of public records to anyone other than the persons or entities specifically designated in statute. See
Attorney General Opinion 85-62 (August 1, 1985).
13
Section 119.071(2)(n), F.S.
14
Article I, s. 24(c), FLA. CONST., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
15
Section 2, Ch. 2017-103, L.O.F.
STORAGE NAME: h7031z.SAC.docx PAGE: 4
DATE: 3/17/2022
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2022,
unless reenacted by the Legislature.
16
During the 2021 interim, subcommittee staff sent questionnaires to state agencies, as well as each
county and municipality, concerning the exemption.
17
The majority of entities recommended reenacting
the public record exemption as is.
18
Three entities recommended reenacting the exemption with varying
degrees of changes and
19
one entity recommended repealing the exemption.
20
Effect of the Bill
The bill expands the public record exemption to include personal identifying information of a victim of
sexual harassment. It clarifies that such information is only confidential and exempt if the information
identifies the person as an alleged victim or victim of sexual harassment. The bill allows the alleged
victim or victim to waive his or her confidentiality in writing.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
16
Section 119.071(2)(n), F.S.
17
Open Government Sunset Review Questionnaire, Alleged Victims of Sexual Harassment, responses on file with the Government
Operations Subcommittee.
18
Id.
19
One entity recommended clarifying whether the alleged victim’s personal identifying information is confidential and exempt in all
contexts or only when used to identify the person as the alleged victim. Two of the three entities recommended clarifying whether the
alleged victim’s personal identifying information remains confidential and exempt once an investigation is concluded and the
allegations are unsubstantiated or unfounded. One entity recommended the exemption be merged with s. 119.071(2)(h)1.b., F.S. Id.
20
This entity believed current exemptions for active investigations are adequate to protect alleged victims of sexual harassment. This
entity also recommended that if the law is reenacted, the exemption should be clarified as applying only to allegations that constitute
unlawful sexual harassment. Id.
STORAGE NAME: h7031z.SAC.docx PAGE: 5
DATE: 3/17/2022