The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 170
INTRODUCER: Senators Polsky and Book
SUBJECT: Public Records/Lottery Winners
DATE: February 8, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Kraemer Imhof RI Favorable
2. Ponder McVaney GO Favorable
3. Kraemer Phelps RC Pre-meeting
I. Summary:
SB 170 makes confidential and exempt from public record inspection and copying requirements
the following information held by the Department of Lottery: the name of a winner of a lottery
prize valued at $250,000 or more, for 90 days from the date a prize is claimed, unless the winner
consents to the release of his or her name. However, the information must be made available to
other governmental entities for specified purposes.
The exemption is subject to the Open Government Sunset Review Act (act) and will stand
repealed on October 2, 2027, unless reviewed and reenacted by the Legislature.
The bill creates a new public records exemption and, therefore, requires a two-thirds vote of the
members present and voting for final passage.
The bill may have a minimal fiscal impact on the governmental sector as the Department of
Lottery will continue to incur costs related to the redaction of records in responding to public
records requests.
The bill takes effect upon becoming a law.
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.
1
The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
1
FLA. CONST. art. I, s. 24(a).
REVISED: BILL: SB 170 Page 2
branches of state government, local governmental entities, and any person acting on behalf of the
government.
2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, s. 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2)-(3), F.S., and the statutory provisions are adopted in the rules of each house of the
legislature.
3
Florida Rule of Judicial Administration 2.420 governs public access to judicial
branch records.
4
Lastly, ch. 119, F.S., provides requirements for public records held by executive
agencies.
Executive Agency Records – The Public Records Act
The Public Records Act provides that all state, county and municipal records are open for
personal inspection and copying by any person, and that providing access to public records is a
duty of each agency.
5
Section 119.011(12), F.S., defines “public records” to include:
All documents, papers, letters, maps, books, tapes, 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 connections with the transaction
of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business that are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record.
7
A violation of the Public Records Act may result in civil or
criminal liability.
8
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2020-2022) and Rule 14.1, Rules of the Florida House of
Representatives, (2020-2022).
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws. BILL: SB 170 Page 3
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.
9
The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.
10
General exemptions from the public records requirements are contained in the Public Records
Act.
11
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
12
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.
13
Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.
14
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
15
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
The Act requires the repeal of
such exemption on October 2nd of the fifth year after creation or substantial amendment, unless
the Legislature reenacts the exemption.
19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.
20
An exemption serves an identifiable purpose if it meets one of the following purposes and the
9
FLA. CONST. art. I, s. 24(c).
10
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
11
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
12
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5
th
DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S. BILL: SB 170 Page 4
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
21
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;
22
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
23
The Act also requires specified questions to be considered during the review process.
24
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.
25
If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to expire, the previously
exempt records will remain exempt unless otherwise provided by law.
26
Department of the Lottery
Operations
Section 15 of Article X of the State Constitution authorizes state-operated lotteries. Pursuant to
this provision, the Florida Public Education Lottery Act
27
establishes a state lottery system
intended primarily to generate revenue for public education of the state.
28
The Department of the
Lottery (department) is charged with supervising and operating the lottery in accordance with the
provisions of the Florida Public Education Lottery act and rules adopted pursuant thereto.
29
In
accordance with s. 24.102(2), F.S., the department operates the state lottery in accordance with
the intent of the Legislature, which provides:
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
Sections 24.101 to 24.124, F.S.
28
Section 24.102, F.S.
29
Section 24.105(2), F.S. BILL: SB 170 Page 5
The net proceeds of lottery games must be used to support improvements in public education;
Lottery operations must be undertaken as an entrepreneurial business enterprise; and
The department must be accountable through audits, financial disclosure, open meetings, and
public records laws.
The department operates the Florida Lottery to maximize revenues “consonant with the dignity
of the state and the welfare of its citizens”
30
for the benefit of public education.
31
The department
contracts with retailers (e.g., supermarkets, convenience stores, gas stations, and newsstands) to
provide adequate and convenient availability of lottery tickets.
32
Retailers receive commissions
of five percent of the ticket price, one percent of the prize value for redeeming winning tickets,
and bonus and performance incentive payments.
33
Retailers are eligible to receive bonuses for
selling select winning tickets and performance incentive payments.
34
The department selects retailers based on financial responsibility, integrity, reputation,
accessibility, convenience, security of the location, and estimated sales volume, with special
consideration for small businesses.
35
Retailers must be at least 18 years old, and the sale of
lottery tickets must occur as part of an ongoing retail business. Contracting with a retailer with a
felony conviction or plea within the last 10 years is prohibited,
36
and the authority to act as a
retailer may not be transferred.
37
Retailers may not extend credit or lend money to a person to purchase a lottery ticket. The use of
a credit or charge card or other instrument issued by a bank, savings association, credit union,
charge card company, or by a retailer (for installment sales of goods) is allowed, if the lottery
ticket purchase is part of a purchase transaction for other goods and services that cost $20 or
more.
38
30
See s. 24.104, F.S.
31
See s. 24.121(2), F.S.
32
See s. 24.105(16), F.S.
33
See Office of Program Policy Analysis and Gov’t Accountability, Florida Legislature, Review of the Florida Lottery, 2020,
Report No. 21-02, (Jan. 2021), available at https://oppaga.fl.gov/Documents/Reports/21-02.pdf, at page 1, (footnote 4) (last
visited Oct. 19, 2021).
34
Id.
35
See s. 24.112(2), F.S., which also includes a statement of legislative intent that retailer selections be based on business
considerations and public convenience, without regard to political affiliation.
36
See s. 24.112(3)(c), F.S. There is an exception to this prohibition, when the department determines that the person has been
pardoned or has had his or her civil rights restored, he or she has engaged in lawful commerce and maintained good integrity
and citizenship within the community, or the person in question has terminated his or her relationship with the retailer.
37
See s. 24.112(4), F.S.
38
See s. 24.118(1), F.S. BILL: SB 170 Page 6
The department may establish by rule, a system to verify and pay winning lottery tickets:
39
Any lottery retailer, as well as any department office, may redeem a winning ticket valued at
less than $600.
40
Payments less than $50 are generally paid by a retailer in cash, depending
on store policy or local ordinance. Higher amounts may be paid by cash, check, or money
order at no cost to the winner.
Only a department office may redeem a winning ticket valued at $600 or more.
41
Winning
tickets are paid at the claimant’s option in a combination of cash, check, or lottery tickets
(with a limitation of $200 payable in cash).
Prizes must be claimed within certain time limits, depending on the type of game played. Instant
lottery tickets (e.g., scratch-off tickets), must be redeemed within 60 days after the end of that
lottery game.
42
Other lottery tickets (e.g., tickets for drawings) must be redeemed within 180
days after the winning drawing.
The department may adopt rules governing the types of lottery games to be conducted,
43
including lottery terminals or devices that “may be operated solely by the player without the
assistance of the retailer.”
44
The department promotes responsible lottery ticket play and directs persons struggling with a
gambling problem to contact the 1-888-ADMIT-IT telephone line for assistance.
45
Confidential and Exempt Information Held by the Department of Lottery
Section 24.1051, F.S., makes two separate classes of information held by the department
confidential and exempt from public record inspection and copying requirements.
Information Relating to the Security Or Integrity of the Department
Subsection (1) makes confidential and exempt:
Information that, if released, could harm the security or integrity of the department,
including:
39
See s. 24.115, F.S., and Fla. Admin. Code R. 53ER 21-3.
40
Id. The winner has the option of presenting a winning ticket in person to any lottery retailer, any of the nine lottery district
offices, or to lottery headquarters in Tallahassee.
41
Id. Mega Millions
®
and Powerball
®
prizes up to $1 million may be claimed at any lottery district office. All other prizes
greater than $250,000 must be claimed at lottery headquarters.
42
See s. 24.115(1)(f), F.S.
43
See s. 24.105(9)(a), F.S.
44
Prior to 1996, there was no provision for player-activated lottery terminals or devices. Section 4 of ch. 96-341, Laws of
Fla., authorized such machines, subject to restrictions that they be: (1) designed solely for dispensing of instant lottery
tickets; (2) activated by coin or currency; (3) in the direct line of sight of on-duty retail employees; (4) capable of being
electronically deactivated for 5 minutes or more; and (5) incapable of redeeming winning tickets, though they may dispense
change. Chapter 2012-130, Laws of Fla., moved the restrictions on player-activated machines from s. 24.105(9)(a)4., F.S., to
s. 24.112(15), F.S. As amended, the law (1) authorizes lottery vending machines to dispense “online lottery tickets, instant
lottery tickets, or both,” and (2) prohibits use of mechanical reels or video depictions of slot machine or casino game themes
or titles (but does not prohibit use of casino game themes or titles on lottery tickets, signage, or advertising displays on the
vending machines).
45
See http://www.flalottery.com/playResponsibly (last visited Oct. 19, 2021). BILL: SB 170 Page 7
o Information relating to the security of the department’s technologies, processes, and
practices designed to protect networks, computers, data processing software, data, and
data systems from attack, damage, or unauthorized access.
o Security information or information that would reveal security measures of the
department, whether physical or virtual.
o Information about lottery games, promotions, tickets, and ticket stock, including
information concerning the description, design, production, printing, packaging, shipping,
delivery, storage, and validation of such games, promotions, tickets, and stock.
o Information concerning terminals, machines, and devices that issue tickets.
Information that must be maintained as confidential in order for the department to participate
in a multistate lottery association or game.
Personal identifying information obtained by the department when processing background
investigations of current or potential retailers or vendors.
Financial information about an entity which is not publicly available and is provided to the
department in connection with its review of the financial responsibility of the entity pursuant
to ss. 24.111 or s. 24.112, F.S., provided that the entity marks such information as
confidential. However, financial information related to any contract or agreement, or an
addendum thereto, with the department, including the amount of money paid, any payment
structure or plan, expenditures, incentives, bonuses, fees, and penalties, shall be public
record.
This information may be released to other governmental entities as needed in connection with the
performance of their duties. The receiving governmental entity must maintain the confidential
and exempt status of such information.
The exemption in subsection (1) is subject to the Open Government Sunset Review Act pursuant
to s. 119.15, F.S., and is repealed on October 2, 2024, unless reviewed and saved from repeal
through reenactment by the Legislature.
46
Information Related to Lottery Prize Winners
Subsection (2) makes confidential and exempt the street address and the telephone number of a
winner, unless the winner consents to the release of such information, or if required by:
Section 24.115(4), F.S., relating to debts owed to a state agency or child support collected
through a court, including spousal support or alimony if the child support obligation is being
enforced by the Florida Department of Revenue; or
Section 409.2577, F.S., relating to locating parents who have deserted their children.
47
Any information made confidential and exempt under subsections (1) and (2) of s. 24.1051, F.S.,
must be disclosed to the Auditor General, to the Office of Program Policy Analysis and
Government Accountability, or to the independent auditor selected under s. 24.123, F.S., upon
request. If the President of the Senate or the Speaker of the House of Representatives certifies
that information made confidential and exempt under this section is necessary for effecting
legislative changes, the requested information shall be disclosed to him or her, and he or she may
46
Section 24.1051(1)(d), F.S.
47
Section 24.1051(2), F.S. BILL: SB 170 Page 8
disclose such information to members of the Legislature and legislative staff as necessary to
effect such purpose.
48
Any person who, with intent to defraud or with intent to provide a financial or other advantage to
himself, herself, or another, knowingly and willfully discloses any information relating to the
lottery designated as confidential and exempt from s. 119.07(1), F.S., and s. 24(a), Art. I of the
State Constitution pursuant to s. 24.1051, F.S., is guilty of a felony of the first degree, punishable
by a term of imprisonment not to exceed thirty years, and a fine not to exceed $10,000.
49
III. Effect of Proposed Changes:
Section 1 amends s. 24.1051, F.S., to make confidential and exempt from public inspection and
copying requirements, for 90 days from the date a lottery prize is claimed, the name of a winner
of a lottery prize valued at $250,000 or more, unless the winner consents to the release of the
information or if required by law.
This section provides for the repeal of the exemption pursuant to the Open Government Sunset
Review Act on October 2, 2026, unless reviewed and saved from repeal through reenactment by
the Legislature.
Section 2 includes the following legislative statement of public necessity:
The Legislature finds that it is a public necessity that the name of a
winner of a lottery prize valued at $250,000 or more be made
confidential and exempt from s. 119.07(1), Florida Statutes, and s.
24(a), Article I of the State Constitution for 90 days from the date the
prize is claimed, unless such exemption is waived by the winner.
Persons who win valuable lottery prizes have been the targets of
violent and nonviolent criminal acts based upon publicly available
identifying information. For this reason, the Legislature finds that it
is a public necessity to temporarily maintain the confidential and
exempt status of such information. The Legislature finds that the harm
that may result from the release of the name of a winner of a lottery
prize valued at $250,000 or more outweighs the public benefit that
may be derived from the disclosure of the information.
The bill takes effect upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities
48
Section 24.01051(3), F.S.
49
Section 24.1051(4), F.S. BILL: SB 170 Page 9
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or municipalities.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
public records requirements. This bill creates a new public records exemption. Thus, the
bill requires a two-thirds vote for enactment.
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requirements to state with specificity the public necessity
justifying the exemption. This bill creates a new public records exemption. Thus, the bill
includes a public necessity statement.
Breadth of Exemption
Article I, s. 24(c) of the State Constitution requires an exemption to the public records
requirements to be no broader than necessary to accomplish the stated purpose of the law.
The purpose of this law is to protect the name of a winner of a prize valued at $250,000
for a period of 90 days from the date the prize is claimed, unless the winner consents to
the release of his or her name. The exemption in the bill does not appear to be broader
than necessary to accomplish the purpose of the law.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None. BILL: SB 170 Page 10
C. Government Sector Impact:
According to the department, the impacts to lottery game ticket sales and transfers to the
Educational Enhancement Trust Fund are indeterminate.
50
The department will continue
to incur costs related to the redaction of records in responding to public records requests
during the specified period.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 24.1051 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
50
See Department of the Lottery, Agency Bill Analysis for SB 170 at 2 (Oct. 6, 2021) (on file with the Senate Committee on
Regulated Industries).