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 Children, Families, and Elder Affairs BILL: SB 294 INTRODUCER: Senator Garcia SUBJECT: Public Records/Statewide Council on Human Trafficking DATE: November 29, 2021 ANALYST STAFF DIRECTOR REFERENCE ACTION 1. Moody Cox CF Pre-meeting 2. GO 3. RC I. Summary: SB 294 amends s. 16.618, F.S., creating a new exemption from public records disclosure under s. 119.07(1), F.S., and s. 24(a), Art. I of the State Constitution for personal identifying information of a donor or prospective donor to the direct-support organization (DSO) of the Statewide Council on Human Trafficking (the Council) who desires to be anonymous. It also provides that portions of meetings that are held by the DSO in which personal identifying information of a donor or prospective donor, that is confidential and exempt under the bill, is discussed are exempt from requirements under s. 286.011, F.S., and s. 24(b), Art. I of the State Constitution. The bill further provides that meetings with prospective donors, meetings to discuss prospective donors, and meetings to discuss fundraising activities in certain circumstances are exempt from the DSO’s obligation to provide notice of the meeting pursuant to s. 120.525, F.S. The bill makes findings that the new exemptions from public records disclosure and open meetings is a public necessity as required by the State Constitution. Two-thirds vote of both the House and the Senate is required for final passage. The bill is subject to the Open Government Sunset Review Act and will be repealed on October 2, 2027 in accordance with s. 119.15, F.S., unless the statute is reviewed and reenacted by the Legislature before that date. There is no anticipated fiscal impact on state, county, or municipal governments. See Section V. Fiscal Impact Statement. The bill is effective October 1, 2022. REVISED: BILL: SB 294 Page 2 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 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, section 11.0431, F.S., provides public access requirements for legislative records. Relevant exemptions are codified in s. 11.0431(2)-(3), F.S., and 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, chapter 119, F.S., known as the Public Records Act, 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 1 FLA. CONST. art. I, s. 24(a). 2 Id. 3 See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of Representatives, Edition 2, (2018-2020) 4 State v. Wooten, 260 So. 3d 1060 (Fla. 4 th 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). BILL: SB 294 Page 3 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 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 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. 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. BILL: SB 294 Page 4 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 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 Public Records Exemptions for Donors or Prospective Donors There are several provisions throughout Florida law which provide for specified personal identifying information of certain donors or prospective donors to be confidential and exempt 19 Section 119.15(3), F.S. 20 Section 119.15(6)(b), F.S. 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. BILL: SB 294 Page 5 from the provisions of s. 119.07(1), F.S., and s. 24(a), Art. I of the Florida Constitution, including, in part: The identity of a donor or prospective donor of Enterprise Florida, Inc., 27 and of the Florida Development Finance Corporation; 28 Information that would identify the name, address, or telephone number of a donor or prospective donor of a donation made for the benefit of a publicly owned performing arts center who desires to remain anonymous; 29 Any information identifying a donor or prospective donor to the direct-support organization of the University of Florida who desires to remain anonymous; 30 Any information identifying a donor or prospective donor to the direct-support organization of the Department of Veteran Affairs who desires to remain anonymous; 31 and The identity of a donor or prospective donor to the citizen support organization of the Fish and Wildlife Conservation Commission who desire to remain anonymous and all information identifying such donor or prospective donor. 32 Public Meetings Section 286.011, F.S., provides that, except as otherwise provided in the Florida Constitution, all board or commission meetings of specified agencies or authorities, including any state agency or authority, at which official acts are being taken must be open to the public at all times, and no resolution, rule, or formal action taken is binding except as taken or made at such meeting. 33 Minutes of such meetings must be promptly recorded, and such records must be open to public inspection. Florida circuit courts have jurisdiction to enforce these requirements and the other provisions under s. 286.011, F.S., upon application by any citizen of the state. 34 Section 286.011, F.S., also requires board or commission members to provide reasonable notice of all such meetings. 35 Section 120.525, F.S., sets out additional provisions with respect to the notice requirement of public meetings, hearings, or workshops. Specifically, except in cases of emergency meetings, each agency must give notice of such event by publication in the Florida Administrative Register and on the agency’s website not less than seven days before the event. 36 That section also provides that the agenda must be prepared by the agency with sufficient time for a copy of it to be received at least seven days before the event by persons who request it and comply with specified requirements. 37 The agenda and any materials available in electronic form, except for confidential and exempt information, must be published on the agency’s website. The agenda must contain the items in order of presentation that will be considered at the meeting. 38 27 Section 11.45(3)(i), F.S. 28 Section 11.45(3)(j), F.S. 29 Section 265.7015(2), F.S. 30 Section 267.1736(9), F.S. 31 Section 292.055(9)(a), F.S. 32 Section 379.223(3), F.S. 33 Section 286.011(1), F.S. 34 Section 286.011(2), F.S. 35 Id. 36 Section 120.525(1), F.S. 37 Section 120.525(2), F.S. 38 Id. BILL: SB 294 Page 6 Any public officer who violates any provision of s. 286.011, F.S., is guilty of a noncriminal infraction, punishable by a fine not exceeding $500. 39 Any board or commission member who knowingly violates the provisions of that section is guilty of a second degree misdemeanor. 40 Conduct which occurs outside of the state that constitutes a knowing violation of s. 286.011, F.S., is also a second degree misdemeanor. 41 Portions of meetings of the direct-support organization of the Department of Veterans’ Affairs during which the identity of a donor or prospective donor, whose identity is confidential and exempt pursuant to s. 292.055(9)(a), F.S., is discussed are exempt from s. 286.011 and s. 24(b), Art. I of the Florida Constitution. 42 Human Trafficking Human trafficking is a form of modern-day slavery. 43 Human trafficking victims are young children, teenagers, and adults who may be citizens that are trafficked domestically within the borders of the United States or smuggled across international borders worldwide. 44 Many human trafficking victims are induced with false promises of financial or emotional security, but are forced or coerced into commercial sex, domestic servitude, or other types of forced labor. 45 Any minor who is younger than 18 years old and who is induced to perform a commercial sex act is a human trafficking victim even if there is no forced fraud or coercion. 46 Increasingly, criminal organizations, such as gangs, are enticing local school children into commercial sexual exploitation or trafficking. 47 Human Trafficking in Florida Florida law defines “human trafficking” as transporting, soliciting, recruiting, harboring, providing, enticing, maintaining, 48 purchasing, patronizing, procuring, or obtaining 49 another person for the purpose of exploitation of that person. 50 39 Section 286.011(3)(a), F.S. 40 Section 286.011(3)(b), F.S. A second degree misdemeanor is punishable by up to 60 days imprisonment or $500 fine under s. 775.082, F.S., or s. 775.083, F.S. 41 Section 286.011(3)(c), F.S. 42 Section 292.055(9)(b), F.S. 43 Section 787.06(1)(a), F.S. 44 Id. 45 The Department of Education (the DOE), Healthy Schools – Human Trafficking, available at http://www.fldoe.org/schools/healthy-schools/human-trafficking.stml (last visited November 29, 2021). 46 Id. 47 Id. 48 Section 787.06(2)(f), F.S., provides “maintain” means, in relation to labor or services, to secure or make possible continued performance thereof, regardless of any initial agreement on the part of the victim to perform such type service. Section 787.06(2)(h), F.S., defines “services” as any act committed at the behest of, under the supervision of, or for the benefit of another, including forced marriage, servitude, or the removal of organs. 49 Section 787.06(2)(g), F.S., provides “obtain” means, in relation to labor, commercial sexual activity, or services, to receive, take possession of, or take custody of another person or secure performance thereof. Section 787.06(2)(e), F.S., provides “labor” means work of economic or financial value. 50 Section 787.06(2)(d), F.S. BILL: SB 294 Page 7 In Florida, any person who knowingly, or in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human trafficking, or benefits financially by receiving anything of value from participation in a venture that has subjected a person to human trafficking for labor or services, or commercial sexual activity, commits a crime. 51 Florida law sets out several circumstances which give rise to specified penalties including, in part: Labor or services of any child under the age of 18 commits a first degree felony; 52 Labor or services of any child under the age of 18 who is an unauthorized alien 53 commits a first degree felony; 54 Labor or services who does so by the transfer or transport of any child under the age of 18 from outside of Florida to within Florida commits a first degree felony; 55 Commercial sexual activity 56 who does so by the transfer or transport of any child under the age of 18 from outside of Florida to within Florida commits a first degree felony; 57 or Commercial sexual activity in which any child under the age of 18, or in which any person who is mentally defective 58 or mentally incapacitated 59 is involved commits a life felony. 60 The above-mentioned first degree felonies are reclassified as a life felony if a person causes great bodily harm, permanent disability, or permanent disfigurement to another person during the commission of the offense. 61 Ignorance of the human trafficking victim’s age, the victim’s misrepresentation of his or her age, or a bona fide belief of the victim’s age cannot be raised as a defense by a defendant. 62 51 Section 787.06(3), F.S. 52 Section 787.06(3)(a)1., F.S. A first degree felony is punishable by a state prison term not exceeding 30 years, a fine not exceeding $10,000, or both. Sections 775.082 and 775.083, F.S. 53 Section 787.06(2)(j), F.S., defines “unauthorized alien” as an alien who is not authorized under federal law to be employed in the United States, as provided in 8 U.S.C. s. 1324a(h)(3). 54 Section 787.06(3)(c)1., F.S. 55 Section 787.06(3)(e)1., F.S. 56 Section 787.06(2)(b), F.S., defines “commercial sexual activity” as any violation of ch. 796, F.S., or an attempt to commit any such offense, and includes sexually explicit performances and the production of pornography. Section 787.06(2)(i), F.S., defines “sexual explicit performance” as an act or show, whether public or private, that is live, photographed, recorded, or videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest. 57 Section 787.06(3)(f)1., F.S., provides that an offense committed under these circumstances is punishable by a term of imprisonment not exceeding life or as provided in ss. 775.082, 775.083, or 775.084, F.S. 58 Section 794.011(1)(b), F.S., defines “mentally defective” as a mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct. 59 Section 794.011(1)(c), F.S., defines “mental incapacitated” as temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent. 60 A life felony is punishable by a term of life imprisonment, $15,000 fine, or both as provided in ss. 775.082(3)(a)6., 775.083, or 775.084, F.S. 61 Section 787.06(8)(b), F.S. 62 Section 787.06(9), F.S. BILL: SB 294 Page 8 Florida is ranked the third highest state of reported human trafficking cases in the United States. 63 In 2020, the Florida Abuse Hotline received an increase in reports of commercially exploited children from 3,088 reports in 2019 to 3,181 reports in 2020. 64 Direct-Support Organization The Council was created within the Department of Legal Affairs (DLA) for the purpose of improving law enforcement and social services responses to combat commercial sexual exploitation and to support such victims of human trafficking. The Council has several duties, including, but not limited to, making recommendations for apprehending and prosecuting traffickers, holding an annual statewide policy summit, and working with the DLA to create and maintain an inventory of human trafficking programs and services in specified areas. 65 In 2019, the Legislature required the DLA to establish a direct-support organization to provide assistance, funding, and support to the Council and to assist the Council in fulfilling its purpose. 66 The DSO must meet certain requirements, including, but not limited to, the following: Incorporated under ch. 617, F.S., as a Florida not-for-profit corporation and approved by the Secretary of State; Organized and operated exclusively, amongst other things, to solicit funds and receive gifts and make expenditures in support of specified purposes, which it is authorized to do; 67 and Certified by the Department of Legal Affairs (DLA) that the DSO is complying with the terms of the contract and is operating in a specified manner. 68 The DSO is required to operate under written contract with the DLA that must include specified provisions, including, but not limited to: Approval of the DSO’s articles of incorporation and bylaws by the DLA; Submission of an annual budget for approval by the DLA; Annual certification by the DLA; and Annual financial audit. End Human Trafficking, Inc. d/b/a Florida Alliance to End Human Trafficking has been established as the DSO of the Council. 69 In 2019, the organization reported $299,854 in revenue from contributions and grants on its tax return for period ending June 30, 2020. 70 63 Florida Alliance to End Human Trafficking (FAEHT), We need to End Human Trafficking in the State of Florida, available at Home (floridaallianceendht.com) (last visited November 29, 2021). 64 Office of Program Policy Analysis and Government Accountability, Annual Report on the Commercial Sexual Exploitation of Children in Florida, 2021, p. 2, July 2021, available at Annual Report on CSE of Children, 2021 (fl.gov) (last visited November 29, 2021). 65 Section 16.618(4)(b), (c), and (d), F.S. 66 Section 16.618(1), F.S. 67 Section 16.618(8), F.S. 68 Id. 69 FAEHT, About Us, available at About Us (floridaallianceendht.com) (last visited November 29, 2021). 70 Florida Office of Attorney General, Statewide Council on Human Trafficking: Annual Reports for Florida Alliance to End Human Trafficking, March 22, 2021, available at Florida Attorney General - Statewide Council on Human Trafficking (myfloridalegal.com) (last visited November 29, 2021). BILL: SB 294 Page 9 Florida law does not currently provide a public records exemption for donors or prospective donors of the Council’s DSO. III. Effect of Proposed Changes: The bill amends s. 16.618, F.S., establishing that personal identifying information of a donor or prospective donor to the Council’s DSO who desire to remain anonymous are confidential and exemption from requirements under s. 119.07(1) and s. 24(a), Art. I of the Florida Constitution. The bill exempts portions of meetings that are held by the DSO during which personal identifying information of a donor or prospective donor is discussed from any requirements under s. 286.011 and s. 24(b), Art. I of the Florida Constitution. Meetings with prospective donors, meetings to discuss prospective donors, and meetings to discuss fundraising activities once a scheduled event is voted on by the board of the DSO are exempt from notice and other requirements under s. 120.525, F.S. The bill is subject to the Open Government Sunset Review Act and will be repealed on October 2, 2027, unless the Legislature reviews and reenacts the exemption before that date. The bill also provides a statement of public necessity as required by the Florida Constitution, which notes: [t]he Legislature finds that it is a public necessity that personal identifying information that would identify a donor or prospective donor of a donation made to benefit the direct-support organization of the Statewide Council on Human Trafficking be made confidential and exempt from public records requirements if such donor or prospective donor desires to remain anonymous. In order to encourage private support for the direct-support organization, it is a public necessity to promote the giving of private gifts to, and the raising of private funds for the services provided by, the council. An essential element of an effective plan for promoting the giving of private gifts and the raising of private funds is the protection of the identities of prospective and actual donors who desire to remain anonymous. If the identities of prospective and actual donors who desire to remain anonymous are subject to disclosure, there would be a chilling effect on donations because donors are concerned about disclosure of personal information potentially leading to theft and, in particular, identity theft. Further, the Legislature finds that it is a public necessity to exempt from public meetings requirements that portion of a meeting at which personal identifying information of a donor or prospective donor is discussed. The failure to close that portion of a meeting at which such information is discussed would defeat the purpose of the public records exemption and could result in the release of the identity of a donor or prospective donor, leading to a reduction in donations and the subsequent hindrance of the effective and efficient operation of this governmental program. Therefore, the Legislature finds that it is a public necessity to make confidential and exempt from public records requirements personal BILL: SB 294 Page 10 identifying information that would identify a donor or prospective donor of a donation made for the benefit of the direct-support organization. The bill is effective October 1, 2022. IV. Constitutional Issues: A. Municipality/County Mandates Restrictions: Not applicable. The mandate restrictions do not apply because the bill does not require counties and municipalities to spend funds, reduce counties’ or municipalities’ ability to raise revenue, or reduce the percentage of state tax shared with counties and 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 enacts a new exemption for personal identifying information of a donor or prospective donor who wishes to remain anonymous, thus, the bill will require atwo-thirds vote to be enacted. 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. Section 2 of the bill contains a statement of public necessity for the exemption. Scope 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 the law is to protect donors or prospective donors from the risk of potential theft of their personal information. This bill exempts only those persons who wish to have their personal identifying information be anonymous. The exemption 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. BILL: SB 294 Page 11 E. Other Constitutional Issues: None identified. V. Fiscal Impact Statement: A. Tax/Fee Issues: None. B. Private Sector Impact: None. C. Government Sector Impact: The bill does not appear to have a fiscal impact on state or local governments. Costs incurred by an agency in responding to public records requests regarding these exemptions should be offset by authorized fees. VI. Technical Deficiencies: None. VII. Related Issues: None. VIII. Statutes Affected: This bill substantially amends section 16.618 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.