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 Health Policy
BILL: SB 590
INTRODUCER: Senator Rodriguez
SUBJECT: Public Records and Meetings
DATE: December 1, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Smith Brown HP Favorable
2. GO
3. RC
I. Summary:
SB 590 exempts from public inspection and copying requirements the personal identifying
information of a mental health counselor, other than the counselor’s name, licensure status, or
licensure number, obtained from the data system under the Professional Counselors Licensure
Compact, as established in s. 491.017, F.S.,
1
and held by the Department of Health (DOH) or the
Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling
(Board). This information is not exempt from public records requirements under the bill if the
state originally reporting the information to the data system authorizes disclosure of such
information by law.
The bill exempts from public meeting requirements a closed meeting or a closed portion of a
meeting of the Compact Commission or the executive committee or other committees of the
commission, established under the Professional Counselors Licensure Compact. The exemption
applies when the commission’s legal counsel or designee has certified that the meeting may be
closed because the commission or executive committee or other committees of the commission
must discuss specified issues listed in the compact, such as the noncompliance of a member state
with its obligations. The bill provides that recordings, minutes, and records generated from those
meetings are also exempt from requirements to disclose such public records.
The bill has no impact on state revenues or state expenditures.
The bill provides an effective date of the same date that SB 358 or similar legislation takes
effect. SB 358, the substantive bill authorizing Florida’s participation in the Professional
Counselors Licensure Compact, has an effective date contingent upon the enactment of the
compact into law by 10 states.
1
Section 491.017, F.S., is created in SB 358 and establishes the state’s participation in the Professional Counselors Licensure
Compact and the coordinated information system.
REVISED: BILL: SB 590 Page 2
The bill provides for the repeal of the exemption on October 2, 2027, unless reviewed and
reenacted by the Legislature. It also provides statements of public necessity for the public
records and public meetings exemptions as required by the State Constitution.
The bill creates a new public records exemption; therefore, a two-thirds vote of the members
present and voting in each house of the Legislature is required for final passage.
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.
2
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.
3
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 adopted in the rules of each house of the legislature.
4
Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.
5
Lastly, ch. 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.
6
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
2
FLA. CONST. art. I, s. 24(a).
3
Id.
4
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)
5
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
DCA 2018).
6
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.” BILL: SB 590 Page 3
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.”
7
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.
8
A violation of the Public Records Act may result in civil or
criminal liability.
9
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.
10
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.
11
General exemptions from the public records requirements are contained in the Public Records
Act.
12
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
13
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.
14
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.
15
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
16
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
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).
12
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).
13
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).
14
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5
th
DCA 2004).
15
Id.
16
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991). BILL: SB 590 Page 4
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
17
(the
Act), prescribe a legislative review process for newly created or substantially amended
18
public
records or open meetings exemptions, with specified exceptions.
19
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.
20
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.
21
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;
22
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;
23
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
24
The Act also requires specified questions to be considered during the review process.
25
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.
26
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
17
Section 119.15, F.S.
18
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.
19
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.
20
Section 119.15(3), F.S.
21
Section 119.15(6)(b), F.S.
22
Section 119.15(6)(b)1., F.S.
23
Section 119.15(6)(b)2., F.S.
24
Section 119.15(6)(b)3., F.S.
25
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?
26
See generally s. 119.15, F.S. BILL: SB 590 Page 5
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.
27
Professional Counselors Licensure Compact
The Professional Counselors Licensure Compact (compact) provides a pathway for a licensed
professional counselor who is licensed in his or her primary state of residence (the licensee’s
“home state”) the ability to apply and be granted a privilege to practice professional counseling
(equivalent to a license to practice) in another member state, both in-person and through
telehealth.
The compact will become effective after 10 states enact the legislation for the compact. The
counseling compact has passed and been signed into law in two states. On May 10, 2021,
Georgia Governor Brian Kemp signed HB 395 and subsequently on May 18, 2021, Maryland
Gov. Larry Hogan signed SB 571/HB 736.
28
The compact has also been introduced this year in
Tennessee (SB 1027 HB 0959), Nebraska (LB 554), Ohio (SB 204), and North Carolina (HB
791).
29
Data System
Article X of the compact creates a shared interstate database and reporting system (the data
system) containing licensure, adverse action, and investigative information on all licensed
professional counselors in member states.
Pursuant to Section 2 of Article X of the compact, and notwithstanding any other provision of
state law to the contrary, a member state shall submit a uniform data set to the data system on all
licensees to whom the compact is applicable, as required by the rules of the commission,
including all of the following:
Identifying information.
Licensure data.
Adverse actions against a license or privilege to practice.
Nonconfidential information related to alternative program participation.
Any denial of application for licensure and the reason for such denial.
Current significant investigative information.
Other information that may facilitate the administration of the compact, as determined by the
rules of the commission.
Investigative information pertaining to a licensee in any member state may be made available
only to other member states. The commission must promptly notify all member states of any
adverse action taken against a licensee or an individual applying for a license.
Member states reporting information to the data system may designate information that may not
be shared with the public without the express permission of the reporting state.
27
Section 119.15(7), F.S.
28
Counseling Compact, News, available at https://counselingcompact.org/news/ (last visited Nov. 29, 2021).
29
Counseling Compact, Maps, available at https://counselingcompact.org/map/ (last visited Nov. 29, 2021). BILL: SB 590 Page 6
Counseling Compact Commission
The Counseling Compact Commission (commission) is created in Article IX of the compact and
serves as the administrative arm of the Compact and the member states. Each member state is
entitled to one delegate appointed by each member state’s licensing board who must be either a
licensed professional counselor, a public member, or an administrator of the board. Each
delegate has one vote on commission affairs.
The commission meets at least once per calendar year in a publicly noticed meeting. The
compact gives the commission the authority to establish and elect an Executive Committee that
may act on behalf of the commission, with the exception of rulemaking. The commission may
also establish additional committees as necessary.
Under Section 3 of Article IX of the compact, the commission or the executive committee or
other committees of the commission may convene in a closed, nonpublic meeting if the
commission or executive committee or other committees of the commission must discuss any of
the following:
Noncompliance of a member state with its obligations under the compact.
The employment, compensation, discipline, or other matters, practices, or procedures related
to specific employees, or other matters related to the commission’s internal personnel
practices and procedures.
Current, threatened, or reasonably anticipated litigation.
Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate.
Accusing any person of a crime or formally censuring any person.
Disclosure of trade secrets or commercial or financial information that is privileged or
confidential.
Disclosure of information of a personal nature if disclosure would constitute a clearly
unwarranted invasion of personal privacy.
Disclosure of investigative records compiled for law enforcement purposes.
Disclosure of information related to any investigative reports prepared by or on behalf of or
for use of the commission or other committee charged with responsibility of investigation or
determination of compliance issues pursuant to the compact.
Matters specifically exempted from disclosure by federal or member state law.
If a meeting, or portion of a meeting, is closed the commission’s legal counsel or designee must
certify that the meeting may be closed and must reference each relevant exempting provision.
The commission shall keep minutes that fully and clearly describe all matters discussed in a
meeting and shall provide a full and accurate summary of actions taken, and the reasons
therefore, including a description of the views expressed. All documents considered in
connection with an action must be identified in such minutes. All minutes and documents of a
closed meeting must remain under seal, subject to release by a majority vote of the commission
or order of a court of competent jurisdiction. BILL: SB 590 Page 7
III. Effect of Proposed Changes:
Section 1 of the bill creates s. 491.018, F.S., to make a mental health counselor’s personal
identifying information, other than the counselor’s name, licensure status, or licensure number,
obtained from the data system under the Professional Counselors Licensure Compact, as
established in s. 491.017, F.S., and held by the DOH or the Board. This information is not
exempt from public records requirements under the bill if the state originally reporting the
information to the data system authorizes disclosure of such information by law.
The bill also creates an exemption from s. 286.011, F.S., and s. 24(b), Art. I, of the State
Constitution for a closed meeting or any closed portion of a meeting of the commission or the
executive committee or other committees of the commission. The exemption applies when the
commission’s legal counsel or designee has certified that the meeting may be closed because the
commission or executive committee or other committees of the commission must discuss any of
the following:
Noncompliance of a member state with its obligations under the compact.
The employment, compensation, discipline, or other matters, practices, or procedures related
to specific employees, or other matters related to the commission’s internal personnel
practices and procedures.
Current, threatened, or reasonably anticipated litigation.
Negotiation of contracts for the purchase, lease, or sale of goods, services, or real estate.
Accusing any person of a crime or formally censuring any person.
Disclosure of trade secrets or commercial or financial information that is privileged or
confidential.
Disclosure of information of a personal nature if disclosure would constitute a clearly
unwarranted invasion of personal privacy.
Disclosure of investigative records compiled for law enforcement purposes.
Disclosure of information related to any investigative reports prepared by or on behalf of or
for use of the commission or other committee charged with responsibility of investigation or
determination of compliance issues pursuant to the compact.
Matters specifically exempted from disclosure by federal or member state law.
The bill provides that recordings, minutes, and records generated from those meetings are also
exempt from s. 119.07(1), F.S., and s. 24(a), Art. I of the State Constitution.
These exemptions are subject to the Open Government Sunset Review Act and will stand
repealed on October 2, 2027, unless reviewed and saved from repeal through reenactment by the
Legislature.
Section 2 of the bill provides, as required by the State Constitution, a statement of public
necessity which provides that protection of the specified information is required under the
compact which the state must adopt in order to become a member state and a party to the
compact. Without the public records exemption, the state would be unable to effectively and
efficiently function as a member of the compact.
BILL: SB 590 Page 8
Additionally, the bill provides a statement of public necessity, as required by the Florida
Constitution, for protecting any closed meeting or any closed portion of a meeting of the
commission or the executive committee or other committees of the commission when the
commission’s legal counsel or designee has certified that the meeting may be closed because the
commission or executive committee or other committees of the commission must discuss
specified issues listed in the compact. These meetings or portions of meetings would be
exempted from s. 286.011, F.S., and s. 24(b), Art. I. of the State Constitution. Without the public
meeting exemption, the state will be prohibited from becoming a party to the Compact.
The bill includes a statement of public necessity by the Legislature that the recordings, minutes,
and records generated during an exempt meeting of the commission are exempt pursuant to
s. 464.0096, F.S., and exempt from s. 119.07(1), F.S., and s. 24(a), Art. I of the State
Constitution. Release of such information would negate the public meeting exemption.
Section 3 of the bill provides an effective date of the same date that SB 358 or similar legislation
takes effect. SB 358, the substantive bill authorizing Florida’s participation in the Professional
Counselors Licensure Compact, has an effective date contingent upon the enactment of the
compact into law by 10 states.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
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 public records exemption and a public
meeting exemption; therefore, it requires a two-thirds vote.
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 includes a public necessity statement that supports the
exemptions.
Breadth of Exemption
Article I, section 24(c), of the State Constitution requires exemptions to the public
records and public meetings requirements to be no broader than necessary to accomplish
the stated purpose of the law. It is not clear if the public records exemption is broader
than necessary to accomplish the purposes outlined in the public necessity statement. The
exemption covers a mental health counselor’s personal identifying information BILL: SB 590 Page 9
(excluding a counselor’s name, licensure status, and license number) that is otherwise
exempt in the counselor’s home state. In the context of the compact, it is not clear what
information would be considered “personal identifying information” for purposes of this
exemption. Personal identifying information is used throughout the Florida Statutes and
is not defined. It is not clear if a state would consider a counselor’s business address,
certifications, or level of education to be personal identifying information. State laws are
also subject to change, so it is not clear if this exemption is limited to state laws as
currently enacted or in the future. Therefore, the breadth of the exemption is subject to
change depending on when or how the DOH and the Board interpret the laws of the
licensee’s home state.
It is also unclear if the public meetings exemption is broader than necessary to
accomplish the purposes outlined in the public necessity statement. The bill provides
instances during which a public meeting may be closed. Some of those matters are
already exempted under Florida’s public meetings exemptions.
30
In addition, it is not
clear exactly which meetings or portions of meetings will be closed. The bill provides the
commission with authority to close a meeting or a portion of a meeting, when it must
discuss certain matters and after consulting with the commission’s legal counsel or
designee. This could be considered an overly broad exemption.
Courts will look to the Legislature to balance these competing interests.
31
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
30
Meetings with attorneys on pending litigation are exempt under s. 286.011(8), F.S. Competitive solicitations team meetings
and some negotiations are exempt under s. 286.0113(2), F.S. Meetings to determine if there is probable cause to find that a
practitioner is subject to discipline are closed until 10 days after probable cause has been found pursuant to s. 456.073(4),
F.S. These exemptions are provided as examples and not an exhaustive list of relevant public meetings exemptions.
31
See Campus Communications, Inc. v. Earnhardt, 821 So. 2d 388, 402-403 (Fla. 5th DCA 2002) (“Thus our function here
has not been to weigh these two constitutional rights with respect to autopsy photographs and determine whether the right
that helps ensure an open government freely accessible by every citizen is more significant or profound than the right that
preserves individual liberty and privacy. Rather, our function has been to determine whether the Legislature has declared that
the latter prevails over the former in a manner that is consistent with the constitutional provisions that bestow upon it the
power to do so.”); see also Wallace v. Guzman, 687 So. 2d 1351, 1354 (Fla. 3d DCA 1997) (noting “[t]he [L]egislature has
balanced the private/public rights by creating the various exemptions from public disclosure contained in section 119.07,
Florida Statutes (1995).”). BILL: SB 590 Page 10
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The private sector will be subject to the cost, to the extent imposed, associated with the
DOH making redactions in response to a public records request.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 491.018 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.