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 Judiciary
BILL: CS/SB 598
INTRODUCER: Judiciary Committee and Senator Baxley
SUBJECT: Public Records/Criminal Conflict and Civil Regional Counsel Office
DATE: January 11, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. ACJ
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 598 is the public records exemption linked to CS/SB 596. The bill exempts the records
necessary to conceal that the owner or operator of a motor vehicle or vessel is an Office of
Criminal Conflict and Civil Regional Counsel.
This bill is subject to the Open Government Sunset Review Act and stands repealed on
October 2, 2026, unless reviewed and saved from the repeal through reenactment by the
Legislature.
Because this bill creates a public records exemption, it will require a two-thirds vote of each
house in order to pass.
This bill takes effect on the same date that CS/SB 596 or similar legislation takes effect. The bill
is effective on July 1, 2021.
II. Present Situation:
The five Offices of Criminal Conflict and Civil Regional Counsel represent defendants in
criminal cases where the office of a public defender has a conflict of interest. In the process of
defending their clients, an Office of Criminal Conflict and Civil Regional Counsel, just like a
public defender, may use the services of an investigator. Investigators are safer and more
effective when their identity is confidential. One means that investigators have to maintain
REVISED: BILL: CS/SB 598 Page 2
confidentiality is through the use of false motor vehicle registrations. Currently, the records of
the Department of Highway Safety and Motor Vehicles showing that the owner of a motor
vehicle is a law enforcement agency, a state public defender, or the Attorney General’s Medicaid
Fraud Control Unit are exempt from public records law.
1
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,
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.
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
received pursuant to law or ordinance or in connections with the transaction
of official business by any agency.
1
Section 320.025(3), F.S.
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: CS/SB 598 Page 3
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: CS/SB 598 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: CS/SB 598 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
III. Effect of Proposed Changes:
CS/SB 598 adds Criminal Conflict and Civil Regional Counsels to the list of entities that may be
issued confidential motor vehicle or vessel registration certificates and license plates or decals
under a fictitious name.
This bill provides a public necessity statement as required by Article I, s. 24(c) of the State
Constitution. The public necessity statement provides that:
The Legislature finds that it is a public necessity that all records relating to
the application for a confidential registration certificate and registration
license plate or decal submitted by an office of criminal conflict and civil
regional counsel, and any other records necessary to carry out the intended
purpose of s. 320.025, Florida Statutes, be made exempt from s. 119.07(1),
Florida Statutes, and s. 24(a), Article I of the State Constitution.
Investigations by an office of criminal conflict and civil regional counsel
may be jeopardized by the registration of motor vehicles under the office’s
name or under the names of the office’s investigators in that persons under
investigation may acquire such registration information in order to seek
retaliation against the office or its investigators. Authorizing offices of
criminal conflict and civil regional counsel to obtain confidential
registration certificates and registration license plates or decals in the same
manner as other law enforcement agencies would better ensure the safety of
the regional counsel offices’ investigators in performing their official
duties.
The bill is subject to the Open Government Sunset Review Act and is repealed on October 2,
2027, unless reviewed and saved from repeal through reenactment by the Legislature
The bill takes effect on the same date as CS/SB 596 or similar legislation takes effect. The bill is
effective on July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
27
Section 119.15(7), F.S. BILL: CS/SB 598 Page 6
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 certain motor vehicle
and vessel registration records, thus, the bill requires a two-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.
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 the law is to protect investigators who work for an office of criminal
conflict and civil regional counsel. This bill exempts only certain motor vehicle and
vessel registration records from the public records requirements. 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.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None. BILL: CS/SB 598 Page 7
C. Government Sector Impact:
CS/SB 598 does not appear to have a fiscal impact on state or local governments.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends s. 320.025, Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Judiciary on January 10, 2022:
The committee substitute references CS/SB 596, a linked substantive bill.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.