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 Appropriations
BILL: CS/SB 1042
INTRODUCER: Children, Families, and Elder Affairs Committee and Senator Brodeur
SUBJECT: Public Records/Special Persons Registry
DATE: February 25, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Delia Cox CF Fav/CS
2. Gerbrandt Money AHS Recommend: Fav/CS
3. Gerbrandt Sadberry AP Pre-meeting
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1042 creates an exemption from the public records requirements of section 119.07(1),
Florida Statutes, and section 24(a), Art. I of the State Constitution for the following information
relating to the enrollment of individuals on the Special Needs Registry (SNR) created by SB
1040:
Records;
Data;
Information;
Correspondence; and
Communications.
The bill also applies the exemption to any locally maintained registry that is substantially similar
to the SNR. The bill specifies that such information may not be disclosed except, upon request,
to:
A law enforcement agency;
A county emergency management agency;
A local fire department; or
As otherwise specifically authorized by the bill.
The bill provides for an Open Government Sunset review and contains a statement of public
necessity as required by the State Constitution.
REVISED: BILL: CS/SB 1042 Page 2
The bill also applies the exemption retroactively to confidential and exempt information held by
one of the agency entities listed above before the effective date of the act.
The bill is not expected to have a fiscal impact. See Section V. Fiscal Impact Statement.
The bill provides that the act shall take effect on the same date that SB 1040 or similar legislation
takes effect, if such legislation is adopted in the same legislative session or an extension thereof
and becomes law. SB 1040 has an effective date of March 1, 2023.
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
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.” BILL: CS/SB 1042 Page 3
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
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
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.
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). BILL: CS/SB 1042 Page 4
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
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
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.
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. BILL: CS/SB 1042 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.
26
Autism
Autism is a pervasive, neurologically-based developmental disability of extended duration that
has onset during infancy or childhood, which causes severe learning, communication, and
behavioral disorders.
27
Autism spectrum disorder (ASD) includes autism, Asperger’s syndrome,
and any other pervasive developmental disorder.
28
The Centers for Disease Control and
Prevention (CDC) estimates that approximately one in 44 children has ASD.
29
The CDC also
estimates that over 5.4 million adults have ASD.
30
Interactions with Law Enforcement for Individuals with Autism
A person’s developmental disability may make interactions with law enforcement more
challenging. For example, identifying a person with an ASD can be confusing to any person
unfamiliar with the condition, including law enforcement. Law enforcement can mistake the
signs of autism with behaviors typically associated with those of criminals.
31
Common attributes
of autism are communication differences and behaviors or thinking that are repetitive or
restricted to an area of interest. These traits could be interpreted by law enforcement as not being
compliant with questioning or direct instructions. A characteristic of ASD known as escalation
poses a particular problem in encounters with law enforcement.
32
Escalation describes the
response of a person with ASD under stress or in an unfamiliar situation.
33
Overwhelmed by the
barrage of sensory information, a person with ASD may attempt to flee the uncomfortable
situation, become combative, or simply shut down.
34
The individual may cover his or her ears
and shriek, not knowing how or where to get help.
35
The presence of police lights and sirens,
uniforms, loud and unfamiliar voices, or barking dogs often makes a difficult situation worse by
contributing to the individual's sensory overload.
36
Alzheimer’s Disease
Alzheimer’s disease is a form of dementia, a general term for memory loss. It is a progressive
brain disorder that damages and eventually destroys brain cells, leading to memory loss and
26
Section 119.15(7), F.S.
27
Section 393.063(5), F.S.
28
Section 627.6686(2)(b), F.S.
29
The Centers for Disease Control and Prevention (The CDC), Data & Statistics on Autism Spectrum Disorder, available at
https://www.cdc.gov/ncbddd/autism/data.html (last visited February 3, 2022).
30
The CDC, Key Findings: CDC Releases First Estimates of the Number of Adults Living with Autism Spectrum Disorder in
the United States, available at https://www.cdc.gov/ncbddd/autism/features/adults-living-with-autism-spectrum-disorder.html
(last visited February 3, 2022).
31
Randy Lambert "How Changing the Wes Kleinert Fair Interview Act and Establishing Law Enforcement Academy
Training Standards Will Help the Autism Community," Child and Family Law Journal, p. 48 (2018), available at
https://lawpublications.barry.edu/cflj/vol6/iss1/3 (last visited February 3, 2022).
32
Bernard J. Farber, Police Interaction With Autistic Persons: The Need For Training, Aele Monthly Law Journal, p. 106
(2009), available at https://www.aele.org/law/2009all07/2009-07MLJ101.pdf (last visited February 3, 2022).
33
Id.
34
Id.
35
Id.
36
Id. BILL: CS/SB 1042 Page 6
changes in the functions of the brain. In the early stages of Alzheimer’s disease, memory loss is
mild; in late-stages, individuals lose the ability to carry on a conversation and respond to their
environment. Currently, the disease has no cure, but treatment can temporarily slow the
worsening of symptoms.
37
Florida has an increasing number of individuals with Alzheimer’s disease. An estimated 580,000
Floridians have Alzheimer’s disease.
38
The projected number of Floridians with Alzheimer’s
disease is estimated to increase by 24% to 720,000 individuals by 2025.
39
Interactions with Law Enforcement for Individuals with Alzheimer’s and Dementia
Many behaviors associated with Alzheimer’s disease and dementia tend to increase a person’s
chance of interacting with law enforcement. Because these individuals are often unable to
explain their unusual behavior, their actions are more easily misunderstood.
40
Common instances
that can cause someone with Alzheimer’s disease to interact with law enforcement include
wandering, auto accidents, erratic driving, accidental breaking and entering due to confusion,
and unintentional shoplifting.
41
Voluntary Registry Systems
Law enforcement agencies nationwide have begun utilizing voluntary registry systems that
provide officers with relevant information on individuals with special needs, including those
with Alzheimer’s disease.
42
Law enforcement agencies have found that such registries can:
Promote community safety;
Improve officer safety;
Increase the speed and efficiency in which officers are able to respond, decreasing
department liability;
Reduce strain on department resources (human and financial) during emergencies;
Give community members peace of mind; and
Promote community partnerships in responding to special needs community members.
43
Voluntary registry systems allow law enforcement to obtain information that assists in response
to calls for service involving individuals with conditions such as Alzheimer’s disease.
44
37
Alzheimer’s Association, 2021 Alzheimer’s Disease Facts and Figures, available at
https://www.alz.org/media/documents/alzheimers-facts-and-figures.pdf (last visited February 3, 2022).
38
The Department of Elder Affairs, 2021 Alzheimer’s Disease Advisory Committee Annual Report, p. 4, available at
https://elderaffairs.org/wp-content/uploads/ADAC-Report-2021_FINAL.pdf (last visited February 3, 2022).
39
Id.
40
Alzheimer’s Association, Alzheimer’s Disease Guide for Law Enforcement, available at
https://www.alz.org/national/documents/safereturn_lawenforcement.pdf (last visited February 3, 2022).
41
Id.
42
The International Association of Chiefs of Police (IACP), A Guide to Law Enforcement on Voluntary Registry Programs
for Vulnerable Populations, p. 2, available at
https://www.theiacp.org/sites/default/files/Alz%20Voluntary%20Registry_0.pdf (last visited February 3, 2022) (hereinafter
cited as “The IACP Guide”).
43
Id.
44
Id. BILL: CS/SB 1042 Page 7
Voluntary registry systems have also proven helpful in responding to individuals in other special
needs populations. Departments utilize the system for community members living with ASD,
developmental disabilities, attention deficit/ hyperactivity disorder (ADHD), epilepsy, brain
injury, mental illness, and other disabilities that may affect the way individuals interact and
respond to law enforcement officers and other first responders.
45
Confidentiality of Information
Voluntary registry systems generally contain large amounts of personal and sensitive
information. Confidentiality concerns, coupled with a general fear of law enforcement prevalent
in some communities, could hinder community willingness to participate in voluntary registry
programs.
46
Some community members may be hesitant to participate due to fear exploitation of
registry data.
47
Others fear that registry information collected may be used to violate the rights of
special needs individuals by inappropriately releasing the information to outside parties and
entities.
48
Some agencies utilizing voluntary registry systems use disclaimers, waivers, or releases on
voluntary registry systems’ registration forms or questionnaires to notify registrants that
providing data is voluntary and to ensure that registrants and their caregivers know that
information will be used solely for the purpose of assisting first responders in providing
service.
49
Other individuals have also expressed concerns regarding Health Insurance Portability
and Accountability Act (HIPAA) compliance of registry information collection and storage.
50
III. Effect of Proposed Changes:
The bill amends the proposed s. 402.88, F.S., which would be created by SB 1040. The bill
creates an exemption from the public records requirements of s. 119.07(1), F.S., and s. 24(a),
Art. I of the State Constitution for the following information relating to the enrollment of
individuals on the SNR created by SB 1040:
Records;
Data;
Information;
Correspondence; and
Communications.
The bill also applies the exemption to any locally maintained registry that is substantially similar
to the SNR. The bill specifies that such information may not be disclosed except, upon request,
to:
A law enforcement agency;
A county emergency management agency;
A local fire department.
45
Id. at 3.
46
The IACP Guide at 21.
47
Id.
48
Id.
49
Id.
50
Id. BILL: CS/SB 1042 Page 8
Any of the above-listed agency entities are permitted to disclose information otherwise deemed
confidential and exempt by the bill to others not specifically listed only under the following
circumstances:
With the express written consent of the registry enrollee or the legally authorized
representative of such enrollee;
In a medical emergency;
By court order upon a finding of good cause;
To another governmental agency when needed for the performance of its duties and
responsibilities; or
In the interest of public safety, to;
o Assist in locating the enrollee; or
o Promote the safety or well-being of the enrollee, as determined by the law enforcement
agency.
The bill includes a public necessity statement, specifying the need to make all records, data,
information, correspondence, and communications relating the enrollment of persons in the SNR
confidential and exempt from Florida’s public records laws. The bill provides that such records
are likely to include confidential medical information and sensitive personal information of
individuals on the SNR. The bill states that the potential disclosure of such information will deter
enrollment, thereby depriving law enforcement of information which would enable them to
interact with those eligible for enrollment in safe and appropriate ways.
The bill is subject to the Open Government Sunset Review Act and will stand repealed on
October 2, 2027, unless reviewed and saved from repeal by the Legislature.
The bill also applies the exemption retroactively to confidential and exempt information held by
one of the agency entities listed above before the effective date of the act.
The bill provides that the act shall take effect on the same date that SB 1040 or similar legislation
takes effect, if such legislation is adopted in the same legislative session or an extension thereof
and becomes law.
SB 1040 has an effective date of March 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
Section 18 of the Florida Constitution.
B. Public Records/Open Meetings Issues:
Vote Requirement
BILL: CS/SB 1042 Page 9
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 records, data,
information, correspondence, and communication relating to the enrollment of
individuals on the SNR. 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 sensitive personal information, and confidential
medical information, of individuals enrolled in the SNR. This bill exempts only such
information 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.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None. BILL: CS/SB 1042 Page 10
VI. Technical Deficiencies:
None.
VII. Related Issues:
The bill does not appear to give the APD the option or ability to request information from any
other agencies who have information as contemplated in SB 1040.
51
VIII. Statutes Affected:
This bill substantially amends section 402.88 of the Florida Statutes, if created by SB 1040.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Children, Families, and Elder Affairs on February 8, 2022:
The Committee Substitute:
Changes references to the voluntary registry from “Registry of Persons with Special
Needs” to the “Special Needs Registry”.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
51
The APD, Agency Analysis of HB 735, p. 2. (on file with the Senate Children, Families, and Elder Affairs Committee).