The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 1204
INTRODUCER: Senator Broxson
SUBJECT: Public Records/Information or Records/Executions
DATE: February 14, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Siples Jones CJ Favorable
2. Ravelo Cibula JU Favorable
3. Siples Phelps RC Favorable
I. Summary:
SB 1204 creates a public records exemption for certain persons or entities involved in
executions. Specifically, the bill makes confidential and exempt information or records that
identify or could reasonably lead to the identification of any person or entity that participates in,
has participated in, or will participate in an execution, including those who administer,
compound, dispense, distribute, maintain, manufacture, order, prepare, prescribe, provide,
purchase, or supply drugs, chemicals, supplies, or equipment needed to conduct an execution.
The bill makes the exemption applicable to information and records held by the Department of
Corrections (DOC) before, on, or after the effective date of the bill.
This bill is subject to the Open Government Sunset Review Act and stands repealed on
October 2, 2027, unless reviewed and saved from 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 upon becoming a law.
II. Present Situation:
Access to Public Records - Generally
The State Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.
1
The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
1
FLA. CONST. art. I, s. 24(a).
REVISED: BILL: SB 1204 Page 2
branches of state government, local governmental entities, and any person acting on behalf of the
government.
2
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, s. 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the Legislature.
3
Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.
4
Lastly, ch. 119,
F.S., 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
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record.
7
A violation of the Public Records Act may result in civil or
criminal liability.
8
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (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. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws. BILL: SB 1204 Page 3
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.
9
The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.
10
General exemptions from the public records requirements are contained in the Public Records
Act.
11
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
12
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.
13
Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.
14
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
15
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
The Act requires the repeal of
an exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
Legislature reenacts the exemption.
19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.
20
An exemption serves an identifiable purpose if it meets one of the following purposes and the
9
FLA. CONST. art. I, s. 24(c).
10
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
11
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
12
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5th DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S. BILL: SB 1204 Page 4
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
21
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;
22
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
23
The Act also requires specified questions to be considered during the review process.
24
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.
25
If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to expire, the previously
exempt records will remain exempt unless otherwise provided by law.
26
Death Penalty
Florida is one of 27 states in which the death penalty is authorized.
27
Chapter 922, F.S., charges
the DOC with the responsibility of carrying out the executions of those sentenced to death. As of
January 18, 2022, there are 321 prisoners on Florida’s death row.
28
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If
so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
Death Penalty Information Center, Facts about the Death Penalty, (updated Jan. 3, 2022), available at
https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf (last visited Jan. 18, 2022). The other states that authorize the death
penalty are Alabama, Arizona, Arkansas, California, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi,
Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South
Dakota, Tennessee, Texas, Utah, and Wyoming. The U.S. Department of Justice and U.S. military are also authorized to
impose the death penalty.
28
Department of Corrections, Death Row Roster, available at http://www.dc.state.fl.us/OffenderSearch/deathrowroster.aspx
(last visited Jan. 18, 2022). BILL: SB 1204 Page 5
Section 922.105(1), F.S., requires that all death sentences be executed by lethal injunction,
unless the person sentenced to death affirmatively requests to be executed by electrocution.
However, if electrocution or lethal injunction is held to be unconstitutional by the Florida
Supreme Court or a U.S. Court of Appeals that has jurisdiction over Florida, any person
sentenced to death must be executed by any constitutional method of execution.
29
Confidentiality of Information
Current law makes information that identifies an executioner, or any person prescribing,
preparing, compounding, dispensing, or administering a lethal injection confidential and exempt
from public disclosure.
30
However, it does not exclude information regarding the other
components of the supply chain for obtaining the necessary drugs, chemicals, supplies, or
equipment to conduct an execution, such as the manufacturer, distributer, or supplier.
Historically, once the DOC’s source of drugs used for carrying out executions is publicly known,
it is no longer able to procure drugs from that source.
31
In such cases, the DOC may not be able
to obtain the necessary supplies to carry out an execution as required under state law.
III. Effect of Proposed Changes:
The bill creates a public records exemption for certain persons or entities involved in executions.
Specifically, the bill makes confidential and exempt information or records that identify or could
reasonably lead to the identification of any person or entity that participates in, has participated
in, or will participate in an execution, including those who administer, compound, dispense,
distribute, maintain, manufacture, order, prepare, prescribe, provide, purchase, or supply drugs,
chemicals, supplies, or equipment needed to conduct an execution.
The bill makes the exemption applicable to any such information held by the DOC before, on, or
after the effective date of the bill.
This bill is subject to the Open Government Sunset Review Act and stands repealed on
October 27, 2021, unless reviewed and saved from repeal through reenactment by the
Legislature.
The bill provides a public necessity statement as required by Article I, section 24(c) of the State
Constitution. The public necessity statement provides that:
The Legislature finds that it is a public necessity that information or records
that identify or could reasonably lead to the identification of those persons
or entities that participate in an execution be made confidential and exempt
from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the State
Constitution. The disclosure of information or records that identify or that
could reasonably lead to the identification of those persons or entities that
participate in an execution could jeopardize the safety of such persons or
29
Section 922.105(3), F.S.
30
Section 945.10(1)(g), F.S.
31
Department of Corrections, Senate Bill 1204 Agency Analysis (Dec. 14, 2021) (on file with the Senate Committee on
Criminal Justice). BILL: SB 1204 Page 6
entities by exposing them to potential harassment, intimidation, or harm and
could also thwart the ability of the Department of Corrections to obtain the
necessary personnel, drugs, chemicals, supplies, or equipment needed to
carry out executions. Therefore, the Legislature finds that it is a public
necessity that this information be kept confidential and exempt from public
disclosure.
The bill is effective upon becoming a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, section 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
information or records that identify or could reasonably lead to the identification of any
person or entity that participates in, has participated in, or will participate in an execution;
thus, the bill requires a two-thirds vote to be enacted.
Public Necessity Statement
Article I, section 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, section 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 the identification of the persons and entities
that participate in an execution. 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 1204 Page 7
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
The bill creates a new public records exemption that is partially duplicative of the existing public
record exemption in s. 945.10(g), F.S., which provides that information that identifies an
executioner or any person prescribing, preparing, compounding, dispensing, or administering a
lethal injection is exempt from public disclosure.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 945.10 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.