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: CS/CS/SB 1304
INTRODUCER: Rules Committee; Judiciary Committee and Senator Gruters
SUBJECT: Public Records/Trust Proceedings
DATE: February 24, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. Ponder McVaney GO Favorable
3. Bond Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/CS/SB 1304 creates a public records exemption for court records in a trust law case where a
family trust company, licensed family trust company, or foreign licensed family trust company is
a party. The court records of the case are not available for public inspection, but may be accessed
by the settlor, a fiduciary or a beneficiary, and his or her attorney. The court may also allow
access to a person who has a specific interest in the trust and who can show that there is a
compelling need for access, subject to reasonable limitations on further distribution by the
interested person.
This exemption is not subject to the Open Government Sunset Review Act because it applies
solely to judicial branch records.
The bill creates a new public records exemption and, therefore, requires a two-thirds vote of the
members present and voting for final passage.
The bill takes effect July 1, 2022.
II. Present Situation:
A trust is a fiduciary relationship with respect to property, subjecting the person by whom the
title to the property is held to equitable duties to deal with the property for the benefit of another
REVISED: BILL: CS/CS/SB 1304 Page 2
person. A trust arises as a result of a manifestation of an intention to create it.
1
Trusts are
governed by statute.
2
Trust companies are for-profit business organizations that are authorized to engage in trust
business and to act as a fiduciary for the general public. A family may form and operate private
or family trust companies that provide trust services similar to those that can be provided by an
individual trustee or a financial institution. However, these family trust companies are owned
exclusively by family members and may not provide fiduciary services to the public. These
private, family trust companies are generally formed to manage the wealth of high net-worth
families in lieu of traditional individual or institutional trustee arrangements for a variety of
personal, investment, regulatory, and tax reasons. Family trust companies are uncommon.
In 2014, Florida statutes were amended to authorize the formation of family trust companies,
licensed family trust companies, and foreign licensed family trust companies.
3
The Florida
Office of Financial Regulation may investigate applications for licensure or registration, require
annual renewals and other regulatory filings from licensees and registrants, and conduct periodic
examinations of family trust companies, licensed family trust companies, and foreign licensed
family trust companies.
The books and records of a family trust company, licensed family trust company, or foreign
licensed family trust company are confidential, with limited exceptions.
4
Willful violation of the
confidentiality is a third degree felony.
5
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.
6
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.
7
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.
8
Chapter 119,
1
55A Fla. Jur 2d Trusts § 1.
2
See generally, ch. 736, F.S.
3
Chapter 2014-97, L.O.F., creating chapter 662, F.S.
4
Section 662.146, F.S.
5
Section 662.146(2)(c), F.S.
6
FLA. CONST. art. I, s. 24(a).
7
Id.
8
See Rule 1.48, Rules and Manual of the Florida Senate, (2020-2022) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 1, (2020-2022). BILL: CS/CS/SB 1304 Page 3
F.S., known as the Public Records Act, provides requirements for public records held by
executive agencies
9
. Chapter 119, F.S., does not apply to judicial branch records.
10
Public Access to records of the judicial branch is governed by Florida Rule of Judicial
Administration 2.420.
11
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
12
(the
Act), prescribe a legislative review process for newly created or substantially amended
13
public
records or open meetings exemptions, with specified exceptions. The Act does not apply to an
exemption that applies solely to the State Court System.
14
III. Effect of Proposed Changes:
CS/CS/SB 1304 creates a public records exemption for court records in a trust case under chapter
736 or chapter 738, F.S., in which a family trust company, licensed family trust company, or
foreign licensed family trust company is a party. Chapter 736, F.S., is the general trust statute,
and chapter 738, F.S., governs the allocation in trusts between principal and interest.
The clerk of court is not required to independently determine that this exemption applies; a party
to the case must specifically notify the clerk that the exemption applies.
The clerk may not release any of the court file to the public, but must make the file available to
the following individuals:
The settlor;
Any fiduciary for the trust, including a trustee or trust director;
Any beneficiary of the trust;
An attorney for the settlor, a fiduciary, or a beneficiary of the trust; and
Any other person who can show the court a specific interest in the trust or a transaction
relating to the trust or an asset held or previously held by the trust, and who can show a
compelling need for access.
Where a court grants access to a person who has shown a specific interest, the court may limit
the person’s access to limited portions of the court file as necessary to protect the person’s
interest. The court may also limit the person from further distributing the information regarding
the trust.
9
Section 119.011(2), F.S., defines “agency to mean 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.
10
Times Pub. Co. v. Ake, 660 So. 2d 255 (Fla. 1995).
11
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
DCA 2018).
12
Section 119.15, F.S.
13
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.
14
Section 119.15(2)(b), F.S. BILL: CS/CS/SB 1304 Page 4
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 the court records of
proceedings under chapter 736, Florida Statutes, or chapter 738, Florida
Statutes, involving family trust companies, licensed family trust companies,
or foreign licensed family trust companies be made confidential and exempt
from s. 119.07, Florida Statutes, and s. 24(a), Article I of the State
Constitution under certain circumstances. Public disclosure of the court
records of such proceedings, which include information relating to the
clients, family members, members, or stockholders of a family trust
company, licensed family trust company, or foreign licensed family trust
company, would vitiate other protections granted by law to such companies
and their constituents. In addition, proceedings under chapter 736, Florida
Statutes, or chapter 738, Florida Statutes, often involve large sums of money
or vulnerable people who could be targeted for exploitation or abuse. Public
disclosure of sensitive family and financial information contained in the
court records of such proceedings can result in specific harm to beneficiaries
and other interested parties in these cases. Therefore, the Legislature finds
that the need to protect the identities of beneficiaries of trusts for which a
family trust company, licensed family trust company, or foreign licensed
family trust company is a trustee, and the sensitive financial information
contained in the court records of such proceedings, is sufficiently
compelling to override the state’s public policy of open government and
that the protection of such information cannot be accomplished without this
exemption.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action requiring
the expenditure of funds, reduce the authority that counties or municipalities have to raise
revenue in the aggregate, nor reduce the percentage of state tax shared with counties or
municipalities.
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 court
records related to a family trust company, licensed family trust company, or foreign
licensed family trust company, thus, the bill requires a two-thirds vote to be enacted.
BILL: CS/CS/SB 1304 Page 5
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 bill is to protect information relating to the clients, family
members, members, or stockholders of a family trust company, licensed family trust
company, or foreign licensed family trust company; and sensitive family and financial
information in trust proceedings related to a family trust company. The bill is limited to
court records related to internal trust disputes in a small number of the trusts operated in
the state and appears to allow access to information by all persons who may be directly
affected by the dispute according to general principles of due process.
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.
C. Government Sector Impact:
This bill does not appear to have a fiscal impact on state or local governments.
VI. Technical Deficiencies:
None. BILL: CS/CS/SB 1304 Page 6
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 662.1465 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Technical Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Rules on February 23, 2022:
The committee substitute simplifies the bill by removing an unnecessary list of exempt
documents as the bill exempts the entire court file, and limits application to only cases
under chapter 736, F.S. (trusts) or chapter 738, F.S. (principal and interest).
CS by Judiciary on January 31, 2022:
The committee substitute substantially narrowed the exemption by clarifying that it only
applies to the three forms of family trust companies, not to all trusts.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.