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 Banking and Insurance
BILL: SPB 7018
INTRODUCER: For consideration by the Banking and Insurance Committee
SUBJECT: OGSR/Injured or Deceased Employee/Department of Financial Services
DATE: November 30, 2021
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Schrader Knudson Pre-meeting
I. Summary:
SB 7018 amends s. 440.1851, Florida Statutes (F.S.), to save from repeal a public records
exemption relating to the personal identifying information of an injured or deceased worker
contained in reports, notices, records, or supporting documentation held by the Department of
Financial Services (DFS) pursuant to Florida’s Workers’ Compensation Law (ch. 440, F.S.).
“Personal identifying information,” means the injured or deceased employee’s name, date of
birth, home or mailing address, e-mail address, or telephone number. Section 440.1851, F.S.,
makes this information confidential and exempt and authorizes the DFS to disclose it only under
certain specified conditions. The section also provides for criminal penalties for the willful and
knowing unlawful disclosure of such information.
The bill takes effect October 1, 2022.
II. Present Situation:
Public Records Law
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
This 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
Chapter 119, F.S., known as the Public Records Act, constitutes the main body of public records
laws.
3
The Public Records Act states that:
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
Public records laws are found throughout the Florida Statutes.
REVISED: BILL: SPB 7018 Page 2
[i]t is the policy of this state that all state, county, and municipal records are open
for personal inspection and copying by any person. Providing access to public
records is a duty of each agency.
4
The Public Records Act typically contains general exemptions that apply across agencies.
Agency- or program-specific exemptions often are placed in the substantive statutes
relating to that particular agency or program.
The Public Records Act does not apply to legislative or judicial records.
5
Legislative records are
public pursuant to s. 11.0431, F.S. Public records exemptions for the Legislature are codified
primarily in s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the legislature.
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 which are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
The Florida Statutes specify conditions under which public access to governmental records must
be provided. The Public Records Act guarantees every person’s right to inspect and copy any
state or local government 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
Only the Legislature may create an exemption to public records requirements.
9
An exemption
must be created by general law and must specifically state the public necessity justifying the
exemption.
10
Further, the exemption must be no broader than necessary to accomplish the stated
purpose of the law. A bill enacting an exemption may not contain other substantive provisions
11
and must pass by a two-thirds vote of the members present and voting in each house of the
Legislature.
12
4
Section 119.01(1), F.S.
5
Locke v. Hawkes, 595 So. 2d 32, 34 (Fla. 1992); see also Times Pub. Co. v. Ake, 660 So. 2d 255 (Fla. 1995).
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.
11
The bill may, however, contain multiple exemptions that relate to one subject.
12
FLA. CONST., art. I, s. 24(c) BILL: SPB 7018 Page 3
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 (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,
16
with specified exceptions.
17
The Act requires the repeal of such
exemption on October 2nd of the fifth year after creation or substantial amendment; in order to
save an exemption from repeal, the Legislature must reenact the exemption or repeal the sunset
date.
18
In practice, many exemptions are continued by repealing the sunset date, rather than
reenacting the exemption.
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.
19
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 subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;
20
Releasing sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;
21
or
It protects trade or business secrets.
22
The Act also requires specified questions to be considered during the review process.
23
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
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. 5
th
DCA 1991).
16
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
17
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.
18
Section 119.15(3), F.S.
19
Section 119.15(6)(b), F.S.
20
Section 119.15(6)(b)1., F.S.
21
Section 119.15(6)(b)2., F.S.
22
Section 119.15(6)(b)3., F.S.
23
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? BILL: SPB 7018 Page 4
If, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.
24
If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is 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.
25
Department of Financial Services
The Chief Financial Officer is the head of the DFS.
26
Within the DFS’s many divisions are the
Division of Investigative and Forensic Services, the Division of Risk Management, and the
Division of Workers’ Compensation.
The Bureau of Insurance Fraud of the Division of Investigative and Forensic Services
investigates alleged acts of insurance fraud not categorized under workers’ compensation fraud,
including: licensee, healthcare, application, vehicle, homeowners, commercial, disability, arson,
and life insurance fraud. Within these categories are: organized schemes to defraud the public
and insurers, insolvency of insurance companies due to internal fraud, criminal activity by
unauthorized entities illegally doing business in Florida, and viatical related fraud.
27
The Bureau of State Employee Workers’ Compensation Claims, within the Division of Risk
Management, is responsible for the administration of all workers’ compensations claims filed by
state employees and volunteers who are injured on the job. It typically receives approximately
12,000 new claims each year and is primarily responsible for ensuring that covered individuals
receive timely benefits, while safeguarding the State from instances of fraud, waste, and abuse.
28
The Division of Workers’ Compensation is responsible for administering many of the provisions
of ch. 440, F.S. In addition, the Agency for Health Care Administration and the Office of Judges
of Compensation Claims within the Division of Administrative Hearings are also responsible for
administering provisions of ch. 440, F.S., the Workers’ Compensation Law.
29
Section 440.185, F.S., establishes reporting requirements for employees, employers, and carriers
relating to said employee suffering an injury arising out of and in the course of their
employment. In particular, s. 440.185(2), F.S., requires that employers report such injury to its
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?
24
FLA. CONST. art. I, s. 24(c).
25
Section 119.15(7), F.S.
26
Section 20.121(1), F.S.
27
Bureau of Insurance Fraud within the Division Investigative and Forensic Services, available at
https://www.myfloridacfo.com/division/difs/insurance-fraud (last viewed Nov. 24, 2021).
28
Bureau of State Employee Workers’ Compensation Claims within the Division of Risk Management, available at
https://www.myfloridacfo.com/division/risk/workers-compensation (last viewed Nov. 24, 2021).
29
Sections 440.015, 440.135, 440.44, and 440.45, F.S. BILL: SPB 7018 Page 5
workers’ compensation insurance carrier, in a format prescribed by the department, and shall
provide a copy of such report to the employee or the employee’s estate.
The name and address of the employer;
The name, social security number, mailing address, telephone number, and occupation of the
injured worker;
The cause and nature of the injury or death;
The year, month, day, and hour when, and the particular locality where the injury or death
occurred; and
Such other information the DFS may require.
Further, additional reports about the condition of the employee, including copies of medical
reports and bills,
30
funeral expenses, and wage statements, must also be filed with the DFS.
31
In addition to the First Report of Injury (form DFS-F2-DWC-1 as established by DFS),
employers and carriers are also required to file subsequent reports with the DFS relating to an
injured worker that contain information that would identify said worker.
32
These reports or forms
include, but are not limited to, the following reports: Wage Statement, Request for Wage
Loss/Temporary Partial Benefits, Notice of Action/Change, Notice of Denial, Claim Cost
Report, Request for Social Security Disability Benefit Information, and Employee Earnings
Report.
33
Public Records Exemptions Relating to Florida’s Workers’ Compensation Law
Section 624.23, F.S., of the Florida Insurance Code provides a public record exemption for
personal financial and health information
34
submitted by a consumer seeking assistance from the
DFS. The term “consumer,” as used in the section, means 1) a prospective purchaser, purchaser,
or beneficiary of, or applicant for, any product or service regulated under the Florida Insurance
Code, and a family member or dependent of said consumer, or 2) an employee seeking assistance
from the Employee Assistance and Ombudsman Office under s. 440.191, F.S. This personal
financial and health information held by the DFS or Office of Insurance Regulation, is
confidential and exempt from s. 119.07(1), F.S., and s. 24(a), Art. I of the State Constitution.
30
Information in the medical reports may include the name and address of the injured worker, date of accident, and procedure
and diagnosis code describing the treatment and nature of the injury. Section 440.13(4)(b), F.S., and Rules 69L-7.710-7.750,
F.A.C.
31
Section 440.185(4), F.S.
32
See Division of Worker’s Compensation Forms, available at
https://www.myfloridacfo.com/division/wc/publicationsformsmanualsreports/forms/default.htm (last viewed Nov. 24, 2021).
33
Id.
34
Section 624.23, F.S., provides that a consumer’s personal financial and health information means: Personal health
condition, disease, or injury; a history of a consumer’s personal medical diagnosis or treatment; the existence, nature,
source, or amount of a consumer’s personal income or expenses; records of or relating to a consumer’s personal financial
transactions of any kind; the existence, identification, nature, or value of a consumer’s assets, liabilities, or net worth; the
existence or content of, or any individual coverage or status under a consumer’s beneficial interest in, any insurance policy or
annuity contract; or the existence, identification, nature, or value of a consumer’s interest in any insurance policy, annuity
contract, or trust. BILL: SPB 7018 Page 6
Further, s. 624.23(3), F.S., provides that this personal financial and health information may be
disclosed to specified parties.
35
Currently, ch. 440, F.S., provides three public records exemptions directly related to injured or
deceased injured workers. The first exemption, s. 440.102(8), F.S., protects all information,
interviews, reports, statements, memoranda, and drug test results, written or otherwise, received
or produced because of a drug-testing program. The second exemption, s. 440.125, F.S., provides
that medical records and medical reports identifying an injured worker, which are filed with the
DFS pursuant to s. 440.13, F.S., are confidential and exempt.
The third exemption, s. 440.1851, F.S., is the subject of this open government sunset review. The
exemption provides that personal identifying information of an injured or deceased worker
contained in reports, notices, records, or supporting documentation held by the DFS pursuant to
ch. 440, F.S. are confidential and exempt from public records requirements. As used in, s.
440.1851, F.S., “personal identifying information,” means the injured or deceased employee’s
name, date of birth, home mailing, or e-mail address, or telephone number. Section 440.1851,
F.S., provides that the DFS may only disclose such information:
To the injured employee, to the spouse or a dependent of the deceased employee, to the
spouse or a dependent of the injured employee if authorized by the injured employee, or to
the legal representative of the deceased employee’s estate;
To a party litigant, or his or her authorized representative, in matters pending before the
Office of the Judges of Compensation Claims;
To a carrier or an employer for the purpose of investigating the compensability of a claim or
for the purpose of administering its anti-fraud investigative unit established pursuant to s.
626.9891;
In an aggregate reporting format that does not reveal the personal identifying information of
any employee;
Pursuant to a court order or subpoena;
To an agency for administering its anti-fraud investigative function or in the furtherance of
the agency’s official duties and responsibilities; or
To a federal governmental entity in the furtherance of the entity’s official duties and
responsibilities.
Section 440.1851, F.S., also provides for criminal penalties for the unlawful disclosure of the
personal identifying information protected under the statute. Specifically, s. 440.1851(2), F.S.,
provides that a person willingly and knowingly disclosing such information commits a
misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, F.S.
Section 440.1851, F.S., was originally passed and signed into law in 2017. Pursuant to the Act,
the section is set to stand repealed on October 2, 2022, unless saved from repeal through
reenactment.
35
The parties to whom disclosure may be made are: Another governmental entity, if disclosure is necessary for the receiving
entity to perform its duties and responsibilities; the National Association of Insurance Commissioners; or the consumer or the
legally authorized representative of the consumer. BILL: SPB 7018 Page 7
Senate Banking and Insurance Committee staff surveyed the DFS to ascertain whether the public
records exemption in s. 440.1851, F.S., remains necessary. Staff reviewed the DFS’s responses
to the questions to be considered by the Legislature in accordance with s. 119.115(6)(a), F.S. The
DFS recommends that the Legislature reenact this public records exemption without revision.
The DFS stated that, prior to the enactment of this exemption, the Division of Workers’
Compensation received approximately 90 public records requests per month for the names and
contact information of injured workers that were reported to the Division in the previous month.
On average, about 4,750 injured workers’ names were released each time one of these requests
were fulfilled by the Division. According to the DFS, the majority of the requesting parties were
law firms seeking to market their services to injured workers. The Division would regularly
receive communications from injured workers complaining about the solicitations they were
receiving and to ascertain how these firms acquired said workers’ personal information. In
addition, according to the DFS, background check companies would utilize this information
provide their clients with knowledge on whether prospective new hires had sustained a workers’
compensation injury and those clients subsequently potentially using such information to make
determinations on employment.
36
In addition, the DFS stated that it believes that s. 440.1851, F.S., mitigates unnecessary litigation
between injured workers and carriers on claim disputes. The DFS admits that “it is impossible to
definitively quantify the results,” but cites as evidence of the mitigating effect that the number of
Petitions for Benefits (PFB) filed with the Office of the Judges of Compensations (OJCC) have
only slightly increased since 2017, while, the actual number of “new cases” with PFBs have
stayed the same, despite Florida experience significant job growth during this time.
37
Though the
evidence cited by the DFS may be indicative of said mitigating effect, it is also possible that this
outcome was driven, at least in part, by other factors.
III. Effect of Proposed Changes:
Section 1 amends s. 440.1851, F.S., to delete the scheduled repeal of the current public records
exemption of personal identifying information of an injured or deceased employee which is
contained in reports, notices, records, or supporting documentation held by the DFS pursuant to
the Workers’ Compensation Law (ch. 440, F.S.). “Personal identifying information,” means the
injured or deceased employee’s name, date of birth, home mailing, or e-mail address, or
telephone number. This information will continue to be confidential and exempt from public
disclosure, subject to the disclosures permitted pursuant to s. 440.1851(1)(b), F.S.
Because the bill does not expand the public records exemption or the open meetings exemption,
the bill does not require a two-thirds vote of each house in order to pass.
Section 2 provides that the bill takes effect October 1, 2022.
36
Correspondence from the DFS (Sep. 24, 2021), on file with Senate Banking and Insurance Committee.
37
Id. BILL: SPB 7018 Page 8
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 continues a current public records exemption beyond its current date of
repeal; thus, the bill does not require an extraordinary vote for enactment.
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. This bill continues a current public records exemption without expansion.
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 personal identifying information of injured or deceased
employees held by the DFS. Specifically, the section seek to protect this information to protect
such persons from unwanted solicitation relating to workers compensation claims and protect
such workers from potential discrimination or social stigma relating to their injury or disability.
This bill exempts only an injured or deceased person’s name, date of birth, home address or
mailing address, e-mail address, and telephone number from the public records requirements.
Since these any of these pieces may potentially be used to “personally identify” an injured or
deceased person, 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. BILL: SPB 7018 Page 9
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends s. 440.185 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.