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 Governmental Oversight and Accountability
BILL: SPB 7024
INTRODUCER: Governmental Oversight and Accountability Committee
SUBJECT: OGSR/Alleged Victim or Victim of Sexual Harassment
DATE: January 14, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Limones-Borja McVaney GO submitted as Comm. Bill/Fav
I. Summary:
SPB 7024 saves from repeal the current exemption codified in s. 119.071(2)(n), F.S., which
makes the personal identifying information of the alleged victim in an allegation of sexual
harassment confidential and exempt from public inspection and copying. The bill expands this
exemption to include the personal identifying information of a victim of sexual harassment. The
bill clarifies that the personal identifying information is only confidential and exempt if the
information identifies that person as an alleged victim or a victim of sexual harassment. The bill
allows the alleged victim or victim to waive confidentiality. The bill provides a public necessity
statement.
The bill provides the exemption is subject to the Open Government Sunset Review Act and
unless reviewed and saved from repeal through reenactment by the Legislature shall be repealed
on October 2, 2027.
The bill is not expected to impact state or local government revenues and expenditures.
The bill takes effect October 1, 2022.
II. Present Situation:
Public Records Law
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
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
1
FLA. CONST., art. I, s. 24(a).
2
Id.
REVISED: BILL: SPB 7024 Page 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
[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
3
Public records laws are found throughout the Florida Statutes.
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. BILL: SPB 7024 Page 3
and must pass by a two-thirds vote of the members present and voting in each house of the
Legislature.
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 (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 2 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
12
FLA. CONST., art. I, s. 24(c).
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. BILL: SPB 7024 Page 4
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.
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
Regulation of Sexual Harassment
It is unlawful to harass a person (an applicant or employee) because of that person’s sex.
Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual
favors, and other verbal or physical harassment of a sexual nature.
26
Harassment does not have to be of a sexual nature, however, it can include offensive remarks
about a person’s sex. For example, it is illegal to harass a woman by making offensive comments
about women in general. Both victim and the harasser can be either a woman or a man, and the
victim and harasser can be the same sex.
27
Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that
are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile
or offensive work environment or when it results in an adverse employment decision (such as the
victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in
another area, a co-worker, or someone who is not an employee of the employer, such as a client
or customer.
28
Florida law states that sexual harassment is a form of discrimination.
29
The Department of
Management Services, the state’s personnel agency, has adopted rules on sexual harassment
applicable to all executive agencies. Rule 60L-40.001, F.A.C., provides that,
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?
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
U.S. Equal Employment Opportunity Commission website https://www.eeoc.gov/laws/types/sexual_harassment.cfm. (Last
visited October 4, 2021.)
27
Id.
28
Id.
29
Section 110.1221, F.S. BILL: SPB 7024 Page 5
Sexual harassment means unwelcome sexual advances, requests for sexual favors, or
other verbal or physical conduct of a sexual nature from any person directed towards or
in the presence of an employee or applicant when:
(a) Submission to such conduct is either explicitly or implicitly a term or condition of an
individual’s employment;
(b) Submission to or rejection of such conduct by an individual is used as the basis for
employment decisions affecting such individual; or
(c) Such conduct has the purpose or effect of unreasonably interfering with an
individual’s work performance or creating an intimidating, hostile, or offensive working
environment.
Open Government Sunset Review of the Public Records Exemption for Personal
Identifying Information of the Alleged Victim of Sexual Harassment
In 2017, the Legislature created the public records exemption to make the personal identifying
information of the alleged victim in an allegation of sexual harassment confidential and exempt
from public record requirements indefinitely. The government agency who holds the personal
identifying information of the alleged victim may only reveal such protected information to
another governmental entity in the furtherance of their duties. The public necessity statement, as
required by the State Constitution, specified that it is a public necessity to protect personal
identifying information of alleged victims because disclosure of the information could place
them at risk of further harassment and retaliation. In addition, the potential for disclosure of
identifying information could discourage alleged victims from reporting instances of alleged
harassment.
The Senate Governmental Oversight and Accountability Committee and the House Government
Operations Subcommittee surveyed multiple agencies to ascertain whether the public records
exemption in s. 119.071(2)(n), F.S., remains necessary. Staff reviewed the agencies’ responses
and a majority of the agencies recommend that the Legislature reenact the public records
exemption without any changes. A few responding agencies recommended clarification as to (1)
the time period for which the exempt status applies and (2) whether the alleged victim’s personal
identifying information is confidential and exempt in all contexts across agency records, or only
when used to identify that person as the alleged victim of sexual harassment.
III. Effect of Proposed Changes:
Section 1 amends s. 119.071, F.S., to make confidential and exempt from public inspection and
copying personal identifying information of a victim of sexual harassment as well as the alleged
victim in an allegation of sexual harassment. The section clarifies that such information is only
confidential and exempt if it identifies that person as an alleged victim or victim of sexual
harassment. The section permits the alleged victim or victim to waive confidentiality in writing.
The government agency who holds the identity of the alleged victim can only reveal the personal
identifying information to another governmental entities in the furtherance of their duties
Section 2 provides a public necessity statement, as required by the State Constitution, specifying
that it is a public necessity to protect personal identifying information of alleged victims and BILL: SPB 7024 Page 6
victims because disclosure of the information could place them at risk of further harassment and
retaliation or deter people from reporting instances of alleged harassment.
The bill provides for repeal of the exemption on October 2, 2027, unless reviewed and saved
from repeal through reenactment by the Legislature.
The bill takes effect on October 1, 2022.
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, 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 expands a current public records exemption. Thus,
the bill requires an extraordinary vote for enactment.
Public Necessity Statement
Article 1, 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 expands a current public records exemption to include
victims of sexual harassment thus a statement of public necessity was included.
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 this law is to protect the personal identifying information of the alleged
victim in an allegation of sexual harassment or the victim of sexual harassment. The
exemption does not appear to be broader than necessary to accomplish the purpose of the
law.
C. Trust Funds Restrictions:
None. BILL: SPB 7024 Page 7
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:
The private sector will continue to be subject to the cost associated with an agency’s
review and redactions of exempt records in response to a public records request.
C. Government Sector Impact:
The government sector will continue to incur costs related to the review and redaction of
exempt records associated with responding to public records requests.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 119.071(2)(n) 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.