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 Criminal Justice
BILL: SPB 7030
INTRODUCER: Criminal Justice Committee
SUBJECT: OGSR/Health Information of an Inmate or an Offender
DATE: January 18, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Siples Jones CJ Submitted as Comm. Bill/Fav
I. Summary:
SPB 7030 amends s. 945.10, F.S., to save from repeal the current exemptions from public
records disclosure of an inmate’s or offender’s protected health information and HIV testing
information held by the Department of Corrections (DOC).
The original public necessity statement provides that it is a public necessity that an inmate’s or
offender’s protected health information and HIV testing held by the DOC remain confidential
and exempt from public disclosure. Allowing such information to be publicly disclosed would, in
some cases, conflict with federal law and would be a violation of the inmate’s or prisoner’s
privacy under the Florida Constitution. Additionally, maintaining the confidentiality of HIV
testing information is essential to an inmate’s or prisoner’s participation in such testing.
These exemptions, relating to protected health information and HIV testing information of an
inmate or offender held by the DOC, are subject to the Open Government Sunset Review Act
and stand repealed on October 2, 2022, unless reviewed and saved from repeal through
reenactment by the Legislature. This bill removes the scheduled repeal of the exemptions.
The bill is not expected to impact state or local revenues or expenditures.
The bill is effective 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
1
FLA. CONST., art. I, s. 24(a).
REVISED: BILL: SPB 7030 Page 2
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
[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
2
Id.
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). BILL: SPB 7030 Page 3
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
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
10
Id.
11
The bill may, however, contain multiple exemptions that relate to one subject.
12
FLA. CONST., art. I, s. 24(c)
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. 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. BILL: SPB 7030 Page 4
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.
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
Provision of Health by DOC
The DOC is responsible for the inmates of the state correctional system and has supervisory and
protective care, custody, and control of the inmates within its facilities.
26
The DOC has the
constitutional and statutory imperative to provide adequate health services to state prison inmates
directly related to this responsibility.
27
This medical care includes comprehensive medical,
mental health, and dental services, and all associated ancillary services.
28
The DOC’s Office of
Health Service (OHS) oversees the delivery of health care services and handles statewide
functions for such delivery. The OHS is led by the Director of Health Services, who reports to
the Secretary.
29
The DOC contracts with the Centurion of Florida, LLC (Centurion) to provide comprehensive
statewide medical, mental health, dental services, and operates the DOC’s reception medical
center. The care provided is under a managed care model. All inmates are screened at a DOC
reception center upon arrival from the county jail. The purpose of this intake process is to
determine the inmate’s current medical, dental, and mental health care needs, which is achieved
through assessments, in part, for auditory, mobility and vision disabilities, and the need for
specialized mental health treatment.
30
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?
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
Sections 945.04(1) and 945.025(1), F.S.
27
Crews v. Florida Public Employers Council 79, AFSCME, 113 So. 3d 1063 (Fla. 1st DCA 2013); See also s. 945.025(2),
F.S.
28
The DOC, Office of Health Services, available at http://www.dc.state.fl.us/org/health.html (last visited January 4, 2022).
29
Id.
30
Id. See also the DOC Annual Report, p. 19. BILL: SPB 7030 Page 5
After the intake process is completed, inmates are assigned to an institution based on their
medical and mental health needs and security requirements. Centurion provides primary care
using a staff of clinicians, nurses, mental health, and dental professionals and administrators
within each major correctional institution. The health services team provides health care services
in the dorms for inmates who are in confinement.
31
The Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Rule
HIPAA was enacted on August 21, 1996, to publicize standards for the electronic exchange,
privacy, and security of health information.
32
The Privacy Rule (rule) adopted by the U.S.
Department of Health and Human Services (HHS) was required by the HIPAA
33
to address the
use and disclosure of personal health information. The requirements of the rule apply to
individual and group health plans that provide or pay the cost of medical care, every health care
provider that electronically transmits health information in connection with certain transactions,
and health care clearinghouses that process nonstandard information received from another entity
into a standard format or that process standard information into a nonstandard format. Under the
rule, all “individually identifiable health information” is protected. Such information includes
demographic data such as an individual’s name, address, date of birth, and social security
number; the individual’s past, present, or future physical or mental health condition; the
provision of health care to such individual; and payments made or to be made for the provision
of health care to the individual. Unless for the purposes authorized by the rule, protected health
information may not be disclosed without the written authorization of the protected individual.
34
Department of Corrections and HIPAA
The DOC is a covered entity for purposes of the rule. The DOC provides comprehensive health
care for inmates, including medical, mental health, dental services and all associated ancillary
services.
35
“Within [a correctional] system, inmates’ health information may originate from or reside in
many locations, including booking notes (e.g., infectious or chronic disease status), sick-call
triage systems, physician notes, and other departments such as housing and work details (e.g.,
mobility or injury status).”
36
The rule protects the health information of inmates, but also
recognizes that correctional facilities have legitimate needs to use and share the information
without authorization by the inmate. Thus, the rule includes provisions regarding permissible
uses and disclosures of inmates’ health information in the correctional context.
31
Id.
32
U.S. Dep’t of Health and Human Services, Summary of the HIPAA Privacy Rule, available at
https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited January 4, 2022).
33
45 CFR Parts 160, 162, and 164.
34
Id.
35
Supra note 28.
36
Melissa M. Goldstein, JD, Health Information Privacy and Health Information Technology in the US Correctional Setting,
AM J Public Health, 2014 May, 104(5): 803-809, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3987588/ (last
visited January 4, 2022). BILL: SPB 7030 Page 6
Covered entities may disclose the PHI [personal health information] of inmates
without their authorization to correctional institutions or law enforcement officials
who have lawful custody of an inmate for the purpose of providing health care to
the inmate or for the health and safety of the inmate, other inmates, the officers
and employees of the institution and others at the facility, and those responsible
for inmate transfer. Covered entities may also disclose the PHI of inmates without
authorization for law enforcement purposes on the premises of an institution and
for the administration and maintenance of the safety, security, and good order of
the institution. These provisions apply only to the release of the PHI of current
inmates. When inmates are released, they have the same privacy rights under
HIPAA as all other individuals.
37
Public Records Exemption for Personal Health Information and HIV Testing Information
In 2017, the Legislature amended s. 945.10, F.S., to classify the following records held by the
DOC as confidential and exempt from Florida’s public record law:
“Protected health information”
38
of an inmate or an offender;
HIV tests
39
of an inmate or offender; and
HIV test results
40
received on an inmate or offender.
Section 945.10(2), F.S., provides that protected health information, as well as mental health,
medical, and substance abuse records, may be released to:
The Executive Office of the Governor, the Correctional Medical Authority, and the
Department of Health for health care oversight activities authorized by state or federal law,
including audits; civil, administrative, or criminal investigations; or inspections relating to
the provision of health services;
41
A state attorney, a state court, or a law enforcement agency conducting an ongoing criminal
investigation if the inmate agrees to the disclosure and provides written consent. If the inmate
refuses to provide written consent, in response to a court order, a subpoena, investigative, or
37
Id.
38
45 C.F.R. s. 160.103, defines “protected health information” to mean individually identifiable health information that is:
transmitted by electronic media; maintained in electronic media; or transmitted or maintained in any other form or medium.
Protected health information excludes individually identifiable health information: in education records covered by the
Family Educational Rights and Privacy Act; in records described at 20 U.S.C. 1232g(a)(4)(B)(iv)(education records on a
student who is eighteen years of age or older, or is attending an institution of postsecondary education, which are made or
maintained by physician, psychiatrist, psychologist); in employment records held by a covered entity in its role as employer;
and regarding a person who has been deceased for more than 50 years.
39
“HIV test” means a test ordered after July 6, 1988, to determine the presence of the antibody or antigen to human
immunodeficiency virus or the presence of human immunodeficiency virus infection. (Section 381.004, F.S.).
40
“HIV test result” means a laboratory report of a human immunodeficiency virus test result entered into a medical record on
or after July 6, 1988, or any report or notation in a medical record of a laboratory report of a human immunodeficiency virus
test. The term does not include test results reported to a health care provider by a patient. (Section 381.004, F.S.).
41
45 C.F.R. 164.512(d). BILL: SPB 7030 Page 7
administrative subpoena, a court-ordered warrant, or a statutorily authorized investigative
demand or other process
42
the records can be released to such persons provided that:
o The protected health information and records sought are relevant and material to a
legitimate law enforcement inquiry;
o There is a clear connection between the investigated incident and the inmate’s protected
health information;
o The request is specific and limited in scope to the extent reasonably practicable; and
o De-identified information could not be reasonably used.
43
A state attorney or a law enforcement agency if an inmate is or is suspected of being a victim
of a crime if the inmate agrees to the disclosure and provides written consent. If the inmate is
unable to agree because of incapacity or other emergency circumstances
44
provided that:
o The information is needed to determine whether a violation of law by a person other than
the inmate has occurred;
o The information is not intended to be used against the inmate victim;
o The immediate law enforcement activity would be materially and adversely affected by
waiting until the inmate victim is able to agree to the disclosure; and
o The disclosure is in the best interests of the inmate victim, as determined by the
department.
45
A state attorney or a law enforcement agency if the department believes in good faith that the
information and records constitute evidence of criminal conduct that occurred in a
correctional institution or facility provided that:
o The protected information and records are specific and limited in scope to the extent
reasonably practicable in light of the purpose for which the information or records are
sought;
o There is a clear connection between the criminal conduct and the inmate whose protected
health information and records are sought; and
o De-identified information could not reasonably be used.
46
The Division of Risk Management of the Department of Financial Services upon certification
by the Division that the information is necessary to investigate and provide legal
representation for a claim against the DOC.
47
The Department of Legal Affairs or an attorney retained to represent the DOC if the inmate is
bringing a legal action against the department.
48
Another correctional institution or law enforcement official having lawful custody of the
inmate if the protected health information or records are necessary for:
o The provision of health care to the inmate;
o The health and safety of the inmate or other inmates;
o The health and safety of the officers, employees, or others at the correctional institution
or facility;
42
All orders, subpoenas, warrants, or other statutorily authorized demand must be in accordance with 45 C.F.R 164, part E,
governing security and privacy of health information.
43
45 C.F.R. 164.512(f)(1).
44
The circumstances must be in accordance with 45 C.F.R. 164, part E, governing security and privacy of health information.
45
45 C.F.R. 164.512(f)(3).
46
45 C.F.R. 164.512(f)(5).
47
45 C.F.R. 164.508(a)(2)(C).
48
Id. BILL: SPB 7030 Page 8
o The health and safety of the individuals or officers responsible for transporting the inmate
from one correctional institution, facility, or setting to another;
o Law enforcement on the premises of the correctional institution or facility; or
o The administration and maintenance of the safety, security, and good order of the
correctional institution or facility.
49
The Department of Children and Families and the Florida Commission on Offender Review
if the inmate received mental health treatment while in the custody of the DOC and becomes
eligible for release under supervision or upon the end of his or her sentence.
50
The DOC may also release the protected health information and mental health, medical, or
substance abuse records of an inmate to persons acting on behalf of a deceased inmate or
offender only for the purpose of requesting access to the information if:
The person is appointed by a court to act as the personal representative, executor,
administrator, curator, or temporary administrator of the deceased inmate’s or offender’s
estate;
A court has not made a judicial appointment, but the person was designated as a personal
representative in a last will and testament; or
A court has not made a judicial appointment and the inmate or offender has not designated a
person in a self-proved last will. In such case, persons include surviving spouses, adult
children, and parents of the inmate or offender.
51
Protected health information, as well as mental health, medical, and substance abuse records may
also be obtained by subpoena or other court process.
52
Public Necessity for Exemption
In creating the exemption, the Legislature articulated the following reasons for the exemption:
[I]t is a public necessity that an inmate’s or offender’s protected health
information and HIV testing information held by the Department of
Corrections pursuant to s. 945.10, Florida Statutes, remain confidential
and exempt from public disclosure as the Legislature envisioned in this
statute and as provided in department rules. Allowing protected health
information to be publicly disclosed would in some cases cause a conflict
with existing federal law and would be a violation of an inmate’s or
offender’s privacy under the State Constitution. Maintaining the
confidentiality of an inmate’s or offender’s HIV testing information is
essential to his or her participation in such testing. Thus, the harm from
disclosure would outweigh any public benefit derived therefrom.
Appropriate records and protected health information are available,
however, to various governmental entities in order for them to perform
their duties. It is mandatory that prisons function as effectively, efficiently,
and nonviolently as possible. To release such information to the public
49
45 C.F.R. 164.512(f)(5).
50
45 C.F.R. 164.512(d)(2) or (6).
51
45 C.F.R. 164.512(g).
52
45 C.F.D. 164.512(e). BILL: SPB 7030 Page 9
would severely impede that function and would jeopardize the health and
safety of those within and outside the prison system.
53
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on
October 2, 2022, unless reenacted by the Legislature.
54
The DOC reports that since 2019, its Office of Inspector General, which processes a portion of
DOC’s requests for public records, has asserted the exemption under s. 945.10(1)(a), F.S., for
398 requests out of a total of 800 responses.
55
Further, it reports that it has asserted the exemption
approximately 800 times since 2017 and there has not been any litigation involving the
exemption since its enactment. The DOC recommends retaining the exemption in its current
form.
56
III. Effect of Proposed Changes:
The bill amends s. 945.10(1)(a)2. and (h), F.S., to save from repeal the current exemptions from
public records disclosure of an inmate’s or offender’s personal health information or HIV testing
information held by the DOC.
The bill deletes the scheduled repeal of the current public records exemption for an inmate’s or
offender’s personal health information or HIV testing information held by the DOC.
The bill is effective October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The mandate restrictions do not apply because the bill does not require counties and
municipalities to spend funds, reduce counties’ or municipalities’ ability to raise revenue,
or reduce the percentage of state tax shared with counties and 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 continues a current public records exemption
beyond its current date of repeal; thus, the bill does not require an extraordinary vote for
enactment.
53
Chapter 2017-114, Laws of Fla.
54
Section 945.10(1)(a)2. and (h), F.S.
55
E-mail correspondence from Philip A. Fowler, Attorney Supervisory, Administration Unit, Florida Department of
Corrections, (September 14, 2021) (on file with the Senate Committee on Criminal Justice). The DOC’s central office also
receives public records requests and has asserted the exemption, it was unable to identify the number of times the exemption
was asserted due to the volume of requests received and the need to manually review each response.
56
Id., and interview with staff from the DOC (August 26, 2021). BILL: SPB 7030 Page 10
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 exemptions is to protect an inmate’s or offender’s personal health
information and HIV testing information. 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 identified.
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. BILL: SPB 7030 Page 11
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.