This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0911.CRG
DATE: 3/7/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 911 Pub. Rec./E-mail Addresses and Secure Login Credentials/DOS
SPONSOR(S): McFarland
TIED BILLS: HB 909 IDEN./SIM. BILLS: SB 946
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Constitutional Rights, Rule of Law &
Government Operations Subcommittee
Wagoner Miller
2) Ethics, Elections & Open Government
Subcommittee
3) State Affairs Committee
SUMMARY ANALYSIS
HB 909 authorizes the Department of State (DOS) to implement a password protected system for the
electronic filing of certain records under section 15.16(3), F.S.
This bill, which is linked to the passage of HB 909, creates a public records exemption for email addresses and
“secure” login credentials held by the DOS for the purposes of the password protected system.
HB 911 creates a public records exemption of those email addresses and login credentials held by the DOS
before, on, or after the effective date of the bill.
The bill provides that the public record exemption is subject to the Open Government Sunset Review Act and
will stand repealed on October 2, 2028, unless reviewed and saved from repeal by the Legislature. It also
provides a statement of public necessity as required by the Florida Constitution.
The bill has an insignificant, negative fiscal impact on DOS and no fiscal impact on local governments. See
Fiscal Comments.
The bill will become effective on the same date that HB 909 or similar legislation takes effect, if such legislation
is adopted in the same legislative session or an extension thereof and becomes law.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
STORAGE NAME: h0911.CRG PAGE: 2
DATE: 3/7/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government.
1
The Legislature, however, may
provide by general law for exemption from public record requirements provided the exemption passes
by two-thirds vote of each chamber, states with specificity the public necessity justifying the exemption,
and is no broader than necessary to meet its public purpose.
2
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., guarantees every person a right to inspect and copy any state, county, or municipal
record, unless the record is exempt.
3
Furthermore, the Open Government Sunset Review Act
4
provides
that a public record exemption may be created or maintained only if it serves an identifiable public
purpose and the “Legislature finds that the purpose is sufficiently compelling to override the strong
public policy of open government and cannot be accomplished without the exemption.”
5
An identifiable
public purpose is served if the exemption meets one of the following purposes:
Allows the state or its political subdivisions to effectively and efficiently administer a governmental
program, which administration would be significantly impaired without the exemption;
Protects sensitive personal information that, if released, would be defamatory or would jeopardize
an individual’s safety; however, only the identity of an individual may be exempted under this
provision; or
Protects trade or business secrets.
6
Pursuant to the Open Government Sunset Review Act, a new public records exemption or substantial
amendment of an existing public record exemption is repealed on October 2
nd
of the fifth year following
enactment, unless the Legislature reenacts the exemption.
Documents Filed with Department of State
The Department of State (DOS) is the state’s central location responsible for receiving and maintaining
a number of documents as required by statute, such as service of process for legal proceedings,
7
articles of incorporation,
8
or registration of fictitious names.
9
In receiving and filing required records
under 15 different statutory chapters,
10
DOS may provide that such documents may be submitted
electronically.
11
Public Access to Department of State Filing Data
1
Art. I, s. 24(a), FLA. CONST.
2
Art. I, s. 24(c), FLA. CONST.
3
A public record exemption means a provision of general law which provides that a specified record, or portion thereof, is
not subject to the access requirements of s. 119.07(1), F.S., or s. 24, Art. I of the State Constitution. See s. 119.011(8),
F.S.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
Id.
7
See, e.g., ss. 48,061, 48.062, 48.181, F.S.
8
S. 607.0203, F.S.
9
S. 865.09, F.S.
10
Chs. 48, 55, 117, 118, 495, 605, 606, 607, 610, 617, 620, 621, 679, 713, 865, F.S.
11
S. 15.16(3), F.S. STORAGE NAME: h0911.CRG PAGE: 3
DATE: 3/7/2023
All files maintained electronically by the Division of Corporations (Division) may be accessed through its
website.
12
Records available through this website are easily accessible and searchable, including filed
records of business entities, trademarks, fictious names, federal liens, substitute service of process,
notaries, and cable franchises. The public may access and search specific records filed and maintained
as required by various statutes listed in s. 15.16(3), F.S.
Using the website of the Division, corporations use a specific link to file or update their records and pay
fees.
13
Information submitted in proper form through DOS’s website is accepted without further inquiry.
All information filed electronically with DOS may be readily changed. Provided the document submitted
meets the statutory requirements and is accompanied by the correct processing or filing fee, the
document is accepted by DOS.
14
Effect of the Bill
The bill provides that email addresses collected and held by DOS pursuant to specific statutory
chapters
15
and secure login credentials held by DOS for purposes of a password protected system
implemented pursuant to s. 15.16(3), F.S., before, on, or after the effective date of the bill are exempt
from public disclosure. The bill defines “secure login credentials” to mean information held by the DOS
for the purposes authenticating a user login-in on an electronic device accessible over the internet, or
information used for authentication or password recovery.
The bill provides that the public records exemptions created are subject to the Open Government
Sunset Review Act and will stand repealed on October 2, 2028, unless saved from repeal by
reenactment by the Legislature.
The bill provides a public necessity statement for the public records exemption, as required by the
State Constitution, and states that email addresses and secure login credentials held by the DOS for
purposes of a password protected system implemented pursuant to s. 15.16(3), F.S., could be used as
tools to perpetuate fraud against an individual or a corporation, and the release of this information could
cause great financial harm to an individual or a corporation.
The effective date of this bill is the same date that HB 909 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof becomes law.
B. SECTION DIRECTORY:
Section 1 amends s. 119.0172, F.S., relating to executive branch agency-specific exemptions from
inspection or copying of public records.
Section 2 provides a public necessity statement as required by the State Constitution.
Section 3 provides that the bill is effective on the same date that HB 909 (2023) or similar legislation
takes effect.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
12
www.dos.myflorida.com/sunbiz (March 3, 2023).
13
www.dos.myflorida.com/sunbiz/forms/corporations/#flcorpforms (March 3, 2023).
14
Derek Gilliam, Sarasota Rep. McFarland files bill to secure Sunbiz.org, prevent hijacking of businesses, Herald-Tribune
(Feb. 22, 2023), www.heraldtribune.com (last visited March 2, 2023).
15
Chs. 48, 55, 117, 118, 495, 605, 606, 607, 610, 617, 620, 621, 679, 713, 865, F.S. STORAGE NAME: h0911.CRG PAGE: 4
DATE: 3/7/2023
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Not Applicable.
2. Expenditures:
Not Applicable. This bill does not appear to affect county or municipal governments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on the Department of State because agency staff responsible
for complying with public records requests may require training related to the creation of the public
record exemption. The costs, however, would be absorbed as they are part of the day-to-day
responsibilities of agencies.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
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 newly created or expanded public records exemption.
Public Necessity Statement
Article I, section 24(c) of the State Constitution requires a public necessity statement for a newly
created or expanded public records exemption. The bill expands an existing public record exemption
and, thus, it requires, and includes, a public necessity statement.
Breadth of Exemption
Article I, section 24(c) of the State Constitution requires a newly created or expanded public records
exemption to be no broader than necessary to accomplish the stated purpose of the law. HB 911
exempts only specified information collected for the purpose of providing secure login credentials to
file specific documents online.
B. RULE-MAKING AUTHORITY:
The bill neither provides rulemaking authority nor requires rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS: STORAGE NAME: h0911.CRG PAGE: 5
DATE: 3/7/2023
The bill is drawn to the text of s. 15.16(3), F.S., as in effect prior to January 2, 2023. Chapter 2022-190,
s. 1, Laws of Fla., amended the statute by the phrase “or authorized” and by adding filings under ch.
48, F.S., to the list of documents which DOS could request be filed electronically, but that change did
not go into effect until January 2, 2023. See ch. 2022-190, s. 36, Laws of Fla. A technical amendment is
required to conform the bill to the text of the statute presently in effect.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES