Florida 2023 2023 Regular Session

Florida House Bill H0911 Analysis / Analysis

Filed 03/20/2023

                    This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives. 
STORAGE NAME: h0911b.EEG 
DATE: 3/20/2023 
 
HOUSE OF REPRESENTATIVES STAFF ANALYSIS  
 
BILL #: CS/HB 911    Pub. Rec./E-mail Addresses and Secure Login Credentials/DOS 
SPONSOR(S): Constitutional Rights, Rule of Law & Government Operations Subcommittee, McFarland 
TIED BILLS:  CS/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 
13 Y, 0 N, As CS Wagoner Miller 
2) Ethics, Elections & Open Government 
Subcommittee 
 	Shapiro Toliver 
3) State Affairs Committee    
SUMMARY ANALYSIS 
CS/HB 909 authorizes the Department of State (DOS) to implement a password protected system for the 
electronic filing of certain records, such as business registration documents, trademarks, fictitious names, 
judgements, federal liens, and notary commissions. Corporations upload these records through Sunbiz, the 
official website of the DOS’s Division of Corporations (Division). Documents submitted to the Division are 
accepted without further inquiry if the submission meets the statutory requirements and is accompanied by the 
correct processing or filing fee.  
 
This bill, which is linked to the passage of CS/HB 909, creates a public record exemption for email addresses 
and secure login credentials held by the DOS for the purposes of the password protected system. 
 
The bill provides that the public record exemptions are 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and will stand repealed on October 2, 2028, unless reviewed and saved from repeal by the Legislature.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 statements of public necessity as required by the Florida Constitution. 
 
The bill will have a negative, but likely insignificant, fiscal impact on DOS and no fiscal impact on local 
governments. See Fiscal Comments. 
 
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. 
 
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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 accept submission of such documents 
electronically.
11
   
 
The Division of Corporations 
 
                                                
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, and 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, and 865, F.S. 
11
 S. 15.16(3), F.S.  STORAGE NAME: h0911b.EEG 	PAGE: 3 
DATE: 3/20/2023 
  
The Division of Corporations (Division) within DOS collects, maintains, and makes available to the 
public all information related to business entities and certain information related to sole proprietorships 
operating in Florida and certain financial transactions that take place in the state.
12
 The Division also 
serves as the State’s central filing location for filing: 
 Business entities; 
 Trade and service marks; 
 Fictitious name registrations; 
 Judgment and federal tax liens;  
 UCC financing statements; and 
 Notary commissions and apostilles.
13
 
 
Sunbiz 
 
All files maintained electronically by the Division may be accessed through its website — Sunbiz.
14
 
Records available through Sunbiz are easily accessible and searchable, including the filed records of 
business entities, trademarks, fictious names, federal liens, substitute service of process, notaries, and 
cable franchises. Corporations file and upload their records and pay fees through Sunbiz.
15
 All 
information filed electronically with the Division may be readily changed. If the submitted document 
meets the statutory requirements and is accompanied by the correct processing or filing fee, the 
document is accepted by the Division without further inquiry.
16
 
 
CS/HB 909 (2023) 
 
CS/HB 909, with which this bill is linked, permits DOS to implement a password protected system for 
the electronic filing of certain records, providing greater security as required documents are filed and 
maintained for public access. Additionally, CS/HB 909 provides a starting point for currently registered 
businesses to create an account by using their email address that is on file with DOS as of January 1, 
2024. Through this registered email address, DOS may require additional verification of an authorized 
account holder in order to file a record through the electronic system. 
 
Effect of the Bill 
 
The bill provides that email addresses collected and held by DOS pursuant to specific statutory 
chapters
17
 and secure login credentials held by DOS for purposes of a password protected system 
implemented pursuant to CS/HB 909, before, on, or after the effective date of the bill are exempt
18
 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.   
                                                
12
 Florida Division of Corporations, About Us, https://dos.myflorida.com/sunbiz/about-us/, (last visited March 16, 2023). 
13
 Id.  
14
 Florida Department of State, Search Records: Corporations, Limited Liability Companies, Limited Partnerships, and 
Trademarks, https://dos.myflorida.com/sunbiz/search/ (last visited March 10, 2023). 
15
 Florida Department of State, Start E-Filing, https://www.dos.myflorida.com/sunbiz/start-business/efile/ (last visited 
March 10, 2023).;  
16
 Florida Department of State, Florida Department of State’s Duties and Records, 
https://dos.myflorida.com/sunbiz/manage-business/mind-your-sunbizness/sunbizness-identity-theft-resource-guide/florida-
department-of-state-s-duties-and-records/, (last visited March 10, 2023);see also 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). 
17
 Chs. 48, 55, 117, 118, 495, 605, 606, 607, 610, 617, 620, 621, 679, 713, and 865, F.S. 
18
 There is a difference between records the Legislature designates exempt from public record requirements and those 
the Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed 
under certain circumstances. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review 
denied 892 So.2d 1015 (Fla. 2004); City of Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City 
of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential and exempt 
from public disclosure, such record may not be released by the custodian of public records to anyone other than the 
persons or entities specifically designated in statute. See Op. Att’y Gen. Fla. 04- 09 (2004).  STORAGE NAME: h0911b.EEG 	PAGE: 4 
DATE: 3/20/2023 
  
 
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. It also provides statements of public necessity as required by the 
Florida Constitution. 
 
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.  
 
Section 3 provides that the bill is effective on the same date that CS/HB 909 (2023) or similar legislation 
takes effect.  
II.  FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT 
 
A. FISCAL IMPACT ON STATE GOVERNMENT: 
 
1. Revenues: 
None.  
 
2. Expenditures: 
See Fiscal Comments. 
 
B. FISCAL IMPACT ON LOCAL GOVERNMENTS: 
 
1. Revenues: 
None. 
 
2. Expenditures: 
None. 
 
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: 
None.  
 
D. FISCAL COMMENTS: 
The bill may have a negative, but likely insignificant, fiscal impact on DOS 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 the agency. 
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. 
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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 creates an existing public record exemption 
and, thus, it requires, and includes, a public necessity statement. The public necessity statement 
provides that the identifying information exempted under the bill can be used as a tool to perpetuate 
fraud against an individual or corporation, the release of which could cause great financial harm to 
the individual or corporation. 
 
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 and therefore appears to be no broader than necessary to accomplish 
its stated purpose. 
 
B. RULE-MAKING AUTHORITY: 
The bill neither provides rulemaking authority nor requires rulemaking by executive branch agencies. 
 
C. DRAFTING ISSUES OR OTHER COMMENTS: 
None. 
IV.  AMENDMENTS/COMMITTEE SUB STITUTE CHANGES 
On March 9, 2023, the Constitutional Rights, Rule of Law & Government Operations Subcommittee 
adopted one amendment and reported the bill favorably as a committee substitute. The technical 
amendment conformed the bill to current statutory language.  
 
This analysis is drawn to the bill as amended by the Constitutional Rights, Rule of Law & Government 
Operations Subcommittee.