This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1243.RRS
DATE: 3/25/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1243 Pub. Recs./Safety Standards for Amusement Rides
SPONSOR(S): Bracy Davis and others
TIED BILLS: HB 1241 IDEN./SIM. BILLS: SB 904
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development
Subcommittee
Larkin Anstead
2) Ethics, Elections & Open Government
Subcommittee
3) Commerce Committee
SUMMARY ANALYSIS
Department of Agriculture and Consumer Services’ (DACS) investigates accidents involving amusement rides
to evaluate the cause of the accident and impound a ride if it poses an immediate serious danger to public
health, safety and welfare. Currently, public records created during an active fair accident investigation are
available to the public. The disclosure of records during an active investigation may hinder the duration and
thoroughness of the investigation.
The bill provides:
That all investigatory records made or received by DACS pursuant to an investigation are confidential
and exempt from public records until the investigation is no longer active or it is completed.
That such exemption will be repealed on a specified date unless reviewed and saved from repeal.
The bill provides the following legislative intent: “The premature release of [investigative] records could
frustrate or thwart the investigation and impair the ability of the department to effectively and efficiently
administer the investigation.”
The bill does not appear to have a fiscal impact on state or local government.
The bill is effective on the same date that HB 1241 or similar legislation takes effect, if such legislation is
adopted in the same legislative session or an extension thereof and becomes a 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: h1243.RRS PAGE: 2
DATE: 3/25/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Access to Public Records
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
The right to inspect or copy 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
Additional requirements and exemptions related to public records are found in various statutes and
rules, depending on the branch of government involved. For instance, ch. 119, F.S., provides
requirements for public records held by executive agencies.
Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county and municipal
records are open for personal inspection and copying by any person, and that providing access to
public records is a duty of each agency.
3
A public record includes virtually any document or recording, regardless of its physical form or how it
may be transmitted.
4
The Florida Supreme Court has interpreted the statutory definition of “public
record” to include “material prepared in connection with official agency business which is intended to
perpetuate, communicate, or formalize knowledge of some type.”
5
The Florida Statutes specify conditions under which public access to public records must be provided.
The Public Records Act guarantees every person’s right to inspect and copy any public record at any
reasonable time, under reasonable conditions, and under supervision by the custodian of the public
record.
6
A violation of the Public Records Act may result in civil or criminal liability.
7
The Legislature may exempt
8
public records from public access requirements by passing a general law
by a two-thirds vote of both the House and the Senate.
9
The exemption must state with specificity the
public necessity justifying the exemption and must be no broader than necessary to accomplish the
stated purpose of the exemption.
10
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
S.119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of
this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or
private agency, person, partnership, corporation, or business entity acting on behalf of any public agency.”
4
S. 119.011(12), F.S., defines “public record” to mean “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 connection with the transaction of official business by any agency.”
5
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
6
S.119.07(1)(a), F.S.
7
S.119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those laws.
8
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.
9
FLA. CONST. art. I, s. 24(c).
10
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public meetings
exemption was unconstitutional because the statement of public necessity did not define important terms and did not justify the breadth
of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189 (Fla. 1st DCA 2004) (holding that a STORAGE NAME: h1243.RRS PAGE: 3
DATE: 3/25/2023
General exemptions from the public records requirements are contained in the Public Records Act.
11
Specific exemptions often are placed in the substantive statutes relating to a particular agency or
program.
12
When creating a public records exemption, the Legislature may provide that a record is “exempt” or
“confidential and exempt.” Custodians of records designated as “exempt” are not prohibited from
disclosing the record; rather, the exemption means that the custodian cannot be compelled to disclose
the record.
13
Custodians of records designated as “confidential and exempt” may not disclose the
record except under circumstances specifically defined by the Legislature.
14
Open Government Sunset Review Act
The Open Government Sunset Review Act
15
(the act) prescribes a legislative review process for newly
created or substantially amended
16
public records or open meetings exemptions, with specified
exceptions.
17
It requires the automatic repeal of such exemption on October 2nd of the fifth year after
creation or substantial amendment, unless the Legislature reenacts the exemption.
18
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 subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
20
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize the
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 information of a confidential nature concerning entities, such as trade or business
secrets.
22
In examining an exemption, the act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption. The act requires the Legislature to consider the following
specific questions in such a review:
23
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?
statutory provision written to bring another party within an existing public records exemption is unconstitutional without a public
necessity statement).
11
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of examinations
administered by a governmental agency for the purpose of licensure).
12
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the Department of
Revenue).
13
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
14
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5
th
DCA 2004).
15
Section 119.15, F.S.
16
An exemption is considered to be substantially amended if it is expanded to include more records or information or to include
meetings as well as records. Section 119.15(4)(b), F.S.
17
S. 119.15(2)(a) and (b), F.S., provide that exemptions that are required by federal law or are applicable solely to the Legislature or
the State Court System are not subject to the Open Government Sunset Review Act.
18
S. 119.15(3), F.S.
19
S. 119.15(6)(b), F.S.
20
S. 119.15(6)(b)1., F.S.
21
S. 119.15(6)(b)2., F.S.
22
S. 119.15(6)(b)3., F.S.
23
S. 119.15(6)(a), F.S. STORAGE NAME: h1243.RRS PAGE: 4
DATE: 3/25/2023
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?
If the exemption is continued and expanded, then a public necessity statement and a two-thirds vote for
passage are required.
24
If the exemption is continued without substantive changes or if the exemption is
continued and narrowed, then a public necessity statement and a two-thirds vote for passage are not
required. If the Legislature allows an exemption to sunset, the previously exempt records will remain
exempt unless provided for by law.
25
Active Fair Accident Investigations
Currently, active fair accident investigations are available to the public. These public records are not
exempt or confidential under the Public Reports Act. DACS investigates accidents involving
amusement rides to determine the cause of the accident, determine if a ride can continue to operate,
and impound a ride if it poses an immediate serious danger to public health, safety and welfare.
26
DACS has stated that released information can hinder the ability of the Department to conduct a timely
and through inquiry.
27
Effect of Bill
The bill:
Creates a public record exemption for investigatory records made or received by the
Department of Agriculture and Consumer Services. The public records exemption would stand
repealed on October 2, 2028, unless it is reenacted by the Legislature under the Open
Government Sunset Review Act.
Provides a statement of public necessity which is to allow the department to effectively and
efficiently administer safety standards for amusement rides.
Provides that releasing such records could jeopardize ongoing investigations. The Legislature
finds that the harm that may result from the release of these records outweigh public benefit
from the disclosure of the information.
Overall, the bill would permit DACS to withhold public records until the completion of the accident
investigation, so the investigation is not jeopardized.
B. SECTION DIRECTORY:
Section 1: Amends s. 616.242, F.S., by providing exemption from public records requirements for all
investigatory records made or received by the department pursuant to an active amusement ride
investigation; providing for future legislative review and repeal of exemption; providing a statement of
public necessity.
Section 2: Provides a contingent effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
24
See generally s. 119.15, F.S.
25
S. 119.15(7), F.S.
26
Florida Department of Agriculture and Consumer Services, Fair Rides Inspection, https://fdacs.gov/Business-Services/Fairs/Fair-
Rides-Inspection (last visited March 24, 2023).
27
Department of Agriculture and Consumer Services, Analysis of 2023 House Bill 1243, p. 1. STORAGE NAME: h1243.RRS PAGE: 5
DATE: 3/25/2023
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.
2. Other:
Vote Requirement
Article I, section 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.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record or public meeting exemption. The bill creates a public record
exemption; thus, it includes a public necessity statement. The public necessity statement provides,
in part, that revealing the personal information of DACS inspectors and investigators and their
family members may place them in danger of physical and emotional harm from disgruntled
individuals whose businesses or professional practices have come under the scrutiny of DACS.
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created or expanded public
record or public meeting exemption to be no broader than necessary to accomplish the stated
purpose of the law. The bill creates a public records exemption for sensitive investigative materials
and personal information, which does not appear to be broader than necessary to accomplish its
purpose.
B. RULE-MAKING AUTHORITY:
The bill neither requires nor authorizes administrative rulemaking by executive agencies. STORAGE NAME: h1243.RRS PAGE: 6
DATE: 3/25/2023
C. DRAFTING ISSUES OR OTHER COMMENTS:
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES