This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1437b.EEG
DATE: 3/27/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1437 Pub. Rec./Broadband Opportunity Program Information/DEO
SPONSOR(S): Energy, Communications & Cybersecurity Subcommittee, Esposito and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 552
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Energy, Communications & Cybersecurity
Subcommittee
18 Y, 0 N, As CS Mortellaro Keating
2) Ethics, Elections & Open Government
Subcommittee
Poreda Toliver
3) Commerce Committee
SUMMARY ANALYSIS
In 2021, the Legislature created the Broadband Opportunity Program to award grants to applicants who seek
to expand access to broadband Internet service in unserved areas of the state. The grant program is
administered by the Florida Office of Broadband within the Department of Economic Opportunity (DEO). The
grant process requires that certain information about existing and proposed telecommunications facilities be
submitted to DEO.
This bill creates a public record exemption for information relating to communications service locations, project
proposals, and challenges submitted to and held by DEO under s. 288.9962, F.S. Under the bill, such
information is confidential and exempt from public record requirements if it is not otherwise publicly available
and would reveal:
The location and capacity of communications network facilities;
Communications network areas, including geographical maps;
Features, functions, and capabilities of communications network infrastructure and facilities;
Security, including cybersecurity, of the design, construction, and operation of the communications
network and associated services and products;
Specific customer locations; or
Sources of funding or in-kind contributions for a project.
The bill provides that the exemption does not to apply to any required functions of DEO under s. 288.9962,
F.S., relating to publishing a description of the proposed unserved areas to be served and the proposed
broadband Internet speeds for those areas that are provided by each applicant.
The bill provides a statement of public necessity for this exemption. The statement provides that disclosing this
information could result in identification of vulnerabilities in networks, thus allowing security breaches that may
damage and disrupt their safe and reliable operation. This would adversely impact the public health and safety
of the state and affect business interests through such compromise of network security.
The public record exemption created by the bill is subject to the Open Government Sunset Review Act and will
repeal on October 2, 2028, unless reviewed and saved from repeal through reenactment by the Legislature.
The bill provides an effective date of July 1, 2023.
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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DATE: 3/27/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current 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 the right to inspect or copy any public
record from 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 the 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, revised, 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:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protect 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
Protect trade or business secrets.
6
Pursuant to the Open Government Sunset Review Act, a new public record 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.
Florida’s Office of Broadband
In 2020, the Legislature designated the Department of Economic Opportunity (DEO) as the lead state
agency to facilitate the expansion of broadband Internet service in the state.
7
The Florida Office of
Broadband (Office) was created within DEO’s Division of Community Development for purposes of
developing, marketing, and promoting broadband Internet service in the state.
8
In 2021, the Legislature appropriated $1.5 million to DEO to develop geographic information system
maps of broadband Internet service availability, including transmission speeds, consistent with the
Federal Communications Commission’s data collection program standards.
9
DEO must collaborate with
1
Article I, s. 24(a), FLA. CONST..
2
Article 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. S. 119.011(8), F.S.
4
S. 119.15, F.S.
5
S. 119.15(6)(b), F.S.
6
Id.
7
Ch. 2002-26, Laws of Fla.
8
Id.
9
Ch. 2021-24, Laws of Fla. STORAGE NAME: h1437b.EEG PAGE: 3
DATE: 3/27/2023
broadband service providers, state agencies, local government entities, private businesses, educational
institutions, and community organizations to develop these maps.
10
Through its website, DEO allows
for public input concerning the speed, connectivity, and access to broadband Internet service in areas
throughout the state to help identify unserved and underserved areas.
Broadband Opportunity Program
In 2021, the Legislature also created the Broadband Opportunity Program
11
to award grants to
applicants who seek to expand access to broadband Internet service
12
in unserved
13
areas of the state,
regardless of the technology to be used. Grant funds may not be used to provide broadband Internet
service to a geographic area where broadband Internet is already deployed by at least one provider.
14
Applicants eligible for grant awards include corporations, limited liability companies, general
partnerships, limited partnerships, political subdivisions, and Indian tribes.
15
In support of a grant application, an applicant must provide specified information, including, among
other things:
A description of the project area;
A description of the kind and amount of broadband Internet service infrastructure that is
proposed; and
Evidence demonstrating the unserved nature of the project area.
16
After the close of the grant application process, the Office must publish on its website, from each grant
application submitted, the proposed unserved areas to be served and the proposed broadband internet
speeds of the areas to be served.
17
If a broadband Internet service provider provides service in or adjacent to a proposed project area, it
can submit a written challenge to the Office within 45 days of the information’s publication. The
challenge must demonstrate:
The provider currently has deployed broadband Internet service to retail customers within the
project area;
The provider has begun construction to provide broadband Internet service to retail customers
within the proposed project area within the timeframe proposed by the applicant; or
The provider commits to providing broadband Internet service to retail customers within the
proposed project area within the timeframe proposed by the applicant.
Within three business days after the submission of a written challenge, the Office is to notify the
applicant of the challenge. The Office must evaluate each challenge submitted. If the Office determines
that the provider currently has deployed, has begun construction to provide, or commits to provide
broadband Internet service in the proposed project area, the Office may not fund the challenged
project.
18
10
Id.
11
Section 288.9962, F.S.
12
Section 288.9961(2)(a), F.S., defines the term “broadband Internet service” to mean any service that provides access to the Internet
with a capacity for transmission at a consistent speed of at least 25 megabits per second download and 3 megabits per second upload.
13
Section 288.9961(2)(g), F.S., defines the term “unserved” to mean a geographic area of the state without access to broadband
Internet service.
14
S. 288.9962(2), F.S.
15
S. 288.9962(3), F.S.
16
S. 288.9962(5), F.S.
17
S. 288.9962(6)(b), F.S.
18
S. 288.9962(e), F.S. STORAGE NAME: h1437b.EEG PAGE: 4
DATE: 3/27/2023
Effect of the Bill
The bill creates a public record exemption by providing that information relating to communications
services locations, project proposals, and challenges submitted to and held by DEO under s. 288.9962,
F.S., are confidential and exempt
19
from public record requirements if the information is not otherwise
publicly available and would reveal:
The location and capacity of communications network facilities;
Communications network areas, including geographical maps indicating actual or proposed
locations of network infrastructure, facilities, or coverage;
Features, functions, and capabilities of communications network infrastructure and facilities;
Security, including cybersecurity, of the design, construction, and operation of the
communications network and associated services and products;
Specific customer locations;
Sources of funding or in-kind contributions for a project.
The bill states the exemption does not apply to any required functions of DEO under s. 288.9962, F.S.,
relating to publishing a description of the proposed unserved areas to be served and the proposed
broadband Internet speeds for those areas that are provided by each applicant.
The bill provides that there is a public necessity for this exemption because the information at issue
contains security information and propriety business information of communications services providers.
The bill states that disclosing sensitive information relating to locations, capacities, features, functions,
and security of these networks, aids in identifying vulnerabilities which could result in a breach. A
breach may damage and disrupt the safe and reliable operation of such networks, adversely impacting
the public health and safety of the state and affecting business interests through such compromise of
the network security for communications services providers.
The public record exemption created by the bill is subject to the Open Government Sunset Review Act
and will automatically repeal on October 2, 2028, unless reviewed and saved from repeal by the
Legislature.
The bill provides an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 119.0712, F.S., to create a public records exemption for certain information
held by the Department of Economic Opportunity.
Section 2. Provides a public necessity statement.
Section 3. Provides an effective date.
19
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.
(1985). STORAGE NAME: h1437b.EEG PAGE: 5
DATE: 3/27/2023
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill may have an insignificant negative fiscal impact on DEO as agency staff responsible for
complying with public record requests may require training related to the newly created public
record exemption. These costs, however, would be absorbed, as they are part of the day-to-day
responsibilities of the agency.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditure of funds; reduce the authority that counties and municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties and
municipalities.
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 the information at issue contains security information and propriety business information
of communications services providers and disclosing such sensitive information could aid in
identifying vulnerabilities which could result in a breach.
Breadth of Exemption STORAGE NAME: h1437b.EEG PAGE: 6
DATE: 3/27/2023
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 information relating to
communications service locations, project proposals, and challenges submitted to and held by DEO
under s. 288.9962, F.S, which does not appear to be broader than necessary to accomplish its
purpose.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 21, 2023, the Energy, Communications & Cybersecurity Subcommittee adopted one amendment to
the bill and reported the bill favorably as a committee substitute. The amendment:
Removes information that reveals communication network coverage areas from the public record
exemption created by this bill.
Clarifies that the exemption does not apply to publication of information by the Department of Economic
Opportunity that identifies specified areas proposed to be served, and the broadband Internet speeds in
those areas, under the requirements of the state’s Broadband Opportunity Program.
Modifies the public necessity statement to state specifically that communications services providers are
at risk and identify information that if exposed without the exemption would lead to harm.
The analysis is drafted to the committee substitute as passed by the Energy, Communications & Cybersecurity
Subcommittee.