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 Governmental Oversight and Accountability
BILL: CS/SB 216
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Burgess
SUBJECT: Public Records/Current and Former County and City Attorneys
DATE: April 5, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hunter Ryon CA Favorable
2. Limones-Borja McVaney GO Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 216 exempts from public records copying and inspection requirements certain identifying
information of current county attorneys, deputy county attorneys, assistant county attorneys, city
attorneys, deputy city attorneys, and assistant city attorneys. Identifying information relating to
their spouses and children is likewise exempt. The specific information made exempt from
public records disclosure requirements includes:
Home addresses, telephone numbers, places of employment, and dates of birth;
Names, home addresses, telephone numbers, places of employment, and dates of birth of the
spouses and children; and
Names and locations of schools and day care facilities attended by the children.
The exemption does not apply to a current county attorney, deputy county attorney, assistant
county attorney, city attorney, deputy city attorney, or assistant city attorney who qualifies as a
candidate for election to public office.
A statement of public necessity is included in the bill as required by the State Constitution.
This bill is subject to the Open Government Sunset Review Act and stands repealed on
October 2, 2024, consistent with the other agency personnel exemptions in s. 119.071(4)(d), F.S.,
unless reviewed and saved from the repeal through reenactment by the Legislature.
REVISED: BILL: CS/SB 216 Page 2
Because this bill creates a public records exemption, it will require a two-thirds vote of each
house in order to pass.
The bill is not expected to impact state and local government revenues and expenditures.
The bill is effective July 1, 2023.
II. Present Situation:
Access to Public Records - Generally
The state 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, s. 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the Legislature.
3
Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.
4
Lastly,
chapter 119, F.S., known as the Public Records Act, provides requirements for public records
held by executive agencies.
Executive Agency Records – The Public Records Act
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.
5
Section 119.011(12), F.S., defines “public records” to include:
[a] ll 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.
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2020-2022) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2020-2022).
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 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.” BILL: CS/SB 216 Page 3
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business that are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
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.
7
A violation of the Public Records Act may result in civil or
criminal liability.
8
The Legislature may exempt 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
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.” 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
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).
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 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
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). BILL: CS/SB 216 Page 4
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
The Act requires the repeal of
such exemption on October 2nd of the fifth year after creation or substantial amendment, unless
the Legislature reenacts the exemption.
19
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.
20
An exemption serves an identifiable purpose if the Legislature finds that the purpose of the
exemption outweighs open government policy and cannot be accomplished without the
exemption and it meets one of the following purposes:
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;
21
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;
22
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
23
The Act also requires specified questions to be considered during the review process.
24
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.
25
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
16
Section 119.15, F.S.
17
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.
18
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.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
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?
25
See generally s. 119.15, F.S. BILL: CS/SB 216 Page 5
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.
26
Public Records Exemptions for Specified Personnel and their Families
Provisions in s. 119.071(4)(d), F.S., exempt from public disclosure certain personal identification
and location information of specified state and local government agency personnel and their
spouses and children. Personnel covered by these exemptions include:
Active or former sworn or civilian law enforcement personnel employed by a law
enforcement agency;
27
Certain current or former nonsworn investigative personnel of the Department of Financial
Services;
28
Certain current or former nonsworn investigative personnel of the Office of Financial
Regulation’s Bureau of Financial Investigations;
29
Current or former certified firefighters;
30
Current or former justices of the Supreme Court, district court of appeal judges, circuit court
judges, and county court judges;
31
Current or former state attorneys, assistant state attorneys, statewide prosecutors, and
assistant statewide prosecutors;
32
Current or former code enforcement officers;
33
Current or former guardians ad litem;
34
Current or former public defenders, assistant public defenders, criminal conflict and civil
regional counsel, and assistant criminal conflict and civil regional counsel;
35
Current or former investigators or inspectors of the Department of Business and Professional
Regulation;
36
County tax collectors;
37
Current or former certified emergency medical technicians and paramedics;
38
Current or former directors, managers, supervisors, nurses, and clinical employees of an
addiction treatment facility;
39
Current or former directors, managers, supervisors, and clinical employees of certain child
advocacy centers;
40
and
26
Section 119.15(7), F.S.
27
Section 119.071(4)(d)2.a., F.S.
28
Section 119.071(4)(d)2.b., F.S.
29
Section 119.071(4)(d)2.c., F.S.
30
Section 119.071(4)(d)2.d., F.S.
31
Section 119.071(4)(d)2.e., F.S.
32
Section 119.071(4)(d)2.f., F.S.
33
Section 119.071(4)(d)2.i., F.S.
34
Section 119.071(4)(d)2.j., F.S.
35
Section 119.071(4)(d)2.l., F.S.
36
Section 119.071(4)(d)2.m., F.S.
37
Section 119.071(4)(d)2.n., F.S.
38
Section 119.071(4)(d)2.q., F.S.
39
Section 119.071(4)(d)2.s., F.S.
40
Section 119.071(4)(d)2.t., F.S. BILL: CS/SB 216 Page 6
Current or former staff of domestic violence centers, including domestic violence
advocates.
41
The specified exempt information for each profession provided in s. 119.071(4)(d), F.S., varies
among the professions. Generally, the home addresses,
42
telephone numbers,
43
dates of birth of
the specified personnel are exempt, as are the identifying information of their spouse and
children, including place of employment, school and/or daycare facility. For many of the
professions, photographs of the employee are exempt,
44
and in some instances, the photographs
of the employee’s spouse and children are exempt as well.
45
The employing agency or the employee must assert the right to the exemption by submitting a
written and notarized request to each non-employer agency that holds the employee’s
information.
46
Further, all of these exemptions have retroactive application, applying to
information held by an agency before, on, or after the effective date of the exemption.
47
The exemptions for specified agency personnel in s. 119.071(4)(d), F.S., are subject to the Open
Government Sunset Review Act and stand repealed on October 2, 2024, unless reviewed and
saved from repeal by the Legislature.
Position of County Attorney and City Attorney
The term “county attorney” is not defined by statute, but is referenced in eight statutes as a local
government employee expected to assist in the enforcement of various laws.
48
Similarly, the term
“city attorney” is not defined by statute, but is referenced in four statutes, again as a local
government employee expected to assist in the enforcement of various laws.
49
The duties of a county attorney or city attorney vary and are set by the governing board of the
local government. The duties of an assistant county attorney or assistant city attorney are set by
their respective county attorney or city attorney. As an example, one county defines the duties of
its county attorney as follows:
Employing and managing all personnel of the County Attorney’s Office, establishing the
organizational framework of the office, and supervising the conduct of all employees of the
Office of the County Attorney.
41
Section 119.071(4)(d)2.u., F.S.
42
Section 119.071(4)(d)1.a., F.S., defines “home addresses” to mean “the dwelling location at which an individual resides
and includes the physical address, mailing address, street address, parcel identification number, plot identification number,
legal property description, neighborhood name and lot number, GPS coordinates, and any other descriptive property
information that may reveal the home address.”
43
Section 119.071(4)(d)1.b., F.S., defines “telephone numbers” to include “home telephone numbers, personal cellular
telephone numbers, personal pager telephone numbers, and telephone numbers associated with personal communications
devices.”
44
See, e.g., s. 119.071(4)(d)2.l, F.S.
45
See, e.g., s. 119.071(4)(d)2.a., F.S.
46
Section 119.071(4)(d)3. and 4., F.S.
47
Section 119.071(4)(d)6., F.S.
48
Sections 60.05, 373.609, 381.0012, 409.2554, 499.002, 499.81, 509.285, and 705.106, F.S.
49
Sections 60.05, 409.2554, 705.106, and 849.44, F.S. BILL: CS/SB 216 Page 7
Providing legal advice and counsel to, and legal representation of the board of county
commissioners and county departments, agencies, officers and employees on matters
pertaining to the business of the county or in connection with the duties of the board,
department, agency, officer or employee.
Representing the county in all litigation, administrative hearings, mediation, appeals and
judicial proceedings in which the county, the board, or a county department or agency under
the jurisdiction of the board is a party.
Providing legal advice and counsel to, and legal representation of, constitutional officers of
the county and its employees on matters pertaining to the respective business and duties of
the constitutional officers and employees at the request of constitutional officers.
Representing any constitutional officer or employee of the officer in any litigation,
administrative hearing, mediation, appeal or judicial proceeding upon request of said
constitutional officer.
Advising and providing recommendations to the board regarding the need for the selection of
any special counsel to be retained by the county to provide legal representation in specified
matters.
Supervising, monitoring and coordinating, as appropriate, the representation, services and
work of any special counsel.
At the request of the board, the county attorney is hereby authorized to represent the board or
a board member when the board or a member is acting as a separate agency or board or in an
ex-officio capacity or is otherwise officially representing the county at the direction of the
Board.
Providing legal advice and counsel to and representation of any other State or local
governmental office, unit, or entity as may be required by law or interlocal agreement entered
into by the board.
50
III. Effect of Proposed Changes:
Section 1 amends s. 119.071(4)(d)2.v., F.S. to exempt specified personal information of current
county attorneys, deputy county attorneys, assistant county attorneys, city attorneys, deputy city
attorneys, and assistant city attorneys. Personal information relating to their spouses and children
is likewise exempt. The specific personal information made exempt from public records
disclosure requirements includes:
Home addresses, telephone numbers, places of employment, and dates of birth;
Names, home addresses, telephone numbers, places of employment, and dates of birth of the
spouses and children; and
Names and locations of schools and day care facilities attended by the children.
The exemption does not apply to a current county attorney, deputy county attorney, assistant
county attorney, city attorney, deputy city attorney, or assistant city attorney who qualifies as a
candidate for election to public office.
Section 2 provides a public necessity statement as required by Article I, s. 24(c) of the State
Constitution. The public necessity statement provides that due to the responsibilities of county
attorneys, deputy county attorney, assistant county attorney, city attorney, deputy city attorney,
50
Sarasota County ordinance 2-63. BILL: CS/SB 216 Page 8
and assistant city attorney and their involvement with legal enforcement proceedings, such
attorneys have faced threats and retribution by defendants and other persons on numerous
occasions. The public necessity statement further provides that there have also been incidents of
stalking of such attorneys and their spouses and children.
Section 3 provides that the bill takes effect on July 1, 2023.
The bill is subject to the Open Government Sunset Review Act and is repealed on October 2,
2024, consistent with the other agency personnel exemptions in s. 119.071(4)(d), F.S., unless
reviewed and saved from repeal through reenactment by the Legislature.
Please see section “VII. Related Issues” for a discussion of the shortened review and repeal date of
this bill.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. 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 enacts a new exemption for the personal
identifying and location information of current county attorneys, assistant county
attorneys, city attorneys, and assistant city attorneys, thus, the bill requires a two-thirds
vote to be enacted.
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. Section 2 of the bill contains a statement of public necessity for
the exemption.
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 stated purpose of the law is to protect the attorneys and their families from the
danger of becoming a victim of stalking, emotional abuse, and physical violence. This
bill exempts only certain personal identifying information from the public records BILL: CS/SB 216 Page 9
requirements, consistent with 21 similar exemptions. 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:
Any individual or business that currently obtains location information that is covered by
the definition of “home addresses” in the bill will not be able to obtain that information
from the records custodian without a signed waiver if the employee or the employee’s
agency requests that the home address information be exempted.
C. Government Sector Impact:
This bill may have a minimal negative fiscal impact on agencies holding records that
contain personal identifying information of such attorneys because staff responsible for
complying with public record requests may require training related to the new public
record exemption. Additionally, agencies may experience additional workload associated
with redacting the exempt information prior to releasing a record. However, the workload
should be absorbed as part of the day-to-day agency responsibilities.
VI. Technical Deficiencies:
None.
VII. Related Issues:
According to s. 119.15(3), F.S., the Open Government Sunset Review Act, a newly enacted or
substantially amended exemption is scheduled for review and repeal by the Legislature in the 5
th
year after creation, unless the Legislature acts to reenact the exemption. The bill inserts the
newly created exemption into an existing paragraph with other exemptions that are scheduled for
review and repeal in 2024, which is the first year after enactment instead of the 5
th
year. BILL: CS/SB 216 Page 10
However, the deviation from the schedule set forth in the Open Government Sunset Review Act
is supported by the reasoning that a previous legislature cannot bind a future legislature.
51
VIII. Statutes Affected:
This bill substantially amends section 119.071 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Governmental Oversight and Accountability on April 5, 2023:
The committee substitute clarifies that the exemption only applies to current county
attorneys, assistant county attorneys, city attorneys, and assistant city attorneys.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.
51
Fla. Carry, Inc. v. Univ. of Fla., 180 So.3d 137, 146 (Fla. 1st DCA, 2015), citing New v. Miami Herald Publ’g Co., 462
So.2d 821, 824 (Fla. 1985) and Scott v. Williams, 107 So.3d 379, 389 (Fla. 2013).