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 Fiscal Policy
BILL: CS/CS/SB 238
INTRODUCER: Fiscal Policy Committee, Health Policy Committee, and Senator Burton
SUBJECT: Public Records/Protection from Discrimination Based on Health Care Choices
DATE: April 21, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Looke Brown HP Fav/CS
2. Looke Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 238 amends s. 381.00318, F.S., to expand and conform its public records exemption
(PRE) provisions to match with the changes made to ss. 381.00316 and 381.00319, F.S., in
CS/SB 252. Specifically, the bill provides that a complaint alleging a business entity’s,
governmental entity’s, or an educational institution’s violation of ss. 381.00316, 381.00317, or
381.00319, F.S., held by the Department of Legal Affairs (DLA) or the Department of Health
(DOH) is confidential and exempt from public records provisions of s. 119.07(1), F.S., and s.
24(a), Art. I of the State Constitution.
The exemption lasts until the investigation into the complaint is completed or ceases to be active,
unless releasing the information would jeopardize the integrity of another active investigation,
reveal medical information about an individual, or reveal information about an individual’s
religious beliefs. Information made confidential and exempt may be released to a business or
governmental entity or education institution in furtherance of the entity’s or institution’s lawful
duties and responsibilities and may also be released in aggregated format.
The bill provides legislative findings and extends the Open Government Sunset Review Act
repeal date to October 2, 2028.
The bill provides that its provisions take effect on the same date that SB 252 or similar
legislation takes effect.
REVISED: BILL: CS/CS/SB 238 Page 2
II. Present Situation:
For background and information related to ss. 381.00316 and 381.00319, F.S., please see the
analysis for CS/SB 252.
Access to Public Records – Generally
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, section 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, ch. 119,
F.S., known as the Public Records Act, provides requirements for public records held by
executive branch and local government 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, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
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/CS/SB 238 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 governmental 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. 5
th
DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991). BILL: CS/CS/SB 238 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; in
order to save an exemption from repeal, the Legislature must reenact the exemption or repeal the
sunset date.
19
In practice, many exemptions are continued by repealing the sunset date, rather
than reenacting the exemption.
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
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, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.
25
If the exemption is
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/CS/SB 238 Page 5
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 expire, the previously exempt records will remain exempt unless
otherwise provided by law.
26
III. Effect of Proposed Changes:
CS/CS/SB 238 amends s. 381.00318, F.S., to expand and conform its PRE provisions to match
with the changes made to ss. 381.00316 and 381.00319, F.S., in CS/SB 252.
Specifically, the bill provides that a complaint alleging a business entity’s, governmental
entity’s, or an educational institution’s violation of ss. 381.00316, 381.00317 or 381.00319, F.S.,
held by the Department of Legal Affairs (DLA) or the Department of Health (DOH) is
confidential and exempt from public records provisions of s. 119.07(1), F.S., and s. 24(a), Art. I
of the State Constitution. The exemption lasts until the investigation into the complaint is
completed or ceases to be active, unless releasing the information would jeopardize the integrity
of another active investigation, reveal medical information about an individual, or reveal
information about an individual’s religious beliefs. Information made confidential and exempt
may be released to a business or governmental entity or education institution in furtherance of
the entity’s or institution’s lawful duties and responsibilities and may also be released in
aggregated format.
The bill extends the Open Government Sunset Review Act repeal date to October 2, 2028.
The bill provides Legislative findings that it is a public necessity that a complaint alleging a
violation of ss. 381.00316 or 381.00319, F.S., and all information related to an investigation of
the complaint held by the DLA or the DOH, be made confidential and exempt because protection
of such information is required to safeguard an individual’s private information regarding
medical information or religious beliefs and to ensure the integrity of an active investigation.
The bill provides that its provisions take effect on the same date that SB 252 or similar
legislation takes effect if the bills are adopted in the same legislative session and become law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
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 records pertaining to
26
Section 119.15(7), F.S. BILL: CS/CS/SB 238 Page 6
judicial assistants; therefore, the bill requires a two-thirds vote of each chamber for
enactment.
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 purpose of the law is to protect judicial assistants. This bill exempts only records
pertaining investigations under ss. 381.00316 and 381.00319, F.S., and only while such
investigations are active.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None. BILL: CS/CS/SB 238 Page 7
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 381.00318 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 Fiscal Policy on April 20, 2023:
The CS amends the catchline for s. 381.00318, F.S., to match changes made in the
substantive portions of the bill and un-strikes references to s. 381.00317, F.S., to maintain
protection of records created under that statute.
CS by Health Policy on April 3, 2023:
The CS incorporates a technical amendment to the bill’s effective date to provide that the
bill is effective on the same date that SB 252 or similar legislation takes effect, if both are
adopted in the same legislative session or an extension thereof and become law.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.