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 Commerce and Tourism
BILL: SB 492
INTRODUCER: Senator Jones
SUBJECT: Public Records/Requesting Specified Leave Relating to a Homicide
DATE: March 24, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Baird McKay CM Pre-meeting
2. CJ
3. AP
I. Summary:
SB 492, which is linked to the passage of SB 490, provides a public record exemption for
information pertaining to family or household members of homicide victims if they are
employees of an agency. The information that falls under this exemption is as follows:
Personal identifying information of an employee contained in the records documenting
a homicide that the employee provides the employer; and
An employee’s written request for leave under the section and the time sheet that
reflects the requested leave for at least 1 year after taking the leave.
The bill provides for the repeal of the exemption on October 2, 2028, unless it is reenacted by the
Legislature under the Open Government Sunset Review Act.
The bill takes effect on the same date that linked bill SB 490, relating to information pertaining
to family or household members of homicide victims, takes effect, if such legislation is adopted
in the same legislative session or an extension thereof and becomes law.
II. Present Situation:
Public Record Exemptions
Article I, s. 24(a) of the Florida Constitution establishes the state’s public policy for accessing
government records. This section guarantees that every person has the right to inspect or copy
any public record from the legislative, executive, and judicial branches of government. Authority
to grant exemptions from public records is vested solely to the Legislature. The Legislature, may
provide an exemption of records, from the requirements of art. I, s. 24(a) of the Florida
Constitution.
1
A proposed exemption must pass by a two-thirds vote of each chamber, state with
1
Article I, s. 24(c), FLA. CONST.
REVISED: BILL: SB 492 Page 2
specificity the public necessity to justify the exemption,
2
and be no broader than necessary to
accomplish the public purpose.
3
Public policy regarding access to government records is addressed further in s. 119.07(1), F.S.,
which guarantees every person a right to inspect and copy any state, county, or municipal record,
unless the record is exempt. Public exemptions are subject to the Open Government Sunset
Review Act (Act)
4
which provides that a public record or public meeting exemption may be
created
5
or maintained only if it serves an identifiable public purpose. In addition, it may be no
broader than necessary to meet 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.
Protect trade or business secrets.
6
The Act requires the Legislature to review each public record exemption and each public
meeting exemption five years after enactment. If the Legislature does not reenact an exemption,
it will automatically repeal on October 2
nd
of the fifth year after enactment.
Linked Bill SB 490
SB 490, to which this bill is linked, requires certain employers with over 50 employees to grant 3
days of unpaid leave in any 12-month period to employees who have been employed for over 3
months if a member of their family or household was a victim of homicide. The leave must be
used to:
Make funeral or burial arrangements or attend a funeral or memorial service for a family
or household member who is a homicide victim;
Secure his or her home from the perpetrator, or his or her associates, of the homicide, or
seek new housing to escape;
Attend meetings in person with a representative from a law enforcement agency or the
state attorney’s office responsible for investigating or prosecuting the homicide; or
Attend or prepare for court or court-related proceedings arising from the homicide.
SB 490 defines “family or household member” as spouses, former spouses, persons related by
blood or marriage, persons residing together or have resided together in the past, or parents of a
child in common. With the exception of people who have a child in common, the family or
household members must have resided together in the past or were currently residing in the same
dwelling unit prior to the homicide.
7
2
This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3
Article I, s. 24(c), FLA. CONST.
4
Section 119.15, F.S.
5
An example of an exception to a public record exemption would be allowing another agency access to confidential and
exempt records.
6
Section 119.15(6)(b), F.S.
7
Section 741.28, F.S. BILL: SB 492 Page 3
Before using this type of leave, all other leaves must be exhausted, and proper notice must be
given unless in imminent danger. All information given to a private employer is to remain
confidential.
III. Effect of Proposed Changes:
The bill provides a public record exemption for information pertaining to family or household
members of homicide victims who are employees of a Florida agency
8
for the following
information:
Personal identifying information of an employee contained in the records documenting a
homicide that the employee provides the employer; and
An employee’s written request for leave under the section and the time sheet that reflects
the requested leave for at least 1 year after taking the leave.
The bill provides a public necessity statement as required by article I, section 24(c) of the Florida
Constitution. The public necessity statement provides that it is a public necessity that the
personal identifying information, timesheet, and written request for leave held by employers for
employees who are requesting leave after a family or household member is the victim of a
homicide be confidential and exempt
9
from public records requirements. Such employees are at a
heightened risk of physical and emotional harm from perpetrators of the homicide and the harm
that may result from the release of the employee's personal identifying information, timesheet,
and written request for leave outweighs any public benefit that may be derived from the
disclosure of such information.
As with all public exemptions, this exemption is subject to the Act in accordance with s. 119.15
and will be repealed on October 2
nd
of the fifth year unless reviewed and saved from repeal.
The bill takes effect on the same date that SB 490 is adopted and becomes law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
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.
8
Section 741.313(7)(a),(b), F.S.
9
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). BILL: SB 492 Page 4
B. Public Records/Open Meetings Issues:
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.
Breadth of Exemption
Article 1, 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.
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. BILL: SB 492 Page 5
VI. Technical Deficiencies:
Line 54 of the bill references a SB but does not include the senate bill number. The reference
should be to SB 490, the companion bill to SB 492.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends 448.046 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.