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: SB 946
INTRODUCER: Senator Grall
SUBJECT: Public Records/Department of State Electronically Filed Records
DATE: March 28, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Baird McKay CM Favorable
2. Limones-Borja McVaney GO Pre-meeting
3. RC
I. Summary:
SB 946 exempts from public record inspection and copying requirements email addresses
collected by the Department of State (DOS) for the purposes of its electronic filing system. This
exemption applies retroactively.
The bill also exempts from public record inspection and copying requirements secure login
credentials held by the DOS for the purposes of its electronic filing system. This exemption
applies before, on, and after the effective date of the bill.
The public record exemption is subject to the Open Government Sunset Review Act and will
stand repealed on October 2, 2028, unless reviewed and reenacted by the Legislature.
The bill provides a statement of public necessity as required by the State Constitution.
The bill creates a new public records exemption and, therefore, requires a two-thirds vote of the
members present and voting for final passage.
The bill may have a minimal fiscal impact on DOS relating to the workload necessary for the
redaction of records in responding to public records requests.
The bill takes effect upon becoming law.
REVISED: BILL: SB 946 Page 2
II. Present Situation:
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, 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.
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
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.”
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: SB 946 Page 3
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
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
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).
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. BILL: SB 946 Page 4
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
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
Documents Filed with the Department of State
The Department of State (DOS) is the state’s central location responsible for receiving and
maintaining a number of documents as required by statute, such as service of process for legal
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.
26
Section 119.15(7), F.S. BILL: SB 946 Page 5
proceedings,
27
articles of incorporation,
28
and registration of fictitious names.
29
The DOS may
require electronic submission of records
30
that it receives and files pursuant to 15 different
statutory chapters.
31
Public Access to the Department of State Filing Data
All files maintained electronically by the Division of Corporations (Division) may be accessed
through its website.
32
Records available through this website are easily accessible and
searchable, including filed records of business entities, trademarks, fictitious names, federal
liens, substitute service of process, notaries, and cable franchises. The public may access and
search specific records filed and maintained as required by various statutes listed in s. 15.16(3),
F.S.
III. Effect of Proposed Changes:
Section 1 provides that email addresses collected by the DOS pursuant to s. 15.16, F.S., are
exempt from public disclosure. This exemption applies retroactively.
The section further provides that secure login credentials held by the DOS for the purpose of
allowing a person to electronically file records under s. 15.16, F.S., are exempt from public
disclosure. The exemption applies to secure login credentials held by the DOS before, on, or
after the effective date of the exemption. The term “secure login credentials” means information
held by the DOS for purposes of authenticating a user logging into a user account on a computer,
a computer system, a computer network, or an electronic device; an online user account
accessible over the Internet, whether through a mobile device, a website, or any other electronic
means; or information used for authentication or password recovery.
The bill is subject to the Open Government Sunset Review Act and will be automatically
repealed on October 2, 2028, unless the Legislature reenacts the exemption.
Section 2 provides a public necessity statement as required by article I, section 24(c) of the
Florida Constitution. The public necessity statement provides that the unintentional publication
of e-mail addresses or secure login credentials held by the DOS may subject the filer to identity
theft, financial harm, or other adverse impacts. Without the public records exemption, the
effective and efficient administration of the electronic filing system, which is otherwise designed
to increase the ease of filing records, would be hindered.
Section 3 provides the bill takes effect upon becoming law.
27
See, e.g., ss. 48,061, 48.062, 48.181, F.S.
28
Section 607.0203, F.S.
29
Section 865.09, F.S.
30
Section 15.16(3), F.S.
31
Chs. 48, 55, 117, 118, 495, 605, 606, 607, 610, 617, 620, 621, 679, 713, 865, F.S.
32
Department of State, Division of Corporations, available at https://www.dos.myflorida.com/sunbiz (last visited March 10,
2023). BILL: SB 946 Page 6
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or 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 creates a new record exemption, 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. This bill creates a new public records exemption. Thus, the bill
includes a public necessity statement.
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 bill creates a public record exemption for email addresses and secure login
credentials held by the DOS for purposes of the electronic filing system. 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. BILL: SB 946 Page 7
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The private sector will be subject to the cost, to the extent imposed, associated with
making the redactions in response to a public record request.
C. Government Sector Impact:
The bill may have a minimal fiscal impact on the DOS for workload related to the
redaction of records in responding to public records requests.
VI. Technical Deficiencies:
Lines 40-41 make the exemption for email addresses apply retroactively, whereas line 47 makes
the exemption for login credentials apply for those records held before, on, or after.
Consideration should be given to make it apply consistently.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially section 15.16 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.