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 Agriculture
BILL: SB 1166
INTRODUCER: Senator Collins
SUBJECT: Public Records/Investigators of the Department of Agriculture and Consumer Services
DATE: March 10, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Burse Becker AG Pre-meeting
2. GO
3. RC
I. Summary:
SB 1166 amends s. 119.071, F.S., to create a public records exemption for certain personnel file
information for specific Florida Department of Agriculture and Consumer Services (department)
staff.
This public records exemption would be repealed on October 2, 2028 unless reviewed and saved
from repeal through reenactment by the Legislature.
This act shall take effect July 1, 2023.
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, 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 the statutory provisions are adopted in the rules of each house of the
1
FLA. CONST. art. I, s. 24(a).
2
Id.
REVISED: BILL: SB 1166 Page 2
legislature.
3
Florida Rule of Judicial Administration 2.420 governs public access to judicial branch
records.
4
Lastly, ch. 119, F.S., provides requirements for public records held by executive
agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as 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
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.
6
The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which is
intended to perpetuate, communicate, or formalize knowledge of some type.”
7
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.
8
A violation of the Public Records Act may result in civil or criminal liability.
9
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.
10
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.
11
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2022-2024) and Rule 14.1, Rules of the Florida House of
Representatives, (2022-2024).
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.”
6
Section 119.011(12), F.S., defines “public record” to mean “all 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 connection with the transaction of official business by
any agency.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
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). BILL: SB 1166 Page 3
General exemptions from the public records requirements are contained in the Public Records
Act.
12
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled to
disclose the record.
14
Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.
15
Open Government Sunset Review Act
The Open Government Sunset Review Act
16
(the act) prescribes a legislative review process for
newly created or substantially amended
17
public records or open meetings exemptions, with
specified exceptions.
18
It requires the automatic 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 it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and cannot
be accomplished without the exemption:
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
12
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).
13
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).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5
th
DCA 2004).
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., provide that exemptions that are required by federal law or are 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. BILL: SB 1166 Page 4
In examining an exemption, the act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption. The act requires the Legislature to consider the following
specific questions in such a review:
24
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?
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 sunset, the previously exempt
records will remain exempt unless provided for by law.
26
Office of Agricultural Law Enforcement
The Office of Agricultural Law Enforcement (OALE) enforces laws governing businesses
regulated by the department. OALE protects consumers from unfair and deceptive trade practices,
protects Florida’s agriculture industry from theft and other crimes, and safeguards the
wholesomeness of food and other consumer products.
27
OALE operates 23 agricultural inspection stations on 19 highways going into and out of Florida.
Officers conduct vehicle inspections 24 hours a day, 365 days a year to ensure the safety of
Florida's food supply. Officers are on the lookout for unsafe or unwholesome food that could make
people sick, and plant and animal pests and diseases that could harm the state’s $100 billion
agriculture industry.
28
OALE investigates crimes involving agriculture and those occurring on property owned or
operated by the department. They help maintain domestic security, participating in all seven
regional Domestic Security Task Forces statewide. OALE partners with federal, state and local
law enforcement agencies and help coordinate the Domestic Marijuana Eradication Task Force.
29
24
Section 119.15(6)(a), F.S.
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
See https://www.fdacs.gov/Divisions-Offices/Agricultural-Law-Enforcement, (last visited March 2, 2023).
28
Id.
29
Id. BILL: SB 1166 Page 5
III. Effect of Proposed Changes:
Section 1 amends s. 119.071, F.S. to add a public records exemption for certain personnel file
information for specific department staff. This section is set to be repealed on October 2, 2028
unless reviewed and saved from repeal through reenactment by the Legislature.
Section 2 provides the legislative intent of the bill is to shield employees and their families from
any potential harm that may come from the scrutiny of businesses or professional practices from
the department. The bill also provides that the potential harm from identifying employees
outweighs any public benefit from public disclosure.
Section 3 provides that this act shall take effect July 1, 2023.
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 creates an 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 an exemption, thus, the bill requires a two-thirds
vote to be enacted.
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 exemption in the bill 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. BILL: SB 1166 Page 6
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.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill amends section 119.071 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.