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 1166
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Collins
SUBJECT: Public Records/Investigators of the Department of Agriculture and Consumer Services
DATE: April 5, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Burse Becker AG 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 1166 exempts from public records copying and inspection requirements certain personal
identifying information of current or former inspectors or investigators of the Florida Department
of Agriculture and Consumer Services. Personal 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, dates of birth, and photographs of current and former
inspectors and investigators;
Names, home addresses, telephone numbers, dates of birth, and places of employment of the
spouses and children; and
Names and locations of schools and day care facilities attended by the children.
The bill provides a statement of public necessity as required by the State Constitution.
The exemption is subject to the Open Government Sunset Review Act and will stand repealed on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.
Because this bill creates a public records exemption, it will require two-thirds vote of each house
in order to pass.
This act shall take effect July 1, 2023.
REVISED: BILL: CS/SB 1166 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, 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
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
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, (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
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: CS/SB 1166 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.” 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.
13
Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.
14
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
15
(the
Act), prescribe a legislative review process for newly created or substantially amended
16
public
records or open meetings exemptions, with specified exceptions.
17
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.
18
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
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
14
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5
th
DCA 2004).
15
Section 119.15, F.S.
16
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.
17
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.
18
Section 119.15(3), F.S. BILL: CS/SB 1166 Page 4
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.
19
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;
20
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;
21
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
22
The Act also requires specified questions to be considered during the review process. In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
The Act also requires specified questions to be considered during the review process.
23
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.
24
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.
25
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:
19
Section 119.15(6)(b), F.S.
20
Section 119.15(6)(b)1., F.S.
21
Section 119.15(6)(b)2., F.S.
22
Section 119.15(6)(b)3., F.S.
23
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?
24
See generally s. 119.15, F.S.
25
Section 119.15(7), F.S. BILL: CS/SB 1166 Page 5
Active or former sworn or civilian law enforcement personnel employed by a law
enforcement agency;
26
Certain current or former nonsworn investigative personnel of the Department of Financial
Services;
27
Certain current or former nonsworn investigative personnel of the Office of Financial
Regulation’s Bureau of Financial Investigations;
28
Current or former certified firefighters;
29
Current or former justices of the Supreme Court, district court of appeal judges, circuit court
judges, and county court judges;
30
Current or former state attorneys, assistant state attorneys, statewide prosecutors, and
assistant statewide prosecutors;
31
Current or former code enforcement officers;
32
Current or former guardians ad litem;
33
Current or former public defenders, assistant public defenders, criminal conflict and civil
regional counsel, and assistant criminal conflict and civil regional counsel;
34
Current or former investigators or inspectors of the Department of Business and Professional
Regulation;
35
County tax collectors;
36
Current or former certified emergency medical technicians and paramedics;
37
Current or former directors, managers, supervisors, nurses, and clinical employees of an
addiction treatment facility;
38
Current or former directors, managers, supervisors, and clinical employees of certain child
advocacy centers;
39
and
Current or former staff of domestic violence centers, including domestic violence
advocates.
40
26
Section 119.071(4)(d)2.a., F.S.
27
Section 119.071(4)(d)2.b., F.S.
28
Section 119.071(4)(d)2.c., F.S.
29
Section 119.071(4)(d)2.d., F.S.
30
Section 119.071(4)(d)2.e., F.S.
31
Section 119.071(4)(d)2.f., F.S.
32
Section 119.071(4)(d)2.i., F.S.
33
Section 119.071(4)(d)2.j., F.S.
34
Section 119.071(4)(d)2.l., F.S.
35
Section 119.071(4)(d)2.m., F.S.
36
Section 119.071(4)(d)2.n., F.S.
37
Section 119.071(4)(d)2.q., F.S.
38
Section 119.071(4)(d)2.s., F.S.
39
Section 119.071(4)(d)2.t., F.S.
40
Section 119.071(4)(d)2.u., F.S. BILL: CS/SB 1166 Page 6
The specified exempt information for each profession provided in s. 119.071(4)(d), F.S., varies
among the professions. Generally, the home addresses,
41
telephone numbers,
42
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,
43
and in some instances, the photographs
of the employee’s spouse and children are exempt as well.
44
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.
45
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.
46
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.
Office of Agricultural Law Enforcement
The Office of Agricultural Law Enforcement (OALE) enforces laws governing businesses
regulated by the Florida Department of Agriculture and Consumer Services (Department). The
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.
47
The OALE operates 23 agricultural inspection stations on 19 highways going into and out of the
State. Officers conduct vehicle inspections 24 hours a day, 365 days a year to ensure the safety
of State’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.
48
The 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. The OALE partners with federal, state and
41
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.”
42
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.”
43
See, e.g., s. 119.071(4)(d)2.l., F.S.
44
See, e.g., s. 119.071(4)(d)2.a., F.S.
45
Section 119.071(4)(d)3. and 4., F.S.
46
Section 119.071(4)(d)6., F.S.
47
Florida Department of Agriculture and Consumer Services, Office of Agricultural Law Enforcement
https://www.fdacs.gov/Divisions-Offices/Agricultural-Law-Enforcement, (last visited April 2, 2023).
48
Id. BILL: CS/SB 1166 Page 7
local law enforcement agencies and help coordinate the Domestic Marijuana Eradication Task
Force.
49
According to the Department, these are the other positions that conduct inspections and
investigations other than certified law enforcement officers:
Division Class
Code
Class Title
Division of Agricultural
Environmental Services
4823
Environmental Manager - SES
Division of Agricultural
Environmental Services
4809
Environmental Specialist II
Division of Agricultural
Environmental Services
4812
Environmental Specialist III
Division of Animal Industry 7530 Agriculture & Consumer Protect Inspector
Division of Animal Industry 7539
Agriculture & Consumer Protect
Supervisor - SES
Division of Animal Industry 7533 Agriculture & Consumer Protect Specialist
Division of Aquaculture 4809 Environmental Specialist II
Division of Consumer Services 7539 Environmental Specialist III
Division of Consumer Services 7533 Agriculture & Consumer Protect Specialist
Division of Consumer Services 8833 Inspection Specialist
Division of Consumer Services 8830 Liquefied Petroleum Gas Inspector
Division of Food Safety 7533 Agriculture & Consumer Protect Specialist
Division of Food Safety 4809 Environmental Specialist II
Division of Food Safety 4812 Environmental Specialist III
Division of Food Safety 8888 Sanitation and Safety Specialist
Division of Food Safety 8895 Sanitation and Safety Supervisor – SES
Division of Food Safety 8889 Senior Sanitation and Safety Specialist
Division of Fruit and Vegetables 7533 Agriculture & Consumer Protect Specialist
Division of Fruit and Vegetables 7507
Fruit & Vegetable Terminal MKT INSP
SUPV - SES
Division of Fruit and Vegetables 7509 Fruit & Vegetable District SUPV - SES
Division of Fruit and Vegetables 7503 Fruit & Vegetable Inspector
Division of Fruit and Vegetables 7506 Fruit & Vegetable Terminal Market INSP
Division of Plant Industry 7530 Agriculture & Consumer Protect Inspector
Division of Plant Industry 7539
Agriculture & Consumer Protect
Supervisor - SES
Division of Plant Industry 7533 Agriculture & Consumer Protect Specialist
Division of Plant Industry 7533
Agriculture & Consumer Protect
Specialist-SE
Division of Plant Industry 4806 Environmental Specialist I
Division of Plant Industry 4806 Environmental Specialist I - SES
Division of Plant Industry 4809 Environmental Specialist II
49
Id. BILL: CS/SB 1166 Page 8
Division Class
Code
Class Title
Division of Plant Industry 4812 Environmental Specialist III - SES
Division of Plant Industry 4813 Environmental Specialist I - SES
Division of Plant Industry 4818 Environmental Specialist II - SES
III. Effect of Proposed Changes:
Section 1 amends s. 119.071, F.S. to create a public records exemption for personal identifying
information of current or former inspectors or investigators of the Florida Department of
Agriculture and Consumer Services. The specific information made exempt from public records
disclosure requirements includes:
Home addresses, telephone numbers, dates of birth, and photographs of current and former
inspectors and investigators;
Names, home addresses, telephone numbers, dates of birth, and places of employment of the
spouses and children; and
Names and locations of schools and day care facilities attended by the children.
Section 1 provides for the repeal of the exemption on October 2, 2028, unless reviewed and
saved from repeal through reenactment by the Legislature.
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 it is necessary 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:
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 creates a new exemption, thus, the bill requires a
two-thirds vote to be enacted.
BILL: CS/SB 1166 Page 9
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 exemption for records pertaining to
inspectors and investigators of the Department 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 purpose of the law is to protect inspectors and investigators of the department along
with their family. The bill exempts only records pertaining to inspectors and investigators and
their families from the public records requirements. 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.
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 BILL: CS/SB 1166 Page 10
with redacting the exempt information prior to releasing a record. However, the
additional workload should be absorbed as part of the day-to-day agency responsibilities.
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 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 provides that the exemption will stand repealed on October 2,
2028 instead of October 2, 2024.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.