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 1392
INTRODUCER: Senator Martin
SUBJECT: Public Records and Meetings/Universal Regulatory Sandbox
DATE: March 17, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Favorable
2. ATD
3. FP
I. Summary:
SB 1392 makes confidential and exempt from public disclosure information in a regulatory
sandbox application that the Office of Regulatory Relief reasonably believes could result in
economic harm to the applicant. However, the confidential and exempt information may be
released to appropriate state and federal agencies for the purpose of investigation.
The bill also exempts from open meeting requirements any portion of a meeting of the General
Regulatory Sandbox Program Advisory Committee at which information made confidential and
exempt is discussed. Additionally, the recordings, minutes, and records generated during an
exempt meeting or portion of such a meeting are exempt from the public disclosure
requirements.
Because this bill creates a new public records exemption and an open meeting exemption, it will
require a two-thirds vote of both the Senate and the House of Representatives in order to become
a law.
The bill provides that the exemptions are subject to the Open Government Sunshine Review Act
and are repealed on October 2, 2028, unless saved from repeal by the Legislature.
The bill takes effect on the same date that linked bill SB 1390, relating to the universal
regulatory sandbox, takes effect, if such legislation is adopted in the same legislative session or
an extension thereof and becomes law.
REVISED: BILL: SB 1392 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 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 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:
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 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, Edition 1, (2022-2024)
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 1392 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 Meetings Laws
The State Constitution provides that the public has a right to access governmental meetings.
16
Each collegial body must provide notice of its meetings to the public and permit the public to
attend any meeting at which official acts are taken or at which public business is transacted or
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
Art. I, s. 24(b), Fla. Const. BILL: SB 1392 Page 4
discussed.
17
This applies to the meetings of any collegial body of the executive branch of state
government, counties, municipalities, school districts, or special districts.
18
Public policy regarding access to government meetings also is addressed in the Florida Statutes.
Section 286.011, F.S., known as the “Government in the Sunshine Law,”
19
or the “Sunshine
Law,”
20
requires all meetings of any board or commission of any state or local agency or
authority at which official acts are to be taken be open to the public.
21
The board or commission
must provide the public reasonable notice of such meetings.
22
Public meetings may not be held at
any location that discriminates on the basis of sex, age, race, creed, color, origin, or economic
status or which operates in a manner that unreasonably restricts the public’s access to the
facility.
23
Minutes of a public meeting must be promptly recorded and open to public
inspection.
24
Failure to abide by open meetings requirements will invalidate any resolution, rule,
or formal action adopted at a meeting.
25
A public officer or member of a governmental entity
who violates the Sunshine Law is subject to civil and criminal penalties.
26
The Legislature may create an exemption to open meetings requirements by passing a general
law by at least a two-thirds vote of each house of the Legislature.
27
The exemption must
explicitly lay out the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.
28
A statutory exemption which
does not meet these two criteria may be unconstitutional and may not be judicially saved.
29
17
Art. I, s. 24(b), Fla. Const.
18
Id. Meetings of the Legislature are governed by Article III, section 4(e) of the Florida Constitution, which states: “The
rules of procedure of each house shall further provide that all prearranged gatherings, between more than two members of the
legislature, or between the governor, the president of the senate, or the speaker of the house of representatives, the purpose of
which is to agree upon formal legislative action that will be taken at a subsequent time, or at which formal legislative action
is taken, regarding pending legislation or amendments, shall be reasonably open to the public.”
19
Times Pub. Co. v. Williams, 222 So. 2d 470, 472 (Fla. 2d DCA 1969).
20
Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 695 (Fla. 1969).
21
Section 286.011(1)-(2), F.S.
22
Id.
23
Section 286.011(6), F.S.
24
Section 286.011(2), F.S.
25
Section 286.011(1), F.S.
26
Section 286.011(3), F.S.
27
Art. I, s. 24(c), Fla. Const.
28
Id.
29
Halifax Hosp. Medical Center v. New-Journal Corp., 724 So. 2d 567 (Fla. 1999). In Halifax Hospital, the Florida Supreme
Court found 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. Id. at 570. The Florida Supreme Court also declined to
narrow the exemption in order to save it. Id. In Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d
189 (Fla. 1st DCA 2004), the court found that the intent of a public records statute was to create a public records exemption.
The Baker County Press court found that since the law did not contain a public necessity statement, it was unconstitutional.
Id. at 196. BILL: SB 1392 Page 5
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
30
(the
Act), prescribe a legislative review process for newly created or substantially amended
31
public
records or open meetings exemptions, with specified exceptions.
32
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.
33
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.
34
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;
35
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;
36
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
37
The Act also requires specified questions to be considered during the review process.
38
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.
39
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
30
Section 119.15, F.S.
31
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.
32
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.
33
Section 119.15(3), F.S.
34
Section 119.15(6)(b), F.S.
35
Section 119.15(6)(b)1., F.S.
36
Section 119.15(6)(b)2., F.S.
37
Section 119.15(6)(b)3., F.S.
38
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?
39
See generally s. 119.15, F.S. BILL: SB 1392 Page 6
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.
40
Universal Regulatory Sandbox
SB 1390 creates the universal regulatory sandbox, which allows businesses, under the
observation of regulators, to demonstrate innovative products, services, and business models
while temporarily receiving a waiver or suspension of inapplicable laws or regulations.
In SB 1390, the Office of Regulatory Relief (office) is created within the Department of
Economic Opportunity to administer the universal regulatory sandbox and to act as a liaison
between private businesses and applicable agencies to identify laws or regulations that could be
waived or suspended under the regulatory sandbox. The bill also creates the General Regulatory
Sandbox Program Advisory Committee to advise and make recommendations to the office.
III. Effect of Proposed Changes:
The bill creates s. 288.9984, F.S., to establish exemptions from public records and open meeting
requirements relating to information received in universal regulatory sandbox applications.
The bill makes confidential and exempt from public disclosure information in a regulatory
sandbox application that the Office of Regulatory Relief (office) reasonably believes could result
in economic harm to the applicant. However, the confidential and exempt information may be
released to appropriate state and federal agencies for the purpose of investigation.
The bill also exempts from open meeting requirements any portion of a meeting of the General
Regulatory Sandbox Program Advisory Committee at which information made confidential and
exempt is discussed. Additionally, the recordings, minutes, and records generated during an
exempt meeting or portion of such a meeting are exempt from the public disclosure
requirements.
Because this bill creates new public records exemption and an open meeting exemption, it will
require a two-thirds vote of both the Senate and the House of Representatives in order to become
a law.
This provision will be subject to an Open Government Sunset Review in accordance with s.
119.15, F.S., and will stand repealed on October 2, 2028, unless reviewed and saved from repeal
through reenactment by the Legislature.
The bill will become effective on the same date that SB 1390 (2023) or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
40
Section 119.15(7), F.S. BILL: SB 1392 Page 7
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. The 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 information relating communications
services locations, project proposals, and challenges submitted to the department under
the Broadband Opportunity Program. 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 1392 Page 8
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The private sector may be subject to the costs associated with making redactions in
response to a public records request.
C. Government Sector Impact:
The DEO may incur costs related to the redaction of records in responding to public
records requests.
VI. Technical Deficiencies:
None.
VII. Related Issues:
The standard by which public records are to be exempt are those that the office reasonably
believes could result in economic harm to the applicant. However, “economic harm” is not
defined, which could lead to inconsistency in interpretation.
VIII. Statutes Affected:
This bill creates section 288.9984 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.