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 Rules
BILL: CS/CS/SB 1648
INTRODUCER: Rules Committee; Commerce and Tourism Committee; and Senator Bradley
SUBJECT: Public Records/Investigations by the Department of Legal Affairs
DATE: April 25, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Fav/CS
2. McMillan Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/CS/SB 1648 creates a public records exemption for information received by the Department
of Legal Affairs (DLA) pursuant to a notification of a violation under s. 501.722, F.S., or
received pursuant to an investigation made by the DLA or a law enforcement agency.
Additionally, the bill incorporates this public records exemption into part V of ch. 501, F.S.
The bill permits the DLA to disclose this confidential and exempt information during an active
investigation under specific circumstances.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
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 262, relating to technology
transparency, takes effect, if such legislation is adopted in the same legislative session or an
extension thereof and becomes law.
REVISED: BILL: CS/CS/SB 1648 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,
Florida Statutes (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, chapter 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
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
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). BILL: CS/CS/SB 1648 Page 3
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
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
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).
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. 5th 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. BILL: CS/CS/SB 1648 Page 4
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
The Act also requires specified questions to be considered during the review process.
24
In
examining an exemption, the Act directs the Legislature to carefully 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 sunset, the previously
exempt records will remain exempt unless provided for by law.
26
Current Public Records Exemptions for Investigations Conducted by the Department of
Legal Affairs
Florida’s public records laws currently make most information obtained by the DLA open to the
public.
27
In the absence of a specific legislative exemption, investigative records made or
received by public agencies are open to public inspection pursuant to ch. 119, F.S.
28
Further, an
agency’s disclosure of records of its investigative proceedings upon the completion of a
preliminary investigation does not violate an individual’s right of privacy.
29
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.
27
See State ex rel. Veale v. City of Boca Raton, 353 So. 2d 1194 (Fla. 4
th
DCA 1977), cert. denied 360 So. 2d 1247 (Fla.
1978).
28
See State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4
th
DVA 1977), cert. denied, 360 So.2d 1247 (Fla.
1978).
29
See Garner v. Florida Comm’n. on Ethics, 415 So.2d 67 (Fla. 1
st
DCA 1982), rev. denied, 424 So.2d 761 (Fla. 1983). BILL: CS/CS/SB 1648 Page 5
Section 119.071(2), F.S., exempts various records and information from public inspection,
including the following information when held by the DLA:
Complaint and information held pursuant to an investigation of a violation of the Florida
False Claims Act—this information may be disclosed after the completion of the DLA’s
investigation, or as otherwise provided in the exemption.
30
Information received pursuant to a notice of a data breach or pursuant to certain investigation
is confidential until the investigation is completed or ceases to be active. Disclosure of this
information is authorized under specific circumstance.
31
Criminal or civil intelligence, investigative information, or any other information held by any
state or federal agency that is obtained by the DLA in the course of an investigation under
Part II of Ch. 501, regarding Deceptive and Unfair Trade Practices. If this information is
confidential or exempt from disclosure pursuant to s. 119.07(1), F.S., when held by the
originating agency, it will retain that exemption when obtained by the DLA.
32
Consumer Data Privacy
CS/CS/SB 262 grants consumers specific rights relating to their personal data, namely (1) the
right to opt out of the processing of personal data for purposes of targeted advertising, the sale of
personal data, or profiling in furtherance of a decision that produces a legal or similarly
significant effect concerning a consumer, (2) the right to correct or delete their personal data held
by a business, and (3) the right to opt out of the collection of personal data collected through the
operation of a voice recognition feature.
Specific businesses must act to accommodate these consumer privacy rights and provide notice
to consumers about their collection and sale of personal data. Additionally, the businesses cannot
discriminate against consumers based on their decision to opt-out of the sale or sharing of their
personal data.
CS/CS/SB 262 grants the Florida Department of Legal Affairs (DLA) (also known as the Office
of the Attorney General) authority to institute appropriate legal proceedings against businesses
that it believes have violated or are violating the provisions in CS/CS/SB 262 relating to
consumer data privacy.
As created, then, any information obtained by the DLA during an investigation of the consumer
data privacy provisions in CS/CS/SB 262 is subject to disclosure under ch. 119, F.S. This could
present a hurdle to the DLA’s investigation and enforcement because it could stifle the disclosure
of pertinent information from law enforcement or consumers to the DLA. Additionally, the
release of consumer personal data could subject them to identity theft or further harm.
III. Effect of Proposed Changes:
CS/CS/SB 1648 creates s. 501.722, F.S., and incorporates this public records exemption into part
V of ch. 501, F.S., and makes information received by the DLA pursuant to a notification of a
30
Section 68.083(8), F.S.
31
Section 501.171(11), F.S.
32
Section 501.2065, F.S. BILL: CS/CS/SB 1648 Page 6
violation of certain statutory requirements or received by the DLA pursuant to an investigation
by the DLA or a law enforcement agency confidential and exempt.
During an active investigation, the DLA may disclose confidential and exempt information:
In furtherance of its official duties and responsibilities;
For print, publication, or broadcast if the DLA determines that such release would assist in
notifying the public or locating or identifying a person believed to be a victim of the
improper use or disposal of customer records; or
To another governmental entity in the furtherance of its official duties and responsibilities.
Once an investigation is completed or once an investigation ceases to be active, the following
information received by the DLA will remain confidential and exempt:
All information to which another public record exemption applies;
Personal information;
A computer forensic report;
Information that would otherwise reveal weaknesses in a business’ data security; and
Information that would disclose a business’ proprietary information.
For purposes of this public records exemption, “proprietary information” means information that:
Is owned or controlled by the business
Is intended to be private and treated as such by the business because disclosure would harm
the business or its business operations;
Has not been disclosed except as required by law or a private agreement that provides that
the information will not be released to the public;
Is not publicly available or otherwise readily ascertainable through proper means from
another source in the same configuration as it was received by the DLA; and
Includes trade secrets and competitive interests.
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 CS/CS/SB 262 (2023) or similar legislation
takes effect, if such legislation is adopted in the same legislative session or an extension thereof
and becomes law.
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.
BILL: CS/CS/SB 1648 Page 7
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.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None. BILL: CS/CS/SB 1648 Page 8
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates section 501.722 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.)
CS/CS by Rules on April 24, 2023:
The committee substitute makes technical changes to create s. 501.722, F.S., which links
this public records exemption to part V of chapter 501, Florida Statutes.
CS by Commerce and Tourism on April 4, 2023:
The committee substitute deletes a comma and removes unnecessary verbiage to clarify
the public necessity statement.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.