This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1461a.COM
DATE: 1/24/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1461 Pub. Rec./Investigations by the Department of Legal Affairs
SPONSOR(S): Commerce Committee, McFarland
TIED BILLS: HB 1459 IDEN./SIM. BILLS: SB 1682
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Commerce Committee 19 Y, 0 N, As CS Wright Hamon
2) Ethics, Elections & Open Government
Subcommittee
3) Judiciary Committee
SUMMARY ANALYSIS
HB 1459, to which this bill is linked:
Requires certain entities and persons that produce or offer AI content to the Florida public to:
o Create certain safety and transparency standards, and
o Make certain disclosures.
Prohibits any entity or person from knowingly producing, generating, incorporating, or synthesizing child
pornography through AI.
The Department of Legal Affairs (DLA), upon belief that any entity or person is in violation of the provisions of
HB 1459, may bring an action under the Florida Deceptive and Unfair Trade Practices Act.
This bill creates a public record exemption for all information held by DLA pursuant to a notification or an
investigation of a violation. The bill provides that the confidential and exempt information may be released by
DLA during an active investigation only in the furtherance of its official duties and responsibilities; for print,
publication, or broadcast in certain instances; or to another governmental entity in the furtherance of the
receiving entity’s official duties and responsibilities.
Once an investigation is completed, the following information remains confidential and exempt:
• Information that is otherwise confidential or exempt;
• Personal identifying information;
• A computer forensic report;
• Information that would otherwise reveal weaknesses in data security; and
• Information that would otherwise disclose proprietary information.
The bill provides that the public record exemption is subject to the Open Government Sunset Review Act and
will repeal on October 2, 2029, unless reviewed and saved from repeal through reenactment by the
Legislature. It also includes a statement of public necessity as required by the Florida Constitution.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record exemption. The bill creates a
public record exemption; thus, it requires a two-thirds vote for final passage. STORAGE NAME: h1461a.COM PAGE: 2
DATE: 1/24/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Public Records
The Florida Constitution sets forth the state’s public policy regarding access to government records,
guaranteeing every person a right to inspect or copy any public record of the legislative, executive, and
judicial branches of government.
1
The Legislature, however, may provide by general law an exemption
2
from public record requirements provided the exemption passes by a two-thirds vote of each chamber,
states with specificity the public necessity justifying the exemption, and is no broader than necessary to
meet its public purpose.
3
Current law also addresses the public policy regarding access to government records by guaranteeing
every person a right to inspect and copy any state, county, or municipal record, unless the record is
exempt.
4
Furthermore, the Open Government Sunset Review (OGSR) Act
5
provides that a public
record exemption may be created or maintained only if it serves an identifiable public purpose and the
“Legislature finds that the purpose is sufficiently compelling to override the strong public policy of open
government and that cannot be accomplished without the exemption.”
6
An identifiable public purpose is
served if the exemption meets one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
Protect trade or business secrets.
7
Pursuant to the OGSR Act, a new public record exemption, or the substantial amendment of an existing
public record exemption, is repealed on October 2nd of the fifth year following enactment, unless the
Legislature reenacts the exemption.
8
Artificial Intelligence
The term “artificial intelligence” (AI) was coined at the Dartmouth Summer Research Project on
Artificial Intelligence, a conference held in 1956. Since 2010, there has been a lot of advancement in AI
research, which has been attributed to the “availability of large datasets, improved machine learning
approaches and algorithms, and more powerful computers.”
9
AI encompasses a large field of existing and emerging technologies, methodologies, and application
areas. The Congressional Research Service has recently stated that AI is “generally thought of as
computerized systems that work and react in ways commonly thought to require intelligence.”
10
The
1
Art. I, s. 24(a), Fla. Const.
2
A “public record exemption” means a provision of general law which provides that a specified record, or portion thereof, is not
subject to the access requirements of s. 119.07(1), F.S., or s. 24, Art. I of the Florida Constitution. See s. 119.011(8), F.S.
3
Art. I, s. 24(c), Fla. Const.
4
See s. 119.01, F.S.
5
S. 119.15, F.S.
6
S. 119.15(6)(b), F.S.
7
Id.
8
S. 119.15(3), F.S.
9
Congressional Research Service, Artificial Intelligence: Overview, Recent Advances, and Considerations for the 118
th
Congress, available at
https://crsreports.congress.gov/product/pdf/R/R47644 (last visited Jan. 20, 2024).
10
Id. STORAGE NAME: h1461a.COM PAGE: 3
DATE: 1/24/2024
application of AI extends to areas such as “natural language processing, facial recognition, and
robotics.”
11
Department of Legal Affairs
The Department of Legal Affairs (DLA) provides a wide variety of legal services, including defending
the state in civil litigation cases, representing the people of Florida in criminal appeals in state and
federal courts, protecting rights of children, consumers, and victims through its various protection
programs, and investigating and litigating against businesses that seek to limit competition and defraud
taxpayers.
12
House Bill 1459 (2024)
The bill:
Requires an entity or person who produces or offers for use or interaction AI content or
technology for a commercial purpose, and makes such content or technology available to the
Florida public, to create safety and transparency standards that:
o Alert consumers that such content or technology is generated by AI.
o Allow such content or technology to be recognizable as generated by AI to other AI.
Requires an entity or a person to provide a clear and conspicuous notice on its Internet
homepage or landing page if it provides an AI mechanism to communicate or interact with
Florida consumers for a commercial purpose.
Prohibits any entity or person from knowingly producing, generating, incorporating, or
synthesizing child pornography through AI.
Requires any state agency that uses AI to disclose if a person is interacting with AI when
interacting with the agency and ensure that any confidential information accessible to an AI
system remains confidential.
Any violation of the bill by a person or entity is an unfair and deceptive trade practice actionable under
FDUTPA solely by DLA. The bill does not establish a private cause of action.
The bill also creates an advisory council called the Government Technology Modernization Council to
study and monitor the development and deployment of AI systems and provide reports on such
systems to the Governor and the Legislature.
Effect of Proposed Changes
The bill creates a public record exemption for all information held by DLA pursuant to a notification or
an investigation of a violation by an entity or person of the requirements created by HB 1459. Such
information is made confidential and exempt
13
from public record requirements until the investigation is
completed or is no longer active.
14
11
Id.
12
OPPAGA, Office of the Attorney General (Department of Legal Affairs),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Jan. 19, 2024); see also ch. 16 and s.
20.11, F.S.
13
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
designates confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied, 892 So.2d 1015 (Fla.
2004); State v. Wooten, 260 So. 3d 1060, 1070 (Fla. 4th DCA 2018); City of Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA
1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential
and exempt from public disclosure, such record may not be released by the custodian of public records to anyone other than the
persons or entities specifically designated in statute. See Op. Att’y Gen. Fla. 04-09 (2004).).
14
The bill states that the public record exemption should be construed in conformity with s. 119.071(2)(c), F.S. Section 119.071(2)(c),
F.S., creates an exemption for active criminal investigative and criminal intelligence information. Section 119.011(3), F.S., defines the
terms “criminal intelligence information,” “criminal investigative information,” and “active.” STORAGE NAME: h1461a.COM PAGE: 4
DATE: 1/24/2024
During an active investigation, the confidential and exempt information may be disclosed by DLA:
In the furtherance of its official duties and responsibilities;
• For print, publication, or broadcast if DLA determines that such release would assist in notifying
the public or locating or identifying a person DLA believes to be a victim of an improper use or
disposal of customer records, except that information which remains confidential and exempt
after an investigation may not be released in this manner; or
• To another governmental entity in the furtherance of the receiving entity’s official duties and
responsibilities.
Once an investigation is completed or ceases to be active, the following information held by DLA
remains confidential and exempt:
Information that is otherwise confidential or exempt;
Personal identifying information;
A computer forensic report;
Information that would otherwise reveal weaknesses in an entity or person’s data security; and
Information that would otherwise disclose an entity or person’s proprietary information.
15
The bill provides the constitutionally required public necessity statement, which states that, if released,
information held by DLA pursuant to a notification or an investigation of a violation by commercial
entities of the requirements created by HB 1459 could:
Frustrate or thwart the investigation and impair the ability of DLA to perform assigned functions;
Undo a specific statutory exemption protecting the information;
Be used for the purpose of identity theft;
Result in the identification of vulnerabilities; and
Result in economic harm.
The bill provides that the public record exemption is subject to the OGSR Act and will repeal on
October 2, 2029, unless reenacted by the Legislature.
The bill will become effective on the same date that HB 1459 or similar legislation takes effect, if such
legislation is adopted in the same legislative session, or an extension thereof, and becomes a law.
B. SECTION DIRECTORY:
Section 1: Amends s. 501.174, F.S., as created by HB 1459 (2024), to create a public record
exemption for investigations related to s. 501.174, F.S.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides a contingent effective date.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
15
The bill defines the term “proprietary information” to mean information that is owned or controlled by the entity or person; is
intended to be private and is treated by the entity or person as private because disclosure would harm the entity or person or its
business operations; has not been disclosed except as required by law or through 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 received by DLA; and reveals competitive interests. STORAGE NAME: h1461a.COM PAGE: 5
DATE: 1/24/2024
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
The bill may have a minimal fiscal impact on DLA because agency staff responsible for complying with
public record requests may require training related to the creation of the public record exemption. DLA
could incur costs associated with redacting the confidential and exempt information prior to releasing a
record. The costs, however, would be absorbed by existing resources, as they are part of the day-to-
day responsibilities of agencies.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
Vote Requirement
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.
Public Necessity Statement
Article I, s. 24(c) of the Florida Constitution requires a public necessity statement for a newly created
or expanded public record or public meeting exemption. The bill creates a public record exemption;
thus, it includes a public necessity statement. The public necessity statement provides that, if
released, information held by DLA pursuant to a notification or an investigation could frustrate or
thwart the investigation and impair the ability of DLA to perform assigned functions, undo a specific
statutory exemption protecting the information, be used for the purpose of identity theft, result in the
identification of vulnerabilities, and result in economic harm.
Breadth of Exemption
Article I, s. 24(c) of the Florida Constitution requires a newly created or expanded public record or
public meeting exemption to be no broader than necessary to accomplish the stated purpose of the
law. The bill creates a public record exemption for sensitive investigative information and personal
identifying information, which does not appear to be broader than necessary to accomplish its
purpose.
B. RULE-MAKING AUTHORITY:
The bill does not require rulemaking, nor does the bill confer or alter DLA’s rulemaking authority.
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DATE: 1/24/2024
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 23, 2024, the Commerce Committee adopted an amendment and reported the bill favorably as
a committee substitute. The committee substitute:
Clarifies that the public record exemption applies to information held by the Department of Legal
Affairs to ensure records received or created by the department relating to its investigations of
certain entities and persons is protected.
Clarifies that information that is otherwise confidential or exempt remains protected at the
conclusion of the investigation.
Removes a duplicative public record exemption for trade secrets.
Conforms the public necessity statement to the changes made to the public record exemption.
Makes a technical change to conform the bill to changes made in the PCS for HB 1459, to which
this bill is linked.
This analysis is drafted to the committee substitute as passed by the Commerce Committee.