This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1491b.SAC
DATE: 1/14/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1491 Pub. Rec./Investigations by the Department of Legal Affairs
SPONSOR(S): Regulatory Reform & Economic Development Subcommittee, Tramont, Overdorf
TIED BILLS: HB 3 IDEN./SIM. BILLS: SB 1794
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform & Economic Development
Subcommittee
13 Y, 0 N, As CS Wright Anstead
2) State Affairs Committee Skinner Williamson
SUMMARY ANALYSIS
Internet usage and mobile technology have become mainstream, especially among teens and young adults,
which has expanded the creation and dissemination of pornography. The majority of Americans, including
minors, are exposed to pornography online regularly, and 56 percent of American high school students have
viewed pornography in the last year.
Adolescents who view pornography tend to report feeling insecure about their ability to perform sexually or the
way they look, display more aggression, and view women as sex objects.
HB 3 (2024), to which this bill is linked, requires a commercial entity that knowingly and intentionally publishes
or distributes a substantial portion of material harmful to minors on a website or application to prohibit access
to such material by any person younger than 18 years of age; and use reasonable age verification methods to
verify that the age of a person attempting to access the material is 18 years of age or older. The Department of
Legal Affairs (DLA), upon belief that any commercial entity is in violation of the provisions of HB 3, may bring
an action under the Florida Deceptive and Unfair Trade Practices Act. A private cause of action is permitted in
certain limited circumstances.
This bill provides that all information received by DLA pursuant to a notification or investigation by DLA or a law
enforcement agency of a violation is confidential and exempt from public record requirements. The bill provides
that the 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 to notify the public of a data breach; 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:
• All information to which another public records exemption applies;
• Personal 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: h1491b.SAC PAGE: 2
DATE: 1/14/2024
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 that 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, revised, 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 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
Effects of Harmful Content on Children
Internet usage and mobile technology has become mainstream, especially among teens and young
adults.
9
The majority of Americans come across pornography online and one-third will seek it out
monthly.
10
Twenty-seven percent of young adults first view pornography before the onset of puberty,
11
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
Eric W. Owens et al., The Impact of Internet Pornography on Adolescents: A Review of the Research, 19(1-2) SEXUAL ADDICT ION &
COMPULSIVIT Y 99, 99-100 (2012); see also PEW RESEARCH CENT ER, Teens, Social Media & Technology Overview 2015,
http://www.pewinternet.org/2015/04/09/teens-social-media-technology-2015/ (last visited Jan. 12, 2024).
10
Josh McDowell Ministry, THE PORN PHENOMENON: THE IMPACT OF PORNOGRAPHY IN T HE DIGITAL AGE (2016), research summary
available at https://www.barna.com/research/porn-in-the-digital-age-new-research-reveals-10-trends/ (last visited Jan. 12, 2024).
11
Josh McDowell Ministry, KEY FINDINGS FOR THE PORN PHENOMENON UNVEILED (2016), press release available at
https://www.josh.org/news-release/key-findings-for-the-porn-phenomenon-unveiled/ (last visited Jan. 13, 2024). STORAGE NAME: h1491b.SAC PAGE: 3
DATE: 1/14/2024
70 percent of teens accidentally stumble upon pornography online,
12
and teens may have experienced
an increase in unwanted exposure to pornographic content online.
13
A sample of American high school
students in 2021 found that 56 percent viewed pornography in the prior year.
14
Research suggests that adolescents who view pornography tend to have more sexually permissive
attitudes, have more sexual partners in their lifetime, and are more likely to engage in certain sexual
acts.
15
Similarly, adolescents who viewed pornography tended to display more aggression, have more
traditional gender role attitudes, and view women as sex objects.
16
Adolescents who view pornography report feeling insecure about their ability to perform sexually or how
they look, and tend to decrease their pornography use as their self-confidence increases or they
develop positive relationships with friends and family.
17
To attempt to reduce such effects on kids, Utah, Arkansas, Louisiana, and Ohio recently enacted laws
to require commercial entities that have a substantial amount of material harmful to minors on their
website to verify user age and prohibit access to minors under 18.
18
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.
19
House Bill 3 (2024)
HB 3, to which this bill is linked, requires commercial entities that knowingly and intentionally publish or
distribute a substantial portion of material harmful to minors on a website or application to:
Prohibit access to such material by any person younger than 18 years of age; and
Use reasonable age verification methods to verify that the age of a person attempting to access
the material is 18 years of age or older.
12
KAISER FAMILY FOUNDAT ION, Generation Rx.com: How Young People Use the Internet for Health Information, December 2001, at
12, available at https://www.kff.org/wp-content/uploads/2001/11/3202-genrx-report.pdf (last visited Jan. 12, 2024).
13
Kimberly J. Mitchell et al., Trends in Youth Reports of Sexual Solicitations, Harassment and Unwanted Exposure to Pornography
on the Internet, 40 JOURNAL OF ADOLESCENT HEALTH 116, 124 (2007), available at: http://unh.edu/ccrc/pdf/CV135.pdf (last visited
Jan. 12, 2024).
14
Amanda Giordano, What to Know About Adolescent Pornography Exposure, Psychology Today, Feb. 27, 2022,
https://www.psychologytoday.com/us/blog/understanding-addiction/202202/what-know-about-adolescent-pornography-exposure (last
visited Jan. 12, 2024).
15
Debra K. Braun-Courville & Mary Rojas, Exposure to Sexually Explicit Web Sites and Adolescent Sexual Attitudes and Behaviors,
45(2) J ADOLESCENT HEALTH 153, 156-162 (2009). See also Jane D. Brown & Kelly L. L’Engle, X-Rated: Sexual Attitudes and
Behaviors Associated with U.S. Early Adolescents’ Exposure to Sexually Explicit Media, 36 COMM. RSCH. 129-151 (2009). Contra
Marie-Therese Luder et al., Associations between Online Pornography and Sexual Behavior among Adolescents: Myth or Reality?,
40(5) ARCHIVES OF SEXUAL BEHAVIOR 1027-1035 (2011) (finding that pornography use had no association with early sexual imitation
or risky sexual behaviors).
16
Eileen M. Alexy et al., Pornography as a Risk Marker for an Aggressive Pattern of Behavior among Sexually Reactive Children
and Adolescents, 14(6) J AM. PSYCHIAT RIC NURSES ASS’N 442, 450 (2009). See also Elisabet Haggstrom-Nordin et al., Experiences of
and Attitudes towards Pornography among a Group of Swedish High School Students, 14 EURO. J CONT RACEPTION AND
REPRODUCT IVE HEALTH CARE 277, 277-284 (2009).
17
Lotta Lofgren-Martenson & Sven-Axel Mansson, Lust, Love, and Life: A Qualitative Study of Swedish Adolescents’ Perceptions
and Experiences with Pornography 47 J SEX RSCH. 568, 575 (2010).
18
Ch. 498, Laws of Utah 2023; Act No. 456, 2023 La. Acts; 2023 Ark. Acts 689; Ohio House Bill 33 - 135th General Assembly.
19
OPPAGA, Office of the Attorney General (Department of Legal Affairs),
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Jan. 12, 2024); see also ch. 16 and s.
20.11, F.S. STORAGE NAME: h1491b.SAC PAGE: 4
DATE: 1/14/2024
DLA, upon belief that any commercial entity is in violation of the provisions of HB 3, may bring an action
under the Florida Deceptive and Unfair Trade Practices Act. A private cause of action is permitted in
certain limited circumstances.
Effect of Proposed Changes
The bill creates a public record exemption for all information received by DLA pursuant to a notification
or an investigation by DLA or a law enforcement agency of a violation by commercial entities of the
requirements created by HB 3. Such information is made confidential and exempt
20
from public record
requirements until the investigation is completed or is no longer active.
21
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 that DLA believes to be a victim of a data breach or
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 received by DLA
remains 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 commercial entity’s data security; and
Information that would otherwise disclose a commercial entity’s proprietary information.
22
The bill provides the constitutionally required public necessity statement, which states that, if released,
information received by DLA pursuant to a notification or an investigation by DLA or a law enforcement
agency 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 Open Government Sunset Review
Act and will repeal on October 2, 2029, unless reenacted by the Legislature.
20
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).
21
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.”
22
The bill defines the term “proprietary information” to mean information that is owned or controlled by the commercial entity; is
intended to be private and is treated by the commercial entity as private because disclosure would harm the commercial entity 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 includes trade secrets, as defined in s. 688.002, F.S., and competitive
interests. STORAGE NAME: h1491b.SAC PAGE: 5
DATE: 1/14/2024
The bill will become effective on the same date that HB 3 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. 501.1737, F.S., as created by HB 3 (2024), to create a public record
exemption for investigations related to s. 501.1737, 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.
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.
STORAGE NAME: h1491b.SAC PAGE: 6
DATE: 1/14/2024
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 received 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 materials and personal
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.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On January 11, 2024, the Regulatory Reform & Economic Development Subcommittee adopted an
amendment and reported the bill favorably as a committee substitute. The committee substitute replaces
“online platform” with “commercial entity” throughout the bill, to conform with the linked bill, HB 3.
This analysis is drafted to the committee substitute as passed by the Regulatory Reform & Economic
Development Subcommittee.