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 Transportation
BILL: CS/SB 320
INTRODUCER: Transportation Committee and Senator Wright
SUBJECT: Public Records/Prospective Bidders for a Road or Other Public Works
DATE: January 24, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Johnson Vickers TR Fav/CS
2. GO
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 320 creates a public records exemption for certain financial information required by the
Florida Department of Transportation (FDOT), for prequalification purposes from entities
wishing to qualify to bid on FDOT construction projects.
This exemption is subject to the Open Government Sunset Review Act and will stand repealed
on October 2, 2029, unless reviewed and reenacted by the Legislature.
The bill provides a statement of public necessity as required by the State Constitution.
The bill creates a new public records exemption and, therefore, requires a two-thirds vote of the
members present and voting for final passage.
The bill may have a minimal fiscal impact to FDOT relating to the workload necessary for the
redaction of records in responding to public records requests.
The bill takes effect July 1, 2024.
REVISED: BILL: CS/SB 320 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, 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, chapter
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:
[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
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
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
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: CS/SB 320 Page 3
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 Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
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.
19
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
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., 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.
19
Section 119.15(3), F.S. BILL: CS/SB 320 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.
20
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;
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 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 expire, the previously
exempt records will remain exempt unless otherwise provided by law.
26
Information Required by Florida Department of Transportation for Bid Qualification
Section 337.14(1), F.S., requires contractors desiring to bid on any Florida Department of
Transportation (FDOT) construction contract in excess of $250,000 be certified by FDOT.
FDOT rules regarding the certification of contractors must include requirements regarding
equipment, experience, financial resources, and organizational personnel.
27
Included in s.
337.14(1), F.S., is the requirement that the applying contractor submit to FDOT audited, certified
20
Section 119.15(6)(b), F.S.
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 Rule 14-22, F.A.C. BILL: CS/SB 320 Page 5
financial statements. Section 337.14(1), F.S., provides that the information required by s.
337.14(1), F.S., is confidential and exempt from s. 119.07(1), F.S., relating to public records.
III. Effect of Proposed Changes:
Section 1 creates s. 337.14(1)(b), F.S., providing that any information currently required by
FDOT pursuant to s. 337.14(1)(a), F.S., which would reveal the revenue, profit, loss, expenses,
gross receipts, taxes paid, or capital investment of any applying contractor is confidential and
exempt from s. 119.07(1), F.S., and s. 24(a), Art. I of the State Constitution. This provision is
subject to the Open Government Sunset Review Act and stands repealed on October 2, 2029,
unless reviewed and reenacted by the Legislature.
Section 2 provides a public necessity statement, as required by the State Constitution. The public
necessity statement provides that it is a public necessity that any financial information required
by FDOT for prequalification purposes, including information that would reveal the revenue,
profit, loss, expenses, gross receipts, taxes paid, or capital investment from any applying
contractor, be made exempt from s. 119.07(1), F.S., and s. 24(a), Article I of the State
Constitution. In the prequalification process, an applying contractor will provide financial
statements to FDOT, and FDOT may request additional financial information in order to verify
the financial adequacy of the prospective bidder. These records may contain sensitive
information related to an applying contractor’s financial condition. The risk of potential
disclosure of sensitive financial information defeats the purpose of protections already afforded
to financial statements and may have a chilling effect on entities desiring to prequalify or
maintain prequalification. The chilling effect may result in a limited pool of prequalified bidders,
thus negatively impacting FDOT’s ability to receive the best value for projects.
Additionally, protecting this financial information from public disclosure will prevent such
information from being used by competitors to gain an unfair advantage against other bidders on
the project. Lastly, protecting this information from disclosure promotes the free provision of
such information to the department by removing a prospective bidder’s concern for attendant
risks in doing so. As a result, this exemption promotes the state’s interest in ensuring that
prospective bidders on transportation projects possess the necessary financial resources to
complete such projects, many of which involve immense costs and may be complex and of long
duration.
Section 3 provides that the bill takes effect July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Vote Requirement
BILL: CS/SB 320 Page 6
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 expands creates a public records exemption;
therefore, 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 includes a public necessity statement related to the
exemption created in the bill.
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 exempts potentially sensitive financial information required by FDOT from
contractors wishing to prequalify to bid on FDOT projects. 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.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
The bill may have a minimal fiscal impact to agency’s relating to the workload necessary
for the redaction of records in responding to public records requests. BILL: CS/SB 320 Page 7
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 337.14 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 Transportation on January 23, 2024.
The committee substitute limits the public records exemption to specified financial
information requested by FDOT and revises 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.