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 Judiciary
BILL: CS/SB 528
INTRODUCER: Judiciary Committee and Senators Pizzo and Book
SUBJECT: Public Records/Title Fraud Prevention Pilot Program
DATE: Febuary 6, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Fav/CS
2. CA
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Technical Changes
I. Summary:
CS/SB 528 exempts from public records copying and inspection requirements the name, mailing
address, electronic mail address, and telephone number submitted to a property appraiser
pursuant to the Title Fraud Prevention through Sales Contract Notification Services Pilot
Program created by SB 526.
The bill provides a statement of public necessity as required by the State Constitution. In
compliance with the Open Government Sunset Review Act, the exemption is repealed October 2,
2029, unless saved from repeal.
Because the bill creates a new public records exemption, it requires a two-thirds vote of the
members present and voting in each house of the Legislature for final passage.
The bill is effective on the same date that SB 526 or other similar legislation takes effect.
II. Present Situation:
SB 526 creates the Title Fraud Prevention through Sales Contract Notification Services Pilot
Program in Broward County. The program seeks to prevent real estate title fraud through use of a
notification system whereby real estate professionals who have knowledge of an upcoming real
estate transaction will notify the Broward County Property Appraiser. If the seller has registered
for the clerk’s notification service, the property appraiser will send the property owner a notice
REVISED: BILL: CS/SB 528 Page 2
disclosing that a transaction is pending. An owner receiving notice who does not recognize the
transaction, and thus is about to be a property fraud victim can possibly intervene and stop the
transaction.
The notice from the real estate professional includes the following information: seller’s name,
mailing address, e-mail address, and phone number.
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 branch and local government 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 connection with the transaction
of official business by any agency.
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 2, (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.” BILL: CS/SB 528 Page 3
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 governmental 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
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
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). BILL: CS/SB 528 Page 4
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; in
order to save an exemption from repeal, the Legislature must reenact the exemption or repeal the
sunset date.
19
In practice, many exemptions are continued by repealing the sunset date, rather
than reenacting the exemption.
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
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, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.
25
If the exemption is
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.
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. BILL: CS/SB 528 Page 5
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
III. Effect of Proposed Changes:
Section 1 creates a public records exemption to provide that the names, mailing addresses,
e-mail addresses, and telephone numbers of sellers of real property that are submitted to the
Broward County Property Appraiser pursuant to the Title Fraud Prevention Through Sales
Contract Notification Service Pilot Program created by SB 526, are confidential and exempt
from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
This exemption is subject to the Open Government Sunset Review Act and is repealed on
October 2, 2029, unless reviewed and saved from repeal through reenactment by the Legislature.
Section 2 provides the public necessity statement, as required by the State Constitution. The
public necessity statement finds that it is a public necessity that the names, mailing addresses, e
mail addresses, and telephone numbers of sellers of real property which are submitted to a
property appraiser pursuant to the Title Fraud Prevention Through Sales Contract Notification
Service Pilot Program created in s. 696.031, F.S., be made confidential and exempt from s.
119.07(1), F.S., and s. 24(a), Article I of the State Constitution. The provisions of s. 696.031,
F.S., are created to protect real property owners from fraud in real estate transactions by
informing an owner that a contract for the sale or purchase of his or her real estate has been
executed. Information required to be provided to the property appraiser pursuant to s. 696.031,
F.S., is of a sensitive, personal nature, and disclosure of such information about a property seller
is an invasion of that person’s privacy. Making public the private information of a property seller
could have a chilling effect on participation in the program.
Section 3 provides that the bill is effective on the same date that SB 526 or other similar
legislation takes effect, if such legislation is adopted in the same legislative session or an
extension thereof and becomes law. SB 526 takes effect July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
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 enacts a new exemption for records pertaining to a
26
Section 119.15(7), F.S. BILL: CS/SB 528 Page 6
title fraud prevention program; therefore, the bill requires a two-thirds vote of each
chamber for enactment.
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. Section 2 of the bill contains a statement of public necessity for
the exemption.
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 purpose of the law is to encourage real property professionals to notify the property
appraiser of an upcoming real estate closing so that the property appraiser can notify the
owner. If the upcoming transaction is fraudulent, the owner may have time to stop it. This
purpose may not be met if land owners are deterred from registration because their
contact information would be made public, or if real estate professionals are deterred
from registering their sales because information would be made public. 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 apparent.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None. BILL: CS/SB 528 Page 7
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 696.031 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 by Judiciary on February 5, 2024:
The amendment clarified the public necessity statement and added the bill number of the
linked bill.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.