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 Banking and Insurance
BILL: SB 988
INTRODUCER: Senator Martin
SUBJECT: Public Records/My Safe Florida Home Program
DATE: January 26, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Thomas Knudson BI Pre-meeting
2. GO
3. RC
I. Summary:
SB 988 provides that applications and home inspection reports submitted by applicants as part of
the My Safe Florida Home (MSFH) Program to the Department of Financial Services (DFS) are
exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. The bill applies the
exemption retroactively to applications and home inspection reports submitted before, on, or
after the effective date of the exemption.
The exemption is necessitated because it is believed that public availability of these records puts
participants in the MSFH Program at increased risk of home invasions and reduces privacy in
their homes. Such risk may be significantly limited by making MSFH Program applications and
home inspection reports exempt.
The bill is subject to the Open Government Sunset Review Act and will be repealed on October
2, 2029, unless the statute is reviewed and reenacted by the Legislature before that date. The bill
provides a statement of public necessity as required by the Florida constitution.
The bill requires a two-thirds vote of the members present and voting in each house of the
Legislature for final passage because it creates a new public records exemption.
There is no anticipated fiscal impact on state, county, or municipal governments. Agency costs
incurred in responding to public records requests for the specified information should be offset
by authorized fees.
The bill takes effect upon becoming a law.
REVISED: BILL: SB 988 Page 2
II. Present Situation:
Public Records Law
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
This 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 who acts on behalf of the government.
2
In addition to the Florida Constitution, the Florida Statutes provide that the public may access
legislative and executive branch records.
3
Chapter 119, F.S., constitutes the main body of public
records laws, and is known as the Public Records Act.
4
The Public Records Act states that:
It is the policy of this state that all state, county and municipal records are open for
personal inspection and copying by any person. Providing access to public records is
a duty of each agency.
5
According to the Public Records Act, a public record includes virtually any document or
recording, regardless of its physical form or how it may be transmitted. Section 119.011(12),
F.S., defines “public records” to include:
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.
6
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business which are used to “perpetuate,
communicate, or formalize knowledge of some type.”
7
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
state or local government public record at any reasonable time, under reasonable conditions, and
under supervision by the custodian of the public record.
8
A violation of the Public Records Act
may result in civil or criminal liability.
9
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
The Public Records Act does not apply to legislative or judicial records. Locke v. Hawkes, 595 So.2d 32 (Fla. 1992). Also
see Times Pub. Co. v. Ake, 660 So.2d 255 (Fla. 1995). The Legislature’s records are public pursuant to s. 11.0431, F.S. Public
records exemptions for the Legislature are primarily located in s. 11.0431(2)-(3), F.S.
4
Public records laws are found throughout the Florida Statutes.
5
Section 119.01(1), F.S.
6
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.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc. Inc., 379 So.2d 633, 640 (Fla. 1980).
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. BILL: SB 988 Page 3
The Public Records Act contains general exemptions that apply across agencies. Agency or
program-specific exemptions often are placed in the substantive statutes relating to that particular
agency or program. Only the Legislature may create an exemption to public records
requirements.
10
An exemption must be created by general law and must specifically state the
public necessity which justifies the exemption.
11
Further, the exemption must be no broader than
necessary to accomplish the stated purpose of the law. A bill that enacts an exemption may not
contain other substantive provisions
12
and must pass by a two-thirds vote of the members present
and voting in each house of the Legislature.
13
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.
14
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.
15
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
16
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,
17
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. 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 subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;
20
10
FLA. CONST., art. I, s. 24(c).
11
Id.
12
The bill may, however, contain multiple exemptions that relate to one subject.
13
FLA. CONST., art. I, s. 24(c).
14
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So.2d 48, 53 (Fla. 5
th
DCA 2004).
15
Id.
16
Williams v. City of Minneola, 575 So.2d 683 (Fla. 5
th
DCA 1991).
17
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
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)1., F.S. BILL: SB 988 Page 4
The release of sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;
21
or
It protects trade or business secrets.
22
The Act also requires specified questions to be considered during the review process.
23
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.
24
If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is 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.
25
My Safe Florida Home Program
In 2006, the Legislature created the My Safe Florida Home (MSFH) Program
26
within the
Department of Financial Services (DFS).
27
The MSFH Program was created with the intent to
provide trained and certified inspectors to perform mitigation inspections for owners of site-built,
single-family, residential properties (mitigation inspections), and mitigation grants to eligible
applicants, subject to the availability of funds.
28
In May 2022, during Special Session 2022-D,
after the program being dormant since 2008, the Legislature reestablished the MSFH Program
within the DFS to provide financial incentives for Florida residential property owners to obtain
free home inspections which identify mitigation measures and provide mitigation grants to
retrofit such properties, thereby reducing their vulnerability to hurricane damage and helping
decrease the cost of residential property insurance.
29
21
Section 119.15(6)(b)2., F.S.
22
Section 119.15(6)(b)3., F.S.
23
Section 119.15(6)(a), F.S. The specific 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?
24
FLA. CONST. art. I, s. 24(c).
25
Section 119.15(7), F.S.
26
Id.
27
The Legislature initially established the program as the Florida Comprehensive Hurricane Damage Mitigation Program
(ch. 2006-12, L.O.F.) however, the name was subsequently changed in 2007 (ch. 2007-126, L.O.F.).
28
Section 215.5586, F.S.
29
Section 3, ch. 2022-268, L.O.F. BILL: SB 988 Page 5
Hurricane Mitigation Inspections
The MSFH Program provides licensed inspectors to perform inspections for owners of site-built,
single-family, residential properties, for which a homestead exemption has been granted, to
determine what mitigation measures are needed, what insurance premium discounts may be
available, and what improvements to existing residential properties are needed to reduce the
property’s vulnerability to hurricane damage. A townhouse as defined in s. 481.203, F.S.,
30
for
which a homestead exemption has been granted, may qualify to receive a mitigation inspection
to determine if opening protection
31
mitigation would provide improvements to mitigate
hurricane damage. The mitigation inspections must include, at a minimum:
A home inspection and report that summarizes the results and identifies recommended
improvements a homeowner may take to mitigate hurricane damage;
A range of cost estimates regarding the recommended mitigation improvements; and
Information regarding estimated premium discounts, correlated to the current mitigation
features and the recommended mitigation improvements identified by the inspection.
32
Hurricane Mitigation Grants
The homeowner eligibility requirements for the mitigation grants are:
The homeowner must have been granted a homestead exemption on the home;
The home must be a dwelling with an insured value of $700,000 or less. Low-income
homeowners are exempt from this requirement;
The home must have undergone an acceptable hurricane mitigation inspection;
The building permit for the initial construction of the home must have been made before
January 1, 2008; and
The homeowner must agree to make the home available for inspection upon completion of
the mitigation project.
33
MSFH Program grants must be matched on the basis of one dollar provided by the applicant for
two dollars provided by the state, up to a maximum state contribution of $10,000 toward the
actual cost of the mitigation project.
34
Low-income homeowners may receive up to $10,000 in
grant funds without providing matching dollars.
35
III. Effect of Proposed Changes:
Section 1 of the bill provides that applications and home inspection reports submitted by
applicants as part of the MSFH Program to the DFS are exempt from s. 119.07(1) and s. 24(a),
Art. I of the State Constitution. The bill applies the exemption retroactively to applications and
home inspection reports submitted before, on, or after the effective date of the exemption.
30
“Townhouse” generally means “a single-family dwelling unit not exceeding three stories in height which is constructed in
a series or group of attached units with property lines separating such units.” Section 481.203(16), F.S.
31
Opening protection includes windows, exterior doors, and garage doors. See s. 215.5586(2)(e), F.S.
32
Section 215.5586(1)(a), F.S.
33
Section 215.5586(2)(a), F.S.
34
Section 215.5586(2)(b), F.S.
35
Section 215.5586(2)(g), F.S. BILL: SB 988 Page 6
The bill is subject to the Open Government Sunset Review Act and will be repealed on October
2, 2029, unless the statute is reviewed and reenacted by the Legislature before that date.
Section 2 of the bill provides that the Legislature finds it is a public necessity that the
information referred to in section 1 of the bill be made exempt. The public necessity statement
notes:
the My Safe Florida Home Program applications and home inspection reports
contain detailed descriptions and pictures of the inside and outside of applicants’
homes, including private areas, points of entry, and other vulnerabilities. The
public availability of these records puts participants in the My Safe Florida Home
Program at increased risk of home invasions and reduces privacy in their homes.
Such risk may be significantly limited by making My Safe Florida Home Program
applications and home inspection reports exempt.
Section 3 of the bill provides for an effective date of upon becoming a law.
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 creates a new exemption and therefore, the bill will
require 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. This bill contains a statement of public necessity.
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 exemption in the bill does not appear to be broader than necessary to accomplish the
purpose of the law. The bill provides the specific information that would be made exempt
to prevent the unintentional publication of information that may subject the filer to
identity theft, financial harm, or other adverse impacts. BILL: SB 988 Page 7
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:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following section of the Florida Statutes: 215.5587.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.