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 1014
INTRODUCER: Senator Perry
SUBJECT: Public Records/State Banks and State Trust Companies
DATE: January 12, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Favorable
2. GO
3. RC
I. Summary:
Senate Bill 1014 makes confidential and exempt from public disclosure certain information
received by the Office of Financial Regulation (OFR) pursuant to an application for authority to
organize a new state bank or new state trust company under ch. 658, F.S., including:
Personal financial information;
A driver license number, a passport number, a military identification number, or any other
number or code issued on a government document used to verify identity;
Books and records of a current or proposed financial institutions;
The proposed business plan and supporting documentation; and
Personal identifying information of certain proposed officers or proposed directors who are
employed by, or actively participate in the affairs of, another financial institution for a
specified period of time.
The bill is subject to the Open Government Sunset Review Act and will be repealed on October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 is effective July 1, 2024.
REVISED: BILL: SB 1014 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 1014 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 1014 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
Confidential and Exempt Records in the Financial Institutions Codes
Books and records of financial institutions are confidential and may be made available for
inspection and examination only in limited circumstances, for instance:
26
To the OFR or its duly authorized representative;
To any person duly authorized to act for the financial institution;
To any federal or state instrumentality or agency authorized to inspect or examine the books
and records of an insured financial institution;
As compelled by a court of competent jurisdiction; and
As compelled by legislative subpoena as provided by law.
Current Florida law also contains several provisions which make confidential and exempt from
the Public Records Act certain records or information of financial institutions relating to:
Investigations conducted by the OFR;
27
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
Section 655.059(1), F.S.
27
Section 655.057(1), F.S. BILL: SB 1014 Page 5
Reports of examinations,
28
operations, or condition, including working papers,
29
or portions
thereof, prepared by, or for the use of, the OFR or any state or federal agency responsible for
the regulation or supervision of financial institutions
30
in Florida;
31
Informal enforcement actions;
32,33
Trade secrets
34
held by the OFR;
35
Any portion of a required shareholder list which reveals the shareholders’ identities;
36
and
Confidential documents supplied to the OFR or to employees of any financial institution by
other state or federal governmental agencies.
37
Any person who willfully discloses information made confidential commits a felony of the third
degree.
38
There is no provision in the Financial Institutions Codes which makes confidential or
exempts from the Public Records Act information received by the OFR in relation to an
application for authority to organize a new state bank
39
or new state trust company.
40
The exemptions do not prevent or restrict:
41
Publishing certain reports that must be submitted to the OFR or that are required to be
published by federal law or regulation;
Providing records or information to any other state, federal, or foreign agency responsible for
the regulation and supervision of financial institutions;
Disclosing or publishing summaries of the economic condition or similar data of financial
institutions;
28
“Examination report” is defined as records submitted to or prepared by the [OFR] as part of the [OFR’s] duties performed
pursuant to s. 655.012, F.S., or s. 655.045(1), F.S. Section 655.057(12)(a), F.S.
29
“Working papers” is defined as the records of the procedures followed, the tests performed, the information obtained, and
the conclusions reached in an examination or investigation performed under s. 655.032, F.S., or s. 655.045, F.S. Working
papers include planning documentation, work programs, analyses, memoranda, letters of confirmation and representation,
abstracts of the books and records of a financial institution as defined in s. 655.005(1), F.S., and scheduled or commentaries
prepared or obtained in the course of such examination or investigation.
30
“Financial institution” is defined as a state or federal savings or thrift association, bank, savings bank, trust company,
international bank agency, international banking corporation, international branch, international representative office,
international administrative office, international trust entity, international trust company representative office, qualified
limited service affiliate, credit union, or an agreement corporation operating pursuant to s. 25 of the Federal Reserve Act, 12
U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the Federal Reserve Act, 12 U.S.C. ss. 611 et
seq. Section 655.005(1)(i), F.S.
31
Section 655.057(2), F.S.
32
“Informal enforcement actions” is defined as a board resolution, a document of resolution, or an agreement in writing
between the office and a financial institution which meets certain criteria. Section 655.057(12)(b), F.S.
33
Section 655.057(3), F.S.
34
“Trade secrets” is defined as information, including a formula, pattern, compilation, program, device, method, technique,
or process that meets specified criteria. Section 688.002(4), F.S. The trade secret must also comply with s. 655.0591, F.S.
35
Section 655.057(4), F.S.
36
Section 655.057(8), F.S.
37
Section 655.057(9), F.S.
38
Section 655.057(13), F.S. A third degree felony is punishable by up to five years imprisonment and up to a $5,000 fine.
Sections 775.082, 775.083, and 775.084, F.S.
39
“State bank” is defined as any bank which has a subsisting bank charter issued pursuant to the provisions of the financial
institutions codes or the general banking laws of this state in effect prior to the enactment of the financial institutions codes.
Section 658.12(17), F.S.
40
“State trust company” is defined as a corporation, other than a bank, which has a subsisting trust company charter issued
pursuant to the provisions of the financial institutions codes or the applicable laws of the state in effect prior to the enactment
of the financial institutions codes. Section 658.12(19), F.S.
41
Section 655.057(5), F.S. BILL: SB 1014 Page 6
Reporting any suspicious criminal activity to appropriate law enforcement or prosecutorial
agencies;
Furnishing certain information requested by the Chief Financial Officer or specified agency
of any financial institution that is, or has applied to be, designated as a qualified public
depository; and
Furnishing information to Federal Home Loan Banks regarding its member institutions.
Orders to produce confidential records or information issued by courts or administrative law
judges must provide for inspection in camera by the court or administrative law judge. Other
procedural safeguards are provided for in the Financial Institutions Codes to protect the
confidentiality of the records or information, including provisions that an order directing the
release of information is reviewable by the OFR.
42
The OFR must retain the original and any copies of examination reports, investigatory records,
applications, and related information compiled by the OFR for at least 10 years.
43
III. Effect of Proposed Changes:
Section 1 of the bill makes confidential and exempt from public disclosure certain information
received by the Office of Financial Regulation (OFR) pursuant to an application for authority to
organize a new state bank or new state trust company under ch. 658, F.S., including:
Personal financial information;
A driver license number, a passport number, a military identification number, or any other
number or code issued on a government document used to verify identity;
Books and records of a current or proposed financial institutions; and
The proposed business plan and supporting documentation.
Section 1 of the bill also makes confidential and exempt from public disclosure personal
identifying information of a proposed officer or director who is currently employed by, or
actively participates in the affairs of, another financial institution received by the OFR pursuant
to an application for authority to organize a new state bank or new state trust company under ch.
658, F.S., until the application is approved or the charter is issued. The term “personal
identifying information” is defined as names, home addresses, e-mail addresses, telephone
numbers, names of relatives, work experience, professional licensing and educational
backgrounds, and photographs.
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 confidential and exempt. The public
necessity statement notes:
[t]he [OFR] may receive sensitive personal, financial, and business information in
conjunction with its duties related to the review of applications for the organization or
42
Section 655.057(6), F.S.
43
Section 655.057(10), F.S. BILL: SB 1014 Page 7
establishment of new state banks and new state trust companies. These exemptions from
public records requirements are necessary to ensure the [OFR’s] ability to administer its
regulatory duties while preventing unwarranted damage to the proposed state bank or
proposed state trust company, or certain proposed officers or proposed directors of the
proposed state bank or proposed state trust company, and other financial institutions in
this state. The release of information that could lead to the identification of an individual
involved in the potential establishment of a new state bank or new state trust company
may subject such individual to retribution and jeopardize his or her current employment
with, or participation in the affairs of, another financial institution. Thus, the public
availability of such information has a chilling effect on the establishment of new state
banks and new state trust companies. Further, the public availability of the books and
financial records of a current or proposed financial institution in this state presents an
unnecessary risk of harm to the business operations of such institution. Finally, the public
availability of a proposed state bank’s or proposed state trust company’s business plan
may cause competitive harm to such bank’s or trust’s company’s future business
operations and presents an unfair competitive advantage for existing financial institutions
that are not required to release such information.
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.
Section 3 of the bill provides for an effective date of July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or municipalities.
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. SB 1014 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. Section 2 of the bill contains a statement of public necessity.
Breadth of Exemption BILL: SB 1014 Page 8
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
confidential and exempt to prevent unwarranted damage or unnecessary risk of harm to
the proposed new state bank or new state trust company, or the proposed officer or
director.
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 does not appear to have a fiscal impact on state or local governments. Costs
incurred by an agency in responding to public records requests regarding these
exemptions should be offset by authorized fees.
44
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends s. 655.057 of the Florida Statutes.
44
Section 119.07(2) and (4), F.S. BILL: SB 1014 Page 9
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.