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 Rules
BILL: CS/SB 1014
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Perry
SUBJECT: Public Records/State Banks and State Trust Companies
DATE: February 13, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Favorable
2. Harmsen McVaney GO Fav/CS
3. Moody Twogood RC Pre-meeting
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1014 makes confidential and exempt from public inspection and copying requirements
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’s 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.
The bill makes exempt from public inspection and copying 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The bill is subject to the Open Government Sunset Review Act and will be repealed on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.
REVISED: BILL: CS/SB 1014 Page 2
There is no anticipated fiscal impact on state, county, or municipal governments. Additional
agency workload incurred in responding to public records requests should be absorbed by current
personnel.
The bill is effective July 1, 2024.
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
Chapter 119, F.S., known as the Public Records Act, constitutes the main body of public records
laws.
3
The Public Records Act states that:
[i]t 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.
4
The Public Records Act typically 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.
The Public Records Act does not apply to legislative or judicial records.
5
Legislative records are
public pursuant to s. 11.0431, F.S. Public records exemptions for the Legislature are codified
primarily in s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the legislature.
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 which are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
Public records laws are found throughout the Florida Statutes.
4
Section 119.01(1), F.S.
5
Locke v. Hawkes, 595 So. 2d 32, 34 (Fla. 1992); see also Times Pub. Co. v. Ake, 660 So. 2d 255 (Fla. 1995).
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc. Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: CS/SB 1014 Page 3
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.
7
A violation of the Public Records Act
may result in civil or criminal liability.
8
Only the Legislature may create an exemption to public records requirements.
9
An exemption
must be created by general law and must specifically state the public necessity justifying the
exemption.
10
Further, the exemption must be no broader than necessary to accomplish the stated
purpose of the law. A bill enacting an exemption may not contain other substantive provisions
11
and must pass by a two-thirds vote of the members present and voting in each house of the
Legislature.
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 (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,
16
with specified exceptions.
17
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.
18
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.
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.
11
The bill may, however, contain multiple exemptions that relate to one subject.
12
FLA. CONST. art. I, s. 24(c).
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. 5
th
DCA 1991).
16
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.
17
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.
18
Section 119.15(3), F.S.
19
Section 119.15(6)(b), F.S. BILL: CS/SB 1014 Page 4
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
It protects sensitive, personal information, the release of which 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
The Office of Financial Regulation (OFR) regulates banks, credit unions, other financial
institutions, finance companies, and the securities industry.
26
To apply for authority to organize a
new state-chartered bank or state-chartered trust company, the proposed directors must file a
written application with the OFR. The application must include the:
27
Name, residence, and occupation of each proposed director;
Proposed corporate name;
Community where the bank will be located, if available;
Total initial capital;
Proposed business plan; and
Pro forma financial statements.
20
Section 119.15(6)(b)1., F.S.
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 20.121(3)(a)2., F.S.
27
Section 658.19, F.S. and R. 69U-105.202, F.A.C. BILL: CS/SB 1014 Page 5
Each proposed executive officer, director, and controlling shareholder must also complete a
detailed biographical and financial information, including but not limited to the names, home
addresses, current and past employment information, and statements of assets, liabilities, and net
worth.
28
The OFR uses this information to determine whether the proposed directors and
executives have the requisite experience, ability, standing, and reputation indicative of
reasonable promise of a successful operation.
Books and records of currently-chartered financial institutions are confidential and may be made
available for inspection and examination only in limited circumstances, for instance:
29
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 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;
30
Reports of examinations,
31
operations, or condition, including working papers,
32
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
33
in Florida;
34
Informal enforcement actions;
35,36
Trade secrets
37
held by the OFR;
38
28
Section 658.19, F.S., see also, Form OFR-U-10, Interagency Biographical and Financial Report,
https://flofr.gov/sitePages/documents/OFR-U-10.pdf (last visited Feb. 2, 2024).
29
Section 655.059(1), F.S.
30
Section 655.057(1), F.S.
31
“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.
32
“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.
33
“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.
34
Section 655.057(2), F.S.
35
“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.
36
Section 655.057(3), F.S.
37
“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.
38
Section 655.057(4), F.S. BILL: CS/SB 1014 Page 6
Any portion of a required shareholder list which reveals the shareholders’ identities;
39
and
Confidential documents supplied to the OFR or to employees of any financial institution by
other state or federal governmental agencies.
40
Any person who willfully discloses information made confidential commits a felony of the third
degree.
41
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
42
or new state trust company.
43
While some
of the information submitted as part of an application may constitute a trade secret, protected
under s. 655.057(4), F.S., other information, such as a driver’s license number or passport
number, are not specifically protected in that context.
The exemptions do not prevent or restrict:
44
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;
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.
45
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.
46
39
Section 655.057(8), F.S.
40
Section 655.057(9), F.S.
41
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.
42
“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.
43
“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.
44
Section 655.057(5), F.S.
45
Section 655.057(6), F.S.
46
Section 655.057(10), F.S. BILL: CS/SB 1014 Page 7
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 exempt from public disclosure requirements 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. This will allow the OFR to disclose the personal identifying information to other
governmental entities, e.g., the FDLE or FBI to conduct a criminal background check in the
course of its statutorily imposed duty to investigate these individuals.
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 and that the
personal identifying information of specific applicants 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 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 BILL: CS/SB 1014 Page 8
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. The 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. Section 2 of the 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
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. BILL: CS/SB 1014 Page 9
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The private sector will be subject to the cost, to the extent imposed, associated with
redactions made in response to a public record request.
Those individuals or businesses that wish to protect trade secret information submitted to
the OFR as part of their application to organize a new state bank or new state trust
company under ch. 658, F.S., may no longer be required to use court processes to declare
the information trade secret, and thus exempt from production as a public record.
47
The
submitter will be able to rely on the public record exemption for specific information
instead.
C. Government Sector Impact:
The bill does not appear to have a fiscal impact on local government. Staff responsible
for compliance with public record requests may require training related to the new public
record exemptions. Additionally, the OFR may experience additional workload
associated with the redaction of exempt information prior to the release of a record.
However, this workload should be absorbed as part of the day-to-day agency
responsibilities, and offset by fees collected for the preparation and copying of public
records.
48
The OFR reports that “the lack of protection for this sensitive information in Florida may
influence an applicant to choose a national charter over a state charter.”
49
The new public
records exemption may cause an increase in the number of applications for new state
banks or state trust companies that the OFR receives.
VI. Technical Deficiencies:
None.
47
See, s. 655.0591, F.S.
48
Section 119.07(2) and (4), F.S.
49
Florida OFR, SB 1014 Agency Analysis, 4 (Jan. 10, 2024) (on file with the Senate Committee on Governmental Oversight
and Accountability). BILL: CS/SB 1014 Page 10
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends s. 655.057 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 Governmental Oversight and Accountability on February 6, 2024:
Makes the personal identifying information of a proposed officer or director who is
currently employed by, or actively participating in the affairs of another financial
institution exempt, rather than confidential and exempt, when held by the OFR. The
information identified in paragraph (5)(a) remains confidential and exempt.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.