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 1078
INTRODUCER: Senator DiCeglie
SUBJECT: Public Records/Cellular Telephone Numbers Held by the Department of Financial
Services
DATE: January 22, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Thomas Knudson BI Favorable
2. GO
3. RC
I. Summary:
SB 1078 provides that cellular telephone numbers voluntarily submitted to the Department of
Financial Services (DFS) as part of the application process for purposes of two-factor
authentication of login credentials are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Constitution.
Legislation filed this legislative session, SB 1098, proposes to amend s. 626.171(2), F.S., by
requiring the DFS to allow licensure applicants to voluntarily submit cellular telephone numbers
to the DFS during the application process for the purpose of two-factor secure login
authentication. Such applications include insurance agents, insurance agencies, managing general
agents, insurance adjusters, reinsurance intermediaries, viatical settlement brokers, customer
representatives, service representatives, and agencies.
The exemption is necessitated because it is believed that the unintentional publication of such
information may subject the filer to identity theft, financial harm, or other adverse impacts.
Without the public records exemption, the effective and efficient administration of the electronic
filing system, which is otherwise designed to increase the ease of filing records, would be
hindered.
The bill is subject to the Open Government Sunset Review Act and will be repealed on October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: SB 1078 Page 2
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.
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
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). BILL: SB 1078 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.
8
A violation of the Public Records Act
may result in civil or criminal liability.
9
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.
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.
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. BILL: SB 1078 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. 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
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
Cellular Telephone Numbers Held by the Department of Financial Services
Legislation filed this legislative session, SB 1098, proposes to amend s. 626.171(2), F.S., by
requiring the Department of Financial Services (DFS) to allow licensure applicants to voluntarily
submit cellular telephone numbers to the DFS during the application process for the purpose of
two-factor secure login authentication. Such applications include insurance agents, insurance
agencies, managing general agents, insurance adjusters, reinsurance intermediaries, viatical
settlement brokers, customer representatives, service representatives, and agencies.
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. BILL: SB 1078 Page 5
III. Effect of Proposed Changes:
Section 1 of the bill provides that cellular telephone numbers voluntarily submitted to the DFS
as part of the application process for purposes of two-factor authentication of login credentials
are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
Legislation filed this legislative session, SB 1098, proposes to amend s. 626.171(2), F.S., by
requiring the DFS to allow licensure applicants to voluntarily submit cellular telephone numbers
to the DFS during the application process for the purpose of two-factor secure login
authentication. Such applications include insurance agents, insurance agencies, managing general
agents, insurance adjusters, reinsurance intermediaries, viatical settlement brokers, customer
representatives, service representatives, and agencies.
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:
that the unintentional publication of such information may subject the filer to
identity theft, financial harm, or other adverse impacts. Without the public records
exemption, the effective and efficient administration of the electronic filing
system, which is otherwise designed to increase the ease of filing records, would
be hindered.
Section 3 of the bill provides for an effective date of upon becoming a law.
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. This bill creates a new exemption and therefore, the bill will
require a two-thirds vote to be enacted.
Public Necessity Statement
BILL: SB 1078 Page 6
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.
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.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None. BILL: SB 1078 Page 7
VIII. Statutes Affected:
This bill substantially amends the following section of the Florida Statutes: 626.171.
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.