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: SB 1078
INTRODUCER: Senator DiCeglie
SUBJECT: Public Records/Cellular Telephone Numbers Held by the Department of Financial
Services
DATE: February 13, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Thomas Knudson BI Favorable
2. McVaney McVaney GO Favorable
3. Thomas Twogood RC Favorable
I. Summary:
SB 1078 makes exempt from public records inspection and copying requirements those 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.
Legislation filed this legislative session, SB 1098, requires 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 applicants include insurance agents,
insurance agencies, managing general agents, insurance adjusters, reinsurance intermediaries,
viatical settlement brokers, customer representatives, service representatives, and agencies.
According to the public necessity statement contained in the bill, the exemption from public
records inspection and copying requirements is necessary because 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The bill is subject to the Open Government Sunset Review Act and will be repealed on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 State 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:
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 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:
All documents, papers, letters, maps, books, tapes, photography, 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.
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, (2022-2024).
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th 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: SB 1078 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 public 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
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
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: SB 1078 Page 4
or open meetings exemptions,
16
with specified exemptions.
17
The Act requires the repeal of such
exemption on October 2
nd
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 continue 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 necessary. An
exemption serves an identifiable public 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;
19
It protects sensitive, personal information, the release of which would be defamatory or
would jeopardize an individual’s safety. However, if this public purpose is cited as the basis
of the exemption, only personal identifying information is exempt;
20
or
It protects trade or business secrets.
21
The Act also requires specified questions to be considered during the review process.
22
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage is required.
23
If the exemption is 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.
24
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)1., F.S.
20
Section 119.15(6)(b)2., F.S.
21
Section 119.15(6)(b)3., F.S.
22
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?
23
See generally s. 119.15, F.S.
24
Section 119.15(7), F.S. BILL: SB 1078 Page 5
Cellular Telephone Numbers Held by the Department of Financial Services
Legislation filed this legislative session, SB 1098, requires 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
applicants include insurance agents, insurance agencies, managing general agents, insurance
adjusters, reinsurance intermediaries, viatical settlement brokers, customer representatives,
service representatives, and agencies.
III. Effect of Proposed Changes:
Section 1 amends s. 626.171, F.S., to exempt from public records inspection and copying
requirements those cellular telephone numbers voluntarily submitted to the DFS as part of the
application process for purposes of two-factor authentication of login credentials.
Legislation filed this legislative session, SB 1098, requires 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 applicants 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 from public records disclosure
requirements. 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 provides that the bill takes effect 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. BILL: SB 1078 Page 6
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.
C. Trust Funds Restrictions:
None.
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 associated with an agency’s review and
redactions of exempt records in response to a public records request. BILL: SB 1078 Page 7
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.
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.