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 Health Policy
BILL: SB 1632
INTRODUCER: Senator Collins
SUBJECT: Public Records/Personnel of the Agency for Health Care Administration
DATE: February 5, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Looke Brown HP Pre-meeting
2. GO
3. RC
I. Summary:
SB 1632 creates a new public records exemption for specified personally identifying information
of current and former personnel of the Agency for Health Care Administration (AHCA) whose
duties include the investigation of complaints filed against health care facilities or the inspection
of health care facilities, such personnel’s children and spouses’ specified personally identifying
information, and the names and locations of their children’s schools and day care facilities.
The bill provides that the new exemption is subject to the Open Government Sunset Review Act
and will be repealed on October 2, 2029, unless saved form repeal by the Legislature. The bill
also finds that exempting the specified records from public records requirements is a public
necessity to protect the AHCA’s current and former personnel from potential danger posed by
disgruntled individuals who may have contentious reactions to actions carried out by such
personnel.
The bill provides an effective date of July 1, 2024.
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
1
FLA. CONST. art. I, s. 24(a).
2
Id.
REVISED: BILL: SB 1632 Page 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, 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 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
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, Edition 2, (2022-2024)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
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.”
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). BILL: SB 1632 Page 3
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.” 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.
13
Records designated as “exempt” may be released at the discretion of the records custodian under
certain circumstances.
14
Open Meetings Laws
The State Constitution provides that the public has a right to access governmental meetings.
15
Each collegial body must provide notice of its meetings to the public and permit the public to
attend any meeting at which official acts are taken or at which public business is transacted or
discussed.
16
This applies to the meetings of any collegial body of the executive branch of state
government, counties, municipalities, school districts or special districts.
17
Public policy regarding access to government meetings is also addressed in the Florida Statutes.
Section 286.011, F.S., known as the “Government in the Sunshine Law,”
18
or the “Sunshine
Law,”
19
requires all meetings of any board or commission of any state or local agency or
authority at which official acts are to be taken be open to the public.
20
The board or commission
must provide the public reasonable notice of such meetings.
21
Public meetings may not be held at
any location that discriminates on the basis of sex, age, race, creed, color, origin or economic
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
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
15
FLA. CONST., art. I, s. 24(b).
16
Id.
17
FLA. CONST., art. I, s. 24(b). Meetings of the Legislature are governed by Article III, section 4(e) of the Florida
Constitution, which states: “The rules of procedure of each house shall further provide that all prearranged gatherings,
between more than two members of the legislature, or between the governor, the president of the senate, or the speaker of the
house of representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent
time, or at which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to
the public.”
18
Times Pub. Co. v. Williams, 222 So. 2d 470, 472 (Fla. 2d DCA 1969).
19
Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 695 (Fla. 1969).
20
Section 286.011(1)-(2), F.S.
21
Id. BILL: SB 1632 Page 4
status or which operates in a manner that unreasonably restricts the public’s access to the
facility.
22
Minutes of a public meeting must be promptly recorded and open to public
inspection.
23
Failure to abide by open meetings requirements will invalidate any resolution, rule
or formal action adopted at a meeting.
24
A public officer or member of a governmental entity
who violates the Sunshine Law is subject to civil and criminal penalties.
25
The Legislature may create an exemption to open meetings requirements by passing a general
law by at least a two-thirds vote of each house of the Legislature.
26
The exemption must
explicitly lay out the public necessity justifying the exemption, and must be no broader than
necessary to accomplish the stated purpose of the exemption.
27
A statutory exemption which
does not meet these two criteria may be unconstitutional and may not be judicially saved.
28
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act
29
(the
Act), prescribe a legislative review process for newly created or substantially amended
30
public
records or open meetings exemptions, with specified exceptions.
31
The Act requires the repeal of
such exemption on October 2nd of the fifth year after creation or substantial amendment, unless
the Legislature reenacts the exemption.
32
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.
33
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
34
22
Section 286.011(6), F.S.
23
Section 286.011(2), F.S.
24
Section 286.011(1), F.S.
25
Section 286.011(3), F.S.
26
FLA. CONST., art. I, s. 24(c).
27
Id.
28
Halifax Hosp. Medical Center v. New-Journal Corp., 724 So. 2d 567 (Fla. 1999). In Halifax Hospital, the Florida Supreme
Court found 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. Id. at 570. The Florida Supreme Court also declined to
narrow the exemption in order to save it. Id. In Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d
189 (Fla. 1st DCA 2004), the court found that the intent of a public records statute was to create a public records exemption.
The Baker County Press court found that since the law did not contain a public necessity statement, it was unconstitutional.
Id. at 196.
29
Section 119.15, F.S.
30
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
31
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.
32
Section 119.15(3), F.S.
33
Section 119.15(6)(b), F.S.
34
Section 119.15(6)(b)1., F.S. BILL: SB 1632 Page 5
It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;
35
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
36
The Act also requires specified questions to be considered during the review process. In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
Public Necessity Statement and Two-thirds Vote Requirement
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.
37
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.
Threats to Agency for Health Care Administration Staff
The AHCA reports that AHCA staff have dealt with numerous instances where disgruntled
providers/suppliers and complainants have found staff’s personal information and used that
information to make threats against the AHCA, the employees, and their families. AHCA
investigators are positioned throughout the state to ensure every health care facility the AHCA
regulates and licenses maintains required standards. If these standards are not met, the AHCA
will fine and/or revoke the facility license. In addition, the AHCA deploys investigators around
the state to investigate fraud in the Medicaid program among providers and suppliers.
Such regulatory behavior by AHCA personnel could cause disgruntled providers or suppliers and
complainants to threaten the AHCA investigators, as well as their families. An example of a
current situation involves the case of a complainant. This situation includes a complainant who
has made threats, verbally and in writing, to management staff and their families in one of the
AHCA’s field offices regarding a complaint investigation. The management staff had to request
an injunction and appear in court. The complainant was finally charged with aggravated assault.
Injunctions were granted to the management staff and will be in place for five years.
38
III. Effect of Proposed Changes:
SB 1632 amends s. 119.071, F.S., to make exempt from public records laws the home addresses,
telephone numbers, dates of birth, and photographs of current or former AHCA personnel whose
duties include the investigation of complaints filed against health care facilities or the inspection
of health care facilities licensed or certified by the AHCA. The bill also exempts the names,
35
Section 119.15(6)(b)2., F.S.
36
Section 119.15(6)(b)3., F.S.
37
See generally s. 119.15, F.S.
38
AHCA bill analysis for HB 1391, on file with Senate Health Policy Committee Staff. BILL: SB 1632 Page 6
home addresses, telephone numbers, dates of birth, and places of employment of the spouses and
children of such AHCA personnel as well as the names and locations of their children’s schools
and day care facilities.
The bill provides that these exemptions are subject to the Open Government Sunset Review Act
and will stand repealed on October 2, 2029, if not reviewed and saved from repeal through
reenactment by the Legislature.
The bill also creates one undesignated section of Florida law to provide Legislative findings of
the public necessity for the new public records exemption. The bill provides that it is a public
necessity to establish the public records exemption in order to protect AHCA’s current and
former personnel, as well as their families, from potential danger of physical and emotional harm
from disgruntled individuals who have contentious reactions to actions carried out by such
personnel and that the harm that may result from the release of the information being exempted
outweighs any public benefit that may be derived from the disclosure of the information.
The bill provides an effective date of July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, section 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 or open meetings requirements. This bill creates public
records exemptions and a public meeting exemption; therefore, it requires a two-thirds
vote.
Public Necessity Statement
Article I, section 24(a) of the State Constitution and Article I, section 24(b) of the State
Constitution require a bill creating or expanding an exemption to the public records or
open meetings requirements to state with specificity the public necessity justifying the
exemption. Section 2 of the bill contains a statement of public necessity statement for the
exemptions.
Breadth of Exemption
Article I, section 24(c), of the State Constitution requires exemptions to the public
records and open meetings requirements to be no broader than necessary to accomplish
the stated purpose of the law. The purpose of the bill is to protect personal identifying
information of certain AHCA personnel and their families. These protections are required
of a member state through these compacts and they do not appear to be broader than
necessary to accomplish its purpose. BILL: SB 1632 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 substantially amends section 119.071 of the Florida Statutes.
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.