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 Judiciary
BILL: SB 1682
INTRODUCER: Senator Bradley
SUBJECT: Public Records/Artificial Intelligence Transparency Violations
DATE: January 26, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Pre-meeting
2. RC
I. Summary:
SB 1682 exempts from public records copying and inspection requirements certain information
received by the Department of Legal Affairs in connection with its enforcement obligations
under SB 1680 or similar legislation during the 2024 Regular Session.
Specifically, the bill exempts, from the public records requirements in s. 119.07(1), F.S. and art.
I, s. 24(a) of the State Constitution, all information received by the department, either pursuant to
a notification of violation of the new statute created by SB 1680,
1
or pursuant to an investigation
by the department or a law enforcement agency of a violation of the new statute, until such time
as the investigation is completed or ceases to be active.
The bill provides that during an active investigation, certain information made confidential and
exempt by the bill may be disclosed by the department. It also provides that upon completion of
an investigation, or once an investigation ceases to be active, certain information received by the
department must remain confidential and exempt from the public disclosure requirements,
including the “proprietary information,” as defined in the bill, of the business operations of an
entity or person.
The bill provides a statement of public necessity as required by the State Constitution. Because
the bill creates a new public records exemption, it requires a two-thirds vote of the members
present and voting in each house of the Legislature for final passage.
The bill takes effect on the same date that SB 1680 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof and becomes a law.
1
Section 501.174, F.S.
REVISED: BILL: SB 1682 Page 2
II. Present Situation:
Access to Public Records - Generally
The State Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.
2
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.
3
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.
4
Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.
5
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.
6
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 that are used to “perpetuate,
communicate, or formalize knowledge of some type.”
7
2
FLA. CONST. art. I, s. 24(a).
3
Id. See also, Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755, 762-763 (Fla. 2010).
4
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).
5
State v. Wooten, 260 So. 3d 1060 (Fla. 4
th
DCA 2018).
6
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.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: SB 1682 Page 3
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.
8
A violation of the Public Records Act may result in civil or
criminal liability.
9
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.
10
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.
11
General exemptions from the public records requirements are contained in the Public Records
Act.
12
Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.
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
17
(the
Act), prescribe a legislative review process for newly created or substantially amended
18
public
records or open meetings exemptions, with specified exceptions.
19
The Act requires the repeal of
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. 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. 1
st
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).
12
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).
13
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).
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. 5th DCA 1991).
17
Section 119.15, F.S.
18
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.
19
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. BILL: SB 1682 Page 4
such exemption on October 2 of the fifth year after its creation or substantial amendment, unless
the Legislature reenacts the exemption.
20
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.
21
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 subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;
22
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;
23
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
24
The Act also requires specified questions to be considered during the review process.
25
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 are again required.
26
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.
27
Public Records Exemptions for Active Criminal Intelligence Information and Criminal
Investigative Information
Provisions in s. 119.071(2)(c), F.S., exempt from public disclosure active criminal intelligence
information and criminal investigative information.
20
Section 119.15(3), F.S.
21
Section 119.15(6)(b), F.S.
22
Section 119.15(6)(b)1., F.S.
23
Section 119.15(6)(b)2., F.S.
24
Section 119.15(6)(b)3., F.S.
25
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?
26
See generally s. 119.15, F.S.
27
Section 119.15(7), F.S. BILL: SB 1682 Page 5
“Criminal intelligence information” means information with respect to an identifiable person or
group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or
monitor possible criminal activity.
28
Criminal intelligence information is considered “active” as
long as it is related to intelligence gathering conducted with a reasonable, good faith belief that it
will lead to detection of ongoing or reasonably anticipated criminal activities.
29
“Criminal investigative information” means information with respect to an identifiable person or
group of persons compiled by a criminal justice agency in the course of conducting a criminal
investigation of a specific act or omission, including, but not limited to, information derived
from laboratory tests, reports of investigators or informants, or any type of surveillance.
30
Criminal intelligence information is considered “active” as long as it is related to an ongoing
investigation which is continuing with a reasonable, good faith anticipation of securing an arrest
or prosecution in the foreseeable future.
31
Additionally, criminal intelligence and criminal investigative information are considered “active”
while such information is directly related to pending prosecutions or appeals,
32
but not if relating
to cases which are barred from prosecution under an applicable statute of limitation.
33
Six categories of criminal intelligence and criminal investigative information are expressly
excluded from the exemption.
34
These categories are:
35
The time, date, location, and nature of a reported crime.
The name, sex, age, and address of a person arrested or of the victim of a crime, except as
otherwise provided.
The time, date, and location of the incident and of the arrest.
The crime charged.
Documents given or required by law or agency rule to be given to the person arrested, except
as provided, and, except that the court in a criminal case may order that certain information
required by law or agency rule to be given to the person arrested be maintained in a
confidential manner and exempt from the enumerated provision
36
until released at trial if it is
found that the release of such information would be defamatory to the good name of a victim
or witness or would jeopardize the safety of such victim or witness and impair the ability of a
state attorney to locate or prosecute a codefendant.
Informations and indictments, except
37
as provided.
28
Section 119.011(3)(a), F.S.
29
Section 119.011(3)(d)1., F.S.
30
Section 119.011(3)(b), F.S.
31
Section 119.011(3)(d)2., F.S.
32
Id.
33
See, e.g., s. 775.15, F.S.
34
City of Miami v. Metropolitan Dade County, 745 F. Supp. 683, 686 (S.D. Fla. 1990).
35
Section 119.011(3)(c), F.S.
36
Section 119.07(1), F.S.
37
Section 905.26, F.S. BILL: SB 1682 Page 6
Under the Public Records Act, public records of a governmental entity do not transform into
protected criminal investigative information merely because they have been transferred to a law
enforcement agency.
38
III. Effect of Proposed Changes:
Section 1 of the bill amends s. 501.174, F.S., as created by SB 1680 or similar legislation during
the 2024 Regular Session, to include a new subsection (9) exempting all information received by
the Department of Legal Affairs, either pursuant to a notification of violation of s. 501.174, F.S.,
or pursuant to an investigation by the department or a law enforcement agency of a violation of s.
501.174, F.S., from the public disclosure requirements
39
until such time as the investigation is
completed or ceases to be active. This exemption must be construed in conformity with s.
119.071(2)(c), F.S.
The bill provides that during an active investigation, information made confidential and exempt
pursuant to the bill may be disclosed by the department:
In the furtherance of its official duties and responsibilities.
For print, publication, or broadcast, if the department determines that such release would
assist in notifying the public or locating or identifying a person that the department believes
to be a victim of a data breach or an improper use or disposal of customer records, except
that information made confidential and exempt by the following paragraph may not be
released pursuant to this paragraph.
To another governmental entity in the furtherance of its official duties and responsibilities.
The bill also provides that upon completion of an investigation, or once an investigation ceases
to be active, the following information received by the department must remain confidential and
exempt from the public disclosure requirements:
All information to which another public records exemption applies.
Personal information.
A computer forensic report.
Information that would otherwise reveal weaknesses in the data security of the business
operations of the entity or person.
Information that would disclose the proprietary information of the business operations of the
entity or person.
For purposes of s. 501.174, F.S., the term “proprietary information” means information that:
Is owned or controlled by the entity or person.
Is intended to be private and is treated by the entity or person as private because disclosure
would harm the entity or person.
Has not been disclosed except as required by law or a private agreement that provides that
the information will not be released to the public.
Is not publicly available or otherwise readily ascertainable through proper means from
another source in the same configuration as received by the department.
38
State Attorney's Office of Seventeenth Judicial Circuit v. Cable News Network, Inc., 251 So. 3d 205, 212 (Fla. 4
th
DCA
2018).
39
See s. 119.07(1), F.S.; FLA. CONST. art I, s. 24(a). BILL: SB 1682 Page 7
Includes:
o Trade secrets as defined in state law.
40
o Competitive interests, the disclosure of which would impair the competitive advantage of
the business operations of the entity or person who is the subject of the information.
The bill provides that the exemption is subject to the Open Government Sunset Review Act
41
and
will be repealed on October 2, 2029, unless reviewed and saved from repeal through reenactment
by the Legislature.
Section 2 of the bill provides that it is a public necessity that all information received by the
department pursuant to a notification of a violation of s. 501.174, F.S., or received by the
department pursuant to an investigation by the department or a law enforcement agency of a
violation of that section, be made confidential and exempt from the public disclosure
requirements for the following reasons:
A notification of a violation of s. 501.174, F.S., may result in an investigation of such
violation. The premature release of such information could frustrate or thwart the
investigation and impair the ability of the department to effectively and efficiently administer
the statute. In addition, release of such information before completion of an active
investigation could jeopardize the ongoing investigation.
Release of information to which another public records exemption applies once an
investigation is completed or ceases to be active would undo the specific statutory exemption
protecting that information.
An investigation of a violation of s. 501.174, F.S., is likely to result in the gathering of
sensitive personal information, including identification numbers, unique identifiers,
professional or employment-related information, and personal financial information. Such
information could be used for the purpose of identity theft. The release of such information
could subject possible victims of data privacy violations to further harm.
Notices received by the department and information received during an investigation of a
violation of s. 501.174, F.S., are likely to contain proprietary information. Such information,
including trade secrets, derives independent, economic value, actual or potential, from being
generally unknown to, and not readily ascertainable by, other persons who might obtain
economic value from its disclosure or use. Allowing public access to proprietary information,
including a trade secret, through a public records request could destroy the value of the
proprietary information and cause a financial loss to the entity or person. Release of such
information could give business competitors an unfair advantage.
Information received by the department may contain a computer forensic report or
information that could reveal weaknesses in the data security of the business operations of
the entity or person. The release of this information could result in the identification of
vulnerabilities in the cybersecurity system of the business operations of the entity or person
and be used to harm the entity or person and clients.
The harm that may result from the release of information received by the department
pursuant to a notification or investigation by the department or a law enforcement agency of
a violation of s. 501.174, F.S., could impair the effective and efficient administration of the
40
Section 688.002, F.S.
41
See s. 119.15, F.S. BILL: SB 1682 Page 8
investigation and thus, outweighs the public benefit that may be derived from the disclosure
of the information.
Section 3 of the bill provides that it takes effect on the same date that SB 1680 or similar
legislation takes effect, if such legislation is adopted in the same legislative session or an
extension thereof and becomes a law.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The mandate restrictions do not apply because the bill does not require
counties and municipalities to spend funds, reduce counties’ or municipalities’ ability to
raise revenue, or reduce the percentage of state tax shared with counties and
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 enacts a new exemption for all information
received by the Department of Legal Affairs pursuant to a notification of violation of the
new law, s. 501.174, F.S., or received by the department pursuant to an investigation by
the department or a law enforcement agency of a violation of the new law, until such time
as the investigation is completed or ceases to be active; thus, the bill requires 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 for
the exemption.
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 purpose of the law is to regulate entities and persons using artificial intelligence.
This bill exempts only information received by the Department of Legal Affairs pursuant
to a notification of violation of the new law, s. 501.174, F.S., or received by the
department pursuant to an investigation by the department or a law enforcement agency
of a violation of the new law, until such time as related investigations are completed or
cease to be active, from the public records requirements. The exemption does not appear
to be broader than necessary to accomplish the purpose of the law. BILL: SB 1682 Page 9
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:
This bill may have a minimal negative fiscal impact on the Department of Legal Affairs
personnel, because staff responsible for complying with public record requests may
require training related to the new public record exemption. However, the costs should be
absorbed as part of the day-to-day responsibilities.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 501.174 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. BILL: SB 1682 Page 10
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.