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 Regulated Industries
BILL: SPB 7008
INTRODUCER: For consideration by the Regulated Industries Committee
SUBJECT: OGSR/Department of the Lottery
DATE: December 5, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Kraemer Imhof Pre-meeting
I. Summary:
SPB 7008 saves from repeal the public records exemption in s. 24.1051, F.S., for certain
information held by the Florida Department of the Lottery (department). Specifically, the bill
continues the exemption from public disclosure held by the department related to the operations
and processes of the department. The exemptions are necessary to protect the security and
integrity of lottery operations, and to allow the department to participate in multistate lottery
games. Information held by the department is designated as confidential and exempt, but may be
disclosed to other governmental entities in the performance of their duties.
The exemptions are subject to the Open Government Sunset Review Act (OGSR) and will stand
repealed on October 2, 2024, unless reviewed and reenacted by the Legislature. The bill removes
the scheduled repeal of the exemption to continue the exempt status of the information.
The bill takes effect October 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 acting on behalf of the government.
2
In
addition to the Florida Constitution, the Florida Statutes provide that the public may access
1
FLA. CONST. art. I, s. 24(a).
2
Id.
REVISED: BILL: SPB 7008 Page 2
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:
[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.
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.
6
The Florida Supreme
Court has interpreted public records as being “any material prepared in connection with official
agency business which is intended to perpetuate, communicate or formalize knowledge of some
type.”
7
A violation of the Public Records Act may result in civil or criminal liability.
8
The Legislature may create an exemption to public records requirements by passing a general
law by a two-thirds vote of each of the House and the Senate.
9
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.
10
A statutory exemption, which does not meet
these two criteria, may be unconstitutional and may not be judicially saved.
11
When creating a public records exemption, the Legislature may provide that a record is
“confidential and exempt” or “exempt.”
12
Records designated “confidential and exempt” may be
released by the records custodian only under the circumstances defined by statutory exemptions.
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., and
FLA. CONST. art. I, s. 24(b). 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(12), F.S., defines “public record” to mean “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.” 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).
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
Halifax Hosp. Medical Center v. News-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.
12
If the Legislature designates a record as confidential, such record may not be released to anyone other than the persons or
entities specifically designated in the statutory exemption. WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla.
5th DCA 2004). BILL: SPB 7008 Page 3
Records designated as “exempt” may be released at the discretion of the records custodian under
certain circumstances.
13
Open Government Sunset Review Act
Section 119.15, F.S., the Open Government Sunset Review Act (OGSR), prescribes a legislative
review process for newly created or substantially amended public records or open meetings
exemptions.
14
The OGSR provides that an exemption automatically repeals 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.
15
In practice, many
exemptions are continued by repealing the sunset date rather than reenacting the exemption.
The OGSR 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.
16
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 subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;
17
Releasing 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;
18
or
It protects trade or business secrets.
19
The OGSR also requires specified questions to be considered during the review process.
20
In
examining an exemption, the OGSR asks the Legislature to carefully 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.
21
If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is narrowed, then
13
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
14
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. The OGSR does not apply to an exemption that is required by
federal law or that applies solely to the Legislature or the State Court System pursuant to s. 119.15(2), F.S.
15
Section 119.15(3), F.S.
16
Section 119.15(6)(b), F.S.
17
Section 119.15(6)(b)1., F.S.
18
Section 119.15(6)(b)2., F.S.
19
Section 119.15(6)(b)3., F.S.
20
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?
21
FLA. CONST. art. I, s. 24(c). BILL: SPB 7008 Page 4
a public necessity statement and a two-thirds vote for passage are not required. If the Legislature
allows an exemption to sunset, the previously exempt records will remain exempt unless
provided for by law.
22
Department of the Lottery
In general, lotteries are illegal in Florida.
23
However, s. 15 of Article X of the State Constitution
allows lotteries to be operated by the state. Section 24.102(2), F.S., provides:
The net proceeds of lottery games shall be used to support improvements in public education;
Lottery operations shall be undertaken as an entrepreneurial business enterprise; and
The department shall be accountable through audits, financial disclosure, open meetings, and
public records laws.
The department operates the Florida Lottery to maximize revenues “consonant with the dignity
of the state and the welfare of its citizens”
24
for the benefit of public education.
25
Prior to 2019, s. 24.105(12), F.S., authorized the department to determine by rule the information
relating to the operation of the lottery to be confidential and exempt from the provisions of
s. 119.07(1) and s. 24(a), Art. I of the State Constitution, if necessary to the security and integrity
of the lottery. Such information included trade secrets; security measures and reports; bid and
contractual information that, if disclosed, would impair the department to contract for goods or
services on favorable terms, and personnel information unrelated to compensation, duties,
qualifications, or responsibilities. Confidential information was authorized to be released to other
governmental entities as needed in connection with the performance of their duties, but the
recipient was required to retain the confidentiality of the information provided.
Section 24.1051, F.S., enacted in 2019,
26
codified, clarified, and exempted the following
information held by the department from inspection or copying of public records:
Information that, if released, could harm the security or integrity of the department, including
information:
o Relating to the security of the department’s technologies, processes, and practices to
protect networks, computers, data processing, software, data, and data systems from
attack, damage, or unauthorized access;
o Relating to security information and measures of the department, whether physical or
virtual;
o About lottery games, promotions, tickets, and ticket stocks, such as description, design,
production, printing, packaging, shipping, delivery, storage, and validation processes; and
o Concerning terminals , machines, and devices that issue tickets;
Information required to be maintained as confidential in order for the department to
participate in multistate lottery associations or games;
22
Section 119.15(7), F.S.
23
See FLA. CONST. art. X, s. 7, and s. 849.09, F.S.
24
See s. 24.104, F.S.
25
See s. 24.121(2), F.S.
26
See ch. 2019-41, Laws of Fla. BILL: SPB 7008 Page 5
Personal identifying information obtained by the department when processing background
investigations of current or potential retailers or vendors; and
Financial information about a vendor or lottery ticket retailer which is not publicly available
and is provided for review of the entity’s financial responsibility,
27
provided that the entity
marks such information as confidential. However, financial information related to any
contract, agreement, or addendum with the department, including the amount of money paid,
any payment structure or plan, expenditures, incentives, bonuses, fees, and penalties, is
public record.
Penalties for the improper disclosure of lottery information that is designated as confidential and
exempt are addressed in s. 24.1051(5), F.S. A person who, with intent to defraud or to provide a
financial or other advantage to himself, herself, or another, knowingly and willfully discloses
such confidential and exempt information, commits a felony of the first degree.
28
Open Government Sunset Review Findings and Recommendations
Staff of the Senate Committee on Regulated Industries and the House of Representatives Ethics,
Elections & Open Government Subcommittee met jointly with staff from the Department of the
Lottery in August 2023 to discuss the public records exemption under review. The department
staff noted the continued necessity for the exemption and recommended that the exemption be
reenacted without any changes.
Legislative staff requested the department staff review the public records exemption for
cybersecurity in s. 119.0725, F.S., and determine if there was any overlap between those
provisions and the exemption under review. The department staff indicated that the exemption in
s. 119.0725, F.S., covers different categories of information and that the exemption in
s. 24.1051, F.S., be saved from repeal.
29
III. Effect of Proposed Changes:
The bill saves from repeal the public records exemption in s. 24.1051, F.S., for certain
information held by the Florida Department of the Lottery (department). Specifically, the bill
continues the exemption from public disclosure held by the department related to the operations
and processes of the department. The exemptions are necessary to protect the security and
integrity of lottery operations, and to allow the department to participate in multistate lottery
games. Information held by the department is designated as confidential and exempt, but may be
disclosed under certain circumstances.
The exemptions are subject to the Open Government Sunset Review Act (OGSR) and will stand
repealed on October 2, 2024, unless reviewed and reenacted by the Legislature. The bill removes
the scheduled repeal of the exemption to continue the exempt status of the information.
27
See s. 24.111, F.S., relating to vendors that contract with the department, and s. 24.112, F.S., relating to lottery ticket
retailers.
28
Section 775.082, F.S., provides a felony of the first degree is punishable by a term of imprisonment not to exceed thirty
years. Section 775.083, F.S., provides a felony of the first degree is punishable by a fine not to exceed $10,000.
29
Memorandum from Reginald D. Dixon, Chief of Staff, Florida Lottery to Patrick L. “Booter” Imhof, Staff Director, Senate
Committee on Regulated Industries, September 26, 2023 (on file with the Senate Regulated Industries Committee). BILL: SPB 7008 Page 6
The bill takes effect October 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
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 continues current open meeting exemption and a
public records exemption beyond the current dates of repeal. The bill does not create or
expand an exemption. Thus, the bill does not require an extraordinary vote for enactment.
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 continues a current a public records exemption without
expansion. Thus, a statement of public necessity is not required.
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 purposes of the law are to protect information held by the Department of the Lottery,
protect the security and integrity of Lottery operations, and to allow the Lottery to
participate in the multistate lottery games. The exemptions do not appear to be broader
than necessary to accomplish the purposes of the law.
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. BILL: SPB 7008 Page 7
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 24.1051 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.