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 Governmental Oversight and Accountability
BILL: SB 7012
INTRODUCER: Ethics and Elections Committee
SUBJECT: OGSR/Secure Login Credentials Held by the Commission on Ethics
DATE: January 8, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
Cleary Roberts EE Submitted as Committee Bill
1. McVaney McVaney GO Pre-meeting
2. RC
I. Summary:
SB 7012 saves from repeal current public records exemptions making all secure login credentials
held by the Commission on Ethics for the purpose of allowing access to the electronic financial
disclosure filing system, as well as information entered into the system for purposes of making
the disclosure, exempt from public inspection and copying requirements.
The exemptions are subject to the Open Government Sunset Review Act and stand repealed on
October 2, 2024, unless reenacted by the Legislature. This bill saves the exemptions from repeal
by deleting the scheduled repeal date, thereby maintaining the current exempt status of the
information.
The bill is not expected to impact state or local government revenues and expenditures.
This bill takes effect October 1, 2024.
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.
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. See also, Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 48 So. 3d 755, 762-763 (Fla. 2010).
REVISED: BILL: SB 7012 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:
[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.”
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 7012 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.” 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
16
(the
Act), prescribe a legislative review process for newly created or substantially amended
17
public
records or open meetings exemptions, with specified exceptions.
18
The Act requires the repeal of
such exemption on October 2 of the fifth year after its creation or substantial amendment, unless
the Legislature reenacts the exemption.
19
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.
20
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:
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).
16
Section 119.15, F.S.
17
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.
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.
20
Section 119.15(6)(b), F.S. BILL: SB 7012 Page 4
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;
21
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;
22
or
It protects information of a confidential nature concerning entities, such as trade or business
secrets.
23
The Act also requires specified questions to be considered during the review process.
24
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.
25
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.
26
The Code of Ethics for Public Officers and Employees
The Code of Ethics for Public Officers and Employees (Code of Ethics)
27
establishes ethical
standards for public officials and is intended to “ensure that public officials conduct themselves
independently and impartially, not using their office for private gain other than compensation
provided by law.”
28
The Code of Ethics pertains to various ethical issues, such as ethics
trainings, voting conflicts, full and public disclosure of financial interests, standards of conduct,
and the Commission on Ethics (commission).
29
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
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?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
See Pt. III, Ch. 112, F.S.; see also FLA. CONST. art. II, s. 8(h)(1).
28
Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (last visited December 13,
2023).
29
See Pt. III, Ch. 112, F.S. BILL: SB 7012 Page 5
Commission on Ethics
The State Constitution requires the creation of an independent commission to conduct
investigations and make public reports on all complaints concerning breach of public trust by
public officers or employees not within jurisdiction of the judicial qualifications commission.
30
The commission was created by the Legislature in 1974 “to serve as guardian of the standards of
conduct” for state and local public officials and employees.
31
In addition to its constitutional
duties, the commission, in part:
Renders advisory opinions to public officials.
32
Makes recommendations to disciplinary officials when appropriate for violations of ethics
and disclosure laws.
33
Administers the executive branch lobbying registration and reporting law.
34
Maintains financial disclosure filings of constitutional officers and state officers and
employees.
35
Administers automatic fines for public offices and employees who fail to timely file required
annual financial disclosure.
36
Disclosure of Financial Interests
The State Constitution requires elected constitutional officers, candidates for such offices, and
statewide elected officers to file “full and public disclosure of their financial interests.”
37
Other
public officers, candidates, and public employees may be required to file a full and public
disclosure of their financial interests as determined by law.
38
The term “full and public disclosure of financial interests” means the reporting individual must
disclose his or her net worth and the value of each asset and liability in excess of $1,000.
39
The
disclosure must be accompanied by either a copy of the filer’s most recent federal income tax
return or a sworn statement that identifies each separate source and amount of income that
exceeds $1,000.
40
The commission has created by rule CE Form 6 (Form 6) to be used to make
the required full and public financial disclosure.
41
30
FLA. CONST. art. III, s. 8(g).
31
Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (last visited December 13,
2023); see also s. 112.320, F.S.
32
Section 112.322(3)(a), F.S.
33
Section 112.322(2)(b), F.S.
34
Sections 112.3215 and 112.32155, F.S.
35
Section 112.3144, F.S.
36
Section 112.31455, F.S.; see also Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for
Public Officers and Employees, available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf
(last visited December 13, 2023).
37
FLA. CONST. art. II, s. 8(a).
38
See s. 112.3144(1), F.S.
39
FLA. CONST. art. II, s. 8(j)(1).
40
Id.; see also s. 112.3144, F.S.
41
Section 112.3144(8), F.S.; see also r. 34-7.010, F.A.C. BILL: SB 7012 Page 6
Currently, individuals holding the following positions must file Form 6:
42
Governor.
Lieutenant Governor.
Cabinet members.
Legislators.
State attorneys.
Public defenders.
Clerks of circuit court.
Sheriffs.
Tax collectors.
Property appraisers.
Supervisors of elections.
County commissioners.
Mayors and elected members of a municipal governing body.
Each Member on the Commission of Ethics.
Elected Superintendents of schools.
District school board members.
Jacksonville City Council members, including the mayor.
Judges of compensation claims.
Duval County Superintendent of Schools.
Florida Housing Finance Corporation board members.
Each member of a large-hub commercial service airport.
Each member of an expressway authority, a transportation authority (except the Jacksonville
Transportation Authority), a bridge authority, or a toll authority created pursuant to
chapter 348 or Chapter 343, F.S., or any other general law.
Reporting individuals must file Form 6 annually with the commission by 11:59 p.m. on July 1.
43
Additionally, candidates for a constitutional office must make a full and public disclosure of
their financial interests at the time of qualifying.
Current law requires a less detailed disclosure of financial interests using the commission’s CE
Form 1 (Form 1) for certain local officers, including certain officers holding elected positions in
political subdivisions of the state, as well as specified appointive officers.
44
Other persons filing
Form 1 include specified state officers and employees as well as persons seeking to qualify as
candidates for state or local office.
45
Form 1 requires those individual to disclose their primary sources of income (other than his or
her public position), secondary sources of income, real property, intangible personal property,
liabilities, and interests in specific businesses.
46
42
Rule 34-8.003, F.A.C.; see also Commission on Ethics, Filing Information, available at
https://www.ethics.state.fl.us/Documents/Forms/Form1.html#form_6 (last visited December 13, 2023).
43
Section 112.3144(8)(d), F.S.
44
Section 112.3145, F.S.
45
Id.
46
Id. BILL: SB 7012 Page 7
Although no specified dollar values of incomes, property, or liabilities are required to be
reported, the filer must report which assets or liabilities exceed certain dollar thresholds.
47
Form 1 filers must disclose all sources of income in excess of $2,500 (excluding public salary)
and all sources of income from a business entity that the filers had a material interest in where
their gross income was in excess of $5,000 and in excess of 10 percent of the business’ gross
income. Form 1 filers must also disclose any property, except for their residence or vacation
home, in which the person owns more than five percent of the value of the property, as well as
any intangible property in excess of $10,000 and any liability in excess of $10,000.
48
Form 1
must be filed annually with the commission by 11:59 p.m. on July 1.
49
Electronic Financial Disclosure
In 2015, the commission began the process of implementing an electronic filing system for
financial disclosures.
50
That system was procured and testing began in 2022.
51
Form 6 filers
began filing electronically as of January 1, 2023.
52
Form 1 filers will beginning filing using the
electronic filing system as of January 1, 2024.
53
Public Record Exemption under Review
In 2019, the Legislature created two public records exemptions to facilitate the use of the
electronic financial disclosure system.
54
The first exemption protects all secure login credentials
held by the commission for the purpose of allowing access to the electronic financial disclosure
filing system. The second exemption protects information entered into the system prior to
submission for the purpose of making the disclosure.
55
Once information entered into the system
is submitted to the commission or filed with a qualifying officer, the information loses its exempt
status and becomes public.
56
The 2019 public necessity statement
57
provides that:
The Legislature finds that the public’s need for access to information
included in the full and public disclosures of financial interests or
statements of financial interests filed by reporting individuals be balanced
with the filer’s interest in safeguarding personally sensitive information.
The Legislature further finds that the unemotional publication of such
47
Section 112.3145(3), F.S.
48
Section 112.3145(3)(b), F.S.
49
Section 112.3145(2)(b), F.S.
50
Section 112.31445, F.S.
51
Section 112.31446(2), F.S.
52
Section 112.3144(8)(b)2., F.S.
53
Section 112.3145(2)(e), F.S.
54
Section 112.31446(6), F.S.
55
Section 112.31446(6)(a), F.S.
56
Section 112.31446(6)(b), F.S.
57
Article I, s. 24(c), FLA. CONST., requires each public record exemption to “state with specificity the necessity justifying the
exemption.” BILL: SB 7012 Page 8
information may subject the filer to identity theft, financial harm, or other
adverse impacts.
58
The exemptions will repeal on October 2, 2024, unless reenacted by the Legislature.
During the 2023 interim, House and Senate staff met with commission staff regarding the public
record exemptions under review. Commission staff emphasized the importance of the
exemptions as it protects secure login credentials to the electronic filing system itself as well as
personally sensitive information that may subject the filer to identity theft, financial harm, or
other adverse impacts if not protected. Therefore, commission staff recommended the
exemptions be reenacted as is.
III. Effect of Proposed Changes:
The bill removes the scheduled repeal date of the public record exemptions, thereby continuing
the exempt status for all secure login credentials used to access the electronic financial disclosure
filing system, as well as information entered into the system for the purpose of making disclosure
prior to submission.
The bill takes effect October 1, 2024.
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 does not create or expand an exemption and
therefore does not require a two-thirds 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 does not create or expand an exemption and therefore
does not require a public necessity statement.
58
Chapter 2019-40, Law of Fla. BILL: SB 7012 Page 9
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 (a) secure login credentials held by the
Commission for the purpose of allowing access to the electronic filing system for
financial disclosures and (b) draft information input into the electronic system before a
filer’s submission is finalized. 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.
B. Private Sector Impact:
The private sector will continue to be subject to the cost associated with an agency’s
review and redactions of exempt records in response to a public records request.
C. Government Sector Impact:
The government sector will continue to incur costs related to the review and redaction of
exempt records associated with responding to public records requests.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 112.31446, Florida Statutes. BILL: SB 7012 Page 10
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.