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 7022
INTRODUCER: Education Postsecondary Committee
SUBJECT: OGSR/Campus Emergency Response
DATE: January 29, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
Brick Bouck HE Submitted as Comm. Bill/Fav
1. McVaney McVaney GO Favorable
2. Brick Twogood RC Favorable
I. Summary:
SB 7022 saves from repeal the public records exemption making exempt from public inspection
and copying requirements any portion of a campus emergency response held by a public
postsecondary institution, a state or local law enforcement agency, a county or municipal
emergency management agency, the Executive Office of the Governor, the Department of
Education, the Board of Governors of the State University System, or the Division of Emergency
Management. Likewise, the bill saves from repeal the exemption to public meetings
requirements for that portion of a public meeting which would reveal information related to the
campus emergency response.
The current exemptions from public records disclosure requirements and public meetings
requirements stand repealed on October 2, 2024, unless reenacted by the Legislature. This bill
removes the scheduled repeal of the exemptions, thereby continuing the exempt status of the
information and portions of the meetings.
The bill is not expected to impact state or local government revenues and expenditures.
The bill takes effect October 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
1
FLA. CONST., art. I, s. 24(a).
REVISED: BILL: SB 7022 Page 2
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 the statutory provisions are 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, chapter 119, F.S., provides requirements for public records held by
executive agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as 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
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 the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.”
7
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
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. 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
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.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
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). BILL: SB 7022 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.
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.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.
14
Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.
15
Open Government Sunset Review Act
The Open Government Sunset Review Act
16
(the Act) prescribes a legislative review process for
newly created or substantially amended
17
public records or open meetings exemptions, with
specified exceptions.
18
It requires the automatic repeal of such exemption on October 2 of the
fifth year after 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 public 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;
21
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. 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).
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
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
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., provide that exemptions that are required by federal law or are 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.
21
Section 119.15(6)(b)1., F.S. BILL: SB 7022 Page 4
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 carefully 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 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 sunset, the previously
exempt records will remain exempt unless provided for by law.
26
Comprehensive Emergency Management Plans
The Florida Division of Emergency Management (FDEM) is required to prepare a state
comprehensive emergency management plan (CEMP). The CEMP serves as the master
operations document for Florida and is the framework through which the state handles
emergencies and disasters.
27
In addition, each state agency and facility, such as a prison, office building, or university, is
required to have a disaster preparedness plan that is coordinated with the applicable local
emergency management agency and approved by the FDEM.
28
This plan is known as a
continuity of operations plan (COOP).
29
A COOP must outline a comprehensive and effective
program to ensure the continuity of essential state functions under all circumstances.
30
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
Section 252.35(2), F.S.
28
Section 252.365(3), F.S.
29
Florida Division of Emergency Management, 2022 Comprehensive Emergency Management Plan, available at
https://portal.floridadisaster.org/preparedness/External/CEMP/2022%20State%20CEMP%20Base%20Plan.pdf, at 26-27,
(last visited Jan. 19, 2024).
30
Section 252.365(3)(a), F.S. BILL: SB 7022 Page 5
Campus Emergency Response
The exemptions from public records disclosure requirements and public meetings requirements
for the campus emergency response of a public postsecondary educational institution were
enacted in 2017.
31
The law provides a public records exemption from public inspection and
copying for any portion of a campus emergency response held by a public postsecondary
educational institution, state or local law enforcement agency, county or municipal emergency
management agency, the Executive Office of the Governor (EOG), the Department of Education
(DOE), the Board of Governors (BOG), or the Division of Emergency Management (DEM).
32
The law also provides a public meetings exemption for any portion of a public meeting which
would reveal information related to a campus emergency response.
33
A campus emergency response is a public postsecondary educational institution’s response to or
plan for responding to an act of terrorism
34
or other public safety crisis or emergency.
35
The law
provides that a campus emergency response includes information relating to:
36
Records, information, photographs, audio and visual presentations, schematic diagrams,
surveys, recommendations, or consultations or portions thereof.
Threat assessments conducted by any agency or private entity.
Threat response plans.
Emergency evacuation plans.
Sheltering arrangements.
Manuals for security personnel, emergency equipment, or security training.
Security systems or plans.
Vulnerability analyses.
Postdisaster activities, including provisions for emergency power, communications, food,
and water.
Postdisaster transportation.
Supplies, including drug caches.
Identification of staff involved in emergency preparedness, response, and recovery activities.
Emergency equipment.
Individual identification of affected or at-risk students, faculty, and staff before, during, or
after an emergency; the transfer of records concerning affected or at-risk students, faculty,
and staff; and methods of responding to family inquiries.
A public postsecondary educational institution, state or local law enforcement agency, county or
municipal emergency management agency, EOG, DOE, BOG, or DEM is authorized to disclose
information made exempt to another governmental entity if disclosure is necessary for the
receiving entity to perform its duties or responsibilities, or upon a showing of good cause before
31
Chapter 2017-184, Laws of Fla.
32
Section 1004.0962(2), F.S.
33
Section 1004.0962(5), F.S.
34
“Terrorism” means an activity that involves a “violent act or an act dangerous to human life which is a violation of the
criminal laws of this state or of the United States;” or a violation of s. 815.06, F.S., intended to “intimidate, injure, or coerce a
civilian population; influence the policy of a government by intimidation or coercion; or affect the conduct of government
through destruction of property, assassination, murder, kidnapping, or aircraft piracy.” Section 775.30(1), F.S.
35
Section 1004.0962(1), F.S.
36
Id. BILL: SB 7022 Page 6
a court of competent jurisdiction.
37
This authorization appears unnecessary, however, because if
records are exempt from the Public Records Act but not confidential, the exemption does not
prohibit the showing of the information.
38
In 2022, the Legislature reviewed the public record and public meeting exemptions and extended
the repeal date from October 2, 2022, to October 2, 2024. The public record exemption was
narrowed to exempt only the identification of staff involved in emergency preparedness,
response, and recovery activities, instead of staffing information generally. The public record
exemption was also narrowed to provide that the individual identification of students, faculty,
and staff applies only to those persons affected or at risk before, during, or after an emergency.
Lastly, the provision of the exemption protecting the transfer of records was narrowed to apply to
only affected or at-risk students, faculty, and staff.
39
The exemptions from public records disclosure requirements and public meetings requirements
are subject to the requirements of the Act and are repealed on October 2, 2024, unless reviewed
and reenacted by the Legislature.
40
Chapter 2017-184, Laws of Florida, which established the exemption from public records
disclosure requirements for specified portions of campus emergency responses for public
postsecondary educational institutions, included a public necessity statement that provided a
rationale for the exemption. This rationale recognized that campus emergency responses made
publicly available for inspection or copying could be used to hamper or disable a public
postsecondary education institution’s response to an act of terrorism or other crisis or emergency.
Furthermore, providing terrorists and other criminals the capabilities to plot, plan, and coordinate
complicated acts of terror and violence on university and college campuses would lead to an
increase in the number of Floridians subjected to fatal injury if a public postsecondary
educational institution’s response to these events were hampered or disabled.
41
Open Government Sunset Review Findings and Recommendations
In August 2023, the Senate Education Postsecondary Committee and the House Ethics, Elections
& Open Government Subcommittee jointly sent an Open Government Sunset Review
questionnaire to the 12 institutions of the State University System and the 28 institutions of the
Florida College System. The survey sought information regarding the need to maintain the
exemption related to a campus emergency response of a public postsecondary institution for
responding to an act of terrorism or other public safety crisis or emergency.
All of the respondents recommended that the exemption remain in effect to ensure institutional
security in the case of an emergency and to protect the safety of institutional constituents.
37
Section 1004.0962(4), F.S.
38
Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA), review denied, 589 So.2d 289 (Fla.1991), appeal after
remand, 619 So.2d 983 (Fla. 5th DCA 1993). See also s. 119.011(8), F.S.
39
Chapter 2022-133, Laws of Fla.
40
Section 1004.0962(6), F.S.
41
Chapter 2017-184, s. 2, Laws of Fla. BILL: SB 7022 Page 7
III. Effect of Proposed Changes:
SB 7022 saves from repeal the current public records exemption making exempt from public
inspection and copying requirements any portion of a campus emergency response held by a
public postsecondary institution, a state or local law enforcement agency, a county or municipal
emergency management agency, the Executive Office of the Governor, the Department of
Education, the Board of Governors of the State University System, or the Division of Emergency
Management. Likewise, the bill saves from repeal the current public meetings exemption relating
to that portion of a public meeting which would reveal information related to a campus
emergency response.
The bill also removes a superfluous provision of the exemption that authorizes entities to
disclose the exempt information in specified circumstances, as entities are not prohibited under
public records and meeting requirements from disclosing the information.
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 continues a current public records and public
meetings exemption beyond its current date 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 public records and public meetings
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 purpose of the law is to protect portions of a public postsecondary educational
institution’s campus emergency response to protect the health and safety of students, BILL: SB 7022 Page 8
faculty, staff, and the public at large. The bill exempts only information relating to a
public postsecondary educational institution’s response to or plan for responding to an act
of terrorism or other public safety crisis or emergency. The exemption does not appear to
be broader than necessary to accomplish the purpose 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 1004.0962 of the Florida Statutes. BILL: SB 7022 Page 9
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.