1999 Legislative Review: Pre-Session Report

Foundation Members: The following is a list of the bills, grouped by general category, we will be tracking throughout the 1999 Legislative Session. As usual, we have selected those bills with open government and first amendment implications we think will be of interest to our members. After the summary of each open government bill, you will find a short analysis of the bill, including an easily recognizable indication of whether the bill is good or bad. Under this reporting system, 🙂 is Good, and 🙁 is Bad. Those bills that are neither good nor bad will not be marked. During session, we will report any activity on these bills, as well as any new legislation that may be filed, on a weekly basis. We suggest you keep this pre-session report, as the weekly reports will not contain a complete description of all the bills.

PUBLIC RECORDS and OPEN MEETINGS

COMMERCIAL AND BUSINESS RECORDS

SB 68 Exemption for Eminent Domain Records: Stipulates that business records provided by a business owner or onsite operator provided to a governmental condemning authority are exempt from the Public Records Law after the governmental authority has made a prelitigation offer. No House companion. Sen. John Grant (R-Tampa)

THIS LEGISLATION, CREATING A LIMITED EXEMPTION TO THE PUBLIC’S RIGHT OF ACCESS, COMPLIES WITH THE CONSTITUTIONAL REQUIREMENTS FOR CREATING NEW EXEMPTIONS.

HB 839 Exemption for Entertainment Industry Records: Creates an exemption from the Public Records Law for certain information held by the Office of the Film Commissioner. Specifically, the bill stipulates that, upon written request by an entertainment industry private corporation, partnership, or person seeking to locate, relocate, or expand any of its business activities in Florida, regarding the identity, trade secrets, or plans, intentions, or interests of the private corporation, partnership, or person is exempt from public disclosure unless the party seeking confidentiality releases such information or until the party retains a new or additional business location in Florida. No Senate companion. H. Tourism Committee

THE BILL STATES THAT THIS LEGISLATION IS NECESSARY TO PROTECT WHAT COULD BE “DELICATE” CONTRACT NEGOTIATIONS COMMON TO THE PRE-PRODUCTION STAGE OF AN ENTERTAINMENT INDUSTRY BUSINESS VENTURE WHICH OCCUR PRIOR TO RETAINING A BUSINESS LOCATION IN THE STATE. SIMILAR TO OTHER EXEMPTIONS FOR BUSINESSES SEEKING TO RELOCATE TO FLORIDA, THIS BILL SEEMS TO BE NARROWLY DRAFTED, AND IS LIMITED IN DURATION.

CRIMINAL JUSTICE and LAW ENFORCEMENT INFORMATION

SB 180 Exemption for 911 Wireless Communication: Creates a number of exemptions to Florida’s Public Records Law: (1) Exempts any information that may identify a person reporting an emergency or requesting emergency services through the use of wireless emergency 911 services while such information is in the custody of the public agency, public safety agency, or answering point receiving the initial emergency call; (2) the names and billing address of wireless service subscribers; and (3) trade secrets of wireless emergency 911 service providers. Similar to HB 511. S. Comprehensive Planning, Local & Military Affairs Committee

HB 511 Exemption for 911 Wireless Communication: Similar to SB 180. Rep. Willie Logan (D-Opa locka)

THE EXEMPTION FOR IDENTIFYING INFORMATION MERELY EXTENDS THE EXISTING EXEMPTION FOR 911 TAPES TO 911 WIRELESS COMMUNICATIONS. EXEMPTIONS 2 AND 3 ARE NEW, AND WHILE NARROW IN SCOPE AND NOT PARTICULARLY BOTHERSOME, THEY MAY VIOLATE THE PROVISION IN ARTICLE I, SECTION 24, OF THE FLORIDA CONSTITUTION STIPULATING THAT ALL NEW EXEMPTIONS BE IN SINGLE SUBJECT BILLS.

HB 391 On-line Access to Criminal Records: Requires the Florida Department of Law Enforcement (FDLE) to provide all offices of the Public Defender with on-line access to non-exempt criminal records, stipulating that the public defenders must pay for the cost of such access. Identical to SB 730. H. Law Enforcement & Crime Prevention Committee

SB 730 On-line Access to Criminal Records: Identical to HB 391. Sen. Kendrick Meek (D-Miami)

CURRENT LAW ALLOWS ALL PUBLIC AGENCIES TO PROVIDE ON-LINE ACCESS TO PUBLIC RECORDS. APPARENTLY, FDLE IS RELUCTANT TO DO SO. THE BILL DOES NOT EFFECT THE PUBLIC’S RIGHT OF ACCESS.

HB 685 Domestic Violence Fatality Prevention Task Force: Creates an exemption for the records obtained or produced by a domestic violence fatality prevention task force or review team conducting statutorily prescribed duties. Also exempts all proceedings and meetings of a task force or review team regarding domestic violence fatalities and prevention. No Senate companion. Rep. Bob Henriquez (D-Tampa)

? THE PURPOSE OF THIS LEGISLATION IS TO ALLOW PARTICIPANTS TO DISCLOSE INFORMATION WITHOUT FEAR OF REPRISAL. HOWEVER, AS DRAFTED, THE BILL EXEMPTS ALL RECORDS OBTAINED OR PRODUCED BY A TASK FORCE OR REVIEW TEAM, AND MAY BE UNCONSTITUTIONALLY OVERBROAD.

SB 928 State Child Abuse Death Review Committee: Creates three exemptions: (1) all reports and records of the State Child Abuse Death Review Committee or local committee relating solely to child fatalities and which discuss specific persons or incidents; (2) all information and records acquired by the State Child Abuse Death Review Committee or local committee; and (3) portions of meetings or proceedings of the Committee or local committee relating to child fatalities, during which specific persons or incidents are discussed. Also stipulates that any exempt information obtained by the State Child Abuse Death Review Committee or local committee retains its exempt status, as does exempt information obtained by a hospital or health care practitioner obtained from the State Child Abuse Death Review Committee or local committee. Further stipulates that any violation of the exemption is a first degree misdemeanor. No House companion. Sen. Anna Cowin (R-Leesburg)

🙁 THE STATED PURPOSE OF THIS LEGISLATION IS TO PREVENT DISCLOSURE OF SENSITIVE, PERSONAL INFORMATION CONCERNING CHILDREN, AND TO ENCOURAGE COMMUNICATION AND COORDINATION AMONG THE PARTIES INVOLVED. HOWEVER, AS DRAFTED, THIS BILL PROTECTS THE IDENTITY OF ALL PERSONS, NOT JUST CHILDREN, AND CREATES A SECOND EXEMPTION FOR ALL RECORDS OBTAINED BY THE STATE CHILD ABUSE DEATH REVIEW COMMITTEE. PRESUMABLY, THE COMMITTEE IS REVIEWING THE DEATH OF CHILDREN FROM ABUSE, AND GOOD PUBLIC POLICY REQUIRES AS MUCH “SUNSHINE” AS POSSIBLE ON A PROBLEM THAT HAS RECEIVED NATIONAL ATTENTION. THE BILL IS UNCONSTITUTIONALLY OVERBROAD.

SB 1172 Minor Children/Domestic Violence: Creates an exemption for information provided to a state attorney or sheriff under § 787.03(6), F.S. (interference with custody) by persons taking minor children when fleeing from domestic violence. No House companion. Sen. Tom Rossin (D-West Palm Beach)

THIS LEGISLATION, CREATING A LIMITED EXEMPTION TO THE PUBLIC’S RIGHT OF ACCESS, COMPLIES WITH THE CONSTITUTIONAL REQUIREMENTS FOR CREATING NEW EXEMPTIONS.

SB 1408 State Child Death Review Committee: Creates exemptions for the State Child Death Review Committee or local committee identical to those created in SB 928 for the State Child Abuse Death Review Committee. See SB 928 above. No House companion. Sen. Anna Cowin (R-Leesburg)

🙁 THIS BILL SUFFERS FROM THE SAME OVERBREADTH PROBLEM AS DOES SB 928, ABOVE.

EMPLOYMENT INFORMATION

HB 193 Disclosure of Public Employee Information: Stipulates that any exempt address, telephone number, and social security number of a public employee must be disclosed to the employee’s certified bargaining agent. Requires the bargaining agent to maintain the exempt status of the information. No Senate companion. Rep. Al Lawson (D-Tallahassee)

THE LEGISLATIVE STAFF ANALYSIS NOTES THAT ACCESS TO THIS INFORMATION WILL FACILITATE COMMUNICATION BETWEEN THE BARGAINING AGENT AND THE REPRESENTED PUBLIC EMPLOYEE WITHOUT JEOPARDIZING THE CONFIDENTIAL STATUS OF THE INFORMATION. DOES NOT EFFECT THE PUBLIC’S RIGHT OF ACCESS.

SB 1342 Domestic Violence/Unemployment Compensation: Creates an exemption for all records and evidence of domestic violence experienced by an employee who has applied for unemployment compensation benefits with the Division of Unemployment Compensation. No House companion. Sen. Richard Miller (D-Jasper)

THIS BILL IS FILED IN CONJUNCTION WITH SB 1340, PROVIDING THAT CIRCUMSTANCES DIRECTLY RESULTING FROM DOMESTIC VIOLENCE MAY BE GOOD CAUSE FOR LEAVING EMPLOYMENT AND BECOMING ELIGIBLE FOR UNEMPLOYMENT COMPENSATION. HOWEVER, THE STATEMENT OF PUBLIC NECESSITY IN SB 1342 IS WEAK, AND THE EXEMPTION MAY BE IMPERMISSIBLY BROAD.

GENERAL

HB 51 Reasonable Condition/Proof of Identification: Requires all persons seeking access to public records to provide name, address, date of birth, and proof of identity. Also stipulates that if the request is being made on behalf of another person, that the name and address of that person be provided as well. States that this requirement is a “reasonable condition” of access. No Senate companion. Rep. Sally Heyman (D-N. Miami Beach)

🙁 OVERTURNING 100+ YEARS OF PUBLIC POLICY, HB 51 WOULD HAVE AN UNNECESSARILY SEVERE “CHILLING” EFFECT ON OUR CONSTITUTIONAL RIGHT OF ACCESS.

HB 159 Ex Parte Communications: Allows ex parte communications between a legislator and a member of the Public Service Commission (PSC). Also allows members of the Legislature to address the PSC at any scheduled and noticed public meeting. No Senate companion. Rep. David Bitner (R-Port Charlotte)

? THIS IS AN ODD ONE, AND THERE’S NO STATEMENT OF NECESSITY IN THE BILL TO HELP US UNDERSTAND THE SPONSOR’S INTENT OR PURPOSE. WORTH KEEPING AN EYE ON.

SB 1198 Lobbyist Disclosure: In part, requires any lobbyist requesting a legislator to sponsor or oppose a bill to disclose to the Office of Legislative Services at the time the request is made, whether the bill would directly benefit any registered lobbyist or political committee that has contributed more than $100 to the legislator’s campaign. Stipulates that the disclosure is a public record. No House companion. Sen. Richard Mitchell (D-Jasper)

INTERESTING BILL, AND A GOOD IDEA. WE HATE TO SOUND CYNICAL, BUT WE’LL BE SURPRISED IF IT PASSES.

HEALTH CARE INFORMATION and HOSPITAL RECORDS

HB 245 Exemption for Home Medical Equipment Suppliers: Creates three exemptions from the Public Records Law: (1) information about patients of a home medical equipment supplier received by the supplier or its employees; (2) information obtained by the Agency for Health Care Administration associated with applications for licensure as a home medical equipment supplier; and (3) background screening information on prospective employees obtained by the home medical equipment supplier. Similar to SB 674. Rep. Harry Goode (R-Melbourne)

SB 674 Exemption for Home Medical Equipment Suppliers: Similar to HB 245, except that SB 674 creates only two of the three exemptions—patient information and background screening information on prospective employees. Sen. Ginny Brown-Waite (R-Brooksville)

🙁 ALL THREE EXEMPTIONS APPEAR TO MEET THE CONSTITUTIONAL STANDARD FOR NEW EXEMPTIONS AS REGARDS NARROWNESS. HOWEVER, THE BILL MAY VIOLATE THE SINGLE SUBJECT REQUIREMENT IN ARTICLE I, SECTION 24. ALSO, CREATING PUBLIC RECORDS EXEMPTIONS FOR BACKGROUND SCREENING INFORMATION RAISES SERIOUS PUBLIC POLICY CONCERNS.

HB 357 Public Hospitals/Written Strategic Plans Exemption: Creates an exemption for a public hospital’s written strategic plans and for the meetings of a public hospital’s board of directors at which such plans are discussed. Defines the term “written strategic plan” to include: initiate or acquire a new health service; expand an existing health service; acquire additional facilities; expand existing facilities; change the use of an existing or newly acquired facility; acquire, merge, or consolidate with another facility or provider; enter into a shared service arrangement; enter into or terminate a joint venture or transaction; or any combination of the above. Stipulates that “written strategic plan” does not include records describing existing operations, and that a public hospital may not approve a binding agreement to sell, lease, merge, or consolidate at a closed meeting. Requires a court reporter at all closed meetings and provides that the transcripts of closed meetings will become public three years after the date of the board meeting or earlier if the strategic plan discussed at the closed meeting has been implemented. Similar to SB 1012. Rep. Mike Fasano (R-New Port Richey)

SB 1012 Public Hospitals/Written Strategic Plans Exemption: Nearly identical to HB 357. Sen. Lisa Carlton (R-Osprey)

🙁 AS DEFINED, “WRITTEN STRATEGIC PLAN” INCLUDES VIRTUALLY EVERYTHING A PUBLIC HOSPITAL BOARD MAY CONSIDER, AND IS MUCH BROADER THAN ANY JUSTIFIABLE NEED FOR SECRECY. THIS LEGISLATION IS UNCONSTITUTIONALLY OVERBROAD.

HB 517 Private Corporations/Public Hospitals: Repeals the exemption passed last year that exempts the records and meetings of private corporations running public hospitals. Rep. Charlie Sembler (R-Vero Beach)

🙂 WE LIKE THIS BILL! LAST SESSION, THE LEGISLATURE PASSED A BILL THAT ALLOWS PRIVATE CORPORATIONS RUNNING PUBLIC HOSPITALS TO RUN PUBLIC HOSPITALS IN SECRET, AND THUS WITHOUT PUBLIC OVERSIGHT. TO ALLOW GOVERNMENT-BY-DELEGATION WITHOUT PROVIDING FOR PUBLIC ACCOUNTABILITY IS BAD PUBLIC POLICY.

INFORMATION TECHNOLOGY RESOURCES

SB 1404 Exemption for Information Technology Resources/Y2K: Creates an exemption for all information acquired by a governmental agency concerning the information technology operations, programs, equipment, and data of a business or other government agency in order to determine whether the business or agency is year-2000 compliant. Prohibits disclosure of such information without the express written consent of the business or agency. Allows penalties for the disclosure and/or misuse of such information. No House companion. Sen. John Grant (R-Tampa)

THIS LEGISLATION, CREATING A LIMITED EXEMPTION TO THE PUBLIC’S RIGHT OF ACCESS, COMPLIES WITH THE CONSTITUTIONAL REQUIREMENTS FOR CREATING NEW EXEMPTIONS.

INSURANCE INFORMATION

HB 879 Health Information Privacy: Requires insurance carriers to limit disclosure of health information if an individual clearly states in writing that disclosure of such information could jeopardize the individual’s safety. Also requires insurance carriers to disclose health information pursuant to a subpoena or court order issued after a court’s determination that the public interest in disclosure outweighs the individual’s privacy interest and that the information is not otherwise reasonably available. No Senate companion. Rep. Janegale Boyd (D-Monticello)

THIS BILL DOES NOT EFFECT THE PUBLIC’S RIGHT OF ACCESS.

INVESTIGATIVE INFORMATION

SB 1302 Exemption for Insurance Companies: Creates an exemption for all documents, compilations of documents, or records, regardless of medium, provided (1) voluntarily by an insurer to the Department of Insurance (DOI) or the Department of Legal Affairs (DLA), or (2) in conjunction with an investigation or examination of the insurer’s conduct by DOI or DLA. Stipulates that the exemption does not apply if there is a final determination after exhaustion of all appeals that the insurer was guilty of a conscious disregard of the legality of the actions taken after preparation of the documents, and there is a determination by a court that the illegal conduct is ongoing, and that without public disclosure such ongoing conduct creates a danger to the public health, safety, or welfare. No House companion. Sen. Steven Geller (D-Hallendale)

🙁 UNDER CURRENT LAW, ALL INVESTIGATIVE RECORDS BECOME PUBLIC AT THE CONCLUSION OF THE INVESTIGATION. THIS BILL WOULD CREATE AN EXCEPTION FOR INVESTIGATIONS OF INSURERS BY THE DOI OR DLA. THERE IS NO JUSTIFICATION FOR THE CREATION OF SUCH AN EXCEPTION, AND TO ALLOW INSURERS TO OPERATE AND THE DEPARTMENTS THAT REGULATE THEM TO CONDUCT INVESTIGATIONS WITHOUT PUBLIC OVERSIGHT IS BAD PUBLIC POLICY.

PERSONAL INFORMATION

HB 43 Exemption for Motor Vehicle Records: Creates a Public Records Law exemption for all personally identifying information in motor vehicle records, amending the current provision in § 119.07(3)(bb), F.S., which requires the Department of Highway Safety and Motor Vehicles (DHSMV) to delete personal information in motor vehicle records only upon the written request of the subject of the record. Allows for access to the exempt information by private investigators, direct marketers, tow truck operators, rental car companies, insurance companies, law enforcement officers, employers, etc. No Senate companion. Rep. Lindsay Harrington (R-Punta Gorda)

🙁 THE STATED PURPOSE OF THIS LAW IS TO PREVENT INDIVIDUALS FROM OBTAINING PERSONAL INFORMATION FOR MALICIOUS PURPOSES. HOWEVER, HB 43 CLOSES ACCESS TO ALL MOTOR VEHICLE RECORDS, REGARDLESS OF THE “PURPOSE” OF THE REQUEST. IN CLOSING ACCESS TO ALL PERSONAL INFORMATION IN ALL MOTOR VEHICLE RECORDS, HB 43 IS UNCONSTITUTIONALLY OVERBROAD, VIOLATING THE STANDARD FOR THE CREATION OF NEW EXEMPTIONS FOUND IN ARTICLE I, SECTION 24, OF THE FLORIDA CONSTITUTION.

CS/HB 49 Criminal Use of Personal Identifying Information: Creates two new criminal offenses, stipulating that: (1) any person who fraudulently uses personal identification information without first obtaining the individual’s consent commits “fraudulent use of personal identification information,” a third degree felony; and (2) any person who, without authorization, willfully possesses, uses, or attempts to use personal identification information for the purpose of harassment, commits “harassment by use of personal identification information,” a first degree misdemeanor. The legislation defines “harass” as “conduct directed at a specific person that is intended to cause substantial emotional distress,” but does NOT include the use of personal information for “accepted commercial purposes.” Similar to SB 286. H. Crime & Punishment Committee

SB 286 Criminal Use of Personal Identifying Information: Similar to CS/HB 43, except that SB 286 makes it a first degree misdemeanor to “wantonly and maliciously use” personal identification information, rather than using such information for the purpose of harassment. Similar to CS/HB 43. Sen. Skip Campbell (D-Tamarac)

? AT THIS POINT, WE’RE WITHHOLDING JUDGMENT ON THIS LEGISLATION WHILE WAITING FOR A MORE DETAILED LEGAL ANALYSIS. HOWEVER, THE LEGISLATION APPEARS TO FOCUS SOLELY ON THE MISUSE OF PUBLIC RECORD INFORMATION RATHER THAN ACCESS TO THE INFORMATION, AN APPROACH THE FIRST AMENDMENT FOUNDATION HAS BEEN ENCOURAGING FOR A NUMBER OF YEARS.

HB 219 Exemption for Guardianship Office Records: Creates two Public Records Law exemptions: (1) any medical, financial, or mental health records necessary to evaluate the public guardianship system; and (2) all medical, financial, or mental health records of elderly persons, disabled adults, or the mentally ill held by the Statewide Public Guardianship Office. Identical to SB 704. Rep. Larry Crow (R-Dunedin)

SB 704 Exemption for Guardianship Office Records: Identical to HB 219. Sen. Howard Forman (D-Cooper City)

THIS LEGISLATION, CREATING A LIMITED EXEMPTION TO THE PUBLIC’S RIGHT OF ACCESS, COMPLIES WITH THE CONSTITUTIONAL REQUIREMENTS FOR CREATING NEW EXEMPTIONS.

SB 922 Exemption for Donors to Florida Affordable College Trust: Creates two public records exemptions: (1) the identity of donors to the direct-support organization (DSO) for the Florida Affordable College Trust; and (2) sensitive, personal information regarding contract beneficiaries. No House companion. Sen. George Kirkpatrick (R-Gainesville)

🙁 THERE ARE SIMILAR PROVISIONS IN CURRENT LAW FOR DONORS TO OTHER DSOS. HOWEVER, THOSE PROVISIONS STIPULATE THAT THE DONOR INFORMATION IS EXEMPT ONLY UPON REQUEST BY THE DONOR; THIS BILL EXEMPTS THE IDENTITY OF ALL DSO DONORS WHETHER THEY DESIRE CONFIDENTIALITY OR NOT. THE BILL STATES THAT THE EXEMPTION IS NECESSARY TO ENCOURAGE DONATIONS TO THE DSO, BUT MAY BE OVERBROAD BY EXEMPTING THE IDENTITY OF ALL DONORS. ALSO, THERE IS NO STATEMENT OF NECESSITY FOR THE CONTRACT BENEFICIARIES EXEMPTION.

FIRST AMENDMENT ISSUES

FREEDOM OF THE PRESS

HB 141 Law Enforcement Operations: Makes it a third degree felony for any person to initiate contact with a person who is the cause for or subject of police mobilization, deployment, or tactical operations, including hostage situations or kidnapings in progress. Also prohibits any attempt to contact or directly communicate with the perpetrator of such crimes during the course of any tactical law enforcement operations. Finally, prohibits any person from broadcasting or telecasting live audio or video transmission revealing tactical operations in progress, or the deployment of personnel or equipment. Similar to CS/SB 166. Rep. David Russell (R-Spring Hill)

CS/SB 166 Law Enforcement Operations: Similar to HB 141. Sen. Ginny Brown-Waite (R-Brooksville)

🙁 THIS LEGISLATION IS CLEARLY UNCONSTITUTIONAL. FOR MORE INFORMATION, CONTACT THE FLORIDA PRESS ASSOCIATION, (850) 222-5790.

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As has been the practice in the past, we will continue to send all members weekly updates on these and other bills. If you’d like more information about a bill, you can call us at (800) 337-3518. For those of you with Internet access, please check our website at www.floridafaf.org. You can also check On-Line Sunshine at www.leg.state.fl.us.

Wish us luck—I’ve got the feeling we’re going to need it.

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