Florida Senate - 2013 SB 1486 By Senator Smith 31-01591-13 20131486__ 1 A bill to be entitled 2 An act relating to public records; creating s. 3 790.0652, F.S.; providing definitions; creating an 4 exemption from public records requirements for certain 5 information of patients and health care providers 6 under the mandatory reporting of mental health status 7 for firearm safety program; providing for disclosure 8 of such information under specified conditions; 9 providing guidelines for the use of such information 10 and penalties for violations; providing for future 11 legislative review and repeal of the exemption under 12 the Open Government Sunset Review Act; providing a 13 statement of public necessity; providing a contingent 14 effective date. 15 16 Be It Enacted by the Legislature of the State of Florida: 17 18 Section 1. Section 790.0652, Florida Statutes, is created 19 to read: 20 790.0652 Public records exemption for reports of mental 21 health status for firearm safety.— 22 (1) As used in this section, the term: 23 (a) “Department” means the Department of Law Enforcement. 24 (b) “Firearm-prohibited persons database” has the same 25 meaning as in s. 790.0651. 26 (c) “Health care provider” has the same meaning as in s. 27 790.0651. 28 (d) “Patient” means a person who is the subject of a mental 29 health status report under s. 790.0651. 30 (e) “Personal identifying information” means the name, 31 address, social security number or other unique government 32 issued identification number, race, sex, date of birth, or known 33 alias of a referenced person. 34 (2) The following information that is contained in records 35 held by the department under s. 790.065 or s. 790.0651 is 36 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 37 of the State Constitution: 38 (a) Any information contained in a report made by a health 39 care provider pursuant to s. 790.0651, which includes: 40 1. The personal identifying information of a patient. 41 2. Protected health information of a patient. 42 (b) The personal identifying information and license number 43 of a health care provider who makes a report pursuant to s. 44 790.0651. 45 (c) Any record created by the department for inclusion in 46 the firearm-prohibited persons database based upon a report 47 pursuant to s. 790.0651. 48 (d) Any information contained in a certification provided 49 to the department by a patient to facilitate the removal of the 50 patient’s record from the firearm-prohibited persons database. 51 (3) The department may disclose such confidential and 52 exempt information to the following entities after using a 53 verification process to ensure the legitimacy of the entity’s 54 request for the information: 55 (a) The relevant Department of Health regulatory boards 56 responsible for the licensure, regulation, or discipline of a 57 health care provider for the purpose of imposing discipline for 58 failure to comply with s. 790.0651 or investigating a complaint 59 of reporting abuse. The regulatory boards may request 60 information but may not have direct access to the firearm 61 prohibited persons database. 62 (b) A law enforcement agency that has initiated an active 63 investigation involving a specific violation of the law. A law 64 enforcement agency may request information but may not have 65 direct access to the firearm-prohibited persons database. 66 (c) A patient or patient’s legal representative to confirm 67 that a record of the patient in the firearm-prohibited persons 68 database which was based solely upon a health care provider 69 report pursuant to s. 790.0651 was removed from the database in 70 accordance with s. 790.065. For purposes of this paragraph, the 71 department shall disclose confidential and exempt information 72 relating only to the patient, not the reporting health care 73 provider. 74 (d) An entity with authorized access to the firearm 75 prohibited persons database under s. 790.065(2)(a) in order to 76 determine the lawfulness of a firearm sale or transfer, or the 77 eligibility to carry a concealed weapon. For purposes of this 78 paragraph, the department may disclose information contained 79 only in active mental health records of the firearm-prohibited 80 persons database. 81 (4) An agency or person who obtains confidential and exempt 82 information pursuant to this section must maintain the 83 confidential and exempt status of that information. 84 (5) A person who willfully and knowingly violates this 85 section commits a felony of the third degree, punishable as 86 provided in s. 775.082, s. 775.083, or s. 775.084. 87 (6) This section is subject to the Open Government Sunset 88 Review Act in accordance with s. 119.15 and shall stand repealed 89 on October 2, 2018, unless reviewed and saved from repeal 90 through reenactment by the Legislature. 91 Section 2. The Legislature finds that it is a public 92 necessity that certain information of a patient or a health care 93 provider which is contained in records held by the Department of 94 Law Enforcement under s. 790.0651, Florida Statutes, the 95 mandatory reporting program of mental health status for firearm 96 safety, be made confidential and exempt from public records 97 requirements. Information concerning the mental health status of 98 a patient is a private, personal matter between the patient, his 99 or her family, and his or her health care provider. 100 Nevertheless, the reporting to law enforcement of those patients 101 who suffer a mental illness or disorder and who pose a risk of 102 harm to themselves or others will ensure the ability of the 103 state to prevent access to firearms to those who may use them to 104 harm innocent persons in this state. However, if the information 105 that would identify a patient or the reporting health care 106 provider is not made confidential and exempt from disclosure, 107 any person could inspect and copy such records and have access 108 to a patient’s protected health information. The availability of 109 such information to the public would result in the invasion of 110 the patient’s privacy, and this information could be used to 111 embarrass or humiliate the patient or to discriminate against 112 him or her. Requiring the reporting of patients who suffer 113 certain mental illnesses and pose a risk of harm to themselves 114 or others, while protecting patient personal identifying 115 information, will ensure that the patient does not have the 116 ability to purchase a firearm while maintaining patient privacy. 117 Additionally, exempting the personal identifying information of 118 the reporting health care provider from disclosure ensures that 119 health care providers are not targeted in acts of retaliation by 120 patients who have been identified as having a risk of causing 121 harm to others. This exemption from public records requirements 122 also prevents a person with mental illness who poses a risk of 123 harm to others from identifying and seeking out health care 124 providers who make the fewest reports to the Department of Law 125 Enforcement pursuant to s. 790.0651, Florida Statutes, thereby 126 increasing the likelihood of escaping detection by the 127 department during a firearm background check. Thus, the 128 Legislature finds that the harm to patients, health care 129 providers, and the public which would result from the release of 130 protected health information and personal identifying 131 information contained in reports and records made pursuant to s. 132 790.0651, Florida Statutes, outweighs any minimal public benefit 133 derived from disclosure to the public. 134 Section 3. This act shall take effect July 1, 2013, if SB 135 ____, or similar legislation establishing a mandatory reporting 136 program of mental health status for firearm safety, is adopted 137 in the same legislative session or an extension thereof and 138 becomes a law.