The Florida Senate

119.15  Legislative review of exemptions from public meeting and public records requirements.--

(1)  This section may be cited as the "Open Government Sunset Review Act of 1995."

(2)  This section provides for the automatic application of the policy of open government as provided in ss. 119.01 and 286.011 to certain exemptions from ss. 119.07(1) and 286.011 It is the intent of the Legislature that exemptions to ss. 119.07(1) and 286.011 shall be created or maintained only if:

(a)  The exempted record or meeting is of a sensitive, personal nature concerning individuals;

(b)  The exemption is necessary for the effective and efficient administration of a governmental program; or

(c)  The exemption affects confidential information concerning an entity.

Thus, the maintenance or creation of an exemption must be compelled as measured by these criteria. Further, the Legislature finds that the public has a right to have access to executive branch governmental meetings and records unless the criteria in this section for restricting such access to a public meeting or public record are met and the criteria are considered during legislative review in connection with the particular exemption to be significant enough to override the strong public policy of open government. To strengthen the policy of open government, the Legislature shall consider the criteria in this section before enacting future exemptions.

(3)(a)  In the 5th year after enactment of a new exemption or substantial amendment of an existing exemption, the exemption shall repeal on October 2nd of the 5th year, unless the Legislature acts to reenact the exemption. A law that enacts a new exemption or substantially amends an existing exemption must state that the exemption is repealed at the end of 5 years and that the exemption must be reviewed by the Legislature before the scheduled repeal date.

(b)  For purposes of this section, an exemption is substantially amended if the amendment expands the scope of the exemption to include more records or information or to include meetings as well as records. An exemption is not substantially amended if the amendment narrows the scope of the exemption.

(c)  This section is not intended to repeal an exemption that has been amended following legislative review before the scheduled repeal of the exemption if the exemption is not substantially amended as a result of the review.

(d)  In the year before the repeal of an exemption under this section, the Division of Statutory Revision of the Office of Legislative Services shall certify to the President of the Senate and the Speaker of the House of Representatives, by June 1, the language and statutory citation of each exemption scheduled for repeal the following year which meets the criteria of an exemption as defined in this section. Any exemption that is not identified and certified to the President of the Senate and the Speaker of the House of Representatives is not subject to legislative review and repeal under this section. If the division fails to certify an exemption that it subsequently determines should have been certified, it shall include the exemption in the following year's certification after that determination.

(e)  The term "exemption" means a provision of the Florida Statutes which creates an exception to s. 119.07(1) or s. 286.011 and which applies to the executive branch of state government or to local government, but it does not include any provision of a special law or local law.

(f)  An exemption that is required by federal law is not subject to repeal under this section.

(g)  An exemption that applies solely to the Legislature or the State Court System is not subject to repeal under this section.

(4)(a)  The Legislature shall review the exemption before its scheduled repeal and consider as part of the review process the following:

1.  What specific records or meetings are affected by the exemption?

2.  Whom does the exemption uniquely affect, as opposed to the general public?

3.  What is the identifiable public purpose or goal of the exemption?

4.  Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If so, how?

(b)  An exemption may be created or maintained only if it serves an identifiable public purpose and may be no broader than is necessary to meet the public purpose it serves. An identifiable public purpose is served if the exemption meets one of the following purposes and the Legislature finds that the purpose is sufficiently compelling to override the strong public policy of open government and cannot be accomplished without the exemption:

1.  Allows the state or its political subdivisions to effectively and efficiently administer a governmental program, which administration would be significantly impaired without the exemption;

2.  Protects information of a sensitive personal nature concerning individuals, the release of which information would be defamatory to such individuals or cause unwarranted damage to the good name or reputation of such individuals or would jeopardize the safety of such individuals. However, in exemptions under this subparagraph, only information that would identify the individuals may be exempted; or

3.  Protects information of a confidential nature concerning entities, including, but not limited to, a formula, pattern, device, combination of devices, or compilation of information which is used to protect or further a business advantage over those who do not know or use it, the disclosure of which information would injure the affected entity in the marketplace.

(c)  Records made before the date of a repeal of an exemption under this section may not be made public unless otherwise provided by law. In deciding whether the records shall be made public, the Legislature shall consider whether the damage or loss to persons or entities uniquely affected by the exemption of the type specified in subparagraph (b)2. or subparagraph (b)3. would occur if the records were made public.

(d)  An exemption that is created or revived and reenacted must contain uniform language that clearly states the section in the Florida Statutes from which it is exempt, s. 119.07(1) or s. 286.011 The uniform language must also provide for the maximum public access to the meetings and records as is consistent with the purpose of the exemption. An exemption that is created or substantially amended must state that the exemption is repealed at the end of 5 years and that the exemption must be reviewed by the Legislature before the scheduled date of repeal.

(e)  Notwithstanding s. 768.28 or any other law, neither the state or its political subdivisions nor any other public body shall be made party to any suit in any court or incur any liability for the repeal or revival and reenactment of an exemption under this section. The failure of the Legislature to comply strictly with this section does not invalidate an otherwise valid reenactment.

History.--s. 2, ch. 95-217; s. 25, ch. 98-136.