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The Florida Senate

2020 Florida Statutes

Title XLVII CRIMINAL PROCEDURE AND CORRECTIONS
Chapter 945 DEPARTMENT OF CORRECTIONS Entire Chapter
SECTION 10
Confidential information.
F.S. 945.10
945.10 Confidential information.—
(1) Except as otherwise provided by law or in this section, the following records and information held by the Department of Corrections are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution:
(a)1. Mental health, medical, or substance abuse records of an inmate or an offender; and
2. Protected health information of an inmate or an offender. Protected health information, as used in this section, has the same meaning as provided in 45 C.F.R. s. 160.103. This subparagraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.
(b) Preplea, pretrial intervention, and presentence or postsentence investigative records, except as provided in s. 960.001(1)(g).
(c) Information regarding a person in the federal witness protection program.
(d) Florida Commission on Offender Review records which are confidential or exempt from public disclosure by law.
(e) Information which if released would jeopardize a person’s safety.
(f) Information concerning a victim’s statement and identity.
(g) Information which identifies an executioner, or any person prescribing, preparing, compounding, dispensing, or administering a lethal injection.
(h) The identity of any inmate or offender upon whom an HIV test has been performed and the inmate’s or offender’s test results, in accordance with s. 381.004. The term “HIV test” has the same meaning as provided in s. 381.004. This paragraph is subject to the Open Government Sunset Review Act of 1995 in accordance with s. 119.15 and shall stand repealed on October 2, 2022, unless reviewed and saved from repeal through reenactment by the Legislature.
(i) Records that are otherwise confidential or exempt from public disclosure by law.
(2) The records and information specified in paragraphs (1)(a)-(i) may be released as follows unless expressly prohibited by federal law:
(a) Information specified in paragraphs (1)(b), (d), and (f) to the Executive Office of the Governor, the Legislature, the Florida Commission on Offender Review, the Department of Children and Families, a private correctional facility or program that operates under a contract, the Department of Legal Affairs, a state attorney, the court, or a law enforcement agency. A request for records or information pursuant to this paragraph need not be in writing.
(b) Information specified in paragraphs (1)(c), (e), and (i) to the Executive Office of the Governor, the Legislature, the Florida Commission on Offender Review, the Department of Children and Families, a private correctional facility or program that operates under contract, the Department of Legal Affairs, a state attorney, the court, or a law enforcement agency. A request for records or information pursuant to this paragraph must be in writing and a statement provided demonstrating a need for the records or information.
(c) Information specified in paragraph (1)(b) to an attorney representing an inmate under sentence of death, except those portions of the records containing a victim’s statement or address, or the statement or address of a relative of the victim. A request for records of information pursuant to this paragraph must be in writing and a statement provided demonstrating a need for the records or information.
(d) Information specified in paragraph (1)(b) to a public defender representing a defendant, except those portions of the records containing a victim’s statement or address, or the statement or address of a relative of the victim. A request for records or information pursuant to this paragraph need not be in writing.
(e) Information specified in paragraph (1)(b) to state or local governmental agencies. A request for records or information pursuant to this paragraph must be in writing and a statement provided demonstrating a need for the records or information.
(f) Information specified in paragraph (1)(b) to a person conducting legitimate research. A request for records and information pursuant to this paragraph must be in writing, the person requesting the records or information must sign a confidentiality agreement, and the department must approve the request in writing.
(g) Protected health information and records specified in paragraphs (1)(a) and (h) to the Department of Health and the county health department where an inmate plans to reside if he or she has tested positive for the presence of the antibody or antigen to human immunodeficiency virus infection or as authorized in s. 381.004.
(h) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) to the Executive Office of the Governor, the Correctional Medical Authority, and the Department of Health for health care oversight activities authorized by state or federal law, including audits; civil, administrative, or criminal investigations; or inspections relating to the provision of health services, in accordance with 45 C.F.R. part 164, subpart E.
(i) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) to a state attorney, a state court, or a law enforcement agency conducting an ongoing criminal investigation, if the inmate agrees to the disclosure and provides written consent or, if the inmate refuses to provide written consent, in response to an order of a court of competent jurisdiction, a subpoena, including a grand jury, investigative, or administrative subpoena, a court-ordered warrant, or a statutorily authorized investigative demand or other process as authorized by law, in accordance with 45 C.F.R. part 164, subpart E, provided that:
1. The protected health information and records sought are relevant and material to a legitimate law enforcement inquiry;
2. There is a clear connection between the investigated incident and the inmate whose protected health information and records are sought;
3. The request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information or records are sought; and
4. Deidentified information could not reasonably be used.
(j) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) of an inmate who is or is suspected of being the victim of a crime, to a state attorney or a law enforcement agency if the inmate agrees to the disclosure and provides written consent or if the inmate is unable to agree because of incapacity or other emergency circumstance, in accordance with 45 C.F.R. part 164, subpart E, provided that:
1. Such protected health information and records are needed to determine whether a violation of law by a person other than the inmate victim has occurred;
2. Such protected health information or records are not intended to be used against the inmate victim;
3. The immediate law enforcement activity that depends upon the disclosure would be materially and adversely affected by waiting until the inmate victim is able to agree to the disclosure; and
4. The disclosure is in the best interests of the inmate victim, as determined by the department.
(k) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) to a state attorney or a law enforcement agency if the department believes in good faith that the information and records constitute evidence of criminal conduct that occurred in a correctional institution or facility, in accordance with 45 C.F.R. part 164, subpart E, provided that:
1. The protected health information and records disclosed are specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information or records are sought;
2. There is a clear connection between the criminal conduct and the inmate whose protected health information and records are sought; and
3. Deidentified information could not reasonably be used.
(l) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) to the Division of Risk Management of the Department of Financial Services, in accordance with 45 C.F.R. part 164, subpart E, upon certification by the Division of Risk Management that such information and records are necessary to investigate and provide legal representation for a claim against the Department of Corrections.
(m) Protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) of an inmate who is bringing a legal action against the department, to the Department of Legal Affairs or to an attorney retained to represent the department in a legal proceeding, in accordance with 45 C.F.R. part 164, subpart E.
(n) Protected health information and mental health, medical, or substance abuse records of an inmate as specified in paragraph (1)(a) to another correctional institution or facility or law enforcement official having lawful custody of the inmate, in accordance with 45 C.F.R. part 164, subpart E, if the protected health information or records are necessary for:
1. The provision of health care to the inmate;
2. The health and safety of the inmate or other inmates;
3. The health and safety of the officers, employees, or others at the correctional institution or facility;
4. The health and safety of the individuals or officers responsible for transporting the inmate from one correctional institution, facility, or setting to another;
5. Law enforcement on the premises of the correctional institution or facility; or
6. The administration and maintenance of the safety, security, and good order of the correctional institution or facility.
(o) Protected health information and mental health, medical, or substance abuse records of an inmate as specified in paragraph (1)(a) to the Department of Children and Families and the Florida Commission on Offender Review, in accordance with 45 C.F.R. part 164, subpart E, if the inmate received mental health treatment while in the custody of the Department of Corrections and becomes eligible for release under supervision or upon the end of his or her sentence.
(p) Notwithstanding s. 456.057 and in accordance with 45 C.F.R. part 164, subpart E, protected health information and mental health, medical, or substance abuse records specified in paragraph (1)(a) of a deceased inmate or offender to an individual with authority to act on behalf of the deceased inmate or offender, upon the individual’s request. For purposes of this section, the following individuals have authority to act on behalf of a deceased inmate or offender only for the purpose of requesting access to such protected health information and records:
1. A person appointed by a court to act as the personal representative, executor, administrator, curator, or temporary administrator of the deceased inmate’s or offender’s estate;
2. If a court has not made a judicial appointment under subparagraph 1., a person designated by the inmate or offender to act as his or her personal representative in a last will that is self-proved under s. 732.503; or
3. If a court has not made a judicial appointment under subparagraph 1. or if the inmate or offender has not designated a person in a self-proved last will as provided in subparagraph 2., only the following individuals:
a. A surviving spouse.
b. If there is no surviving spouse, a surviving adult child of the inmate or offender.
c. If there is no surviving spouse or adult child, a parent of the inmate or offender.
(q) All requests for access to a deceased inmate’s or offender’s protected health information or mental health, medical, or substance abuse records specified in paragraph (1)(a) must be in writing and must be accompanied by the following:
1. If made by a person authorized under subparagraph (p)1., a copy of the letter of administration and a copy of the court order appointing such person as the representative of the inmate’s or offender’s estate.
2. If made by a person authorized under subparagraph (p)2., a copy of the self-proved last will designating the person as the inmate’s or offender’s representative.
3. If made by a person authorized under subparagraph (p)3., a letter from the person’s attorney verifying the person’s relationship to the inmate or offender and the absence of a court-appointed representative and self-proved last will.

Records and information released under this subsection remain confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution when held by the receiving person or entity.

(3) Due to substantial concerns regarding institutional security and unreasonable and excessive demands on personnel and resources if an inmate or an offender has unlimited or routine access to records of the Department of Corrections, an inmate or an offender who is under the jurisdiction of the department may not have unrestricted access to the department’s records or to information contained in the department’s records. However, except as to another inmate’s or offender’s records, the department may permit limited access to its records if an inmate or an offender makes a written request and demonstrates an exceptional need for information contained in the department’s records and the information is otherwise unavailable. Exceptional circumstances include, but are not limited to:
(a) The inmate or offender requests documentation to resolve a conflict between the inmate’s court documentation and the commitment papers or court orders received by the department regarding the inmate or offender.
(b) The inmate’s or offender’s release is forthcoming and a prospective employer requests, in writing, documentation of the inmate’s or offender’s work performance.
(c) The inmate or offender needs information concerning the amount of victim restitution paid during the inmate’s or offender’s incarceration.
(d) The requested records contain information required to process an application or claim by the inmate or offender with the Internal Revenue Service, the Social Security Administration, the Department of Economic Opportunity, or any other similar application or claim with a state agency or federal agency.
(e) The inmate or offender wishes to obtain the current address of a relative whose address is in the department’s records and the relative has not indicated a desire not to be contacted by the inmate or offender.
(f) Other similar circumstances that do not present a threat to the security, order, or rehabilitative objectives of the correctional system or to any person’s safety.
(4) The Department of Corrections shall adopt rules to prevent disclosure of confidential records or information to unauthorized persons.
(5) The Department of Corrections and the Florida Commission on Offender Review shall mutually cooperate with respect to maintaining the confidentiality of records that are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(6) This section does not limit any right to obtain records by subpoena or other court process.
History.—s. 10, ch. 57-213; s. 18, ch. 61-530; s. 1, ch. 65-453; ss. 19, 35, ch. 69-106; s. 24, ch. 74-112; s. 255, ch. 77-104; s. 87, ch. 79-3; s. 1, ch. 88-118; s. 56, ch. 88-122; s. 1, ch. 94-83; s. 448, ch. 96-406; s. 2, ch. 98-4; s. 314, ch. 99-8; s. 1, ch. 99-263; s. 2, ch. 2000-1; s. 3, ch. 2002-292; s. 3, ch. 2003-272; s. 43, ch. 2010-117; s. 446, ch. 2011-142; s. 324, ch. 2014-19; s. 37, ch. 2014-191; s. 1, ch. 2017-114.