Senate Bill 0746

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    Florida Senate - 1998                                   SB 746

    By Senator Williams





    4-562-98                                        See CS/HB 1887

  1                      A bill to be entitled

  2         An act relating to confidentiality of records

  3         and meetings of the Florida Automobile Joint

  4         Underwriting Association; amending s. 627.311,

  5         F.S.; providing exemptions from public records

  6         requirements for underwriting files, open claim

  7         files, audit records for a specified time,

  8         matters reasonably encompassed in privileged

  9         attorney-client communications, licensed

10         proprietary information made confidential by

11         contract, certain employee medical records and

12         employee assistance programs records, certain

13         negotiation information for a specified time,

14         minutes of closed meetings regarding

15         underwriting files, and minutes of closed

16         meetings regarding claims files for a specified

17         time; providing requirements regarding sharing

18         of confidential records; providing an exemption

19         from public meetings requirements for meetings

20         during which underwriting files or open claims

21         files are discussed; providing requirements

22         regarding such closed meetings and records

23         thereof; providing for future review and

24         repeal; providing a finding of public

25         necessity; providing an effective date.

26

27  Be It Enacted by the Legislature of the State of Florida:

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29         Section 1.  Paragraph (l) is added to subsection (3) of

30  section 627.311, Florida Statutes, to read:

31         627.311  Joint underwriters and joint reinsurers.--

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    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




  1         (3)  The department may, after consultation with

  2  insurers licensed to write automobile insurance in this state,

  3  approve a joint underwriting plan for purposes of equitable

  4  apportionment or sharing among insurers of automobile

  5  liability insurance and other motor vehicle insurance, as an

  6  alternate to the plan required in s. 627.351(1).  All insurers

  7  authorized to write automobile insurance in this state shall

  8  subscribe to the plan and participate therein.  The plan shall

  9  be subject to continuous review by the department which may at

10  any time disapprove the entire plan or any part thereof if it

11  determines that conditions have changed since prior approval

12  and that in view of the purposes of the plan changes are

13  warranted. Any disapproval by the department shall be subject

14  to the provisions of chapter 120.  If adopted, the plan and

15  the association created under the plan:

16         (l)1.  Must be subject to the public records

17  requirements of chapter 119 and the public meeting

18  requirements of s. 286.011.  However, the following records of

19  the Florida Automobile Joint Underwriting Association are

20  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I

21  of the State Constitution:

22         a.  Underwriting files, except that a policyholder or

23  an applicant shall have access to his or her own underwriting

24  files.

25         b.  Claims files, until termination of all litigation

26  and settlement of all claims arising out of the same incident,

27  although portions of the claims files may remain exempt, as

28  otherwise provided by law.  Confidential and exempt claims

29  file records may be released to other governmental agencies

30  upon written request and demonstration of need; such records

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




  1  held by the receiving agency remain confidential and exempt as

  2  provided by this paragraph.

  3         c.  Records obtained or generated by an internal

  4  auditor pursuant to a routine audit, until the audit is

  5  completed or, if the audit is conducted as part of an

  6  investigation, until the investigation is closed or ceases to

  7  be active.  An investigation is considered "active" while the

  8  investigation is being conducted with a reasonable, good-faith

  9  belief that it could lead to the filing of administrative,

10  civil, or criminal proceedings.

11         d.  Matters reasonably encompassed in privileged

12  attorney-client communications.

13         e.  Proprietary information licensed to the association

14  under contract when the contract provides for the

15  confidentiality of such proprietary information.

16         f.  All information relating to the medical condition

17  or medical status of an association employee which is not

18  revelant to the employee's capacity to perform his or her

19  duties, except as otherwise provided in this paragraph.

20  Information that is exempt must include information relating

21  to workers' compensation, insurance benefits, and retirement

22  or disability benefits.

23         g.  All records relative to an employee's participation

24  in an employee assistance program designed to assist any

25  employee who has a behavioral or medical disorder, substance

26  abuse problem, or emotional difficulty that affects the

27  employee's job performance, except as otherwise provided in s.

28  112.0455(11).

29         h.  Information relating to negotiations for financing,

30  reinsurance, depopulation, or contractual services, until the

31  conclusion of the negotiations.

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    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




  1         i.  Minutes of closed meetings regarding underwriting

  2  files, and minutes of closed meetings regarding an open claims

  3  file until termination of all litigation and settlement of all

  4  claims with regard to that claim, except that information

  5  otherwise confidential or exempt by law must be redacted.

  6

  7  When an authorized insurer is considering underwriting a risk

  8  insured by the association, relevant underwriting files and

  9  confidential claims files may be released to the insurer

10  provided the insurer agrees in writing, notarized and under

11  oath, to maintain the confidentiality of such files.  When a

12  file is transferred to an insurer, that file is no longer a

13  public record because it is not held by an agency subject to

14  the provisions of the public records law.  The association may

15  make the following information obtained from underwriting

16  files and confidential claims files available to licensed

17  general lines insurance agents:  name, address, and telephone

18  number of the automobile owner or insured; location of the

19  risk; rating information; loss history; and policy type.  The

20  receiving licensed general lines insurance agent must retain

21  the confidentiality of the information received.

22         2.  Portions of meetings of the Florida Automobile

23  Joint Underwriting Association during which confidential

24  underwriting files or confidential open claims files are

25  discussed are exempt from the provisions of s. 286.011 and s.

26  24(b), Art. I of the State Constitution.  All portions of

27  association meetings which are closed to the public must be

28  recorded by a court reporter.  The court reporter shall record

29  the times of commencement and termination of the meeting, all

30  discussion and proceedings, the names of all persons present

31  at any time, and the names of all persons speaking.  No

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    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




  1  portion of any closed meeting may be off the record.  Subject

  2  to the provisions of this paragraph and s. 119.07(2)(a), the

  3  court reporter's notes concerning any closed meeting must be

  4  retained by the association for a minimum of 5 years.  A copy

  5  of the transcript, less any exempt matters, of any closed

  6  meeting during which claims are discussed becomes public as to

  7  individual claims after settlement of the claim.

  8

  9  This paragraph is subject to the Open Government Sunset Review

10  Act of 1995 in accordance with s. 119.15, and shall stand

11  repealed on October 2, 2003, unless reviewed and saved from

12  repeal through reenactment by the Legislature.

13         Section 2.  The Legislature finds that it is a public

14  necessity that certain records of the Florida Automobile Joint

15  Underwriting Association be held confidential and exempt.

16  Certain medical records of association employees must be held

17  confidential and exempt because they contain personal,

18  sensitive information regarding an employee's medical

19  condition, the disclosure of which would be harmful to the

20  employee.  Likewise, underwriting files contain medical

21  information as well as private financial information regarding

22  insureds, the disclosure of which could be harmful to those

23  insureds.  Additionally, such files contain proprietary

24  confidential business information.  Accordingly, it is a

25  public necessity that those files, and meetings relating to

26  those files, be closed.  Additionally, matters reasonably

27  encompassed in privileged attorney-client communications

28  should be held confidential and exempt because the release of

29  such information could jeopardize ongoing or pending

30  litigation or other business matters.  Also, open claims files

31  records should be closed, as well as meetings concerning open

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    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




  1  claims files.  If such records and meetings are not exempt,

  2  claimants will have unfettered access to information held by

  3  the association which could be used as evidence and for

  4  purposes of negotiation, claim evaluation, and settlement

  5  considerations, resulting in higher awards and settlements

  6  paid out by the association and ultimately by the consumer.

  7  Records held by an internal auditor while an audit is

  8  incomplete, or while an investigation is pending, should be

  9  held confidential and exempt because otherwise possibly

10  inaccurate information might be released or investigations

11  jeopardized.  Finally, it is a public necessity that

12  information relating to negotiations for financing,

13  reinsurance, depopulation, or contractual services be held

14  confidential and exempt.  If such information is not

15  confidential and exempt, those with whom the association has

16  contracted will have an economic advantage over the

17  association, thus driving up the costs of doing business,

18  which cost will be passed on to the consumer.

19         Section 3.  This act shall take effect upon becoming a

20  law.

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CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 1998                                   SB 746
    4-562-98                                        See CS/HB 1887




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  2                          SENATE SUMMARY

  3    Provides exemptions from public records requirements for
      the following records of the Florida Automobile Joint
  4    Underwriting Association:  underwriting files; open
      claims files; audit records for a specified time; matters
  5    reasonably encompassed in privileged attorney-client
      communications; licensed proprietary information made
  6    confidential by contract; certain employee medical
      records and employee assistance program records; certain
  7    negotiation information for a specified time; minutes of
      closed meetings regarding underwriting files; and minutes
  8    of closed meetings regarding claims files for a specified
      time.  Provides requirements regarding sharing of
  9    confidential records.

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      Provides an exemption from public meeting requirements
11    for association meetings during which underwriting files
      or open claims files are discussed.  Provides
12    requirements regarding such closed meetings and records
      thereof.
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14    Provides for future review and repeal.

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