Senate Bill sb1442c2

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    Florida Senate - 2005                    CS for CS for SB 1442

    By the Committees on Governmental Oversight and Productivity;
    Banking and Insurance; and Senator Atwater




    585-2197-05

  1                      A bill to be entitled

  2         An act relating to public records and meetings

  3         exemptions; creating s. 440.3851, F.S.;

  4         exempting from public-records and

  5         public-meetings requirements certain records of

  6         the Florida Self-Insurers Guaranty Association,

  7         Incorporated, and certain meetings of the board

  8         of directors of the association or any

  9         subcommittee of the board; providing for

10         release of such records under certain

11         circumstances; providing requirements;

12         providing for future legislative review and

13         repeal; providing findings of public necessity;

14         providing an effective date.

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

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18         Section 1.  Section 440.3851, Florida Statutes, is

19  created to read:

20         440.3851  Public records and public meetings

21  exemptions.--

22         (1)  The following records of the Florida Self-Insurers

23  Guaranty Association, Incorporated, are confidential and

24  exempt from s. 119.07(1) and s. 24(a), Art. I of the State

25  Constitution:

26         (a)  Claims files, until termination of all litigation

27  and settlement of all claims arising out of the same accident.

28         (b)  Medical records that are part of a claims file and

29  other information relating to the medical condition or medical

30  status of a claimant.

31  

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    Florida Senate - 2005                    CS for CS for SB 1442
    585-2197-05




 1         (c)  Minutes of exempt portions of meetings, as

 2  provided in subsection (3), until termination of all

 3  litigation and settlement of all claims with regard to that

 4  accident.

 5         (2)  Records or portions of records made confidential

 6  and exempt by this section may be released, upon written

 7  request, to another agency in the performance of that agency's

 8  official duties and responsibilities. The receiving agency

 9  shall maintain the confidential and exempt status of such

10  record or portion of a record.

11         (3)  That portion of a meeting of the association's

12  board of directors or any subcommittee of the association's

13  board at which records made confidential and exempt by this

14  section are discussed is exempt from s. 286.011 and s. 24(b),

15  Art. I of the State Constitution. All exempt portions of

16  meetings shall be recorded and transcribed. The board shall

17  record the times of commencement and termination of the

18  meeting, all discussion and proceedings, the names of all

19  persons present at any time, and the names of all persons

20  speaking. An exempt portion of any meeting may not be off the

21  record. Subject to this section and s. 119.021(2), the court

22  reporter's notes of any exempt portion of a meeting shall be

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

24  of the transcript of any exempt portion of a meeting in which

25  claims files are discussed shall become public as to

26  individual claims after settlement of the claim with any

27  confidential and exempt information redacted.

28         (4)  This section is subject to the Open Government

29  Sunset Review Act of 1995 in accordance with s. 119.15 and

30  shall stand repealed on October 2, 2010, unless reviewed and

31  saved from repeal through reenactment by the Legislature.

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    Florida Senate - 2005                    CS for CS for SB 1442
    585-2197-05




 1         Section 2.  (1)  The Legislature finds that it is a

 2  public necessity that claims files of the Florida

 3  Self-Insurers Guaranty Association, Incorporated, be held

 4  confidential and exempt from public-records requirements and

 5  that portions of meetings of the board of directors of the

 6  association or of any subcommittee of the board, wherein these

 7  claims files are reviewed and evaluated be made exempt from

 8  public-meetings requirements. The Legislature finds that the

 9  association was created to stand in the place of private

10  businesses that are self-insured for workers' compensation

11  claims if any of such businesses becomes insolvent. The

12  Legislature finds that the exemption of the open-claims files

13  of the association is necessary for the effective and

14  efficient administration of a government program created to

15  insure workers with claims against insolvent businesses which

16  can otherwise seek compensation from the funds collected by

17  the association from its member businesses. Claims files are

18  created by the association after a claim against one of its

19  insolvent members is made; contain detailed information about

20  the claim, medical information, and other personal information

21  about the claimant; and also contain information detailing the

22  evaluation of the legitimacy of the claim, the extent of

23  incapacity, and a valuation of the award, if any, which should

24  be made. Information in a claims file held by the association

25  includes the medical records and other information related to

26  the medical condition or medical status of a claimant. The

27  Legislature finds that the claimants' medical records and

28  other medical-related information are personal and sensitive.

29  Therefore, the Legislature finds that an exemption for medical

30  records and other information related to the medical condition

31  or medical status of a claimant is a public necessity in order

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    Florida Senate - 2005                    CS for CS for SB 1442
    585-2197-05




 1  to protect a claimant's health-related information. Matters of

 2  personal health are traditionally a private and confidential

 3  concern. The release of the medical records of a claimant or

 4  personal identifying information concerning a claimant would

 5  violate the privacy of the individual or could cause

 6  unwarranted damage to the name or reputation of the

 7  individual. When a claim is contested, the work product of

 8  legal counsel may also be included in the file in the form of

 9  direction to claims professionals. Allowing the claimant or

10  claimant's lawyers access to the files, which could be used

11  for purposes of negotiation, claim evaluation, and settlement

12  considerations, would weaken the legal position of the

13  association and could result in higher awards and settlements

14  paid out by the guaranty fund and ultimately the membership of

15  the association.

16         (2)  The Legislature further finds that closing access

17  to meetings of the board of directors of the association or of

18  a subcommittee of the board, wherein claims files are reviewed

19  and evaluated, is necessary for the effective and efficient

20  administration of the claims evaluation work of the

21  association. The directors of the fund act in a trustee

22  capacity and must take care that the assets of the fund are

23  managed wisely. Their efforts to meet as a collegial body to

24  closely review individual files in an open and frank setting

25  that includes staff are thwarted by the current requirement

26  that such meetings be open. Furthermore, discussion of

27  individual files in an open and public setting might reveal

28  private, sensitive medical information that is otherwise

29  confidential.

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

31  law.

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    Florida Senate - 2005                    CS for CS for SB 1442
    585-2197-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 1442

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 4  Makes technical changes to statement of public necessity so
    that the exemption and the statement of public necessity
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