HB 1469

1	A bill to be entitled
2	An act relating to public records and meetings exemptions;
3	creating s. 497.172, F.S.; creating a public meetings
4	exemption for Board of Funeral, Cemetery, and Consumer
5	Services meetings conducted for the exclusive purpose of
6	developing or reviewing licensure examination questions
7	and answers; creating a public meetings exemption for
8	probable cause panel meetings of the board; creating a
9	public records exemption for records relating to the
10	scheduling of inspections and special examinations;
11	creating a public records exemption for records relating
12	to investigations, inspections, or examinations in
13	process; creating a public records exemption for trade
14	secret information of licensees and applicants; providing
15	for future review and repeal; providing findings of public
16	necessity; providing a contingent effective date.
17
18	Be It Enacted by the Legislature of the State of Florida:
19
20	Section 1.  Section 497.172, Florida Statutes, is created
21	to read:
22	497.172  Public records exemptions; public meeting
23	exemptions.--
24	(1)  EXAMINATION DEVELOPMENT MEETINGS.--Meetings of members
25	of the board, for the exclusive purpose of creating or reviewing
26	licensure examination questions or answers under this chapter,
27	are exempt from s. 286.011 and s. 24(b), Art. I of the State
28	Constitution.
29	(2)  PROBABLE CAUSE PANEL MEETINGS.--Meetings of the
30	probable cause panel of the board pursuant to s. 497.153 are
31	exempt from s. 286.011 and s. 24(b), Art. I of the State
32	Constitution.
33	(3)  SCHEDULING OF INSPECTIONS AND EXAMINATIONS.--Records
34	of the department that reveal the scheduling of inspections or
35	special examinations under this chapter are confidential and
36	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
37	Constitution, until the scheduled inspections or special
38	examinations have been initiated.
39	(4)  EXEMPTIONS RELATING TO EXAMINATIONS, INSPECTIONS, AND
40	INVESTIGATIONS.--
41	(a)  Except as otherwise provided in this subsection,
42	information held by the department pursuant to a financial
43	examination or inspection conducted under this chapter is
44	confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
45	of the State Constitution, until the examination or inspection
46	is completed or ceases to be active.
47	(b)  Except as otherwise provided in this subsection,
48	information, including any consumer complaint, held by the
49	department pursuant to an investigation of alleged unlicensed
50	practice in violation of this chapter is confidential and exempt
51	from s. 119.07(1) and s. 24(a), Art. I of the State
52	Constitution, until the investigation or examination is
53	completed or ceases to be active.
54	(c)  Complaints against licensees under this chapter,
55	investigative records of the department relating to the
56	department's investigation of the complaint, and portions of the
57	record of probable cause panel proceedings, if any, relating to
58	consideration and action concerning such complaint shall be
59	confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
60	of the State Constitution, until 10 days after a finding of
61	probable cause is made pursuant to s. 497.153.
62	(d)  Notwithstanding the confidentiality required by
63	paragraphs (a), (b), and (c), such information may be disclosed
64	by the department as follows:
65	1.  During and in furtherance of the investigation or
66	examination, the department may disclose such information to
67	experts engaged by the department to assist in the investigation
68	or examination and to witnesses, potential witnesses, or other
69	persons believed by the department to possibly have knowledge
70	pertinent to the investigation or examination, for the purpose
71	of obtaining such knowledge from such witnesses or persons.
72	2.  To the probable cause panel of the board, for the
73	purpose of probable cause proceedings pursuant to s. 497.153.
74	3.  To any law enforcement agency or other government
75	agency, for investigation or other use by the agency in the
76	performance of its official duties and responsibilities.
77	4.  In response to a media inquiry concerning a specific
78	identified matter, the department may confirm that it has the
79	specific matter inquired about under investigation.
80	5.  When the department in the course of an investigation
81	uncovers information of immediate and serious concern to the
82	public health, safety, or welfare, it may disseminate such
83	information as it deems necessary for the public health, safety,
84	or welfare.
85	(e)  Information held by the department and made
86	confidential and exempt under paragraphs (a), (b), and (c) shall
87	remain confidential and exempt from s. 119.07(1), and s. 24(a),
88	Art. I of the State Constitution after the department's
89	investigation or examination is completed or ceases to be active
90	and after probable cause of licensees is found if the department
91	submits the information to any law enforcement agency or other
92	government administrative agency for further investigation of
93	matters within the jurisdiction of such other agency. Such
94	information shall remain exempt and confidential from s.
95	119.07(1) and s. 24(a), Art. I of the State Constitution until
96	that agency's investigation is completed or ceases to be active.
97	(f)  Information held by the department and made
98	confidential and exempt under paragraphs (a), (b), and (c) shall
99	remain confidential and exempt from s. 119.07(1), and s. 24(a),
100	Art. I of the State Constitution after the department completes
101	its investigation or examination or the investigation or
102	examination ceases to be active and after probable cause of
103	licensees is found if disclosure of the information would:
104	1.  Jeopardize the integrity of another active
105	investigation or examination;
106	2.  Reveal the identity of a confidential source; or
107	3.  Reveal investigative or examination techniques or
108	procedures that the department has a reasonable good faith
109	belief will be utilized in future investigations or
110	examinations.
111	(g)  For purposes of this subsection, an investigation,
112	inspection, or examination shall be considered active so long as
113	the investigation, inspection, or examination is proceeding with
114	reasonable dispatch and the agency has a reasonable good faith
115	belief that the investigation, inspection, or examination may
116	lead to the filing of an administrative, civil, or criminal
117	proceeding or to the denial or conditional grant of an
118	application for license or other approval required under this
119	chapter.
120	(5)  EXEMPTIONS RELATED TO TRADE SECRETS.--Records of the
121	department or board that reveal any trade secret of a licensee
122	or applicant for license or approval, under this chapter, as the
123	term "trade secret" is defined in s. 812.081, are to the extent
124	of such trade secret information exempt from s. 119.07(1) and s.
125	24(a), Art. I of the State Constitution.
126	(6)  REVIEW AND REPEAL.--This section is subject to the
127	Open Government Sunset Review Act of 1995 in accordance with s.
128	119.15, and shall stand repealed on October 2, 2010, unless
129	reviewed and saved from repeal through reenactment by the
130	Legislature.
131	Section 2.  (1)  The Legislature finds that it is a public
132	necessity that meetings of the Board of Funeral, Cemetery, and
133	Consumer Services for the exclusive purpose of developing or
134	reviewing licensure examination questions or answers under
135	chapter 497, Florida Statutes, be exempted from the public
136	meeting requirements of the laws of this state so board members
137	may propose new questions and answers and engage in full and
138	free discussion concerning existing and proposed questions and
139	answers without disclosing the questions and answers to the
140	public. If such questions and answers used or to be used on
141	licensure examinations are disclosed to the public, the
142	usefulness of such licensure examinations in assuring that
143	applicants have studied and learned the entire body of knowledge
144	necessary for the safe and competent practice of their intended
145	profession or occupation under chapter 497, Florida Statutes,
146	will be severely undermined or eliminated, to the substantial
147	detriment of the public health, safety, and welfare.
148	(2)  The Legislature finds that it is a public necessity
149	that meetings of the probable cause panel of the board under
150	chapter 497, Florida Statutes, be exempted from the public
151	meeting requirements of the laws of the state so panel members
152	may discuss with staff of the Department of Health the nature
153	and strength of the cases and evidence being presented, whether
154	further investigation is needed and the nature of such
155	investigation, and investigative and examination techniques and
156	methods without disclosing such information to the public. If
157	such probable cause panel meetings are open to the public, the
158	usefulness of such meetings in conducting further
159	investigations, without the subjects of such further
160	investigations knowing much or all of the department's
161	investigative knowledge about the case and what additional
162	investigation has been requested, will be thwarted and
163	frustrated to the substantial detriment of the public health,
164	safety, and welfare.
165	(3)  The Legislature finds that it is a public necessity
166	that records of the department that reveal the scheduling of
167	inspections or special examinations under chapter 497, Florida
168	Statutes, be exempted from the public records laws of the state
169	until the scheduled inspections or special examinations have
170	been initiated so the department may schedule inspections or
171	special examinations without disclosing such schedules to the
172	public. If licensees are able to learn in advance when they are
173	scheduled to be inspected or subject to special examination,
174	they are enabled to hide, destroy, or alter records that might
175	disclose violations of chapter 497, Florida Statutes, cause a
176	temporary change in their methods of operation of their business
177	in order to conceal their usual modes of operation that might be
178	in violation of chapter 497, Florida Statutes, or cause
179	employees with information about a violation by the licensee to
180	be temporarily reassigned so as to reduce the chance they might
181	talk to the inspector or examiner about the matter to the
182	substantial detriment of the public health, safety, and welfare.
183	(4)(a)  The Legislature finds that it is a public necessity
184	that information, including any consumer complaint, held by the
185	department in furtherance of an investigation of unlicensed
186	activity, an inspection, or a financial examination of a
187	licensee conducted under chapter 497 , Florida Statutes, be made
188	confidential and exempt from the public records laws of the
189	state until the investigation, inspection, or examination is
190	completed or ceases to be active. If subjects of investigation,
191	inspection, or examination are able to learn of the existence or
192	nature of the investigation, inspection, or examination or,
193	knowing of such existence or nature, to learn the department's
194	knowledge or plan concerning the matter, the subjects may be
195	able to frustrate and thwart the proper and legitimate
196	investigative or examination processes and mechanisms of the
197	department by destroying, concealing, or altering evidence, by
198	tailoring the subject's statements or testimony to the
199	department to take advantage of gaps in the department's
200	investigative knowledge, or intimidating or corrupting
201	witnesses, to the substantial detriment of the public health,
202	safety, and welfare.
203	(b)  The Legislature finds that it is a public necessity
204	that records of complaints against licensees, records of the
205	department relating to investigation of the complaint, and the
206	portions of the record of probable cause panel proceedings under
207	chapter 497, Florida Statutes, be exempted from the public
208	records laws of the state until 10 days after a finding of
209	probable cause is made. The confidentiality of such records is
210	necessary to protect the good reputation and business of
211	licensees from unfair damage that would otherwise result from
212	disclosures regarding complaints that are found to be without
213	sufficient merit as to justify formal disciplinary action.
214	(c)  The Legislature finds that it is a public necessity
215	that information made confidential and exempt under paragraphs
216	(a) and (b) continue to remain confidential and exempt from the
217	public records laws of the state after the department's
218	investigation or examination is completed or ceases to be active
219	and after probable cause of licensees is found if the department
220	submits the information to any law enforcement or other
221	government administrative agency for further investigation of
222	matters within the jurisdiction of such other agency until that
223	agency's investigation is completed or ceases to be active. If
224	such information is disclosed to the public, subjects of
225	investigation by such other agencies may be able to frustrate or
226	thwart such other investigations by the methods identified in
227	paragraph (a).
228	(d)  The Legislature finds that it is a public necessity
229	that information made confidential and exempt under paragraphs
230	(a) and (b) continue to remain exempt from the public records
231	laws of the state after the department's investigation or
232	examination is completed or ceases to be active and after
233	probable cause of licensees is found to the extent such
234	disclosure would jeopardize the integrity of another active
235	investigation or examination of the department. If such
236	information is disclosed to the public, subjects of such other
237	investigations are able to frustrate or thwart such other
238	investigations by the methods identified in paragraph (a).
239	(e)  The Legislature finds that it is a public necessity
240	that such information made confidential and exempt under
241	paragraphs (a) and (b) continue to remain exempt from the public
242	records laws of the state after the department's investigation
243	or examination is completed or ceases to be active and after a
244	finding of probable cause of licensees is found to the extent
245	that disclosure would reveal the identity of a confidential
246	source. If such information is disclosed to the public, the
247	willingness of such confidential sources to come forward and
248	provide information on violations of the laws of the state would
249	likely be eliminated to the substantial detriment of the
250	enforcement of the laws of the state.
251	(f)  The Legislature finds that it is a public necessity
252	that such records continue to remain exempt from the public
253	records laws of the state after the investigation or examination
254	is completed or ceases to be active and after there is a finding
255	of probable cause as to a licensee to the extent that disclosure
256	would reveal investigative or examination techniques or
257	procedures that the department has reasonable good faith belief
258	will be utilized in future investigations or examinations. If
259	such information is disclosed to the public, subjects of other
260	investigations by the department may be able to thwart or
261	frustrate the proper enforcement of the laws of this state.
262	(5)  The Legislature finds that it is a public necessity
263	that trade secrets of applicants and licensees under chapter
264	497, Florida Statutes, be exempt from the public records laws of
265	this state in order to allow effective and efficient regulation
266	under chapter 497, Florida Statues, without unfairly exposing
267	applicants and licensees to the unfair loss of their trade
268	secrets. The Legislature finds that it is necessary for the
269	department and the board to be given access to trade secret
270	information of applicants and licensees in order for the
271	department and board to perform their assigned responsibilities
272	in evaluating applications, conducting financial examinations,
273	and investigating complaints. Such trade secret information may
274	include, but is not limited to: existing or proposed internal
275	business processes and procedures of applicants or licensees
276	that such applicants or licensees believe provide them with a
277	significant commercial advantage over competitors; lists of
278	suppliers and terms of contracts negotiated with such suppliers
279	that applicants or licensees believe provide them a competitive
280	advantage; and business plans of applicants or licensees that,
281	if publicly disclosed, would allow competitors to frustrate or
282	counter such plans. The Legislature further finds that it is
283	necessary from time to time for the department and the board to
284	make record of such trade secret information for the purpose of
285	communicating such information among department staff or board
286	members having responsibilities regarding evaluating
287	applications or conducting investigations and examinations. The
288	Legislature finds that the loss of such trade secrets would work
289	to the substantial detriment of residents of this state in
290	reducing useful and beneficial innovation and improvements in
291	products and services and prices offered to such residents.
292	Section 3.  This act shall take effect October 1, 2005, if
293	HB 529 or substantially similar legislation is adopted in the
294	same legislative session or an extension thereof and becomes a
295	law.

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