| 1 | The Governmental Operations Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to public records and meetings exemptions; |
| 7 | creating s. 440.3851, F.S.; exempting from public records |
| 8 | and public meetings requirements certain records of the |
| 9 | Florida Self-Insurers Guaranty Association, Incorporated, |
| 10 | and certain meetings of the board of directors of the |
| 11 | association or any subcommittee of the board; providing |
| 12 | for release of such records under certain circumstances; |
| 13 | providing requirements; providing for future legislative |
| 14 | review and repeal; providing findings of public necessity; |
| 15 | providing an effective date. |
| 16 |
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| 17 | Be It Enacted by the Legislature of the State of Florida: |
| 18 |
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| 19 | Section 1. Section 440.3851, Florida Statutes, is created |
| 20 | to read: |
| 21 | 440.3851 Public records and public meetings exemptions.-- |
| 22 | (1) The following records of the Florida Self-Insurers |
| 23 | Guaranty Association, Incorporated, are confidential and exempt |
| 24 | 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 and |
| 27 | settlement of all claims arising out of the same incident. |
| 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 | (c) Minutes of exempt portions of meetings, as provided in |
| 32 | subsection (3), until termination of all litigation and |
| 33 | settlement of all claims with regard to that claim. |
| 34 | (2) Records or portions of records made confidential and |
| 35 | exempt by this section may be released, upon written request, to |
| 36 | another agency in the performance of that agency's official |
| 37 | duties and responsibilities. The receiving agency shall maintain |
| 38 | the confidential and exempt status of such record or portion of |
| 39 | a record. |
| 40 | (3) That portion of a meeting of the association's board |
| 41 | of directors or any subcommittee of the association's board at |
| 42 | which records made confidential and exempt by this section are |
| 43 | discussed is exempt from s. 286.011 and s. 24(b), Art. I of the |
| 44 | State Constitution. All exempt portions of meetings shall be |
| 45 | recorded and transcribed. The board shall record the times of |
| 46 | commencement and termination of the meeting, all discussion and |
| 47 | proceedings, the names of all persons present at any time, and |
| 48 | the names of all persons speaking. An exempt portion of any |
| 49 | meeting may not be off the record. Subject to this section and |
| 50 | s. 119.07(2)(a), the court reporter's notes of any exempt |
| 51 | portion of a meeting shall be retained by the association for a |
| 52 | minimum of 5 years. A copy of the transcript of any exempt |
| 53 | portion of a meeting in which claims files are discussed shall |
| 54 | become public as to individual claims after settlement of the |
| 55 | claim with any confidential and exempt information redacted. |
| 56 | (4) This section is subject to the Open Government Sunset |
| 57 | Review Act of 1995 in accordance with s. 119.15 and shall stand |
| 58 | repealed on October 2, 2010, unless reviewed and saved from |
| 59 | repeal through reenactment by the Legislature. |
| 60 | Section 2. (1) The Legislature finds that it is a public |
| 61 | necessity that claims files of the Florida Self-Insurers |
| 62 | Guaranty Association, Incorporated, be held confidential and |
| 63 | exempt from public records requirements and that portions of |
| 64 | meetings of the board of directors of the association or of any |
| 65 | subcommittee of the board, wherein these claims files are |
| 66 | reviewed and evaluated be made exempt from public meetings |
| 67 | requirements. The Legislature finds that the association was |
| 68 | created to stand in the place of private businesses that are |
| 69 | self-insured for workers' compensation claims if any of such |
| 70 | businesses becomes insolvent. The Legislature finds that the |
| 71 | exemption of the open claims files of the association is |
| 72 | necessary for the effective and efficient administration of a |
| 73 | government program created to insure workers with claims against |
| 74 | insolvent businesses which can otherwise seek compensation from |
| 75 | the funds collected by the association from its member |
| 76 | businesses. Claims files are created by the association after a |
| 77 | claim against one of its insolvent members is made; contain |
| 78 | detailed information about the claim, medical information, and |
| 79 | other personal information about the claimant; and also contain |
| 80 | information detailing the evaluation of the legitimacy of the |
| 81 | claim, the extent of incapacity, and a valuation of the award, |
| 82 | if any, that should be made. Information in a claims file held |
| 83 | by the association includes the medical records and other |
| 84 | information related to the medical condition or medical status |
| 85 | of a claimant. The Legislature finds that the claimants' medical |
| 86 | records and other medical-related information are personal and |
| 87 | sensitive. Therefore, the Legislature finds that an exemption |
| 88 | for medical records and other information related to the medical |
| 89 | condition or medical status of a claimant is a public necessity |
| 90 | in order to protect a claimant's health-related information. |
| 91 | Matters of personal health are traditionally a private and |
| 92 | confidential concern. The release of the medical records of a |
| 93 | claimant or personal identifying information concerning a |
| 94 | claimant would violate the privacy of the individual or could |
| 95 | cause unwarranted damage to the name or reputation of the |
| 96 | individual. When a claim is contested, the work product of legal |
| 97 | counsel may also be included in the file in the form of |
| 98 | direction to claims professionals or other attorney-client |
| 99 | privileged communications. Allowing the claimant or claimant's |
| 100 | lawyers access to the files, which could be used for purposes of |
| 101 | negotiation, claim evaluation, and settlement considerations, |
| 102 | would weaken the legal position of the association and could |
| 103 | result in higher awards and settlements paid out by the guaranty |
| 104 | fund and ultimately the membership of the association. |
| 105 | Additionally, information in claims files that reasonably |
| 106 | encompass privileged attorney-client communications should be |
| 107 | held confidential and exempt because the release of such |
| 108 | information could jeopardize ongoing or pending litigation. |
| 109 | (2) The Legislature further finds that closing access to |
| 110 | meetings of the board of directors of the association or of a |
| 111 | subcommittee of the board, wherein claims files are reviewed and |
| 112 | evaluated, is necessary for the effective and efficient |
| 113 | administration of the claims evaluation work of the association. |
| 114 | The directors of the fund act in a trustee capacity and must |
| 115 | take care that the assets of the fund are managed wisely. Their |
| 116 | efforts to meet as a collegial body to closely review individual |
| 117 | files in an open and frank setting that includes staff are |
| 118 | thwarted by the current requirement that such meetings be open. |
| 119 | Furthermore, discussion of individual files in an open and |
| 120 | public setting might reveal private, sensitive medical |
| 121 | information that is otherwise confidential. |
| 122 | Section 3. This act shall take effect upon becoming a law. |