1 | The Insurance 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 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 | (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. 119.021(2), the court reporter's notes of any exempt portion |
51 | of a meeting shall be retained by the association for a minimum |
52 | of 5 years. A copy of the transcript of any exempt portion of a |
53 | meeting in which claims files are discussed shall become public |
54 | as to individual claims after settlement of the claim with any |
55 | 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. |