| 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 |
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| 6 | A bill to be entitled |
| 7 | An act relating to public records; amending s. 119.07, |
| 8 | F.S.; requiring an agency head who appoints a designee to |
| 9 | act as a custodian of public records to provide notice to |
| 10 | the public of such designation; providing notice |
| 11 | requirements; prohibiting a person who is not a custodian |
| 12 | of public records or a designee from denying the existence |
| 13 | of a record or misleading anyone as to the existence of a |
| 14 | record; requiring custodians of public records and their |
| 15 | designees to respond to requests to inspect and copy |
| 16 | public records promptly and in good faith; amending ss. |
| 17 | 497.140, 627.311, and 627.351, F.S.; correcting cross- |
| 18 | references; providing an effective date. |
| 19 |
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| 20 | Be It Enacted by the Legislature of the State of Florida: |
| 21 |
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| 22 | Section 1. Subsection (1) of section 119.07, Florida |
| 23 | Statutes, is amended to read: |
| 24 | 119.07 Inspection and copying of records; photographing |
| 25 | public records; fees; exemptions.-- |
| 26 | (1)(a) Every person who has custody of a public record |
| 27 | shall permit the record to be inspected and copied by any person |
| 28 | desiring to do so, at any reasonable time, under reasonable |
| 29 | conditions, and under supervision by the custodian of the public |
| 30 | records. |
| 31 | (b) Each agency head who appoints a designee to act as a |
| 32 | custodian of public records shall provide notice to the public |
| 33 | of such designation. Such notice shall contain the name and |
| 34 | title of the designee and the designee's e-mail address, office |
| 35 | telephone number, and office mailing address. At a minimum, the |
| 36 | notice shall be prominently posted in those portions of agency |
| 37 | offices that are accessible to the public and, if the agency |
| 38 | maintains an agency website, the notice shall be prominently |
| 39 | displayed on the home page of such website and shall be made |
| 40 | available by any employee who responds to telephone calls from |
| 41 | the public. A person who is not a custodian of public records or |
| 42 | appointed as a designee may not deny the existence of a public |
| 43 | record nor mislead anyone as to the existence of a public |
| 44 | record. |
| 45 | (c) A custodian of public records and his or her designee |
| 46 | must respond to requests to inspect or copy records promptly and |
| 47 | in good faith. A good faith response includes making reasonable |
| 48 | efforts to determine from other officers or employees whether |
| 49 | such a record exists and, if so, the location at which the |
| 50 | record can be accessed. |
| 51 | (d) A custodian of public records or his or her designee |
| 52 | shall be available to respond to requests to inspect and copy |
| 53 | public records during the regular business hours of the office |
| 54 | at which public records are maintained. |
| 55 | (e)(b) A person who has custody of a public record who |
| 56 | asserts that an exemption applies to a part of such record shall |
| 57 | redact that portion of the record to which an exemption has been |
| 58 | asserted and validly applies, and such person shall produce the |
| 59 | remainder of such record for inspection and copying. |
| 60 | (f)(c) If the person who has custody of a public record |
| 61 | contends that all or part of the record is exempt from |
| 62 | inspection and copying, he or she shall state the basis of the |
| 63 | exemption that he or she contends is applicable to the record, |
| 64 | including the statutory citation to an exemption created or |
| 65 | afforded by statute. |
| 66 | (g)(d) If requested by the person seeking to inspect or |
| 67 | copy the record, the custodian of public records shall state in |
| 68 | writing and with particularity the reasons for the conclusion |
| 69 | that the record is exempt or confidential. |
| 70 | (h)(e) In any civil action in which an exemption to this |
| 71 | section is asserted, if the exemption is alleged to exist under |
| 72 | or by virtue of s. 119.071(1)(d) or (f), (2)(d),(e), or (f), or |
| 73 | (4)(c), the public record or part thereof in question shall be |
| 74 | submitted to the court for an inspection in camera. If an |
| 75 | exemption is alleged to exist under or by virtue of s. |
| 76 | 119.071(2)(c), an inspection in camera is discretionary with the |
| 77 | court. If the court finds that the asserted exemption is not |
| 78 | applicable, it shall order the public record or part thereof in |
| 79 | question to be immediately produced for inspection or copying as |
| 80 | requested by the person seeking such access. |
| 81 | (i)(f) Even if an assertion is made by the custodian of |
| 82 | public records that a requested record is not a public record |
| 83 | subject to public inspection or copying under this subsection, |
| 84 | the requested record shall, nevertheless, not be disposed of for |
| 85 | a period of 30 days after the date on which a written request to |
| 86 | inspect or copy the record was served on or otherwise made to |
| 87 | the custodian of public records by the person seeking access to |
| 88 | the record. If a civil action is instituted within the 30-day |
| 89 | period to enforce the provisions of this section with respect to |
| 90 | the requested record, the custodian of public records may not |
| 91 | dispose of the record except by order of a court of competent |
| 92 | jurisdiction after notice to all affected parties. |
| 93 | (j)(g) The absence of a civil action instituted for the |
| 94 | purpose stated in paragraph (h) (e) does not relieve the |
| 95 | custodian of public records of the duty to maintain the record |
| 96 | as a public record if the record is in fact a public record |
| 97 | subject to public inspection and copying under this subsection |
| 98 | and does not otherwise excuse or exonerate the custodian of |
| 99 | public records from any unauthorized or unlawful disposition of |
| 100 | such record. |
| 101 | Section 2. Subsection (5) of section 497.140, Florida |
| 102 | Statutes, is amended to read: |
| 103 | 497.140 Fees.-- |
| 104 | (5) The department shall charge a fee not to exceed $25 |
| 105 | for the certification of a public record. The fee shall be |
| 106 | determined by rule of the department. The department shall |
| 107 | assess a fee for duplication of a public record as provided in |
| 108 | s. 119.07(1)(a) and (e)(b). |
| 109 | Section 3. Paragraph (b) of subsection (4) of section |
| 110 | 627.311, Florida Statutes, is amended to read: |
| 111 | 627.311 Joint underwriters and joint reinsurers; public |
| 112 | records and public meetings exemptions.-- |
| 113 | (4) The Florida Automobile Joint Underwriting Association: |
| 114 | (b) Shall keep portions of association meetings during |
| 115 | which confidential and exempt underwriting files or confidential |
| 116 | and exempt claims files are discussed exempt from the provisions |
| 117 | of s. 286.011 and s. 24(b), Art. I of the State Constitution. |
| 118 | All closed portions of association meetings shall be recorded by |
| 119 | a court reporter. The court reporter shall record the times of |
| 120 | commencement and termination of the meeting, all discussion and |
| 121 | proceedings, the names of all persons present at any time, and |
| 122 | the names of all persons speaking. No portion of any closed |
| 123 | meeting shall be off the record. Subject to the provisions of |
| 124 | this paragraph and s. 119.07(1)(e)-(g)(b)-(d), the court |
| 125 | reporter's notes of any closed meeting shall be retained by the |
| 126 | association for a minimum of 5 years. A copy of the transcript, |
| 127 | less any confidential and exempt information, of any closed |
| 128 | meeting during which confidential and exempt claims files are |
| 129 | discussed shall become public as to individual claims files |
| 130 | after settlement of that claim. |
| 131 | Section 4. Paragraph (n) of subsection (6) of section |
| 132 | 627.351, Florida Statutes, is amended to read: |
| 133 | 627.351 Insurance risk apportionment plans.-- |
| 134 | (6) CITIZENS PROPERTY INSURANCE CORPORATION.-- |
| 135 | (n)1. The following records of the corporation are |
| 136 | confidential and exempt from the provisions of s. 119.07(1) and |
| 137 | s. 24(a), Art. I of the State Constitution: |
| 138 | a. Underwriting files, except that a policyholder or an |
| 139 | applicant shall have access to his or her own underwriting |
| 140 | files. |
| 141 | b. Claims files, until termination of all litigation and |
| 142 | settlement of all claims arising out of the same incident, |
| 143 | although portions of the claims files may remain exempt, as |
| 144 | otherwise provided by law. Confidential and exempt claims file |
| 145 | records may be released to other governmental agencies upon |
| 146 | written request and demonstration of need; such records held by |
| 147 | the receiving agency remain confidential and exempt as provided |
| 148 | for herein. |
| 149 | c. Records obtained or generated by an internal auditor |
| 150 | pursuant to a routine audit, until the audit is completed, or if |
| 151 | the audit is conducted as part of an investigation, until the |
| 152 | investigation is closed or ceases to be active. An investigation |
| 153 | is considered "active" while the investigation is being |
| 154 | conducted with a reasonable, good faith belief that it could |
| 155 | lead to the filing of administrative, civil, or criminal |
| 156 | proceedings. |
| 157 | d. Matters reasonably encompassed in privileged attorney- |
| 158 | client communications. |
| 159 | e. Proprietary information licensed to the corporation |
| 160 | under contract and the contract provides for the confidentiality |
| 161 | of such proprietary information. |
| 162 | f. All information relating to the medical condition or |
| 163 | medical status of a corporation employee which is not relevant |
| 164 | to the employee's capacity to perform his or her duties, except |
| 165 | as otherwise provided in this paragraph. Information which is |
| 166 | exempt shall include, but is not limited to, information |
| 167 | relating to workers' compensation, insurance benefits, and |
| 168 | retirement or disability benefits. |
| 169 | g. Upon an employee's entrance into the employee |
| 170 | assistance program, a program to assist any employee who has a |
| 171 | behavioral or medical disorder, substance abuse problem, or |
| 172 | emotional difficulty which affects the employee's job |
| 173 | performance, all records relative to that participation shall be |
| 174 | confidential and exempt from the provisions of s. 119.07(1) and |
| 175 | s. 24(a), Art. I of the State Constitution, except as otherwise |
| 176 | provided in s. 112.0455(11). |
| 177 | h. Information relating to negotiations for financing, |
| 178 | reinsurance, depopulation, or contractual services, until the |
| 179 | conclusion of the negotiations. |
| 180 | i. Minutes of closed meetings regarding underwriting |
| 181 | files, and minutes of closed meetings regarding an open claims |
| 182 | file until termination of all litigation and settlement of all |
| 183 | claims with regard to that claim, except that information |
| 184 | otherwise confidential or exempt by law will be redacted. |
| 185 |
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| 186 | When an authorized insurer is considering underwriting a risk |
| 187 | insured by the corporation, relevant underwriting files and |
| 188 | confidential claims files may be released to the insurer |
| 189 | provided the insurer agrees in writing, notarized and under |
| 190 | oath, to maintain the confidentiality of such files. When a file |
| 191 | is transferred to an insurer that file is no longer a public |
| 192 | record because it is not held by an agency subject to the |
| 193 | provisions of the public records law. Underwriting files and |
| 194 | confidential claims files may also be released to staff of and |
| 195 | the board of governors of the market assistance plan established |
| 196 | pursuant to s. 627.3515, who must retain the confidentiality of |
| 197 | such files, except such files may be released to authorized |
| 198 | insurers that are considering assuming the risks to which the |
| 199 | files apply, provided the insurer agrees in writing, notarized |
| 200 | and under oath, to maintain the confidentiality of such files. |
| 201 | Finally, the corporation or the board or staff of the market |
| 202 | assistance plan may make the following information obtained from |
| 203 | underwriting files and confidential claims files available to |
| 204 | licensed general lines insurance agents: name, address, and |
| 205 | telephone number of the residential property owner or insured; |
| 206 | location of the risk; rating information; loss history; and |
| 207 | policy type. The receiving licensed general lines insurance |
| 208 | agent must retain the confidentiality of the information |
| 209 | received. |
| 210 | 2. Portions of meetings of the corporation are exempt from |
| 211 | the provisions of s. 286.011 and s. 24(b), Art. I of the State |
| 212 | Constitution wherein confidential underwriting files or |
| 213 | confidential open claims files are discussed. All portions of |
| 214 | corporation meetings which are closed to the public shall be |
| 215 | recorded by a court reporter. The court reporter shall record |
| 216 | the times of commencement and termination of the meeting, all |
| 217 | discussion and proceedings, the names of all persons present at |
| 218 | any time, and the names of all persons speaking. No portion of |
| 219 | any closed meeting shall be off the record. Subject to the |
| 220 | provisions hereof and s. 119.07(1)(e)-(g)(b)-(d), the court |
| 221 | reporter's notes of any closed meeting shall be retained by the |
| 222 | corporation for a minimum of 5 years. A copy of the transcript, |
| 223 | less any exempt matters, of any closed meeting wherein claims |
| 224 | are discussed shall become public as to individual claims after |
| 225 | settlement of the claim. |
| 226 | Section 5. This act shall take effect July 1, 2006. |