Senate Bill sb1346c1

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    Florida Senate - 2007                           CS for SB 1346

    By the Committee on Judiciary





    590-2234-07

  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.01, F.S.; revising the general state policy

  4         concerning public records in order to conform

  5         to provisions of the State Constitution

  6         governing public records; amending s. 119.011,

  7         F.S.; defining the terms "confidential and

  8         exempt" and "exempt"; amending s. 119.07, F.S.;

  9         deleting a provision specifying certain

10         public-record exemptions that apply to public

11         records made part of a court file; creating s.

12         119.0714, F.S.; specifying certain exemptions

13         from public-records requirements which apply to

14         records made part of a court file which are

15         otherwise public records; providing that social

16         security numbers and financial account numbers

17         are exempt from public-record requirements to

18         conform to changes made by the act; amending

19         ss. 257.34, 257.35, 383.402, 943.031, and

20         943.0313, F.S.; conforming cross-references;

21         providing a contingent effective date.

22  

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

24  

25         Section 1.  Subsection (1) and paragraph (f) of

26  subsection (2) of section 119.01, Florida Statutes, are

27  amended to read:

28         119.01  General state policy on public records.--

29         (1)(a)  It is the policy of this state, consistent with

30  s. 24(a), Art. I of the State Constitution, that all state,

31  county, and municipal records made or received in connection

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 1  with the official business of any public body, officer, or

 2  employee of the state, or persons acting on their behalf are

 3  open for personal inspection and copying by any person unless:

 4         1.  The record is exempt by statute;

 5         2.  The record is confidential and exempt by statute;

 6         3.  Access to the record is limited by court rule in

 7  effect as of November 3, 1992, unless the rule or a provision

 8  of the rule has been repealed;

 9         4.  Access to the record is limited by legislative

10  rule; or

11         5.  The record is confidential pursuant to the State

12  Constitution.

13         (b)  It is the responsibility of the Legislature to

14  provide laws governing the enforcement of the right of any

15  person to inspect or copy public records, including the

16  maintenance, control, destruction, disposal, and disposition

17  of public records.

18         (c)  It Providing access to public records is a duty of

19  each agency to provide access to public records.

20         (2)

21         (f)  Each agency that maintains a public record in an

22  electronic recordkeeping system shall provide to any person,

23  pursuant to this chapter, a copy of any public record in that

24  system which is not exempted by law from public disclosure or

25  made confidential by the State Constitution. An agency must

26  provide a copy of the record in the medium requested if the

27  agency maintains the record in that medium, and the agency may

28  charge a fee in accordance with this chapter. For the purpose

29  of satisfying a public records request, the fee to be charged

30  by an agency if it elects to provide a copy of a public record

31  in a medium not routinely used by the agency, or if it elects

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 1  to compile information not routinely developed or maintained

 2  by the agency or that requires a substantial amount of

 3  manipulation or programming, must be in accordance with s.

 4  119.07(4).

 5         Section 2.  Section 119.011, Florida Statutes, is

 6  amended to read:

 7         119.011  Definitions.--As used in this chapter, the

 8  term:

 9         (1)  "Actual cost of duplication" means the cost of the

10  material and supplies used to duplicate the public record, but

11  does not include labor cost or overhead cost associated with

12  such duplication.

13         (2)  "Agency" means any state, county, district,

14  authority, or municipal officer, department, division, board,

15  bureau, commission, or other separate unit of government

16  created or established by law including, for the purposes of

17  this chapter, the Commission on Ethics, the Public Service

18  Commission, and the Office of Public Counsel, and any other

19  public or private agency, person, partnership, corporation, or

20  business entity acting on behalf of any public agency.

21         (3)  "Confidential and exempt" means information that

22  is protected by an exemption, that is not subject to

23  inspection, and that may be released only as specified by law.

24         (4)(3)(a)  "Criminal intelligence information" means

25  information with respect to an identifiable person or group of

26  persons collected by a criminal justice agency in an effort to

27  anticipate, prevent, or monitor possible criminal activity.

28         (b)  "Criminal investigative information" means

29  information with respect to an identifiable person or group of

30  persons compiled by a criminal justice agency in the course of

31  conducting a criminal investigation of a specific act or

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 1  omission, including, but not limited to, information derived

 2  from laboratory tests, reports of investigators or informants,

 3  or any type of surveillance.

 4         (c)  "Criminal intelligence information" and "criminal

 5  investigative information" shall not include:

 6         1.  The time, date, location, and nature of a reported

 7  crime.

 8         2.  The name, sex, age, and address of a person

 9  arrested or of the victim of a crime except as provided in s.

10  119.071(2)(h).

11         3.  The time, date, and location of the incident and of

12  the arrest.

13         4.  The crime charged.

14         5.  Documents given or required by law or agency rule

15  to be given to the person arrested, except as provided in s.

16  119.071(2)(h), and, except that the court in a criminal case

17  may order that certain information required by law or agency

18  rule to be given to the person arrested be maintained in a

19  confidential manner and exempt from the provisions of s.

20  119.07(1) until released at trial if it is found that the

21  release of such information would:

22         a.  Be defamatory to the good name of a victim or

23  witness or would jeopardize the safety of such victim or

24  witness; and

25         b.  Impair the ability of a state attorney to locate or

26  prosecute a codefendant.

27         6.  Informations and indictments except as provided in

28  s. 905.26.

29         (d)  The word "active" shall have the following

30  meaning:

31  

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 1         1.  Criminal intelligence information shall be

 2  considered "active" as long as it is related to intelligence

 3  gathering conducted with a reasonable, good faith belief that

 4  it will lead to detection of ongoing or reasonably anticipated

 5  criminal activities.

 6         2.  Criminal investigative information shall be

 7  considered "active" as long as it is related to an ongoing

 8  investigation which is continuing with a reasonable, good

 9  faith anticipation of securing an arrest or prosecution in the

10  foreseeable future.

11  

12  In addition, criminal intelligence and criminal investigative

13  information shall be considered "active" while such

14  information is directly related to pending prosecutions or

15  appeals.  The word "active" shall not apply to information in

16  cases which are barred from prosecution under the provisions

17  of s. 775.15 or other statute of limitation.

18         (5)(4)  "Criminal justice agency" means:

19         (a)  Any law enforcement agency, court, or prosecutor;

20         (b)  Any other agency charged by law with criminal law

21  enforcement duties;

22         (c)  Any agency having custody of criminal intelligence

23  information or criminal investigative information for the

24  purpose of assisting such law enforcement agencies in the

25  conduct of active criminal investigation or prosecution or for

26  the purpose of litigating civil actions under the Racketeer

27  Influenced and Corrupt Organization Act, during the time that

28  such agencies are in possession of criminal intelligence

29  information or criminal investigative information pursuant to

30  their criminal law enforcement duties; or

31         (d)  The Department of Corrections.

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 1         (6)(5)  "Custodian of public records" means the elected

 2  or appointed state, county, or municipal officer charged with

 3  the responsibility of maintaining the office having public

 4  records, or his or her designee.

 5         (7)(6)  "Data processing software" means the programs

 6  and routines used to employ and control the capabilities of

 7  data processing hardware, including, but not limited to,

 8  operating systems, compilers, assemblers, utilities, library

 9  routines, maintenance routines, applications, and computer

10  networking programs.

11         (8)(7)  "Duplicated copies" means new copies produced

12  by duplicating, as defined in s. 283.30.

13         (9)  "Exempt" means information that is protected by an

14  exemption and that is not subject to inspection; however, a

15  custodian of public records is not prohibited from releasing

16  such information in all circumstances. The decision to release

17  exempt information must be based on a statutory provision or a

18  substantial policy need for disclosure or must be for a reason

19  that is consistent with the public purpose of the exemption.

20         (10)(8)  "Exemption" means a provision of general law

21  which provides that a specified record or meeting, or portion

22  thereof, is not subject to the access requirements of s.

23  119.07(1), s. 286.011, or s. 24, Art. I of the State

24  Constitution.

25         (11)(9)  "Information technology resources" means data

26  processing hardware and software and services, communications,

27  supplies, personnel, facility resources, maintenance, and

28  training.

29         (12)(10)  "Proprietary software" means data processing

30  software that is protected by copyright or trade secret laws.

31  

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 1         (13)(11)  "Public records" means all documents, papers,

 2  letters, maps, books, tapes, photographs, films, sound

 3  recordings, data processing software, or other material,

 4  regardless of the physical form, characteristics, or means of

 5  transmission, made or received pursuant to law or ordinance or

 6  in connection with the transaction of official business by any

 7  agency.

 8         (14)(12)  "Redact" means to conceal from a copy of an

 9  original public record, or to conceal from an electronic image

10  that is available for public viewing, that portion of the

11  record containing exempt or confidential information.

12         (15)(13)  "Sensitive," for purposes of defining

13  agency-produced software that is sensitive, means only those

14  portions of data processing software, including the

15  specifications and documentation, which are used to:

16         (a)  Collect, process, store, and retrieve information

17  that is exempt from s. 119.07(1);

18         (b)  Collect, process, store, and retrieve financial

19  management information of the agency, such as payroll and

20  accounting records; or

21         (c)  Control and direct access authorizations and

22  security measures for automated systems.

23         Section 3.  Paragraph (a) of subsection (2) and

24  subsection (6) of section 119.07, Florida Statutes, are

25  amended to read:

26         119.07  Inspection and copying of records;

27  photographing public records; fees; exemptions.--

28         (2)(a)  As an additional means of inspecting or copying

29  public records, a custodian of public records may provide

30  access to public records by remote electronic means, provided

31  

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 1  exempt or confidential information is not disclosed, except as

 2  otherwise provided by law.

 3         (6)  Nothing in this chapter shall be construed to

 4  exempt from subsection (1) a public record that was made a

 5  part of a court file and that is not specifically closed by

 6  order of court, except as provided in s. 119.071(1)(d) and

 7  (f), (2)(d),(e), and (f), and (4)(c) and except information or

 8  records that may reveal the identity of a person who is a

 9  victim of a sexual offense as provided in s. 119.071(2)(h).

10         Section 4.  Section 119.0714, Florida Statutes, is

11  created to read:

12         119.0714  Judicial branch exemptions from inspection or

13  copying of public records made a part of a court file.--

14         (1)  Nothing in this chapter shall be construed to

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

16  Constitution a public record that was made a part of a court

17  file and that is not specifically closed by order of court,

18  except as provided in:

19         (a)  Section 119.071(1)(d), which exempts a public

20  record that was prepared by an agency attorney, that reflects

21  a mental impression, conclusion, litigation strategy, or other

22  legal theory, and that was prepared for certain purposes;

23         (b)  Section 119.071(1)(f), which exempts data

24  processing software obtained by an agency under certain

25  circumstances;

26         (c)  Section 119.071(2)(d), which exempts any

27  information revealing surveillance techniques or procedures or

28  personnel and certain law enforcement resources, policies, or

29  plans;

30  

31  

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 1         (d)  Section 119.071(2)(e), which provides a limited

 2  exemption for information revealing the substance of a

 3  confession of an arrested person;

 4         (e)  Section 119.071(2)(f), which exempts any

 5  information revealing the identity of a confidential informant

 6  or confidential source;

 7         (f)  Section 119.071(2)(h), which exempts any criminal

 8  intelligence information or criminal investigative information

 9  that reveals the identity of the victim of certain crimes;

10         (g)  Section 119.071(4)(c), which exempts any

11  information revealing undercover personnel of any criminal

12  justice agency;

13         (h)  Section 119.071(5)(a), which exempts social

14  security numbers; or

15         (i)  Section 119.071(5)(b), which exempts bank account

16  numbers and debit, charge, and credit card numbers.

17         (2)  This section does not apply to exemptions not

18  contained in this chapter which may concern a public record

19  made part of a court file, and this section is not an express

20  or implied repeal thereof.

21         Section 5.  Subsection (1) of section 257.34, Florida

22  Statutes, is amended to read:

23         257.34  Florida International Archive and Repository.--

24         (1)  There is created within the Division of Library

25  and Information Services of the Department of State the

26  Florida International Archive and Repository for the

27  preservation of those public records, as defined in s.

28  119.011(13) s. 119.011(11), manuscripts, international

29  judgments involving disputes between domestic and foreign

30  businesses, and all other public matters that the department

31  or the Florida Council of International Development deems

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 1  relevant to international issues. It is the duty and

 2  responsibility of the division to:

 3         (a)  Organize and administer the Florida International

 4  Archive and Repository.

 5         (b)  Preserve and administer records that are

 6  transferred to its custody; accept, arrange, and preserve

 7  them, according to approved archival and repository practices;

 8  and permit them, at reasonable times and under the supervision

 9  of the division, to be inspected and copied. All public

10  records transferred to the custody of the division are subject

11  to the provisions of s. 119.07(1).

12         (c)  Assist the records and information management

13  program in the determination of retention values for records.

14         (d)  Cooperate with and assist, insofar as practicable,

15  state institutions, departments, agencies, counties,

16  municipalities, and individuals engaged in internationally

17  related activities.

18         (e)  Provide a public research room where, under rules

19  established by the division, the materials in the

20  international archive and repository may be studied.

21         (f)  Conduct, promote, and encourage research in

22  international trade, government, and culture and maintain a

23  program of information, assistance, coordination, and guidance

24  for public officials, educational institutions, libraries, the

25  scholarly community, and the general public engaged in such

26  research.

27         (g)  Cooperate with and, insofar as practicable, assist

28  agencies, libraries, institutions, and individuals in projects

29  concerned with internationally related issues and preserve

30  original materials relating to internationally related issues.

31  

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 1         (h)  Assist and cooperate with the records and

 2  information management program in the training and information

 3  program described in s. 257.36(1)(g).

 4         Section 6.  Subsection (1) of section 257.35, Florida

 5  Statutes, is amended to read:

 6         257.35  Florida State Archives.--

 7         (1)  There is created within the Division of Library

 8  and Information Services of the Department of State the

 9  Florida State Archives for the preservation of those public

10  records, as defined in s. 119.011(13) s. 119.011(11),

11  manuscripts, and other archival material that have been

12  determined by the division to have sufficient historical or

13  other value to warrant their continued preservation and have

14  been accepted by the division for deposit in its custody. It

15  is the duty and responsibility of the division to:

16         (a)  Organize and administer the Florida State

17  Archives.

18         (b)  Preserve and administer such records as shall be

19  transferred to its custody; accept, arrange, and preserve

20  them, according to approved archival practices; and permit

21  them, at reasonable times and under the supervision of the

22  division, to be inspected and copied.  All public records

23  transferred to the custody of the division shall be subject to

24  the provisions of s. 119.07(1), except that any public record

25  or other record provided by law to be confidential or

26  prohibited from inspection by the public shall be made

27  accessible only after a period of 50 years from the date of

28  the creation of the record.  Any nonpublic manuscript or other

29  archival material which is placed in the keeping of the

30  division under special terms and conditions, shall be made

31  accessible only in accordance with such law terms and

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 1  conditions and shall be exempt from the provisions of s.

 2  119.07(1) to the extent necessary to meet the terms and

 3  conditions for a nonpublic manuscript or other archival

 4  material.

 5         (c)  Assist the records and information management

 6  program in the determination of retention values for records.

 7         (d)  Cooperate with and assist insofar as practicable

 8  state institutions, departments, agencies, counties,

 9  municipalities, and individuals engaged in activities in the

10  field of state archives, manuscripts, and history and accept

11  from any person any paper, book, record, or similar material

12  which in the judgment of the division warrants preservation in

13  the state archives.

14         (e)  Provide a public research room where, under rules

15  established by the division, the materials in the state

16  archives may be studied.

17         (f)  Conduct, promote, and encourage research in

18  Florida history, government, and culture and maintain a

19  program of information, assistance, coordination, and guidance

20  for public officials, educational institutions, libraries, the

21  scholarly community, and the general public engaged in such

22  research.

23         (g)  Cooperate with and, insofar as practicable, assist

24  agencies, libraries, institutions, and individuals in projects

25  designed to preserve original source materials relating to

26  Florida history, government, and culture and prepare and

27  publish handbooks, guides, indexes, and other literature

28  directed toward encouraging the preservation and use of the

29  state's documentary resources.

30  

31  

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 1         (h)  Encourage and initiate efforts to preserve,

 2  collect, process, transcribe, index, and research the oral

 3  history of Florida government.

 4         (i)  Assist and cooperate with the records and

 5  information management program in the training and information

 6  program described in s. 257.36(1)(g).

 7         Section 7.  Subsection (9) of section 383.402, Florida

 8  Statutes, is amended to read:

 9         383.402  Child abuse death review; State Child Abuse

10  Death Review Committee; local child abuse death review

11  committees.--

12         (9)  The State Child Abuse Death Review Committee or a

13  local committee shall have access to all information of a law

14  enforcement agency which is not the subject of an active

15  investigation and which pertains to the review of the death of

16  a child. A committee may not disclose any information that is

17  not subject to public disclosure by the law enforcement

18  agency, and active criminal intelligence information or

19  criminal investigative information, as defined in s.

20  119.011(4) s. 119.011(3), may not be made available for review

21  or access under this section.

22         Section 8.  Paragraph (b) of subsection (7) of section

23  943.031, Florida Statutes, is amended to read:

24         943.031  Florida Violent Crime and Drug Control

25  Council.--The Legislature finds that there is a need to

26  develop and implement a statewide strategy to address violent

27  criminal activity and drug control efforts by state and local

28  law enforcement agencies, including investigations of illicit

29  money laundering. In recognition of this need, the Florida

30  Violent Crime and Drug Control Council is created within the

31  

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 1  department. The council shall serve in an advisory capacity to

 2  the department.

 3         (7)  CONFIDENTIALITY; EXEMPTED PORTIONS OF COUNCIL

 4  MEETINGS AND RECORDS.--

 5         (b)  The Florida Violent Crime and Drug Control Council

 6  shall be considered a "criminal justice agency" within the

 7  definition of s. 119.011(5) s. 119.011(4).

 8         Section 9.  Subsection (7) of section 943.0313, Florida

 9  Statutes, is amended to read:

10         943.0313  Domestic Security Oversight Council.--The

11  Legislature finds that there exists a need to provide

12  executive direction and leadership with respect to terrorism

13  prevention, preparation, protection, response, and recovery

14  efforts by state and local agencies in this state. In

15  recognition of this need, the Domestic Security Oversight

16  Council is hereby created. The council shall serve as an

17  advisory council pursuant to s. 20.03(7) to provide guidance

18  to the state's regional domestic security task forces and

19  other domestic security working groups and to make

20  recommendations to the Governor and the Legislature regarding

21  the expenditure of funds and allocation of resources related

22  to counter-terrorism and domestic security efforts.

23         (7)  AGENCY DESIGNATION.--For purposes of this section,

24  the Domestic Security Oversight Council shall be considered a

25  criminal justice agency within the definition of s. 119.011(5)

26  s. 119.011(4).

27         Section 10.  This act shall take effect October 1,

28  2007, if Senate Bill 1348, or similar legislation reenacting

29  and saving paragraphs 119.071(5)(a) and (b), Florida Statutes,

30  from repeal, is adopted in the same legislative session, or an

31  extension thereof, and becomes law.

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                             SB 1346

 3                                 

 4  Revises the existing bill language for s. 119.01(1), F.S., the
    general state policy on public records, to improve the
 5  organization and readability.

 6  Revises the bill definitions of "exempt" and "confidential and
    exempt" to better conform them to those definitions as
 7  expressed in Florida case law.

 8  Reorganizes the bill language related to the list of public
    records exemptions in chapter 119, F.S., that are valid for
 9  public records made part of court files to improve the
    readability and revises a provision in that section to enhance
10  its clarity.

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