Senate Bill sb0628c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                            CS for SB 628

    By the Committee on Governmental Operations; and Senator
    Lawson




    585-2420-07

  1                      A bill to be entitled

  2         An act relating to public records and meetings;

  3         creating s. 627.3121, F.S.; providing an

  4         exemption from public-records requirements for

  5         certain records of the Florida Workers'

  6         Compensation Joint Underwriting Association,

  7         Inc.; authorizing the release of records that

  8         are confidential and exempt from disclosure to

  9         another agency in the performance of that

10         agency's official duties; requiring the

11         receiving agency to maintain the

12         confidentiality of the records; providing an

13         exemption from public-meetings requirements for

14         portions of a meeting of the association's

15         board of governors or a subcommittee during

16         which confidential records are discussed;

17         requiring that exempt portions of meetings be

18         recorded, transcribed, and maintained for a

19         specified period; providing for future

20         legislative review and repeal of the exemptions

21         under the Open Government Sunset Review Act;

22         providing a statement of public necessity;

23         providing an effective date.

24  

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

26  

27         Section 1.  Section 627.3121, Florida Statutes, is

28  created to read:

29         627.3121  Public-records and public-meetings

30  exemptions.--

31  

                                  1

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1         (1)  The following records held by the Florida Workers'

 2  Compensation Joint Underwriting Association, Inc., are

 3  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I

 4  of the State Constitution:

 5         (a)  Underwriting files, except that a policyholder or

 6  an applicant shall be provided access to his or her own

 7  underwriting files.

 8         (b)  Claims files until termination of all litigation

 9  and the settlement of all claims arising out of the same

10  accident, except that portions of the claims files may remain

11  confidential or exempt if otherwise provided by law.

12         (c)  Records obtained or generated by an auditor

13  pursuant to a routine audit until the audit is completed or,

14  if the audit is conducted as part of an investigation, until

15  the investigation is closed or ceases to be active. An

16  investigation is considered active while the investigation is

17  being conducted with a reasonable, good-faith belief that it

18  could lead to the filing of administrative, civil, or criminal

19  proceedings.

20         (d)  Proprietary information licensed to the

21  association under contract if the contract requires the

22  association to maintain the confidentiality of such

23  information.

24         (e)  Medical records, which include information

25  relating to the medical condition or medical status of an

26  individual.

27         (f)  All records relative to an employee's

28  participation in an employee assistance program upon the

29  entrance of the employee into the program, except as otherwise

30  provided in s. 440.102(8).

31  

                                  2

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1         (g)  Information relating to negotiations for

 2  financing, reinsurance, reinsurance commutation agreements,

 3  depopulation, or contractual services until the conclusion of

 4  the negotiations.

 5         (h)  Reports provided to or submitted by the

 6  association regarding suspected fraud or other criminal

 7  activity and producer appeals and related reporting regarding

 8  suspected misconduct until such investigation is closed or

 9  ceases to be active.

10         (i)  Information received from the Department of

11  Revenue regarding payroll information and client lists of

12  employee leasing companies obtained pursuant to ss. 440.381

13  and 468.529.

14         (j)  A public record prepared by an attorney retained

15  by the association to protect or represent the interests of

16  the association or prepared at the attorney's express

17  direction, that reflects a mental impression, conclusion,

18  litigation strategy, or legal theory of the attorney or the

19  association. This protection is not waived by the release of

20  such public record to another employee or officer of the same

21  association or any person consulted by the association

22  attorney.

23         (2)(a)  The association may release confidential and

24  exempt underwriting files and claims files to:

25         1.  A carrier that is considering underwriting a risk

26  insured by the association;

27         2.  A producer seeking to place such a risk with such a

28  carrier; or

29         3.  Another entity seeking to arrange voluntary market

30  coverage for association risks.

31  

                                  3

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1         (b)  Prior to the release authorized in paragraph (a),

 2  the carrier, producer, or other entity must agree in writing,

 3  notarized and under oath, to maintain the confidential and

 4  exempt status of such file until that carrier, producer, or

 5  other entity agrees to underwrite the risk or provide

 6  voluntary market coverage.

 7         (3)  Records made confidential and exempt by this

 8  section may be released, upon written request, to another

 9  agency in the performance of that agency's official duties and

10  responsibilities.

11         (4)(a)  That portion of a meeting of the association's

12  board of governors, or any subcommittee of the association's

13  board, at which records made confidential and exempt by this

14  section are discussed is exempt from s. 286.011 and s. 24(b),

15  Art. I of the State Constitution.

16         (b)  All exempt portions of meetings shall be recorded

17  and transcribed. The board shall record the times of

18  commencement and termination of the meeting, all discussion

19  and proceedings, the names of all persons present at any time,

20  and the names of all persons speaking. An exempt portion of

21  any meeting may not be off the record.

22         (c)  Subject to this section and s. 119.021(2), the

23  court reporter's notes concerning any exempt portion of a

24  meeting shall be retained by the association for a minimum of

25  5 years.

26         (d)1.  A transcript and minutes of exempt portions of

27  meetings are confidential and exempt from s. 119.07(1) and s.

28  24(a), Art. I of the State Constitution.

29         2.  Those portions of the transcript or the minutes

30  pertaining to a confidential and exempt claims file are no

31  

                                  4

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1  longer confidential and exempt upon termination of all

 2  litigation with regard to that claim.

 3         (5)  This section is subject to the Open Government

 4  Sunset Review Act in accordance with s. 119.15, and shall

 5  stand repealed on October 2, 2012, unless reviewed and saved

 6  from repeal through reenactment by the Legislature.

 7         Section 2.  (1)  The Legislature finds that it is a

 8  public necessity to make certain records of the Florida

 9  Workers' Compensation Joint Underwriting Association, Inc.,

10  confidential and exempt from public-records requirements. The

11  association was authorized by the Legislature to provide

12  workers' compensation and employer's liability insurance to

13  applicants who are required by law to maintain workers'

14  compensation and employer's liability insurance, and who are

15  entitled to but are unable to procure such insurance through

16  the voluntary market. The Legislature finds that the exemption

17  from public-records requirements for open claims files of the

18  association is necessary for the effective and efficient

19  administration of an entity created to provide workers'

20  compensation and employer's liability insurance as described

21  and in s. 627.311(5), Florida Statutes. Claims files contain

22  detailed information concerning the claim, medical

23  information, and other sensitive personal information

24  concerning the claimant, and also contain information

25  detailing the evaluation of the legitimacy of the claim, the

26  extent of incapacity, and a valuation of the award.

27  Information in a claims file which is held by the association

28  includes the medical records and other information related to

29  the medical condition or medical status of a claimant. The

30  Legislature finds that the claimants' medical records and

31  other medical-related information are personal and sensitive.

                                  5

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1  Matters of personal health are traditionally a private and

 2  confidential concern. The release of the medical records would

 3  violate the privacy of the individual or could cause

 4  unwarranted damage to the name or reputation of the

 5  individual. The Legislature finds that information relating to

 6  the medical, mental, or behavioral condition of an employee of

 7  the association is private and that matters of personal health

 8  are traditionally a private and confidential concern. The

 9  Legislature finds that the association must conduct ongoing

10  negotiations for financing, reinsurance, contractual services,

11  or related matters to perform the duties assigned to the

12  association. If such information were made public prior to the

13  conclusion of the negotiations, the association's bargaining

14  position would be severely damaged, resulting in additional

15  cost to the association and the public. The Legislature also

16  finds that the association will investigate insurance fraud.

17  If reports of suspected fraudulent activity were made public,

18  criminal investigations of insurance fraud would be harmed.

19  The Legislature has recognized a need for the Department of

20  Revenue to provide payroll information and client lists of

21  employee leasing companies to the association in the

22  furtherance of its duties and responsibilities. Such

23  information is business information and traditionally is

24  private. The Legislature finds that the association receives

25  advice of counsel on the entire range of matters on which a

26  similarly situated private business would receive advice of

27  counsel, including matters that do not involve litigation or

28  adversarial administrative proceedings. The association would

29  not be able to carry out its business functions effectively

30  without the free and confidential exchange of attorneys'

31  mental impressions, conclusions, strategies, and theories.

                                  6

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1  Finally, the Legislature finds that the internal-audit

 2  process, and therefore accountability to the public, will be

 3  damaged if records relating to an incomplete internal audit or

 4  investigation are made public.

 5         (2)  The Legislature further finds that it is a public

 6  necessity to exempt certain meetings of the Florida Workers'

 7  Compensation Joint Underwriting Association, Inc., from public

 8  meetings requirements. Closing access to meetings of the board

 9  of directors of the association, or of a subcommittee of the

10  board, wherein confidential and exempt records are discussed

11  is essential to preserving the confidentiality of those

12  records. Further, it enables the association to carry out its

13  statutory duty of providing workers' compensation coverage.

14  Furthermore, the Legislature finds that minutes and

15  transcripts of exempt portions of meetings should be made

16  confidential and exempt from public-records requirements.

17  Release of those records would defeat the purpose of holding a

18  closed meeting.

19         Section 3.  This act shall take effect July 1, 2007.

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  7

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






    Florida Senate - 2007                            CS for SB 628
    585-2420-07




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 628

 3                                 

 4  Creates an exemption for certain records and portions of
    meetings of the Florida Workers' Compensation Joint
 5  Underwriting Association, Inc.(JUA), the insurer of last
    resort for employers who are unable to secure workers'
 6  compensation insurance coverage in the voluntary market.

 7  Makes confidential and exempt underwriting files, claims files
    until termination of litigation and settlement, audit records,
 8  certain proprietary information, medical records, records
    relative to an employee's participation in an employee
 9  assistance program, certain information related to
    negotiations, reports regarding fraud until the investigation
10  is closed or ceases to be active, payroll and client lists of
    employee leasing companies obtained from the Department of
11  Revenue, and certain records prepared by an attorney for the
    association.
12  
    Exempts portions of meetings at which such confidential and
13  exempt information is discussed.

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  8

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