| 1 | A bill to be entitled |
| 2 | An act relating to public records and public meetings |
| 3 | exemptions; creating s. 627.3121, F.S.; providing an |
| 4 | exemption from public records requirements for certain |
| 5 | records of the Florida Workers' Compensation Joint |
| 6 | Underwriting Association, Inc.; authorizing the release of |
| 7 | confidential and exempt records under certain |
| 8 | circumstances; providing an exemption from public meetings |
| 9 | requirements for portions of a meeting of the |
| 10 | association's board of governors or a subcommittee thereof |
| 11 | during which confidential and exempt records are |
| 12 | discussed; requiring that exempt portions of meetings be |
| 13 | recorded, transcribed, and maintained for a specified |
| 14 | period; providing an exemption from public records |
| 15 | requirements for minutes and transcripts of exempt |
| 16 | portions of meetings; providing for future legislative |
| 17 | review and repeal of the exemptions under the Open |
| 18 | Government Sunset Review Act; providing a statement of |
| 19 | public necessity; providing an effective date. |
| 20 |
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| 21 | Be It Enacted by the Legislature of the State of Florida: |
| 22 |
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| 23 | Section 1. Section 627.3121, Florida Statutes, is created |
| 24 | to read: |
| 25 | 627.3121 Public records and public meetings exemptions.-- |
| 26 | (1) The following records held by the Florida Workers' |
| 27 | Compensation Joint Underwriting Association, Inc., are |
| 28 | confidential and exempt from s. 119.07(1) and s. 24(a), Art. I |
| 29 | of the State Constitution: |
| 30 | (a) Underwriting files, except that a policyholder or an |
| 31 | applicant shall be provided access to his or her own |
| 32 | underwriting files. |
| 33 | (b) Claims files until termination of all litigation and |
| 34 | the settlement of all claims arising out of the same accident, |
| 35 | except that portions of the claims files may remain confidential |
| 36 | or exempt if otherwise provided by law. |
| 37 | (c) Records obtained or generated by an auditor pursuant |
| 38 | to a routine audit until the audit is completed or, if the audit |
| 39 | is conducted as part of an investigation, until the |
| 40 | investigation is closed or ceases to be active. An investigation |
| 41 | is considered "active" while the investigation is being |
| 42 | conducted with a reasonable, good-faith belief that it could |
| 43 | lead to the filing of administrative, civil, or criminal |
| 44 | proceedings. |
| 45 | (d) Proprietary information licensed to the association |
| 46 | under contract if the contract requires the association to |
| 47 | maintain the confidentiality of such information. |
| 48 | (e) Medical records, which include information relating to |
| 49 | the medical condition or medical status of an individual. |
| 50 | (f) All records relative to an employee's participation in |
| 51 | an employee assistance program upon the entrance of the employee |
| 52 | into the program, except as otherwise provided in s. 440.102(8). |
| 53 | (g) Information relating to negotiations for financing, |
| 54 | reinsurance, reinsurance commutation agreements, depopulation, |
| 55 | or contractual services until the conclusion of the |
| 56 | negotiations. |
| 57 | (h) Reports provided to or submitted by the association |
| 58 | regarding suspected fraud or other criminal activity and |
| 59 | producer appeals and related reporting regarding suspected |
| 60 | misconduct until such investigation is closed or ceases to be |
| 61 | active. |
| 62 | (i) Information received from the Department of Revenue |
| 63 | regarding payroll information and client lists of employee |
| 64 | leasing companies obtained pursuant to ss. 440.381 and 468.529. |
| 65 | (j) A public record prepared by an attorney retained by |
| 66 | the association to protect or represent the interests of the |
| 67 | association, or prepared at the attorney's express direction, |
| 68 | that reflects a mental impression, conclusion, litigation |
| 69 | strategy, or legal theory of the attorney or the association. |
| 70 | This protection is not waived by the release of such public |
| 71 | record to another employee or officer of the same association or |
| 72 | any person consulted by the association attorney. |
| 73 | (2)(a) The association may release confidential and exempt |
| 74 | underwriting files and claims files to: |
| 75 | 1. A carrier that is considering underwriting a risk |
| 76 | insured by the association; |
| 77 | 2. A producer seeking to place such a risk with such a |
| 78 | carrier; or |
| 79 | 3. Another entity seeking to arrange voluntary market |
| 80 | coverage for association risks. |
| 81 | (b) Prior to the release authorized in paragraph (a), the |
| 82 | carrier, producer, or other entity must agree in writing, |
| 83 | notarized and under oath, to maintain the confidential and |
| 84 | exempt status of such file until that carrier, producer, or |
| 85 | other entity agrees to underwrite the risk or provide voluntary |
| 86 | market coverage. |
| 87 | (3) Records made confidential and exempt by this section |
| 88 | may be released, upon written request, to another agency in the |
| 89 | performance of that agency's official duties and |
| 90 | responsibilities. |
| 91 | (4)(a) That portion of a meeting of the association's |
| 92 | board of governors, or any subcommittee of the association's |
| 93 | board, at which records made confidential and exempt by this |
| 94 | section are discussed is exempt from s. 286.011 and s. 24(b), |
| 95 | Art. I of the State Constitution. |
| 96 | (b) All exempt portions of meetings shall be recorded and |
| 97 | transcribed. The board shall record the times of commencement |
| 98 | and termination of the meeting, all discussion and proceedings, |
| 99 | the names of all persons present at any time, and the names of |
| 100 | all persons speaking. An exempt portion of any meeting may not |
| 101 | be off the record. |
| 102 | (c) Subject to this section and s. 119.021(2), the court |
| 103 | reporter's notes of any exempt portion of a meeting shall be |
| 104 | retained by the association for a minimum of 5 years. |
| 105 | (d)1. A transcript and minutes of exempt portions of |
| 106 | meetings are confidential and exempt from s. 119.07(1) and s. |
| 107 | 24(a), Art. I of the State Constitution. |
| 108 | 2. Those portions of the transcript or the minutes |
| 109 | pertaining to a confidential and exempt claims file are no |
| 110 | longer confidential and exempt upon termination of all |
| 111 | litigation with regard to that claim. |
| 112 | (5) This section is subject to the Open Government Sunset |
| 113 | Review Act in accordance with s. 119.15 and shall stand repealed |
| 114 | on October 2, 2012, unless reviewed and saved from repeal |
| 115 | through reenactment by the Legislature. |
| 116 | Section 2. (1) The Legislature finds that it is a public |
| 117 | necessity to make certain records of the Florida Workers' |
| 118 | Compensation Joint Underwriting Association, Inc., confidential |
| 119 | and exempt from public records requirements. The association was |
| 120 | authorized by the Legislature to provide workers' compensation |
| 121 | and employer's liability insurance to applicants who are |
| 122 | required by law to maintain workers' compensation and employer's |
| 123 | liability insurance, and who are entitled to but are unable to |
| 124 | procure such insurance through the voluntary market. The |
| 125 | Legislature finds that the exemption from public records |
| 126 | requirements for open claims files of the association is |
| 127 | necessary for the effective and efficient administration of an |
| 128 | entity created to provide workers' compensation and employer's |
| 129 | liability insurance as described in s. 627.311(5), Florida |
| 130 | Statutes. Claims files contain detailed information concerning |
| 131 | the claim, medical information, and other sensitive personal |
| 132 | information concerning the claimant, and also contain |
| 133 | information detailing the evaluation of the legitimacy of the |
| 134 | claim, the extent of incapacity, and a valuation of the award. |
| 135 | Information in a claims file that is held by the association |
| 136 | includes the medical records and other information related to |
| 137 | the medical condition or medical status of a claimant. The |
| 138 | Legislature finds that the claimants' medical records and other |
| 139 | medical-related information are personal and sensitive. Matters |
| 140 | of personal health are traditionally a private and confidential |
| 141 | concern. The release of the medical records would violate the |
| 142 | privacy of an individual or could cause unwarranted damage to |
| 143 | the name or reputation of that individual. The Legislature finds |
| 144 | that information relating to the medical, mental, or behavioral |
| 145 | condition of an employee of the association is private and that |
| 146 | matters of personal health are traditionally a private and |
| 147 | confidential concern. The Legislature finds that the association |
| 148 | must conduct ongoing negotiations for financing, reinsurance, |
| 149 | contractual services, or related matters to perform the duties |
| 150 | assigned to the association. If such information were made |
| 151 | public prior to the conclusion of the negotiations, the |
| 152 | association's bargaining position would be severely damaged, |
| 153 | resulting in additional cost to the association and the public. |
| 154 | The Legislature also finds that, because the association will |
| 155 | investigate insurance fraud, criminal investigations of |
| 156 | insurance fraud would be harmed if reports of suspected |
| 157 | fraudulent activity were made public. The Legislature has also |
| 158 | recognized a need for the Department of Revenue to provide |
| 159 | payroll information and client lists of employee leasing |
| 160 | companies to the association in the furtherance of its duties |
| 161 | and responsibilities. Such information is proprietary business |
| 162 | information and traditionally is private. Finally, the |
| 163 | Legislature finds that the internal audit process, and therefore |
| 164 | accountability to the public, will be damaged if records |
| 165 | relating to an incomplete internal audit or investigation are |
| 166 | made public. |
| 167 | (2) The Legislature further finds that it is a public |
| 168 | necessity to exempt certain meetings of the Florida Workers' |
| 169 | Compensation Joint Underwriting Association, Inc., from public |
| 170 | meetings requirements. Closing access to meetings of the board |
| 171 | of directors of the association, or a subcommittee of the board, |
| 172 | wherein confidential and exempt records are discussed is |
| 173 | essential to preserving the confidentiality of those records. |
| 174 | Further, it enables the association to carry out its statutory |
| 175 | duty of providing workers' compensation coverage. Furthermore, |
| 176 | the Legislature finds that minutes and transcripts of exempt |
| 177 | portions of meetings should be made confidential and exempt from |
| 178 | public records requirements. Release of those records would |
| 179 | defeat the purpose of holding a closed meeting. |
| 180 | Section 3. This act shall take effect July 1, 2007. |