HB 7169

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
21	Be It Enacted by the Legislature of the State of Florida:
22
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. The Legislature finds
163	that the internal audit process, and therefore accountability to
164	the public, will be damaged if records relating to an incomplete
165	internal audit or investigation are made public. The Legislature
166	finds that although the association is an agency within the
167	meaning of the public records and open meetings laws, the
168	association essentially operates as a private business. Its core
169	function is to engage in the business of providing workers'
170	compensation insurance coverage, as distinguished from an agency
171	whose core functions are governmental in nature. The association
172	does not exercise the authority or perform the functions of a
173	department or political subdivision, and lacks the power to
174	enforce laws. The Legislature further finds that the general
175	exemptions in chapters 119 and 286 relating to records created
176	by attorneys and communications with attorneys are designed to
177	address the needs of agencies providing governmental functions
178	and are generally limited to matters relating to litigation and
179	adversarial administrative matters. As distinguished from
180	agencies providing governmental functions, the association
181	receives the advice of counsel on the entire range of matters on
182	which a similarly situated private business would receive advice
183	of counsel, including matters that do not involve litigation or
184	adversarial administrative matters. These include, but are not
185	limited to, legal advice relating to business negotiations with
186	private entities which provide the association with reinsurance,
187	policy issuance, policy administration, underwriting, and
188	payroll audit services, with insurance agents who may act as
189	producers of insurance business to the association, and with
190	other entities which provide services to private market
191	insurers. Accordingly, the Legislature finds that the
192	association would not be able to carry out its core business
193	functions effectively without the free and confidential exchange
194	of attorneys' mental impressions, conclusions, litigation
195	strategies, and legal theories, both as to business matters and
196	as to litigation and adversarial administrative matters.
197	(2)  The Legislature further finds that it is a public
198	necessity to exempt certain meetings of the Florida Workers'
199	Compensation Joint Underwriting Association, Inc., from public
200	meetings requirements. Closing access to meetings of the board
201	of directors of the association, or a subcommittee of the board,
202	wherein confidential and exempt records are discussed is
203	essential to preserving the confidentiality of those records.
204	Further, it enables the association to carry out its statutory
205	duty of providing workers' compensation coverage. Furthermore,
206	the Legislature finds that minutes and transcripts of exempt
207	portions of meetings should be made confidential and exempt from
208	public records requirements. Release of those records would
209	defeat the purpose of holding a closed meeting.
210	Section 3.  This act shall take effect July 1, 2007.

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