Florida Senate - 2009                                    SB 1046
       
       
       
       By Senator Fasano
       
       
       
       
       11-00698-09                                           20091046__
    1                        A bill to be entitled                      
    2         An act relating to public records and public meetings;
    3         creating s. 215.5571, F.S.; providing an exemption
    4         from public-records requirements for certain records
    5         of the Florida Hurricane Protection Program of the
    6         Florida Catastrophe Fund; providing an exemption from
    7         public-meetings requirements for portions of certain
    8         meetings of the State Board of Administration;
    9         requiring that exempt portions of meetings be
   10         recorded, transcribed, and maintained for a specified
   11         period; providing an exemption from public-records
   12         requirements for minutes and transcripts of exempt
   13         portions of meetings; providing for future legislative
   14         review and repeal of the exemptions under the Open
   15         Government Sunset Review Act; providing legislative
   16         findings; providing a statement of public necessity;
   17         providing a contingent effective date.
   18         
   19  Be It Enacted by the Legislature of the State of Florida:
   20         
   21         Section 1. Section 215.5571, Florida Statutes, is created
   22  to read:
   23         215.5571 Public-records and public-meetings exemptions.—
   24         (1)The following records held by the Florida Hurricane
   25  Protection Program of the Florida Hurricane Catastrophe Fund are
   26  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   27  of the State Constitution:
   28         (a)Underwriting files, except that a policyholder or an
   29  applicant shall be provided access to his or her own
   30  underwriting files.
   31         (b)Claims files until termination of all litigation and
   32  the settlement of all claims arising out of the same incident,
   33  except that portions of the claims files may remain confidential
   34  or exempt if otherwise provided by law.
   35         (c)Records obtained or generated by an auditor pursuant to
   36  a routine audit until the audit is completed or, if the audit is
   37  conducted as part of an investigation, until the investigation
   38  is closed or ceases to be active. An investigation is considered
   39  “active” while the investigation is being conducted with a
   40  reasonable, good faith belief that such investigation could lead
   41  to the initiation of administrative, civil, or criminal
   42  proceedings.
   43         (d)Proprietary information licensed to the Florida
   44  Hurricane Protection Program under contract, if the contract
   45  requires the program to maintain the confidentiality of such
   46  information. This exemption also applies if the proprietary
   47  information is licensed to the Florida Hurricane Catastrophe
   48  Fund or the State Board of Administration for use by the
   49  program.
   50         (e)Information relating to negotiations for financing,
   51  reinsurance, or contractual services until the conclusion of the
   52  negotiations.
   53         (f)Reports provided to or submitted by the program
   54  regarding suspected fraud or other criminal activity and related
   55  reporting regarding suspected misconduct until the investigation
   56  of such suspected fraud, criminal activity, or misconduct is
   57  closed or ceases to be active.
   58         (g)A public record prepared by an attorney employed or
   59  retained by the program, the Florida Hurricane Catastrophe Fund,
   60  or the State Board of Administration to protect or represent the
   61  interests of the program, or prepared at the attorney’s express
   62  direction, which reflects a mental impression, conclusion,
   63  litigation strategy, or legal theory of the attorney or the
   64  program, the Florida Hurricane Catastrophe Fund, or the State
   65  Board of Administration. This protection is not waived by the
   66  release of such public record to another employee or officer of
   67  the program, fund, or board or to any person consulted by the
   68  attorney.
   69         (2)A policyholder who has filed suit against the Florida
   70  Hurricane Protection Program has the right to discover the
   71  contents of his or her own claims file to the same extent that
   72  discovery of such contents would be available from a private
   73  insurer in litigation as provided by the Florida Rules of Civil
   74  Procedure, the Florida Evidence Code, and other applicable law.
   75  Pursuant to subpoena, a third party has the right to discover
   76  the contents of an insured's or applicant's underwriting or
   77  claims file to the same extent that discovery of such contents
   78  would be available from a private insurer by subpoena as
   79  provided by the Florida Rules of Civil Procedure, the Florida
   80  Evidence Code, and other applicable law, and subject to any
   81  confidentiality protections requested by the program and agreed
   82  to by the seeking party or ordered by the court. The program may
   83  release confidential underwriting and claims file contents and
   84  information as it deems necessary and appropriate to underwrite
   85  or service insurance policies and claims, subject to any
   86  confidentiality protections deemed necessary and appropriate by
   87  the program.
   88         (3)Records made confidential and exempt by this section
   89  may be released, upon written request, to another agency in the
   90  performance of that agency's official duties and
   91  responsibilities.
   92         (4)(a)That portion of a meeting of the State Board of
   93  Administration at which records made confidential and exempt by
   94  this section are discussed is exempt from s. 286.011 and s.
   95  24(b), 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 board 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 minutes pertaining
  109  to a confidential and exempt claims file are no longer
  110  confidential and exempt upon termination of all litigation with
  111  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, 2014, 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 Hurricane
  118  Protection Program of the Florida Hurricane Catastrophe Fund
  119  confidential and exempt from public-records requirements. The
  120  program was created by the Legislature to provide hurricane
  121  insurance coverage for residential properties in this state. The
  122  Legislature finds that the exemption from public-records
  123  requirements for open claims files of the program is necessary
  124  for the effective and efficient administration of an entity
  125  created to provide residential hurricane insurance coverage as
  126  provided in s. 215.555(18), Florida Statutes. Claims files
  127  contain detailed information concerning the claim and may
  128  contain sensitive personal information concerning the claimant,
  129  and also contain information detailing the evaluation of the
  130  legitimacy of the claim and the amounts of money involved, which
  131  matters may become the subject of negotiation or litigation. The
  132  Legislature finds that the program must conduct ongoing
  133  negotiations for financing, reinsurance, contractual services,
  134  or related matters to perform the duties assigned to the
  135  program. If such information were made public before the
  136  conclusion of the negotiations, the program’s bargaining
  137  position would be severely damaged, resulting in additional cost
  138  to the program and the public. The Legislature also finds that,
  139  because the program will investigate insurance fraud, criminal
  140  investigations of insurance fraud would be harmed if reports of
  141  suspected fraudulent activity were made public. The internal
  142  audit process, and therefore accountability the public, will be
  143  damaged if records relating to an incomplete internal audit or
  144  investigation are made public. Although the program is a part of
  145  a state agency, it performs functions that more closely resemble
  146  the functions of a private enterprise, as distinguished from an
  147  agency whose core functions are governmental in nature. The
  148  Legislature further finds that the general exemptions in
  149  chapters 119 and 286, Florida Statutes, relating to records
  150  created by attorneys and communications with attorneys are
  151  designed to address the needs of agencies providing governmental
  152  functions and are generally limited to matters relating to
  153  litigation and adversarial administrative matters. As
  154  distinguished from agencies providing governmental functions,
  155  the program receives the advice of counsel on the entire range
  156  of matters on which a similarly situated private business would
  157  receive advice of counsel, including matters not involving
  158  litigation or adversarial administrative matters. These include,
  159  but are not limited to, legal advice relating to business
  160  negotiations with private entities providing the program with
  161  reinsurance and with other entities providing services to
  162  private market insurers. Accordingly, the Legislature finds that
  163  the program would not be able to carry out its core business
  164  functions effectively without the free and confidential exchange
  165  of attorneys' mental impressions, conclusions, litigation
  166  strategies, and legal theories as to business matters,
  167  litigation, and adversarial administrative matters.
  168         (2)The Legislature further finds that it is a public
  169  necessity to exempt certain meetings of the State Board of
  170  Administration relating to the operations of the Florida
  171  Hurricane Protection Program from public-meetings requirements.
  172  Closing access to meetings of the board during which
  173  confidential and exempt records are discussed is essential to
  174  the preservation of the confidentiality of those records and the
  175  ability of the program to carry out its statutory duty of
  176  providing residential hurricane insurance coverage. Furthermore,
  177  the Legislature finds that minutes and transcripts of exempt
  178  portions of meetings should be made confidential and exempt from
  179  public-records requirements. Release of such records would
  180  defeat the purpose of holding a closed meeting.
  181         Section 3. This act shall take effect on the same date as
  182  SB ___, or similar legislation takes effect, if such legislation
  183  is enacted in the same legislative session or an extension
  184  thereof and becomes law.