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.