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.