CS/HB 867

1
A bill to be entitled
2An act relating to public records exemptions; amending ss.
3637.1009, 637.1012, 637.1019, 637.1022, 637.1046,
4637.30145, 637.30147, and 637.30295, F.S.; exempting
5certain information relating to title insurance, title
6insurers, and title insurance agents from certain public
7records disclosure requirements; creating s. 637.2052,
8F.S.; exempting certain proceedings and records from
9public meetings and records requirements; providing for
10future review and repeal of the exemptions in this act
11under the Open Government Sunset Review Act; providing a
12statement of public necessity; providing a contingent
13effective date.
14
15Be It Enacted by the Legislature of the State of Florida:
16
17     Section 1.  Paragraph (g) is added to subsection (3) of
18section 637.1009, Florida Statutes, to read:
19     637.1009  Enforcement; cease and desist orders; removal of
20certain persons; fines; confidential information.-
21     (3)  CEASE AND DESIST ORDERS.-
22     (g)  Any emergency order entered under this subsection is
23confidential and exempt from the provisions of s. 119.07(1) and
24s. 24(a), Art. I of the State Constitution and shall remain
25confidential until it is made permanent unless the department
26finds that the confidentiality will result in substantial risk
27of financial loss to the public. All emergency cease and desist
28orders that are not made permanent are available for public
29inspection 1 year after the date the emergency cease and desist
30order expires. However, portions of an emergency cease and
31desist order remain confidential and exempt from the provisions
32of s. 119.07(1) and s. 24(a), Art. I of the State Constitution
33if disclosure would:
34     1.  Jeopardize the integrity of another active
35investigation;
36     2.  Impair the safety and financial soundness of the
37licensee or affiliated party;
38     3.  Reveal personal financial information;
39     4.  Reveal the identity of a confidential source;
40     5.  Defame or cause unwarranted damage to the good name or
41reputation of an individual or jeopardize the safety of an
42individual; or
43     6.  Reveal investigative techniques or procedures.
44
45This paragraph is subject to the Open Government Sunset Review
46Act in accordance with s. 119.15 and shall stand repealed on
47October 2, 2015, unless reviewed and saved from repeal through
48reenactment by the Legislature.
49     Section 2.  Subsection (4) is added to section 637.1012,
50Florida Statutes, to read:
51     637.1012  Records; reproductions; destruction; confidential
52information.-
53     (4)  The records of insurance claim negotiations of any
54state agency or political subdivision are confidential and
55exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
56of the State Constitution until termination of all litigation
57and settlement of all claims arising out of the same incident.
58This subsection is subject to the Open Government Sunset Review
59Act in accordance with s. 119.15 and shall stand repealed on
60October 2, 2015, unless reviewed and saved from repeal through
61reenactment by the Legislature.
62     Section 3.  Subsection (7) is added to section 637.1019,
63Florida Statutes, to read:
64     637.1019  Investigation of title insurance agents and
65others; confidential information.-If the department has reason
66to believe that any title insurance agent has violated or is
67violating any provision of this chapter, or upon the written
68complaint signed by any interested person indicating that any
69such violation may exist:
70     (7)  The complaint and any information obtained pursuant to
71the investigation by the department or office are confidential
72and exempt from the provisions of s. 119.07(1) and s. 24(a),
73Art. I of the State Constitution unless the department or office
74files a formal administrative complaint, emergency order, or
75consent order against the licensee. Nothing in this subsection
76shall be construed to prevent the department or office from
77disclosing the complaint or such information as it deems
78necessary to conduct the investigation, to update the
79complainant as to the status and outcome of the complaint, or to
80share such information with any law enforcement agency. This
81subsection is subject to the Open Government Sunset Review Act
82in accordance with s. 119.15 and shall stand repealed on October
832, 2015, unless reviewed and saved from repeal through
84reenactment by the Legislature.
85     Section 4.  Subsection (5) is added to section 637.1022,
86Florida Statutes, to read:
87     637.1022  Examination and investigation reports;
88confidential information.-
89     (5)(a)1.  Until filed, examination reports are confidential
90and exempt from the provisions of s. 119.07(1) and s. 24(a),
91Art. I of the State Constitution.
92     2.  Investigation reports are confidential and exempt from
93the provisions of s. 119.07(1) and s. 24(a), Art. I of the State
94Constitution until the investigation is completed or ceases to
95be active.
96     3.  For purposes of this subsection, an investigation is
97active while it is being conducted by the department with a
98reasonable, good faith belief that it could lead to the filing
99of administrative, civil, or criminal proceedings. An
100investigation does not cease to be active if the department is
101proceeding with reasonable dispatch and has a good faith belief
102that action could be initiated by the department or other
103administrative or law enforcement agency. After an investigation
104is completed or ceases to be active, portions of the
105investigation report relating to the investigation remain
106confidential and exempt from the provisions of s. 119.07(1) and
107s. 24(a), Art. I of the State Constitution if disclosure would:
108     a.  Jeopardize the integrity of another active
109investigation;
110     b.  Impair the safety and financial soundness of the
111licensee or affiliated party;
112     c.  Reveal personal financial information;
113     d.  Reveal the identity of a confidential source;
114     e.  Defame or cause unwarranted damage to the good name or
115reputation of an individual or jeopardize the safety of an
116individual; or
117     f.  Reveal investigative techniques or procedures.
118     (b)1.  For purposes of this paragraph, the term "work
119papers" means the records of the procedures followed, the tests
120performed, the information obtained, and the conclusions reached
121in an examination or investigation performed under this section,
122s. 637.1017, s. 637.1018, s. 637.1019, or s. 637.1021. Work
123papers include, but are not limited to, planning documentation,
124work programs, analyses, memoranda, letters of confirmation and
125representation, abstracts of company documents, and schedules or
126commentaries prepared or obtained in the course of such
127examination or investigation.
128     2.a.  Work papers held by the department are confidential
129and exempt from the provisions of s. 119.07(1) and s. 24(a),
130Art. I of the State Constitution until the examination report is
131filed or until the investigation is completed or ceases to be
132active.
133     b.  Information received from another governmental entity
134or the National Association of Insurance Commissioners, which is
135confidential or exempt when held by that entity, for use by the
136department in the performance of its examination or
137investigation duties pursuant to this section, s. 637.1017, s.
138637.1018, s. 637.1019, or s. 637.1021 is confidential and exempt
139from s. 119.07(1) and s. 24(a), Art. I of the State
140Constitution.
141     c.  This exemption applies to work papers and such
142information held by the department before, on, or after the
143effective date of this exemption.
144     3.  Confidential and exempt work papers and information may
145be disclosed to:
146     a.  Another governmental entity, if disclosure is necessary
147for the receiving entity to perform its duties and
148responsibilities; and
149     b.  The National Association of Insurance Commissioners.
150     4.  After an examination report is filed or an
151investigation is completed or ceases to be active, portions of
152work papers may remain confidential and exempt from the
153provisions of s. 119.07(1) and s. 24(a), Art. I of the State
154Constitution if disclosure would:
155     a.  Jeopardize the integrity of another active examination
156or investigation;
157     b.  Impair the safety or financial soundness of the
158licensee, affiliated party, or insured;
159     c.  Reveal personal financial, medical, or health
160information;
161     d.  Reveal the identity of a confidential source;
162     e.  Defame or cause unwarranted damage to the good name or
163reputation of an individual or jeopardize the safety of an
164individual;
165     f.  Reveal examination techniques or procedures; or
166     g.  Reveal information that is confidential or exempt under
167sub-subparagraph 2.b.
168     (c)  Lists of insurers or regulated companies are
169confidential and exempt from the provisions of s. 119.07(1) and
170s. 24(a), Art. I of the State Constitution if:
171     1.  The financial solvency, condition, or soundness of such
172insurers or regulated companies is being monitored by the
173department.
174     2.  The list is prepared to internally coordinate
175regulation by the department of the financial solvency,
176condition, or soundness of the insurers or regulated companies.
177     3.  The department determines that public inspection of
178such list could impair the financial solvency, condition, or
179soundness of such insurers or regulated companies.
180     (d)  This subsection is subject to the Open Government
181Sunset Review Act in accordance with s. 119.15 and shall stand
182repealed on October 2, 2015, unless reviewed and saved from
183repeal through reenactment by the Legislature.
184     Section 5.  Subsection (8) is added to section 637.1046,
185Florida Statutes, to read:
186     637.1046  Investigation by department or Division of
187Insurance Fraud; compliance; immunity; confidential information;
188reports to division; division investigator's power of arrest;
189confidential information.-
190     (8)  The department's papers, documents, reports, and
191evidence relative to the subject of an investigation under this
192section are confidential and exempt from the provisions of s.
193119.07(1) and s. 24(a), Art. I of the State Constitution until
194such investigation is completed or ceases to be active. For
195purposes of this subsection, an investigation is considered
196active while the investigation is being conducted by the
197department with a reasonable, good faith belief that it could
198lead to the filing of administrative, civil, or criminal
199proceedings. An investigation does not cease to be active if the
200department is proceeding with reasonable dispatch and has a good
201faith belief that action could be initiated by the department or
202any other administrative or law enforcement agency. After an
203investigation is completed or ceases to be active, portions of
204records relating to the investigation shall remain confidential
205and exempt from the provisions of s. 119.07(1) and s. 24(a),
206Art. I of the State Constitution if disclosure would:
207     (a)  Jeopardize the integrity of another active
208investigation;
209     (b)  Impair the safety and soundness of an insurer;
210     (c)  Reveal personal financial information;
211     (d)  Reveal the identity of a confidential source;
212     (e)  Defame or cause unwarranted damage to the good name or
213reputation of an individual or jeopardize the safety of an
214individual; or
215     (f)  Reveal investigative techniques or procedures.
216Further, such papers, documents, reports, or evidence relative
217to the subject of an investigation under this section shall not
218be subject to discovery until the investigation is completed or
219ceases to be active. Department or division investigators shall
220not be subject to subpoena in civil actions by any court of this
221state to testify concerning any matter of which they have
222knowledge pursuant to a pending insurance fraud investigation by
223the division. This subsection is subject to the Open Government
224Sunset Review Act in accordance with s. 119.15 and shall stand
225repealed on October 2, 2015, unless reviewed and saved from
226repeal through reenactment by the Legislature.
227     Section 6.  Section 637.2052, Florida Statutes, is created
228to read:
229     637.2052  Confidentiality of proceedings and records.-
230     (1)  Orders, notices, correspondence, reports, records, and
231other information in the possession of the department relating
232to the supervision of any insurer are confidential and exempt
233from the provisions of s. 119.07(1) and s. 24(a), Art. I of the
234State Constitution, except as otherwise provided in this
235section. Proceedings and hearings relating to the department's
236supervision of any insurer are exempt from the provisions of s.
237286.011, except as otherwise provided in this section.
238     (2)  The personnel of the department shall have access to
239proceedings, hearings, notices, correspondence, reports,
240records, or other information as permitted by the department.
241     (3)  The department may open the proceedings or hearings or
242disclose the contents of the notices, correspondence, reports,
243records, or other information to a department, agency, or
244instrumentality of this or another state or the United States if
245it determines that the disclosure is necessary or proper for the
246enforcement of the laws of this or another state or the United
247States.
248     (4)  The department may open the proceedings or hearings or
249make public the notices, correspondence, reports, records, or
250other information if the department finds that it is in the best
251interest of the public, the insurer in supervision, or the
252insurer's insureds.
253     (5)  This section does not apply to proceedings, hearings,
254notices, correspondence, reports, records, or other information
255obtained upon the appointment of a receiver for the insurer by a
256court of competent jurisdiction.
257     (6)  The exemptions provided by this section shall
258terminate on the earlier of the following dates:
259     (a)  One year after the conclusion of the entire period of
260supervision, as determined pursuant to s. 637.2051(3); or
261     (b)  The date of the entry of an order of seizure,
262rehabilitation, or liquidation pursuant to chapter 631.
263     (7)  This subsection is subject to the Open Government
264Sunset Review Act in accordance with s. 119.15 and shall stand
265repealed on October 2, 2015, unless reviewed and saved from
266repeal through reenactment by the Legislature.
267     Section 7.  Subsection (3) is added to section 637.30145,
268Florida Statutes, to read:
269     637.30145  Reasons for termination; confidential
270information.-
271     (3)  Any information, document, record, or statement
272furnished to the department or office under subsection (1) is
273confidential and exempt from the provisions of s. 119.07(1)
274and s. 24(a), Art. I of the State Constitution. This subsection
275is subject to the Open Government Sunset Review Act in
276accordance with s. 119.15 and shall stand repealed on October 2,
2772015, unless reviewed and saved from repeal through reenactment
278by the Legislature.
279     Section 8.  Section 637.30147, Florida Statutes, is amended
280to read:
281     637.30147  Procedure for refusal, suspension, or revocation
282of license; confidential information.-
283     (1)  If any licensee is convicted of a violation of this
284code or a felony, the licenses and appointments of such
285person shall be immediately revoked by the department. The
286licensee may subsequently request a hearing pursuant to ss.
287120.569 and 120.57, and the department shall expedite any such
288requested hearing. The sole issue at such hearing shall be
289whether the revocation should be rescinded because such person
290was not in fact convicted of a violation of this code or a
291felony.
292     (2)  The papers, documents, reports, and items of evidence
293of the department relative to a hearing for revocation or
294suspension of a license or appointment pursuant to the provisions
295of this chapter and chapter 120 are confidential and exempt from
296the provisions of s. 119.07(1) and s. 24(a), Art. I of the State
297Constitution until after the same have been published at the
298hearing. However, such papers, documents, reports, or items
299of evidence are subject to discovery in a hearing for
300revocation or suspension of a license or appointment. This
301subsection is subject to the Open Government Sunset Review Act
302in accordance with s. 119.15 and shall stand repealed on October
3032, 2015, unless reviewed and saved from repeal through
304reenactment by the Legislature.
305     Section 9.  Section 637.30295, Florida Statutes, is amended
306to read:
307     637.30295  Collection of title insurance information;
308confidential information.-
309     (1)  Each title insurance agency licensed to do business in
310this state and each insurer doing direct, retail or affiliated
311business in this state shall maintain and submit information,
312including revenue, loss, and expense data, as the department
313determines to be necessary to assist in the analysis of title
314insurance premium rates, title search costs, and the condition
315of the title insurance industry in this state. This information
316must be transmitted to the department no later than March 31 of
317each year following the reporting year. The department shall
318adopt rules to assist in the collection and analysis of the data
319from the title insurance industry.
320     (2)  The financial information supplied by each licensee is
321confidential and exempt from the provisions of s. 119.07(1) and
322s. 24(a), Art. I of the State Constitution to prevent disclosure
323of private information of that licensee to the public. However,
324the total combined responses of all the agencies and
325reporting entities may be disclosed to the public as long as the
326specific identities of the licensees are not revealed. This
327subsection is subject to the Open Government Sunset Review Act
328in accordance with s. 119.15 and shall stand repealed on October
3292, 2015, unless reviewed and saved from repeal through
330reenactment by the Legislature.
331     Section 10.  The Legislature finds that it is a public
332necessity that proprietary business information relating to the
333title insurance industry, title insurers, and title insurance
334agents, including, but not limited to, trade secrets, be made
335confidential and exempt from s. 24(a), Art. I of the State
336Constitution and s. 119.07(1), Florida Statutes. The disclosure
337of information, such as revenue, loss expense data, analyses of
338gross receipts, the amount of taxes paid, the amount of capital
339investment, customer identification, the amount of employee
340wages paid, and the detailed documentation to substantiate such
341performance information, could injure a business in the
342marketplace by providing its competitors with detailed insights
343into the financial status and the strategic plans of the
344business, thereby diminishing the advantage that the business
345maintains over competitors that do not possess such information.
346Without this exemption, title insurance agencies and title
347insurers, whose records are generally not required to be open to
348the public, may refrain from providing accurate and unbiased
349data and would thus impair the Department of Financial Services
350in setting fair and adequate title insurance rates. Proprietary
351business information derives independent economic value, actual
352or potential, from not being generally known to, and not being
353readily ascertainable by proper means by, other persons who can
354derive economic value from its disclosure or use. The Department
355of Financial Services, or any subsidiary or contractor of the
356department, in performing its lawful duties and
357responsibilities, may need to obtain from the proprietary
358business information. Without an exemption from public records
359requirements for proprietary business information held by the
360department or its designee, such information becomes a public
361record when received and must be divulged upon request.
362Divulgence of any proprietary business information under public
363records laws would destroy the value of that property to the
364proprietor causing a financial loss not only to the proprietor
365but also to the citizens of this state due to loss of reliable
366financial data necessary for fair and adequate rate regulation.
367Release of proprietary business information would give business
368competitors an unfair advantage and weaken the position of the
369proprietor of the proprietary business information in the
370marketplace. The harm to businesses in the marketplace and to
371the effective administration of the ratemaking function caused
372by the public disclosure of such information far outweighs the
373public benefits derived from its release. In addition, the
374confidentiality provided by the amendments to Florida Statutes
375made by this act shall not preclude the reporting of statistics
376in the aggregate concerning the collection of data, as well as
377the names of the title insurance agencies and title insurers
378participating in the data collection. Such aggregate reported
379data should be available to the public and is important to an
380assessment of the setting of title insurance premiums. Thus, the
381Legislature declares that it is a public necessity that
382proprietary business information of title insurers, title
383insurance agents, and the title insurance industry held by the
384Department of Financial Services, or any subsidiary, contractor,
385or agent of the department, be made confidential and exempt from
386s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the
387State Constitution.
388     Section 11.  This act shall take effect October 1, 2010,
389only if House Bill 853 or similar legislation is adopted in the
390same legislative session or an extension thereof and becomes
391law.


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