Florida Senate - 2016                                    SB 1650
       
       
        
       By Senator Brandes
       
       24-01617-16                                           20161650__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         112.3188, F.S.; revising an exemption from public
    4         records requirements for the identities of informants
    5         and investigatory information held by the Chief
    6         Inspector General, agency inspectors general, and
    7         other appropriate local officials; revising
    8         requirements providing for the disclosure of
    9         confidential information to specified persons or
   10         entities; conforming cross-references; providing for
   11         future legislative review and repeal of the exemption;
   12         providing a statement of public necessity; providing a
   13         contingent effective date.
   14          
   15  Be It Enacted by the Legislature of the State of Florida:
   16  
   17         Section 1. Section 112.3188, Florida Statutes, is amended
   18  to read:
   19         112.3188 Confidentiality of information given to the Chief
   20  Inspector General, internal auditors, inspectors general, local
   21  chief executive officers, or other appropriate local officials.—
   22         (1) The name or identity of any individual who discloses in
   23  good faith to the Chief Inspector General or an agency inspector
   24  general, a local chief executive officer, or other appropriate
   25  local official information that alleges that an employee or
   26  agent of an agency or independent contractor:
   27         (a) Has violated or is reasonably suspected of having
   28  violated any federal, state, or local law, rule, or regulation,
   29  thereby creating and presenting a substantial and specific
   30  danger to the public’s health, safety, or welfare; or
   31         (b) Has committed an act of gross mismanagement, gross
   32  misconduct, malfeasance, misfeasance, gross waste of public
   33  funds, or gross neglect of duty,
   34  
   35  may not be disclosed to anyone other than a member of the Chief
   36  Inspector General’s, agency inspector general’s, internal
   37  auditor’s, local chief executive officer’s, or other appropriate
   38  local official’s staff, or the staff of the Florida Commission
   39  on Human Relations, without the written consent of the
   40  individual, unless the Chief Inspector General, internal
   41  auditor, agency inspector general, local chief executive
   42  officer, or other appropriate local official determines that:
   43  the disclosure of the individual’s identity is necessary to
   44  prevent a substantial and specific danger to the public’s
   45  health, safety, or welfare, or to prevent the imminent
   46  commission of a crime, and the information is disclosed only to
   47  persons who are in a position to prevent the danger to the
   48  public’s health, safety, or welfare or to prevent the imminent
   49  commission of a crime; or the disclosure of the individual’s
   50  identity is unavoidable and absolutely necessary during the
   51  course of the audit, evaluation, or investigation. The
   52  disclosure of the individual’s identity may also be authorized
   53  if the individual consents in writing to attach general comments
   54  signed by such individual to the final report required pursuant
   55  to s. 112.3189(6)(b).
   56         (2)(a) Except as specifically authorized by s. 112.3189,
   57  all information received by the Chief Inspector General or an
   58  agency inspector general or information produced or derived from
   59  fact-finding or other investigations conducted by the Florida
   60  Commission on Human Relations or the Department of Law
   61  Enforcement is confidential and exempt from s. 119.07(1) and s.
   62  24(a), Art. I of the State Constitution, if the information is
   63  being received or derived from allegations as set forth in
   64  paragraph (1)(a) or paragraph (1)(b), and an investigation is
   65  active.
   66         (b) All information received by a local chief executive
   67  officer or appropriate local official or information produced or
   68  derived from fact-finding or investigations conducted pursuant
   69  to the administrative procedure established by ordinance by a
   70  local government as authorized by s. 112.3187(7)(b) s.
   71  112.3187(8)(b) is confidential and exempt from s. 119.07(1) and
   72  s. 24(a), Art. I of the State Constitution, if the information
   73  is being received or derived from allegations as set forth in
   74  paragraph (1)(a) or paragraph (1)(b) and an investigation is
   75  active.
   76         (c) Information deemed confidential under this section may
   77  be disclosed by the Chief Inspector General, agency inspector
   78  general, internal auditor, the Florida Commission on Human
   79  Relations, local chief executive officer, or other appropriate
   80  local official receiving the information if the recipient
   81  determines that the disclosure of the information is absolutely
   82  necessary to prevent a substantial and specific danger to the
   83  public’s health, safety, or welfare or to prevent the imminent
   84  commission of a crime. Information disclosed under this
   85  subsection may be disclosed only to persons who are in a
   86  position to prevent the danger to the public’s health, safety,
   87  or welfare or to prevent the imminent commission of a crime
   88  based on the disclosed information.
   89         1. An investigation is active under this section if:
   90         a. It is an ongoing investigation or inquiry or collection
   91  of information and evidence and is continuing with a reasonable,
   92  good faith anticipation of resolution in the foreseeable future;
   93  or
   94         b. All or a portion of the matters under investigation or
   95  inquiry are active criminal intelligence information or active
   96  criminal investigative information as defined in s. 119.011.
   97         2. Notwithstanding sub-subparagraph 1.a., an investigation
   98  ceases to be active when:
   99         a. The written report required under s. 112.3189(9) has
  100  been sent by the Chief Inspector General to the recipients named
  101  in s. 112.3189(9);
  102         b. It is determined that an investigation is not necessary
  103  under s. 112.3189(5); or
  104         c. A final decision has been rendered by the local
  105  government or by the Division of Administrative Hearings
  106  pursuant to s. 112.3187(7)(b) s. 112.3187(8)(b).
  107         3. Notwithstanding paragraphs (a), (b), and this paragraph,
  108  information or records received or produced under this section
  109  which are otherwise confidential under law or exempt from
  110  disclosure under chapter 119 retain their confidentiality or
  111  exemption.
  112         4. Any person who willfully and knowingly discloses
  113  information or records made confidential under this subsection
  114  commits a misdemeanor of the first degree, punishable as
  115  provided in s. 775.082 or s. 775.083.
  116         (3)This section is subject to the Open Government Sunset
  117  Review Act in accordance with s. 119.15 and shall stand repealed
  118  on October 2, 2021, unless reviewed and saved from repeal
  119  through reenactment by the Legislature.
  120         Section 2. The Legislature finds that it is a public
  121  necessity that the name and identity of any individual who
  122  discloses in good faith to the Chief Inspector General or an
  123  agency inspector general, a local chief executive officer, or
  124  other appropriate local official information that alleges an
  125  employee or agent of an agency or independent contractor has
  126  violated or is reasonably suspected of having violated any
  127  federal, state, or local law, rule, or regulation or has
  128  committed an act of gross mismanagement, gross misconduct, gross
  129  waste of public funds, or gross neglect of duty, and all
  130  information produced or derived from fact-finding or the
  131  investigation of such allegations, be held confidential and
  132  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  133  Article I of the State Constitution while the investigation is
  134  active. Such whistleblower information and the names or
  135  identities of the individuals disclosing such information, if
  136  publicly available, could contribute to cover-up or retaliatory
  137  action, impede the effective and efficient operation of
  138  investigatory functions, or cause a chilling effect that deters
  139  such individuals, including employees or former employees of an
  140  agency or an agency’s independent contractor, from reporting
  141  observed occurrences of such violations, mismanagement,
  142  misconduct, waste of public funds, or neglect of duty.
  143         Section 3. This act shall take effect on the same date that
  144  SB ____ or similar legislation takes effect, if such legislation
  145  is adopted in the same legislative session or an extension
  146  thereof and becomes a law.