First Amendment Foundation: 2012 legislative review, presession report
The following is a list of the bills we will be tracking throughout the 2012 Legislative Session. As usual, we have selected those bills with open government and first amendment implications we think will be of interest to our members. After the summary of each open government bill, you will find an easily recognizable indication of whether the bill is good or bad. Under this reporting system, G = Good and B = Bad. Those bills that are neither good nor bad will not be marked. If we’re not sure of a bill, it will be marked with ???. Bills of interest which do not necessarily affect the public’s right of access to records or meetings will be marked WATCH.
During session, we will report any activity on these bills, as well as any new legislation that may be filed, on a weekly basis. Bills are listed in numerical order. We suggest you keep this pre-session report, as the weekly reports may not contain a complete description of all the bills.
Open Government Sunset Review (OGSR): Under the Open Government Sunset Review Act of 1995, all exemptions to the Sunshine Law and Public Records Law must be reviewed and reenacted by the Legislature five years after the date of enactment, or the exemption will automatically “sunset”. The 2012 Legislature will be reviewing all exemptions created in 2007. Those bills will be included in our legislative reports and are designated “OGSR”.
CRIMINAL RECORDS AND INFORMATION
SB 666 Sealing/Juvenile Criminal History Records: Requires the automatic sealing of a juvenile’s criminal history record once the juvenile has completed all sentences unless the juvenile was transferred to the adult criminal system. Creates s. 943.05825. Sen. Chris Smith (D-West Palm Beach) B
HB 351 Exemption/Donors – Performing Arts CentersExempts information that would identify a donor or prospective donor to publicly owned performing arts centers if the donor or prospective donor wants to remain anonymous. Companion to SB 570. Rep. George Moraitis (R-Fort Lauderdale)
● Reported favorably by both the H. Governmental Operations Subcommittee and the H. State Affairs Committee. Now on H. Calendar.
→SB 570 Exemption/Donors – Performing Arts Centers: Companion to HB 351. Sen. Jeremy Ring (R-Margate)
● Reported favorably by the S. Community Affairs Committee. >Scheduled for consideration by S. Governmental Oversight on January 9 at 1:00 pm, room 110, Senate Office Building.
SB 374 Exemption/Donors – Historic Capitol Museum: Exempts information that would identify a donor or prospective donor to the Legislative Research Center and Museum at the Historic Capitol if the donor or prospective donor wants to remain anonymous. Amends s. 272.136, F.S. Companion to HB 539. Sen. Nancy Detert (R-Venice)
● Reported favorably by the S. Governmental Oversight Committee. Now on S. Calendar.
→HB 539 Exemption/Donors – Historic Capitol Museum: Companion to SB 374. Rep. Jim Frishe (R-Belleair Bluffs)
● Reported favorably by the H. Government Operations Subcommittee. Now in H. Rules & Calendar.
SB 810 OGSR/Donors – House Museums: Section 267.076, F.S., makes confidential and exempt information that would identify a donor or prospective donor to a publicly owned house museum designated by the United State Department of Interior as a National Historic Landmark if the donor or prospective donor desires to remain anonymous. SB 810 reenacts the exemption without modification. Reenacts s. 267.076, F.S. Companion to HB 7015. S. Environmental Preservation & Conservation Committee
● >Scheduled for consideration by S. Environmental Preservation & Conservation on January 9 at 10:00 am in room 110, Senate Office Building .
→HB 7015 OGSR/Donors – House Museums: Companion to SB 810. H. Governmental Operations Subcommittee
SB 832 OGSR/Donors – Historic St. Augustine: Section 267.1736(9), F.S., makes confidential and exempt information that would identify a donor or prospective donor to the direct support organization for Historic St. Augustine, housed at the University of Florida, if the donor or prospective donor desires to remain anonymous. SB 832 reenacts the exemption without modification. Reenacts s. 267.01736(9), F.S. Companion to HB 7017. S. Higher Education Committee
→HB 7017 OGSR/Donors – Historic St. Augustine: Companion to SB 832. H. Governmental Operations Subcommittee
SB 798 OGSR/Florida Opportunity Fund: This exemption protects: (1) proprietary confidential business information (defined in the exemption) concerning alternative investments (also defined), for 10 years after the termination of the investment; (2) the identity of investors or potential investors in projects reviewed by the fund who wish to remain anonymous; and (3) materials that relate to methods of manufacture or production, potential trade secrets, or patentable material that is received or discovered during research by universities which is held by the Florida Opportunity Fund or the Institute for the Commercialization of Public Research. There is also an exemption for portions of meetings of the boards of the Fund or Institute during which exempt information is presented or discussed. However, the closed portions of such meetings must be recorded and transcribed, and the transcribed minutes are subject to disclosure under some specified conditions. SB 798 reenacts the exemption with some changes, most notably shortening the period of protection from 10 years to 7. Reenacts s. 288.9626, F.S. S. Commerce & Tourism Committee
● Scheduled for consideration by S. Commerce & Tourism January 9 at 3:15 pm in room 401, Senate Office Building.
SB 1206 OGSR/Economic Development Records: Section 288.075, F.S., includes public record exemptions for economic development program records and economic incentive program records. This is a complicated exemption and we’ve broken it down to make it easier to understand the two separate economic development programs protected under the exemption:
1. Economic Development Program Records: Economic development programs are offered by state and local economic development agencies to private companies interested in moving to Florida or expanding current business operations in the state. The exemption for economic development program records is broad and protects a wide variety of information obtained by an economic development agency from private companies or corporations interested in locating, relocating, or expanding their business operations in Florida. However, the exemption applies only if the company or corporation provides a written request for confidentiality. Here are the exemptions in s. 288.075(2), F.S., which apply to economic development program records:
a) A private corporation’s plan to locate, relocate, or expand business operations is exempt for up to 24 months after an economic development agency receives a request for confidentiality.
b) Trade secrets held by an economic development agency are confidential and exempt and are not subject to public disclosure.
c) Proprietary confidential business information held by an economic development agency, including business plans, internal auditing controls and reports, reports of external auditors for privately-held companies, etc., is confidential and exempt and is not subject to public disclosure except under court order.
d) Identification, account and registration numbers, such as a federal employer identification number, an unemployment compensation number, or a Florida sales tax registration number, held by an economic development agency are confidential and exempt and are not subject to public disclosure.
Economic development program records are exempt for 12 months after the request for confidentiality is received or until the information is otherwise disclosed, and the period of confidentiality can be extended for an additional 12 months upon request.
2. Economic Incentive Program Records: A tax incentive program allows tax refunds or credits to qualified businesses in return for their pledge to create a certain number of jobs in Florida. The economic incentive program records exemption, s. 288.075(6), F.S., is also very broad, and protects the following information for the duration of the incentive agreement or until an incentive agreement is terminated:
a) Anticipated wages for the project jobs that the business plans to create;
b) The average wage actually paid by the business for those jobs created by the project which is held as evidence that the company complied with the program requirements; and
c) The amount of various taxes paid by the qualified business.
The exemption allows an economic development agency to release the names of qualified business, the total number of jobs each business expects to create; the total number of jobs actually created; and the amount of tax refunds, tax credits, or incentives awarded to and claimed by each business.
SB 1206 narrows the exemption in a number of ways. First, it amends s. 288.075(2)(a) to stipulate that the private company or corporation must provide a written request for confidentiality before an economic incentive agreement is signed and then states that the information will remain exempt for 12 months after the request for confidentiality or for 90 days after the signing of an economic incentive agreement or until the information is otherwise disclosed, whichever occurs first.
The bill also narrows s. 288.075(6) by deleting the exemption for the (1) the anticipated wages for the project jobs the business plans to create, and (2) the average wage actually paid by the business for those jobs created by the project. SB 1206 stipulates that the following information is subject to public disclosure 90 days after an economic incentive agreement is signed: (1) the name of the qualified business; (2) the total number of jobs the business committee to create or retain; (3) the total number of jobs actually created or retained by the business; (4) the amount of tax refunds, tax credits, or incentives awarded to and claimed by the business; and (5) the anticipated total annual wages of employees the business committed to hire or retain. Amends s. 288.075, F.S. S. Commerce & Tourism Committee
ETHICS AND ELECTIONS
SB 306 Exemption/Ethics Complaints Creates a public records exemption for records relating to a determination by the Ethics Commission that a complaint is legally sufficient to conduct an investigation into alleged violations of ethics regulations. The exemption expires once the complaint is dismissed, the subject of the complaint requests that the records be disclosed, the commission determines that it won’t investigate the complaint, or probable cause is determined. Also creates an exemption for Commission meetings at which such determinations are discussed. Amends s. 112.324, F.S. Sen. Mike Fasano (R-New Port Richey)
SB 446 OGSR/Insurance Claim Exchange Data: Under this program, insurers voluntarily provide insurance claim data, including their name, address and social security number, to the Department of Revenue. The DOR takes such information and checks it against a database of non-custodial parents who owe past-due child support. Section 409.25661, F.S., makes confidential and exempt the personal information obtained by the Department of Revenue until such time as the department determines whether a match exists. If a match exists, the information becomes available for public disclosure. If a match does not exist, the information is destroyed. This exemption was originally created in 2004 and was up for sunset review in 2009; however, the program was not fully functioning at that point, and the review date was reset. SB 446 reenacts the exemption with only minor, technical amendments. Reenacts s. 409.25661. Companion to HB 7019. S. Children, Families & Elder Affairs Committee
● Reported favorably by S. Children, Families & Elder Affairs Committee. Scheduled for consideration by S. Governmental Oversight on January 9 at 1:00 pm in room 110, Senate Office Building
→HB 7019 OGSR/Insurance Claim Exchange Data: Companion to SB 446. H. Government Operations Subcommittee
HB 645 Exemption/Title Insurance Information: Requires title insurance companies to maintain and submit information, including revenue, loss, and expense data, to the Department of Financial Services so that DFS can better analyze title insurance premium rates, title search costs, and the financial stability and viability of title insurance companies. HB 645 also creates a public record exemption for all financial information submitted to DFS by the title insurance companies, stating that the department may release the total combined responses so long as the identity of the insurance companies is not disclosed. Creates section 626.84195, F.S. Companion to SB 1406. Rep. George Moraitis, Jr. (R-Fort Lauderdale)
→SB 1406 Exemption/Title Insurance Information: Companion to HB 645. Sen. Thad Altman (R-Melbourne)
SB 1230 OGSR/Consumer Complaints — Florida Insurance Code: Section 624.23, F.S., makes confidential and exempt personal financial and health information held by the Department of Financial Services relating to a consumer complaint or inquiry filed under the Florida Insurance Code or Workers’ Compensation Employee Assistance and Ombudsman Office. This statute makes confidential and exempt personal financial and health information held by the Department of Financial Services relating to a consumer complaint or inquiry filed under the Florida Insurance Code. SB 1230 reenacts the exemption without change or modification. Reenacts s. 624.23, F.S. S. Banking & Insurance Committee
SB 584 Exemption/Dental Workforce Surveys: Creates a public record exemption for all personal identifying information provided by dentists and dental hygienists in dental workforce surveys. Companion to HB 811. Sen. Garrett Richter (R-Naples)
● Scheduled for consideration by S. Health Regulation on January 12 at 10:15 am in room 412, Knott Building.
→HB 811 Exemption/Dental Workforce Surveys: Companion to SB 584. Rep. Gayle Harrell (R-Port St. Lucie)
SB 830 OGSR/Physician Workforce Survey Physician workforce surveys are required for physicians and osteopathic physicians who are renewing their professional licenses. Sections 458.3193 and 459.0083, F.S., make confidential and exempt all personal identifying information contained in those surveys. SB 830 reenacts the exemptions with only minor technical changes. Reenacts and amends ss. 458.3193 and 459.0083, F.S. S. Health Regulation Committee
● Scheduled for consideration by S. Health Regulation on January 12 at 10:15 am in room 412, Knott Building.
SB 1232 OGSR/DHSMV – Personal Identifying Information: Section 324.242, F.S., protects personal identifying information, and the policy numbers, of anyone insured or formerly insured under personal injury protection and property damage liability insurance policies held by the Florida Department of Highway Safety and Motor Vehicles. SB 1232 reenacts the exemption with only minor, technical changes. Reenacts s. 324.242, F.S. S. Banking & Insurance Committee
SB 1208 OGSR/Unclaimed Property Reports: Section 717.117(8) exempts social security numbers and property identifiers contained in unclaimed property reports held by the Department of Financial Services. Attorneys and certified public accounts registered with the department as well as licensed private investigators can get access to the exempt social security numbers for the sole purpose of locating owners of abandoned or unclaimed property.SB 1208 amends the exemption by deleting the language allowing access by attorneys, public accountants, and private investigators which means that social security numbers and property identifiers contained in unclaimed property reports are exempt from public disclosure and cannot be released. Amends s. 717.117(8), F.S. S. Banking & Insurance Committee
SB 1284 Exemption/Personal Information – Toll Facilities: Section 338.155(6), F.S., provides an exemption for personal identifying information of those using credit cards or checks for the prepayment of electronic tolls. This bill expands the exemption to protect the name, address, credit card or debit number, bank and account information, or other personal financial information acquired by the Department of Transportation, a county, or an expressway authority for the purpose of paying, prepaying, or collecting tolls and other amounts due for the use of toll facilities. Amends s. 338.155, F.S. Sen. Mike Fasano (R-New Port Richey) ???
HB 7013 OGSR/Census Bureau Address Information: Section 119.071(1)(g), F.S., exempts United States Census Bureau address information, including maps showing structure location points, agency records verifying addresses, and agency records identifying address errors or omissions, held by an agency pursuant to the Local Update of Census Addresses Program under Federal law. HB 7013 repeals the exemption. Repeals s. 119.071(1)(g), F.S. H. Governmental Operations Subcommittee
HB 491 Exemption/State Gaming Commission: Creates a number of public record exemptions for information held by the State Gaming Commission, including: (1) trade secrets; (2) proprietary confidential business information; (3) federal employer identification numbers, unemployment compensation account numbers, and Florida sales tax registration numbers; and (4) information that would reveal investigation techniques and procedures. HB 491 defines “proprietary confidential business information” as information that is owned or controlled by a gaming licensee that has been kept private by the licensee and concerns the licensee’s business plans, internal auditing controls, and external audit reports. Creates s. 551.303, F.S. Companion to SB 714. Rep. Erik Fresen (R-Miami)
→ SB 714 Exemption/State Gaming Commission: Companion to HB 491. Sen. Ellyn Bogdanoff (R-Fort Lauderdale)
SB 844 OGSR/Sunshine State One-Call: Sunshine State One-Call of Florida, Inc., is as a not-for-profit corporation, and state law requires that anyone who furnishes or transports materials or services by means of an underground facility must be a member of the corporation and must use and participate in the free-access notification system. The purpose of the system is to receive notification of planned excavation or demolition activities and to notify member operators so they may mark underground facilities to avoid damage to those underground facilities. Section 556.113, F.S., makes exempt “proprietary confidential business information” held by Sunshine State One-Call of Florida, Inc., for the purpose of describing the extent and root cause of damage to an underground facility or using the member ticket management software system.SB 844 reenacts the exemption without modification. Reenacts s. 556.113, F.S. S. Communications, Energy & Public Utilities Committee
● Scheduled for consideration by S. Communications, Energy & Public Utilities at 8:00 am in room 110, Senate Office Building.
HB 629 Exemption/Telephone Numbers and Dates of Birth: Section 119.071(4)(d), F.S., exempts the home addresses of various government employees – law enforcement personnel, firefighters, judges, public defenders, prosecutors, code enforcement officers, and others – as well as employment and school information for the spouses and children of such employees. HB 629 expands the exemption to also exempt telephone numbers and the dates of birth for the employees and families included within the exemption. “Telephone numbers” is defined to include not only home and personal telephone and pager numbers, but also cellular and pager numbers associated with agency “communications devices issued or assigned to agency personnel.” Amends s. 119.071(4)(d), F.S. Companion to SB 916. Rep. Ed Hooper (R-Clearwater) B
→SB 916 Exemption/Telephone Numbers and Dates of Birth: Companion to HB 629. Sen. Steve Oelrich (R-Gainesville) B
SB 878 Evaluations/University and College Presidents: Stipulates that performance evaluations of university and college presidents are not exempt from the public records law and are therefore subject to public disclosure under s. 119.07, F.S. Amends s. 1012.81, F.S. Sen. Lizbeth Benacquisto (R-Wellington) G
SB 906 Exemption/Home Addresses – DBPR: Creates a public record exemption for the home addresses, telephone numbers, and photographs of current and former investigators and inspectors of the Department of Business and Professional Regulation. Also exempts the names, home addresses, telephone numbers, and place of employment of the spouses and children of such investigators and inspectors, as well as the names and locations of schools and day care facilities attended by their children. Stipulates that the exemption will apply only if the investigators and inspectors have shown that they’ve made a reasonable effort to protect such information through other, publicly-available sources. Creates s. 119.071(4)(d)1.k, F.S. Companion to HB 1089. Sen. Alan Hays (R-Umatilla)
→HB 1089 Exemption/Home Addresses – DBPR: Companion to SB 906. Rep. Janet Adkins (R-Fernandina Beach)
SB 1464 Application of Open Government Laws to Officers-Elect: Amends the public records law to specify that those elected to public office are subject to the requirements of the law upon their election, requiring that they (1) “adopt and implement reasonable measures to ensure compliance” with chapter 119, F.S., and (2) comply with the record retention requirements of the office to which they were elected. Also amends the open meetings law to stipulate that officers-elect are subject to open meetings requirements. Creates s. 119.035, F.S., and amends s. 286.011(1), F.S. Sen. Don Gaetz (R-Destin) G
PUBLIC HEALTH AND SAFETY
HB 791 Exemption/Identity of Children: There is legislation filed (HB 731) that, in part, requires a registered sex offender or sexual predator to report the name and age of children permanently residing with the offender or predator. HB 791 creates a public record exemption for the name, age, and location of a child living in a home with a registered sex offender or sexual predator contained in records held by a law enforcement agency. Creates s. 775.2155. Companion to SB 1012. Rep. Janet Cruz (D-Tampa)
→SB 1012 Exemption/Identity of Children: Companion to HB 731 and SB 1004. Sen. Maria Lorts Sachs (D-Delray)
SB 1096 Exemption/Sexual Offenders Notification System: Creates a public record exemption for email and physical addresses provided to FDLE when a person registers for the automatic sexual offender notification system. Creates s. 943.44353(3), F.S. Sen. Alan Hays (R-Umatilla)
HB 1193 Exemption/Victims of Violence: Creates a public record exemption for the home and employment telephone numbers, cell phone numbers, home or employment addresses, e-mail addresses of victims of specified violent crimes (domestic violence, repeat violence, sexual violence, and dating violence) provided to the Florida Association of Court Clerks and Comptrollers in order for the victims to receive automatic notification when a restraining order requested by the victim has been served. Requires the victims to request protection of their personal information in writing and stipulates that the information will be subject to public disclosure five years after the written request is received. Amends s. 784.046(8)(c)5., F.S. Companion to SB 1390. Rep. Mia Jones (D-Jacksonville)
→SB 1390 Exemption/Victims of Violence: Companion to HB 1193. Sen. Arthenia Joyner (D-Tampa)
HB 657 Exemption/Biomedical Research: Creates a public record and meeting exemption for the peer review panels of the James and Esther King Biomedical Research Program and the William G. “Bill” Bankhead, Jr., and David Coley Cancer Research Program, allowing such panels to review the funding of grant proposals privately. Amends ss. 215.5602 and s. 381.922, F.S. Rep. Marti Coley (R-Marianna) B
HB 149 Website Notice/Foreclosure Actions: HB 149 allows publication of legal notice of a foreclosure action on a publicly accessible website of the clerk of court “in lieu of publication in any other form of media.” Requires that such notice be posted within three days after the date for the foreclosure sale is set. The phrase “publicly accessible website” is defined in the bill. Creates s. 50.015, F.S., and amends s. 702.035. Companion to SB 230. Rep. Dennis Baxley (R-Ocala) B
→SB 230 Website Notice/Foreclosure Actions: Companion to HB 149. Sen. Stephen Wise (R-Jacksonville)
HB 937 Publication/Legal Notice: Most importantly, requires newspapers publishing legal notices to also place such notices on a statewide website that is free and publicly available. Rep. Ritch Workman (R-Melbourne) G
SB 292 Public Notices Allows cities and counties to publish legal advertisements and public notices on the home page of their official websites if a local public library or other government facility provides free Internet access during regular business hours and the city or county allows residents to receive all such advertisements or notices by mail or email. Creates s. 50.0311, F.S., and amends various other statutes. Sen. Mike Bennett (R-Bradenton) B
>● Scheduled for consideration by the S. Community Affairs Committee on January 12 at 8:00 am in room 412, Knott Building.
RIGHT TO SPEAK
SB 206 Public Meetings/Right to Speak: Requires boards and commissions to provide members of the public a reasonable opportunity to speak on items of “significant interest to the public” that are within the subject matter jurisdiction of the board or commission, subject to reasonable rules ensuring orderly conduct. Stipulates that resolutions, rules, or formal action won’t be binding if a commission or board fails to comply with the requirement. SB 206 also includes some limitations on the right to speak, stating that the right doesn’t apply to: official acts that are taken in emergency situations and compliance would cause an unreasonable delay in the ability to act; an official act involving nothing more than a ministerial act; or meetings at which the board or commission is acting in a quasi-judicial capacity with respect to the rights or interests of a person. Amends s. 286.011, F.S. Companion to HB 355. Sen. Joe Negron (R-Palm City ) G
● Scheduled for consideration by the S. Rules Subcommittee on Ethics & Elections on January 11 at 10:15 am in Room 412, Knott Building.
→HB 355 Public Meetings/Right to Speak: Companion to SB 206. Rep. Marty Kiar (R-Parkland) G
USE OF COMMUNICATIONS TECHNOLOGY
HB 231 Meetings and Workshops/Interlocal Agreements The Florida Interlocal Cooperation Act of 1969 allows public agencies to enter into contracts – interlocal agreements – allowing the agencies act jointly to provide shared services. The interlocal agreements are generally administered by boards or commissions which are subject to Florida’s open government laws. HB 231 allows an interlocal board or commission to conduct public meetings and workshops by means of “communications media technology” if the board or commission has member public agencies in at least 10 counties. “Communications media technology” is defined as conference telephone, video conference or other communications technology by which everyone attending the meeting or workshop can audibly communicate. Notice for such meetings or workshops must state that communications media technology will be used and specify how those who want to attend can do so. Amends s. 163.01, F.S. Companion to SB 396. Rep. Mike Horner (R-Kissimmee)
● Reported favorably by both the H. Governmental Operations Subcommittee and the H. Community Affairs Subcommittee. Now in H. State Affairs.
→SB 396 Meetings and Workshops/Interlocal Agreements: Companion to HB 231. Sen. Steve Oelrich (R-Gainesville)
● Reported favorably by the S. Community Affairs Committee. Now in S. Communications.