Senate Bill 0274

Senate Bill sb0274

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    Florida Senate - 2002                                   SB 274

    By the Committee on Governmental Oversight and Productivity





    302-292-02

  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         119.01, F.S.; establishing state policy with

  4         respect to public records; requiring that

  5         governmental agencies provide data in a common

  6         format; requiring governmental agencies to

  7         consider certain factors in designing or

  8         acquiring electronic recordkeeping systems;

  9         providing certain restrictions with respect to

10         electronic recordkeeping systems and

11         proprietary software; requiring governmental

12         agencies to provide copies of public records

13         stored in electronic recordkeeping systems;

14         specifying circumstances under which the

15         financial, business, and membership records of

16         an organization are public records; amending s.

17         119.011, F.S.; providing definitions; repealing

18         ss. 119.0115, 119.012, 119.02, F.S., relating

19         to videotapes and video signals, records made

20         public by use of public funds, and penalties;

21         amending s. 119.021, F.S.; providing

22         requirements for governmental agencies in

23         maintaining and preserving public records;

24         requiring the Division of Library and

25         Information Services of the Department of State

26         to adopt rules for retaining and disposing of

27         public records; authorizing the division to

28         provide for archiving certain noncurrent

29         records; providing for the destruction of

30         certain records and the continued maintenance

31         of certain records; providing for the

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  1         disposition of records at the end of an

  2         official's term of office; requiring that a

  3         custodian of public records demand delivery of

  4         records held unlawfully; repealing ss. 119.031,

  5         119.041, 119.05, 119.06, F.S., relating to the

  6         retention and disposal of public records and

  7         the delivery of records held unlawfully;

  8         amending s. 119.07, F.S.; revising provisions

  9         governing the inspection and copying of public

10         records; establishing fees for copying;

11         providing requirements for making photographs;

12         authorizing additional means of copying;

13         repealing ss. 119.08, 119.083, F.S., relating

14         to requirements for making photographs of

15         public records and the licensing and sale of

16         copyrighted data-processing software; amending

17         s. 119.084, F.S.; deleting certain provisions

18         governing the maintenance of public records in

19         an electronic recordkeeping system; repealing

20         ss. 119.085, 119.09, F.S., relating to remote

21         electronic access to public records and the

22         program for records and information management

23         of the Department of State; amending s. 119.10,

24         F.S.; clarifying provisions with respect to

25         penalties for a violation of ch. 119, F.S.;

26         amending s. 119.105, F.S.; clarifying

27         provisions under which certain police reports

28         may be exempt from the public-records law;

29         providing an effective date.

30

31  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  Section 119.01, Florida Statutes, is

  2  amended to read:

  3         119.01  General state policy on public records.--

  4         (1)  It is the policy of this state that all state,

  5  county, and municipal records are shall be open for personal

  6  inspection by any person unless the records are exempt from

  7  inspection.

  8         (2)  The Legislature finds that, given advancements in

  9  technology, Providing access to public records is a duty of

10  each agency by remote electronic means is an additional method

11  of access that agencies should strive to provide to the extent

12  feasible. If an agency provides access to public records by

13  remote electronic means, then such access should be provided

14  in the most cost-effective and efficient manner available to

15  the agency providing the information.

16         (3)(a)  The Legislature finds that providing access to

17  public records is a duty of each agency and that Automation of

18  public records must not erode the right of access to public

19  those records. As each agency increases its use of and

20  dependence on electronic recordkeeping, each agency must

21  ensure reasonable public access to records electronically

22  maintained and must ensure that information made exempt or

23  confidential not be disclosed to the public.

24         (b)  An agency must consider when designing or

25  acquiring an electronic recordkeeping system that such system

26  is capable of providing data in some common format such as,

27  but not limited to, the American Standard Code for Information

28  Interchange.

29         (c)  An agency may not enter into a contract for the

30  creation or maintenance of a public records database if that

31  contract impairs the ability of the public to inspect or copy

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  1  the public records of the agency, including public records

  2  that are on-line or stored in an electronic recordkeeping

  3  system used by the agency.

  4         (d)  Subject to the restrictions of copyright and

  5  trade-secret laws and public-records exemptions, agency use of

  6  proprietary software must not diminish the right of the public

  7  to inspect and copy a public record.

  8         (e)  Providing access to public records by remote

  9  electronic means is an additional method of access that

10  agencies should strive to provide to the extent feasible. If

11  an agency provides access to public records by remote

12  electronic means, such access should be provided in the most

13  cost-effective and efficient manner available to the agency

14  providing the information.

15         (f)  Each agency that maintains a public record in an

16  electronic recordkeeping system shall provide to any person,

17  pursuant to this chapter, a copy of any public record in that

18  system which is not exempted by law from public disclosure. An

19  agency must provide a copy of the record in the medium

20  requested if the agency maintains the record in that medium,

21  and the agency may charge a fee in accordance with this

22  chapter. For the purpose of satisfying a public-records

23  request, the fee to be charged by an agency if it elects to

24  provide a copy of a public record in a medium not routinely

25  used by the agency, or if it elects to compile information not

26  routinely developed or maintained by the agency or that

27  requires a substantial amount of manipulation or programming,

28  must be in accordance with s. 119.07(4).

29         (4)  If public funds are expended by an agency defined

30  in s. 119.011(2) in payment of dues or membership

31  contributions for any person, corporation, foundation, trust,

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  1  association, group, or other organization, all the financial,

  2  business, and membership records of that person, corporation,

  3  foundation, trust, association, group, or other organization

  4  which pertain to the public agency are public records and

  5  subject to the provisions of s. 119.07.

  6         (4)  Each agency shall establish a program for the

  7  disposal of records that do not have sufficient legal, fiscal,

  8  administrative, or archival value in accordance with retention

  9  schedules established by the records and information

10  management program of the Division of Library and Information

11  Services of the Department of State.

12         Section 2.  Section 119.011, Florida Statutes, is

13  amended to read:

14         119.011  Definitions.--As used in For the purpose of

15  this chapter, the term:

16         (1)  "Actual cost of duplication" means the cost of the

17  material and supplies used to duplicate the record, but it

18  does not include the labor cost or overhead cost associated

19  with such duplication. "Public records" means all documents,

20  papers, letters, maps, books, tapes, photographs, films, sound

21  recordings, data processing software, or other material,

22  regardless of the physical form, characteristics, or means of

23  transmission, made or received pursuant to law or ordinance or

24  in connection with the transaction of official business by any

25  agency.

26         (2)  "Agency" means any state, county, district,

27  authority, or municipal officer, department, division, board,

28  bureau, commission, or other separate unit of government

29  created or established by law including, for the purposes of

30  this chapter, the Commission on Ethics, the Public Service

31  Commission, and the Office of Public Counsel, and any other

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  1  public or private agency, person, partnership, corporation, or

  2  business entity acting on behalf of any public agency.

  3         (3)(a)  "Criminal intelligence information" means

  4  information with respect to an identifiable person or group of

  5  persons collected by a criminal justice agency in an effort to

  6  anticipate, prevent, or monitor possible criminal activity.

  7         (b)  "Criminal investigative information" means

  8  information with respect to an identifiable person or group of

  9  persons compiled by a criminal justice agency in the course of

10  conducting a criminal investigation of a specific act or

11  omission, including, but not limited to, information derived

12  from laboratory tests, reports of investigators or informants,

13  or any type of surveillance.

14         (c)  "Criminal intelligence information" and "criminal

15  investigative information" shall not include:

16         1.  The time, date, location, and nature of a reported

17  crime.

18         2.  The name, sex, age, and address of a person

19  arrested or of the victim of a crime except as provided in s.

20  119.07(3)(f).

21         3.  The time, date, and location of the incident and of

22  the arrest.

23         4.  The crime charged.

24         5.  Documents given or required by law or agency rule

25  to be given to the person arrested, except as provided in s.

26  119.07(3)(f), and, except that the court in a criminal case

27  may order that certain information required by law or agency

28  rule to be given to the person arrested be maintained in a

29  confidential manner and exempt from the provisions of s.

30  119.07(1) until released at trial if it is found that the

31  release of such information would:

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  1         a.  Be defamatory to the good name of a victim or

  2  witness or would jeopardize the safety of such victim or

  3  witness; and

  4         b.  Impair the ability of a state attorney to locate or

  5  prosecute a codefendant.

  6         6.  Informations and indictments except as provided in

  7  s. 905.26.

  8         (d)  The word "active" shall have the following

  9  meaning:

10         1.  Criminal intelligence information shall be

11  considered "active" as long as it is related to intelligence

12  gathering conducted with a reasonable, good faith belief that

13  it will lead to detection of ongoing or reasonably anticipated

14  criminal activities.

15         2.  Criminal investigative information shall be

16  considered "active" as long as it is related to an ongoing

17  investigation which is continuing with a reasonable, good

18  faith anticipation of securing an arrest or prosecution in the

19  foreseeable future.

20

21  In addition, criminal intelligence and criminal investigative

22  information shall be considered "active" while such

23  information is directly related to pending prosecutions or

24  appeals.  The word "active" shall not apply to information in

25  cases which are barred from prosecution under the provisions

26  of s. 775.15 or other statute of limitation.

27         (4)  "Criminal justice agency" means:

28         (a)  Any law enforcement agency, court, or prosecutor;.

29  The term also includes

30         (b)  Any other agency charged by law with criminal law

31  enforcement duties;, or

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  1         (c)  Any agency having custody of criminal intelligence

  2  information or criminal investigative information for the

  3  purpose of assisting such law enforcement agencies in the

  4  conduct of active criminal investigation or prosecution or for

  5  the purpose of litigating civil actions under the Racketeer

  6  Influenced and Corrupt Organization Act, during the time that

  7  such agencies are in possession of criminal intelligence

  8  information or criminal investigative information pursuant to

  9  their criminal law enforcement duties; or. The term also

10  includes

11         (d)  The Department of Corrections.

12         (5)  "Custodian of public records" means the elected or

13  appointed state, county, or municipal officer charged with the

14  responsibility of maintaining the office having public

15  records, or his or her designee.

16         (6)  "Data-processing software" means the programs and

17  routines used to employ and control the capabilities of

18  data-processing hardware, including, but not limited to,

19  operating systems, compilers, assemblers, utilities, library

20  routines, maintenance routines, applications, and

21  computer-networking programs.

22         (7)  "Duplicated copies" means new copies produced by

23  duplicating, as defined in s. 283.30.

24         (8)  "Exemption" means a provision of the Florida

25  Statutes which creates an exception to s. 119.07(1) or s.

26  286.011 and which applies to the executive branch of state

27  government or to local government, but it does not include any

28  provision of a special law or local law.

29         (9)  "Information technology resources" has the meaning

30  ascribed in s. 282.303(12).

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  1         (10)  "Proprietary software" means data-processing

  2  software that is protected by copyright or trade-secret laws.

  3         (11)  "Public records" means all documents, papers,

  4  letters, maps, books, tapes, photographs, films, sound

  5  recordings, date-processing software, or other material,

  6  regardless of the physical form, characteristics, or means of

  7  transmission, made or received pursuant to law or ordinance or

  8  in connection with the transaction of official business by any

  9  agency.

10         (12)  "Sensitive," for purposes of defining

11  agency-produced software that is sensitive, means only those

12  portions of data-processing software, including the

13  specifications and documentation, which are used to:

14         (a)  Collect, process, store, and retrieve information

15  that is exempt from s. 119.07(1);

16         (b)  Collect, process, store, and retrieve financial

17  management information of the agency, such as payroll and

18  accounting records; or

19         (c)  Control and direct access authorizations and

20  security measures for automated systems.

21         Section 3.  Sections 119.0115, 119.012, and 119.02,

22  Florida Statutes, are repealed.

23         Section 4.  Section 119.021, Florida Statutes, is

24  amended to read:

25         (Substantial rewording of section. See

26         s. 119.021, F.S., for present text.)

27         119.021  Custodial requirements; maintenance,

28  preservation, and retention of public records.--

29         (1)  Public records shall be maintained and preserved

30  as follows:

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  1         (a)  All public records should be kept in the buildings

  2  in which they are ordinarily used.

  3         (b)  Insofar as practicable, custodians of vital,

  4  permanent, or archival records shall keep them in fireproof

  5  and waterproof safes, vaults, or rooms fitted with

  6  noncombustible materials and in such arrangement as to be

  7  easily accessible for convenient use.

  8         (c)1.  Record books should be copied or repaired,

  9  renovated, or rebound if worn, mutilated, damaged, or

10  difficult to read.

11         2.  Whenever any state, county, or municipal records

12  are in need of repair, restoration, or rebinding, the head of

13  the concerned state agency, department, board, or commission;

14  the board of county commissioners of such county; or the

15  governing body of such municipality may authorize that such

16  records be removed from the building or office in which such

17  records are ordinarily kept for the length of time required to

18  repair, restore, or rebind them.

19         3.  Any public official who causes a record book to be

20  copied shall attest and certify on oath that the copy is an

21  accurate copy of the original book. The copy shall then have

22  the force and effect of the original.

23         (3)(a)  The Division of Library and Information

24  Services of the Department of State shall adopt rules to

25  establish retention schedules and a disposal process for

26  public records.

27         (b)  Each agency shall comply with the rules

28  establishing retention schedules and disposal processes for

29  public records which are adopted by the records and

30  information management program of the division.

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  1         (c)  Every public official shall systematically dispose

  2  of records no longer needed, subject to the consent of the

  3  records and information management program of the division in

  4  accordance with s. 257.36.

  5         (d)  The division may ascertain the condition of public

  6  records and shall give advice and assistance to public

  7  officials to solve problems related to the preservation,

  8  creation, filing, and public accessibility of public records

  9  in their custody. Public officials shall assist the division

10  by preparing an inclusive inventory of categories of public

11  records in their custody. The division shall establish a time

12  period for the retention or disposal of each series of

13  records. Upon the completion of the inventory and schedule,

14  the division shall, subject to the availability of necessary

15  space, staff, and other facilities for such purposes, make

16  space available in its records center for the filing of

17  semicurrent records so scheduled and in its archives for

18  noncurrent records of permanent value, and shall render such

19  other assistance as needed, including the microfilming of

20  records so scheduled.

21         (4)  Agency orders that comprise final agency action

22  and that must be indexed or listed pursuant to s. 120.53 have

23  continuing legal significance; therefore, notwithstanding any

24  other provision of this chapter or any provision of chapter

25  257, each agency shall permanently maintain records of such

26  orders pursuant to the applicable rules of the Department of

27  State.

28         (5)(a)  Whoever has the custody of any public records

29  shall, at the expiration of his or her term of office, deliver

30  to his or her successor or, if there be none, to the records

31  and information management program of the Division of Library

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  1  and Information Services of the Department of State, all

  2  public records kept or received by him or her in the

  3  transaction of official business.

  4         (b)  Whoever is entitled to the custody of public

  5  records shall demand them from any person having illegal

  6  possession of them, who must forthwith deliver the same to him

  7  or her. Any person unlawfully possessing public records must

  8  within 10 days deliver such records to their lawful custodian

  9  unless just cause exists for failing to deliver such records.

10         Section 5.  Sections 119.031, 119.041, 119.05, and

11  119.06, Florida Statutes, are repealed.

12         Section 6.  Section 119.07, Florida Statutes, is

13  amended to read:

14         119.07  Inspection, examination, and copying

15  duplication of records; fees; exemptions.--

16         (1)(a)  Every person who has custody of a public record

17  shall permit the record to be inspected and copied examined by

18  any person desiring to do so, at any reasonable time, under

19  reasonable conditions, and under supervision by the custodian

20  of the public record or the custodian's designee.

21         (b)  A person who has custody of a public record and

22  asserts that an exemption applies to a particular public

23  record or part of such record shall delete or excise from the

24  record only that portion of the record with respect to which

25  an exemption has been asserted and validly applies, and such

26  person shall produce the remainder of such record for

27  inspection and copying.

28         (c)  If the person who has custody of a public record

29  contends that the record or part of it is exempt from

30  inspection and copying, he or she shall state the basis of the

31  exemption that he or she contends is applicable to the record,

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  1  including the statutory citation to an exemption created or

  2  afforded by statute.

  3         (d)  If requested by the person seeking to inspect or

  4  copy the record, the custodian or designee shall state in

  5  writing and with particularity the reasons for the conclusion

  6  that the record is exempt.

  7         (e)  In any civil action in which an exemption to

  8  subsection (1) is asserted, if the exemption is alleged to

  9  exist under or by virtue of paragraph (6)(c), paragraph

10  (6)(d), paragraph (6)(e), paragraph (6)(k), paragraph (6)(l),

11  or paragraph (6)(o), the public record or part thereof in

12  question shall be submitted to the court for an inspection in

13  camera. If an exemption is alleged to exist under or by virtue

14  of paragraph (6)(b), an inspection in camera will be

15  discretionary with the court. If the court finds that the

16  asserted exemption is not applicable, it shall order the

17  public record or part thereof in question to be immediately

18  produced for inspection, examination, or copying as requested

19  by the person seeking such access.

20         (f)  Even if an assertion is made by the custodian of a

21  public record that a requested record is not a public record

22  subject to public inspection and examination under subsection

23  (1), the requested record shall, nevertheless, not be disposed

24  of for a period of 30 days after the date on which a written

25  request to inspect, examine, or copy the record was served on

26  or otherwise made to the custodian of the record by the person

27  seeking access to the record. If a civil action is instituted

28  within the 30-day period to enforce the provisions of this

29  section with respect to the requested record, the custodian

30  may not dispose of the record except by order of a court of

31  competent jurisdiction after notice to all affected parties.

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  1         (g)  The absence of a civil action instituted for the

  2  purpose stated in paragraph (e) does not relieve the custodian

  3  of the duty to maintain the record as a public record if the

  4  record is in fact a public record subject to public inspection

  5  and copying under subsection (1) and does not otherwise excuse

  6  or exonerate the custodian from any unauthorized or unlawful

  7  disposition of such record.

  8         (2)(a)  In all cases where the public or any person

  9  interested has a right to inspect or make copies from any

10  public record, any person shall hereafter have the right of

11  access to those public records for the purpose of making

12  photographs of the record while in the possession, custody,

13  and control of the custodian of records or his or her

14  designee.

15         (b)  This subsection applies to the making of

16  photographs in the conventional sense by use of a camera

17  device to capture images of public records but excludes the

18  duplication of microfilm in the possession of the clerk of the

19  circuit court where a copy of the microfilm may be made

20  available by the clerk.

21         (c)  Such work shall be done under the supervision of

22  the custodian of records or designee, who may adopt and

23  enforce reasonable rules governing the work.

24         (d)  Photographing of public records shall be done in

25  the room where the public records are kept. If, in the

26  judgment of the custodian of records, this is impossible or

27  impracticable, the work shall be done in another room or

28  place, as nearly adjacent as possible to the room where the

29  public records are kept, to be determined by the custodian of

30  the records or his or her designee. Where provision of another

31  room or place for photographing is required, the expense of

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  1  providing the same shall be paid by the person desiring to

  2  photograph the public record pursuant to subsection (5).

  3         (3)(a)  As an additional means of inspecting or copying

  4  public records of the executive branch, judicial branch, or

  5  any political subdivision of the state, a custodian of records

  6  may provide access to public records by remote electronic

  7  means.

  8         (b)  The custodian shall provide safeguards to protect

  9  the contents of public records from unauthorized remote

10  electronic access or alteration and to prevent the disclosure

11  or modification of those portions of public records which are

12  exempt from s. 119.07(1).

13         (c)  Unless otherwise required by law, the custodian

14  may charge a fee for remote electronic access, granted under a

15  contractual arrangement with a user, which fee may include the

16  direct and indirect costs of providing such access. Fees for

17  remote electronic access provided to the general public shall

18  be in accordance with the provisions of s. 119.07.

19         (4)  The custodian shall furnish a copy or a certified

20  copy of the record upon payment of the fee prescribed by law.

21  or, If a fee is not prescribed by law, the following fees are

22  authorized:

23         (a)  Up to 15 cents per one-sided copy for duplicated

24  copies of not more than 14 inches by 8 1/2  inches; an agency

25  may charge no more than an additional 5 cents for each

26  two-sided duplicated copy., upon payment of not more than 15

27  cents per one-sided copy, and

28         (b)  For all other copies, an agency may charge upon

29  payment of the actual cost of duplication of the record.  An

30  agency may charge no more than an additional 5 cents for each

31  two-sided duplicated copy. For purposes of this section,

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  1  duplicated copies shall mean new copies produced by

  2  duplicating, as defined in s. 283.30.  The phrase "actual cost

  3  of duplication" means the cost of the material and supplies

  4  used to duplicate the record, but it does not include the

  5  labor cost or overhead cost associated with such duplication.

  6  However,

  7         (c)  The charge for copies of county maps or aerial

  8  photographs supplied by county constitutional officers may

  9  also include a reasonable charge for the labor and overhead

10  associated with their duplication.  Unless otherwise provided

11  by law, the fees to be charged for duplication of public

12  records shall be collected, deposited, and accounted for in

13  the manner prescribed for other operating funds of the agency.

14         (d)  An agency may charge up to $1 per copy for a

15  certified copy of a public record.

16         (e)(b)  If the nature or volume of public records

17  requested to be inspected, examined, or copied pursuant to

18  this subsection is such as to require extensive use of

19  information technology resources or extensive clerical or

20  supervisory assistance by personnel of the agency involved, or

21  both, the agency may charge, in addition to the actual cost of

22  duplication, a special service charge, which shall be

23  reasonable and shall be based on the cost incurred for such

24  extensive use of information technology resources or the labor

25  cost of the personnel providing the service that is actually

26  incurred by the agency or attributable to the agency for the

27  clerical and supervisory assistance required, or both.

28         (f)1.  Where provision of another room or place is

29  necessary to photograph public records, the expense of

30  providing the same shall be paid by the person desiring to

31  photograph the public records.

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  1         2.  The custodian may charge the person making the

  2  photographs for the services of a designee to supervise the

  3  photography or for the services of the custodian to photograph

  4  the public records at a rate of compensation to be agreed upon

  5  by the person desiring to make the photographs and the

  6  custodian of records. If they fail to agree as to the

  7  appropriate charge, then the charge is to be determined by the

  8  custodian of the records. "Information technology resources"

  9  means data processing hardware and software and services,

10  communications, supplies, personnel, facility resources,

11  maintenance, and training.

12         (5)(c)  When ballots are produced under this section

13  for inspection or examination, no persons other than the

14  supervisor of elections or the supervisor's employees shall

15  touch the ballots.  The supervisor of elections shall make a

16  reasonable effort to notify all candidates by telephone or

17  otherwise of the time and place of the inspection or

18  examination. All such candidates, or their representatives,

19  shall be allowed to be present during the inspection or

20  examination.

21         (2)(a)  A person who has custody of a public record and

22  who asserts that an exemption provided in subsection (3) or in

23  a general or special law applies to a particular public record

24  or part of such record shall delete or excise from the record

25  only that portion of the record with respect to which an

26  exemption has been asserted and validly applies, and such

27  person shall produce the remainder of such record for

28  inspection and examination.  If the person who has custody of

29  a public record contends that the record or part of it is

30  exempt from inspection and examination, he or she shall state

31  the basis of the exemption which he or she contends is

                                  17

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  1  applicable to the record, including the statutory citation to

  2  an exemption created or afforded by statute, and, if requested

  3  by the person seeking the right under this subsection to

  4  inspect, examine, or copy the record, he or she shall state in

  5  writing and with particularity the reasons for the conclusion

  6  that the record is exempt.

  7         (b)  In any civil action in which an exemption to

  8  subsection (1) is asserted, if the exemption is alleged to

  9  exist under or by virtue of paragraph (c), paragraph (d),

10  paragraph (e), paragraph (k), paragraph (l), or paragraph (o)

11  of subsection (3), the public record or part thereof in

12  question shall be submitted to the court for an inspection in

13  camera.  If an exemption is alleged to exist under or by

14  virtue of paragraph (b) of subsection (3), an inspection in

15  camera will be discretionary with the court.  If the court

16  finds that the asserted exemption is not applicable, it shall

17  order the public record or part thereof in question to be

18  immediately produced for inspection, examination, or copying

19  as requested by the person seeking such access.

20         (c)  Even if an assertion is made by the custodian of a

21  public record that a requested record is not a public record

22  subject to public inspection and examination under subsection

23  (1), the requested record shall, nevertheless, not be disposed

24  of for a period of 30 days after the date on which a written

25  request requesting the right to inspect, examine, or copy the

26  record was served on or otherwise made to the custodian of the

27  record by the person seeking access to the record.  If a civil

28  action is instituted within the 30-day period to enforce the

29  provisions of this section with respect to the requested

30  record, the custodian shall not dispose of the record except

31

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  1  by order of a court of competent jurisdiction after notice to

  2  all affected parties.

  3         (d)  The absence of a civil action instituted for the

  4  purpose stated in paragraph (c) will not relieve the custodian

  5  of the duty to maintain the record as a public record if the

  6  record is in fact a public record subject to public inspection

  7  and examination under subsection (1) and will not otherwise

  8  excuse or exonerate the custodian from any unauthorized or

  9  unlawful disposition of such record.

10         (6)(3)(a)  Examination questions and answer sheets of

11  examinations administered by a governmental agency for the

12  purpose of licensure, certification, or employment are exempt

13  from the provisions of subsection (1) and s. 24(a), Art. I of

14  the State Constitution.  A person who has taken such an

15  examination shall have the right to review his or her own

16  completed examination.

17         (b)  Active criminal intelligence information and

18  active criminal investigative information are exempt from the

19  provisions of subsection (1) and s. 24(a), Art. I of the State

20  Constitution.

21         (c)  Any information revealing the identity of a

22  confidential informant or a confidential source is exempt from

23  the provisions of subsection (1) and s. 24(a), Art. I of the

24  State Constitution.

25         (d)  Any information revealing surveillance techniques

26  or procedures or personnel is exempt from the provisions of

27  subsection (1) and s. 24(a), Art. I of the State Constitution.

28  Any comprehensive inventory of state and local law enforcement

29  resources compiled pursuant to part I, chapter 23, and any

30  comprehensive policies or plans compiled by a criminal justice

31  agency pertaining to the mobilization, deployment, or tactical

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  1  operations involved in responding to emergencies, as defined

  2  in s. 252.34(3), are exempt from the provisions of subsection

  3  (1) and s. 24(a), Art. I of the State Constitution and

  4  unavailable for inspection, except by personnel authorized by

  5  a state or local law enforcement agency, the office of the

  6  Governor, the Department of Legal Affairs, the Department of

  7  Law Enforcement, or the Department of Community Affairs as

  8  having an official need for access to the inventory or

  9  comprehensive policies or plans.

10         (e)  Any information revealing undercover personnel of

11  any criminal justice agency is exempt from the provisions of

12  subsection (1) and s. 24(a), Art. I of the State Constitution.

13         (f)  Any criminal intelligence information or criminal

14  investigative information including the photograph, name,

15  address, or other fact or information which reveals the

16  identity of the victim of the crime of sexual battery as

17  defined in chapter 794; the identity of the victim of a lewd

18  or lascivious offense committed upon or in the presence of a

19  person less than 16 years of age, as defined in chapter 800;

20  or the identity of the victim of the crime of child abuse as

21  defined by chapter 827 and any criminal intelligence

22  information or criminal investigative information or other

23  criminal record, including those portions of court records and

24  court proceedings, which may reveal the identity of a person

25  who is a victim of any sexual offense, including a sexual

26  offense proscribed in chapter 794, chapter 800, or chapter

27  827, is exempt from the provisions of subsection (1) and s.

28  24(a), Art. I of the State Constitution.

29         (g)  Any criminal intelligence information or criminal

30  investigative information which reveals the personal assets of

31  the victim of a crime, other than property stolen or destroyed

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  1  during the commission of the crime, is exempt from the

  2  provisions of subsection (1) and s. 24(a), Art. I of the State

  3  Constitution.

  4         (h)  All criminal intelligence and criminal

  5  investigative information received by a criminal justice

  6  agency prior to January 25, 1979, is exempt from the

  7  provisions of subsection (1) and s. 24(a), Art. I of the State

  8  Constitution.

  9         (i)1.  The home addresses, telephone numbers, social

10  security numbers, and photographs of active or former law

11  enforcement personnel, including correctional and correctional

12  probation officers, personnel of the Department of Children

13  and Family Services whose duties include the investigation of

14  abuse, neglect, exploitation, fraud, theft, or other criminal

15  activities, personnel of the Department of Health whose duties

16  are to support the investigation of child abuse or neglect,

17  and personnel of the Department of Revenue or local

18  governments whose responsibilities include revenue collection

19  and enforcement or child support enforcement; the home

20  addresses, telephone numbers, social security numbers,

21  photographs, and places of employment of the spouses and

22  children of such personnel; and the names and locations of

23  schools and day care facilities attended by the children of

24  such personnel are exempt from the provisions of subsection

25  (1). The home addresses, telephone numbers, and photographs of

26  firefighters certified in compliance with s. 633.35; the home

27  addresses, telephone numbers, photographs, and places of

28  employment of the spouses and children of such firefighters;

29  and the names and locations of schools and day care facilities

30  attended by the children of such firefighters are exempt from

31  subsection (1). The home addresses and telephone numbers of

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  1  justices of the Supreme Court, district court of appeal

  2  judges, circuit court judges, and county court judges; the

  3  home addresses, telephone numbers, and places of employment of

  4  the spouses and children of justices and judges; and the names

  5  and locations of schools and day care facilities attended by

  6  the children of justices and judges are exempt from the

  7  provisions of subsection (1). The home addresses, telephone

  8  numbers, social security numbers, and photographs of current

  9  or former state attorneys, assistant state attorneys,

10  statewide prosecutors, or assistant statewide prosecutors; the

11  home addresses, telephone numbers, social security numbers,

12  photographs, and places of employment of the spouses and

13  children of current or former state attorneys, assistant state

14  attorneys, statewide prosecutors, or assistant statewide

15  prosecutors; and the names and locations of schools and day

16  care facilities attended by the children of current or former

17  state attorneys, assistant state attorneys, statewide

18  prosecutors, or assistant statewide prosecutors are exempt

19  from subsection (1) and s. 24(a), Art. I of the State

20  Constitution.

21         2.  The home addresses, telephone numbers, social

22  security numbers, and photographs of current or former human

23  resource, labor relations, or employee relations directors,

24  assistant directors, managers, or assistant managers of any

25  local government agency or water management district whose

26  duties include hiring and firing employees, labor contract

27  negotiation, administration, or other personnel-related

28  duties; the names, home addresses, telephone numbers, social

29  security numbers, photographs, and places of employment of the

30  spouses and children of such personnel; and the names and

31  locations of schools and day care facilities attended by the

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  1  children of such personnel are exempt from subsection (1) and

  2  s. 24(a), Art. I of the State Constitution. This subparagraph

  3  is subject to the Open Government Sunset Review Act of 1995 in

  4  accordance with s. 119.15, and shall stand repealed on October

  5  2, 2006, unless reviewed and saved from repeal through

  6  reenactment by the Legislature.

  7         3.  The home addresses, telephone numbers, social

  8  security numbers, and photographs of current or former code

  9  enforcement officers; the names, home addresses, telephone

10  numbers, social security numbers, photographs, and places of

11  employment of the spouses and children of such persons; and

12  the names and locations of schools and day care facilities

13  attended by the children of such persons are exempt from

14  subsection (1) and s. 24(a), Art. I of the State Constitution.

15  This subparagraph is subject to the Open Government Sunset

16  Review Act of 1995 in accordance with s. 119.15, and shall

17  stand repealed on October 2, 2006, unless reviewed and saved

18  from repeal through reenactment by the Legislature.

19         4.  An agency that is the custodian of the personal

20  information specified in subparagraph 1., subparagraph 2., or

21  subparagraph 3. and that is not the employer of the officer,

22  employee, justice, judge, or other person specified in

23  subparagraph 1., subparagraph 2., or subparagraph 3. shall

24  maintain the exempt status confidentiality of the personal

25  information only if the officer, employee, justice, judge,

26  other person, or employing agency of the designated employee

27  submits a written request for maintenance of the exemption

28  confidentiality to the custodial agency.

29         (j)  Any information provided to an agency of state

30  government or to an agency of a political subdivision of the

31  state for the purpose of forming ridesharing arrangements,

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  1  which information reveals the identity of an individual who

  2  has provided his or her name for ridesharing, as defined in s.

  3  341.031, is exempt from the provisions of subsection (1) and

  4  s. 24(a), Art. I of the State Constitution.

  5         (k)  Any information revealing the substance of a

  6  confession of a person arrested is exempt from the provisions

  7  of subsection (1) and s. 24(a), Art. I of the State

  8  Constitution, until such time as the criminal case is finally

  9  determined by adjudication, dismissal, or other final

10  disposition.

11         (l)1.  A public record which was prepared by an agency

12  attorney (including an attorney employed or retained by the

13  agency or employed or retained by another public officer or

14  agency to protect or represent the interests of the agency

15  having custody of the record) or prepared at the attorney's

16  express direction, which reflects a mental impression,

17  conclusion, litigation strategy, or legal theory of the

18  attorney or the agency, and which was prepared exclusively for

19  civil or criminal litigation or for adversarial administrative

20  proceedings, or which was prepared in anticipation of imminent

21  civil or criminal litigation or imminent adversarial

22  administrative proceedings, is exempt from the provisions of

23  subsection (1) and s. 24(a), Art. I of the State Constitution

24  until the conclusion of the litigation or adversarial

25  administrative proceedings. For purposes of capital collateral

26  litigation as set forth in s. 27.7001, the Attorney General's

27  office is entitled to claim this exemption for those public

28  records prepared for direct appeal as well as for all capital

29  collateral litigation after direct appeal until execution of

30  sentence or imposition of a life sentence.

31

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  1         2.  This exemption is not waived by the release of such

  2  public record to another public employee or officer of the

  3  same agency or any person consulted by the agency attorney.

  4  When asserting the right to withhold a public record pursuant

  5  to this paragraph, the agency shall identify the potential

  6  parties to any such criminal or civil litigation or

  7  adversarial administrative proceedings.  If a court finds that

  8  the document or other record has been improperly withheld

  9  under this paragraph, the party seeking access to such

10  document or record shall be awarded reasonable attorney's fees

11  and costs in addition to any other remedy ordered by the

12  court.

13         (m)  Sealed bids or proposals received by an agency

14  pursuant to invitations to bid or requests for proposals are

15  exempt from the provisions of subsection (1) and s. 24(a),

16  Art. I of the State Constitution until such time as the agency

17  provides notice of a decision or intended decision pursuant to

18  s. 120.57(3)(a) or within 10 days after bid or proposal

19  opening, whichever is earlier.

20         (n)  When an agency of the executive branch of state

21  government seeks to acquire real property by purchase or

22  through the exercise of the power of eminent domain all

23  appraisals, other reports relating to value, offers, and

24  counteroffers must be in writing and are exempt from the

25  provisions of subsection (1) and s. 24(a), Art. I of the State

26  Constitution until execution of a valid option contract or a

27  written offer to sell that has been conditionally accepted by

28  the agency, at which time the exemption shall expire.  The

29  agency shall not finally accept the offer for a period of 30

30  days in order to allow public review of the transaction.  The

31  agency may give conditional acceptance to any option or offer

                                  25

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  1  subject only to final acceptance by the agency after the

  2  30-day review period.  If a valid option contract is not

  3  executed, or if a written offer to sell is not conditionally

  4  accepted by the agency, then the exemption from the provisions

  5  of this chapter shall expire at the conclusion of the

  6  condemnation litigation of the subject property. An agency of

  7  the executive branch may exempt title information, including

  8  names and addresses of property owners whose property is

  9  subject to acquisition by purchase or through the exercise of

10  the power of eminent domain, from the provisions of subsection

11  (1) and s. 24(a), Art. I of the State Constitution to the same

12  extent as appraisals, other reports relating to value, offers,

13  and counteroffers.  For the purpose of this paragraph, "option

14  contract" means an agreement of an agency of the executive

15  branch of state government to purchase real property subject

16  to final agency approval.  This paragraph shall have no

17  application to other exemptions from the provisions of

18  subsection (1) which are contained in other provisions of law

19  and shall not be construed to be an express or implied repeal

20  thereof.

21         (o)  Data processing software obtained by an agency

22  under a licensing agreement which prohibits its disclosure and

23  which software is a trade secret, as defined in s. 812.081,

24  and agency-produced data processing software which is

25  sensitive are exempt from the provisions of subsection (1) and

26  s. 24(a), Art. I of the State Constitution.  The designation

27  of agency-produced software as sensitive shall not prohibit an

28  agency head from sharing or exchanging such software with

29  another public agency.  As used in this paragraph:

30         1.  "Data processing software" means the programs and

31  routines used to employ and control the capabilities of data

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  1  processing hardware, including, but not limited to, operating

  2  systems, compilers, assemblers, utilities, library routines,

  3  maintenance routines, applications, and computer networking

  4  programs.

  5         2.  "Sensitive" means only those portions of data

  6  processing software, including the specifications and

  7  documentation, used to:

  8         a.  Collect, process, store, and retrieve information

  9  which is exempt from the provisions of subsection (1);

10         b.  Collect, process, store, and retrieve financial

11  management information of the agency, such as payroll and

12  accounting records; or

13         c.  Control and direct access authorizations and

14  security measures for automated systems.

15         (p)  All complaints and other records in the custody of

16  any unit of local government which relate to a complaint of

17  discrimination relating to race, color, religion, sex,

18  national origin, age, handicap, marital status, sale or rental

19  of housing, the provision of brokerage services, or the

20  financing of housing are exempt from the provisions of

21  subsection (1) and s. 24(a), Art. I of the State Constitution

22  until a finding is made relating to probable cause, the

23  investigation of the complaint becomes inactive, or the

24  complaint or other record is made part of the official record

25  of any hearing or court proceeding.  This provision shall not

26  affect any function or activity of the Florida Commission on

27  Human Relations.  Any state or federal agency which is

28  authorized to have access to such complaints or records by any

29  provision of law shall be granted such access in the

30  furtherance of such agency's statutory duties, notwithstanding

31

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  1  the provisions of this section. This paragraph shall not be

  2  construed to modify or repeal any special or local act.

  3         (q)  All complaints and other records in the custody of

  4  any agency in the executive branch of state government which

  5  relate to a complaint of discrimination relating to race,

  6  color, religion, sex, national origin, age, handicap, or

  7  marital status in connection with hiring practices, position

  8  classifications, salary, benefits, discipline, discharge,

  9  employee performance, evaluation, or other related activities

10  are exempt from the provisions of subsection (1) and s. 24(a),

11  Art. I of the State Constitution until a finding is made

12  relating to probable cause, the investigation of the complaint

13  becomes inactive, or the complaint or other record is made

14  part of the official record of any hearing or court

15  proceeding.  This provision shall not affect any function or

16  activity of the Florida Commission on Human Relations.  Any

17  state or federal agency which is authorized to have access to

18  such complaints or records by any provision of law shall be

19  granted such access in the furtherance of such agency's

20  statutory duties, notwithstanding the provisions of this

21  section.

22         (r)  All records supplied by a telecommunications

23  company, as defined by s. 364.02, to a state or local

24  governmental agency which contain the name, address, and

25  telephone number of subscribers are confidential and exempt

26  from the provisions of subsection (1) and s. 24(a), Art. I of

27  the State Constitution.

28         (s)1.  Any document that reveals the identity, home or

29  employment telephone number, home or employment address, or

30  personal assets of the victim of a crime and identifies that

31  person as the victim of a crime, which document is received by

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  1  any agency that regularly receives information from or

  2  concerning the victims of crime, is exempt from the provisions

  3  of subsection (1) and s. 24(a), Art. I of the State

  4  Constitution. Any information not otherwise held confidential

  5  or exempt from the provisions of subsection (1) which reveals

  6  the home or employment telephone number, home or employment

  7  address, or personal assets of a person who has been the

  8  victim of sexual battery, aggravated child abuse, aggravated

  9  stalking, harassment, aggravated battery, or domestic violence

10  is exempt from the provisions of subsection (1) and s. 24(a),

11  Art. I of the State Constitution, upon written request by the

12  victim, which must include official verification that an

13  applicable crime has occurred.  Such information shall cease

14  to be exempt 5 years after the receipt of the written request.

15  Any state or federal agency that is authorized to have access

16  to such documents by any provision of law shall be granted

17  such access in the furtherance of such agency's statutory

18  duties, notwithstanding the provisions of this section.

19         2.  Any information in a videotaped statement of a

20  minor who is alleged to be or who is a victim of sexual

21  battery, lewd acts, or other sexual misconduct proscribed in

22  chapter 800 or in s. 794.011, s. 827.071, s. 847.012, s.

23  847.0125, s. 847.013, s. 847.0133, or s. 847.0145, which

24  reveals that minor's identity, including, but not limited to,

25  the minor's face; the minor's home, school, church, or

26  employment telephone number; the minor's home, school, church,

27  or employment address; the name of the minor's school, church,

28  or place of employment; or the personal assets of the minor;

29  and which identifies that minor as the victim of a crime

30  described in this subparagraph, is confidential and exempt

31  from subsection (1) and s. 24(a), Art. I of the State

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  1  Constitution. Any governmental agency that is authorized to

  2  have access to such statements by any provision of law shall

  3  be granted such access in the furtherance of the agency's

  4  statutory duties, notwithstanding the provisions of this

  5  section.  This subparagraph is subject to the Open Government

  6  Sunset Review Act of 1995 in accordance with s. 119.15, and

  7  shall stand repealed on October 2, 2003.

  8         3.  A public employee or officer who has access to the

  9  videotaped statement of a minor who is alleged to be or who is

10  a victim of sexual battery, lewd acts, or other sexual

11  misconduct proscribed in chapter 800 or in s. 794.011, s.

12  827.071, s. 847.012, s. 847.0125, s. 847.013, s. 847.0133, or

13  s. 847.0145, may not willfully and knowingly disclose

14  videotaped information that reveals that minor's identity to a

15  person who is not assisting in the investigation or

16  prosecution of the alleged offense or to any person other than

17  the defendant, the defendant's attorney, or a person specified

18  in an order entered by the court having jurisdiction of the

19  alleged offense.

20         4.  A person who violates subparagraph 3. commits a

21  misdemeanor of the first degree, punishable as provided in s.

22  775.082 or s. 775.083.

23         (t)  Any financial statement which an agency requires a

24  prospective bidder to submit in order to prequalify for

25  bidding or for responding to a proposal for a road or any

26  other public works project is exempt from the provisions of

27  subsection (1) and s. 24(a), Art. I of the State Constitution.

28         (u)  Where the alleged victim chooses not to file a

29  complaint and requests that records of the complaint remain

30  confidential, all records relating to an allegation of

31  employment discrimination are confidential and exempt from the

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  1  provisions of subsection (1) and s. 24(a), Art. I of the State

  2  Constitution.

  3         (v)  Medical information pertaining to a prospective,

  4  current, or former officer or employee of an agency which, if

  5  disclosed, would identify that officer or employee is exempt

  6  from the provisions of subsection (1) and s. 24(a), Art. I of

  7  the State Constitution. However, such information may be

  8  disclosed if the person to whom the information pertains or

  9  the person's legal representative provides written permission

10  or pursuant to court order.

11         (w)1.  If certified pursuant to subparagraph 2., an

12  investigatory record of the Chief Inspector General within the

13  Executive Office of the Governor or of the employee designated

14  by an agency head as the agency inspector general under s.

15  112.3189 is exempt from the provisions of subsection (1) and

16  s. 24(a), Art. I of the State Constitution until the

17  investigation ceases to be active, or a report detailing the

18  investigation is provided to the Governor or the agency head,

19  or 60 days from the inception of the investigation for which

20  the record was made or received, whichever first occurs.

21  Investigatory records are those records which are related to

22  the investigation of an alleged, specific act or omission or

23  other wrongdoing, with respect to an identifiable person or

24  group of persons, based on information compiled by the Chief

25  Inspector General or by an agency inspector general, as named

26  under the provisions of s. 112.3189, in the course of an

27  investigation.  An investigation is active if it is continuing

28  with a reasonable, good faith anticipation of resolution and

29  with reasonable dispatch.

30         2.  The Governor, in the case of the Chief Inspector

31  General, or agency head, in the case of an employee designated

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  1  as the agency inspector general under s. 112.3189, may certify

  2  such investigatory records require an exemption to protect the

  3  integrity of the investigation or avoid unwarranted damage to

  4  an individual's good name or reputation.  The certification

  5  shall specify the nature and purpose of the investigation and

  6  shall be kept with the exempt records and made public when the

  7  records are made public.

  8         3.  The provisions of this paragraph do not apply to

  9  whistle-blower investigations conducted pursuant to the

10  provisions of ss. 112.3187, 112.3188, 112.3189, and 112.31895.

11         (x)  The social security numbers of all current and

12  former agency employees which numbers are contained in agency

13  employment records are exempt from subsection (1) and exempt

14  from s. 24(a), Art. I of the State Constitution.  As used in

15  this paragraph, the term "agency" means an agency as defined

16  in s. 119.011.

17         (y)  The audit report of an internal auditor prepared

18  for or on behalf of a unit of local government becomes a

19  public record when the audit becomes final.  As used in this

20  paragraph, "unit of local government" means a county,

21  municipality, special district, local agency, authority,

22  consolidated city-county government, or any other local

23  governmental body or public body corporate or politic

24  authorized or created by general or special law.  An audit

25  becomes final when the audit report is presented to the unit

26  of local government.  Audit workpapers and notes related to

27  such audit report are confidential and exempt from the

28  provisions of subsection (1) and s. 24(a), Art. I of the State

29  Constitution until the audit is completed and the audit report

30  becomes final.

31

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  1         (z)  Bank account numbers or debit, charge, or credit

  2  card numbers given to an agency for the purpose of payment of

  3  any fee or debt owing are confidential and exempt from

  4  subsection (1) and s. 24(a), Art. I of the State Constitution.

  5  However, such numbers may be used by an agency, as needed, in

  6  any administrative or judicial proceeding, provided such

  7  numbers are kept confidential and exempt, unless otherwise

  8  ordered by the court.  This paragraph is subject to the Open

  9  Government Sunset Review Act of 1995 in accordance with s.

10  119.15, and shall stand repealed on October 2, 2001, unless

11  reviewed and saved from repeal through reenactment by the

12  Legislature.

13         (z)(aa)  Any data, record, or document used directly or

14  solely by a municipally owned utility to prepare and submit a

15  bid relative to the sale, distribution, or use of any service,

16  commodity, or tangible personal property to any customer or

17  prospective customer shall be exempt from the provisions of

18  subsection (1) and s. 24(a), Art. I of the State Constitution.

19  This exemption commences when a municipal utility identifies

20  in writing a specific bid to which it intends to respond. This

21  exemption no longer applies when the contract for sale,

22  distribution, or use of the service, commodity, or tangible

23  personal property is executed, a decision is made not to

24  execute such contract, or the project is no longer under

25  active consideration. The exemption in this paragraph includes

26  the bid documents actually furnished in response to the

27  request for bids. However, the exemption for the bid documents

28  submitted no longer applies after the bids are opened by the

29  customer or prospective customer.

30         (aa)(bb)  Upon a request made in a form designated by

31  the Department of Highway Safety and Motor Vehicles, personal

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  1  information contained in a motor vehicle record that

  2  identifies the requester is exempt from subsection (1) and s.

  3  24(a), Art. I of the State Constitution except as provided in

  4  this paragraph.  Personal information includes, but is not

  5  limited to, the requester's social security number, driver

  6  identification number, name, address, telephone number, and

  7  medical or disability information.  For purposes of this

  8  paragraph, personal information does not include information

  9  relating to vehicular crashes, driving violations, and

10  driver's status.  Such request may be made only by the person

11  who is the subject of the motor vehicle record.  For purposes

12  of this paragraph, "motor vehicle record" means any record

13  that pertains to a motor vehicle operator's permit, motor

14  vehicle title, motor vehicle registration, or identification

15  card issued by the Department of Highway Safety and Motor

16  Vehicles.  Personal information contained in motor vehicle

17  records exempted by an individual's request pursuant to this

18  paragraph shall be released by the department for any of the

19  following uses:

20         1.  For use in connection with matters of motor vehicle

21  or driver safety and theft; motor vehicle emissions; motor

22  vehicle product alterations, recalls, or advisories;

23  performance monitoring of motor vehicles and dealers by motor

24  vehicle manufacturers; and removal of nonowner records from

25  the original owner records of motor vehicle manufacturers, to

26  carry out the purposes of the Automobile Information

27  Disclosure Act, the Motor Vehicle Information and Cost Saving

28  Act, the National Traffic and Motor Vehicle Safety Act of

29  1966, the Anti-Car Theft Act of 1992, and the Clean Air Act.

30         2.  For use by any government agency, including any

31  court or law enforcement agency, in carrying out its

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  1  functions, or any private person or entity acting on behalf of

  2  a federal, state, or local agency in carrying out its

  3  functions.

  4         3.  For use in connection with matters of motor vehicle

  5  or driver safety and theft; motor vehicle emissions; motor

  6  vehicle product alterations, recalls, or advisories;

  7  performance monitoring of motor vehicles, motor vehicle parts,

  8  and dealers; motor vehicle market research activities,

  9  including survey research; and removal of nonowner records

10  from the original owner records of motor vehicle

11  manufacturers.

12         4.  For use in the normal course of business by a

13  legitimate business or its agents, employees, or contractors,

14  but only:

15         a.  To verify the accuracy of personal information

16  submitted by the individual to the business or its agents,

17  employees, or contractors; and

18         b.  If such information as so submitted is not correct

19  or is no longer correct, to obtain the correct information,

20  but only for the purposes of preventing fraud by, pursuing

21  legal remedies against, or recovering on a debt or security

22  interest against, the individual.

23         5.  For use in connection with any civil, criminal,

24  administrative, or arbitral proceeding in any court or agency

25  or before any self-regulatory body for:

26         a.  Service of process by any certified process server,

27  special process server, or other person authorized to serve

28  process in this state.

29         b.  Investigation in anticipation of litigation by an

30  attorney licensed to practice law in this state or the agent

31  of the attorney.

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  1         c.  Investigation by any person in connection with any

  2  filed proceeding.

  3         d.  Execution or enforcement of judgments and orders.

  4         e.  Compliance with an order of any court.

  5         6.  For use in research activities and for use in

  6  producing statistical reports, so long as the personal

  7  information is not published, redisclosed, or used to contact

  8  individuals.

  9         7.  For use by any insurer or insurance support

10  organization, or by a self-insured entity, or its agents,

11  employees, or contractors, in connection with claims

12  investigation activities, anti-fraud activities, rating, or

13  underwriting.

14         8.  For use in providing notice to the owners of towed

15  or impounded vehicles.

16         9.  For use by any licensed private investigative

17  agency or licensed security service for any purpose permitted

18  under this paragraph. Personal information obtained based on

19  an exempt driver's record may not be provided to a client who

20  cannot demonstrate a need based on a police report, court

21  order, or a business or personal relationship with the subject

22  of the investigation.

23         10.  For use by an employer or its agent or insurer to

24  obtain or verify information relating to a holder of a

25  commercial driver's license that is required under the

26  Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. App.

27  2710 et seq.

28         11.  For use in connection with the operation of

29  private toll transportation facilities.

30

31

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  1         12.  For bulk distribution for surveys, marketing, or

  2  solicitations when the department has implemented methods and

  3  procedures to ensure that:

  4         a.  Individuals are provided an opportunity, in a clear

  5  and conspicuous manner, to prohibit such uses; and

  6         b.  The information will be used, rented, or sold

  7  solely for bulk distribution for survey, marketing, and

  8  solicitations, and that surveys, marketing, and solicitations

  9  will not be directed at those individuals who have timely

10  requested that they not be directed at them.

11         13.  For any use if the requesting person demonstrates

12  that he or she has obtained the written consent of the person

13  who is the subject of the motor vehicle record.

14         14.  For any other use specifically authorized by state

15  law, if such use is related to the operation of a motor

16  vehicle or public safety.

17

18  Personal information exempted from public disclosure according

19  to this paragraph may be disclosed by the Department of

20  Highway Safety and Motor Vehicles to an individual, firm,

21  corporation, or similar business entity whose primary business

22  interest is to resell or redisclose the personal information

23  to persons who are authorized to receive such information.

24  Prior to the department's disclosure of personal information,

25  such individual, firm, corporation, or similar business entity

26  must first enter into a contract with the department regarding

27  the care, custody, and control of the personal information to

28  ensure compliance with the federal Driver's Privacy Protection

29  Act of 1994 and applicable state laws. An authorized recipient

30  of personal information contained in a motor vehicle record,

31  except a recipient under subparagraph 12., may contract with

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  1  the Department of Highway Safety and Motor Vehicles to resell

  2  or redisclose the information for any use permitted under this

  3  paragraph. However, only authorized recipients of personal

  4  information under subparagraph 12. may resell or redisclose

  5  personal information pursuant to subparagraph 12. Any

  6  authorized recipient who resells or rediscloses personal

  7  information shall maintain, for a period of 5 years, records

  8  identifying each person or entity that receives the personal

  9  information and the permitted purpose for which it will be

10  used. Such records shall be made available for inspection upon

11  request by the department. The department shall adopt rules to

12  carry out the purposes of this paragraph and the federal

13  Driver's Privacy Protection Act of 1994, Title XXX, Pub. L.

14  No. 103-322. Rules adopted by the department shall provide for

15  the payment of applicable fees and, prior to the disclosure of

16  personal information pursuant to this paragraph, shall require

17  the meeting of conditions by the requesting person for the

18  purposes of obtaining reasonable assurance concerning the

19  identity of such requesting person, and, to the extent

20  required, assurance that the use will be only as authorized or

21  that the consent of the person who is the subject of the

22  personal information has been obtained.  Such conditions may

23  include, but need not be limited to, the making and filing of

24  a written application in such form and containing such

25  information and certification requirements as the department

26  requires.

27         (bb)(cc)1.  Medical history records, bank account

28  numbers, credit card numbers, telephone numbers, and

29  information related to health or property insurance furnished

30  by an individual to any agency pursuant to federal, state, or

31  local housing assistance programs are confidential and exempt

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  1  from the provisions of subsection (1) and s. 24(a), Art. I of

  2  the State Constitution. Any other information produced or

  3  received by any private or public entity in direct connection

  4  with federal, state, or local housing assistance programs,

  5  unless the subject of another federal or state exemption, is

  6  subject to subsection (1).

  7         2.  Governmental agencies or their agents are entitled

  8  to access to the records specified in this paragraph for the

  9  purposes of auditing federal, state, or local housing programs

10  or housing assistance programs. Such records may be used by an

11  agency, as needed, in any administrative or judicial

12  proceeding, provided such records are kept confidential and

13  exempt, unless otherwise ordered by a court.

14         3.  This paragraph is repealed effective October 2,

15  2003, and must be reviewed by the Legislature before that date

16  in accordance with s. 119.15, the Open Government Sunset

17  Review Act of 1995.

18         (cc)(dd)  All personal identifying information; bank

19  account numbers; and debit, charge, and credit card numbers

20  contained in records relating to an individual's personal

21  health or eligibility for health-related services made or

22  received by the Department of Health or its service providers

23  are confidential and exempt from the provisions of subsection

24  (1) and s. 24(a), Art. I of the State Constitution, except as

25  otherwise provided in this paragraph.  Information made

26  confidential and exempt by this paragraph shall be disclosed:

27         1.  With the express written consent of the individual

28  or the individual's legally authorized representative.

29         2.  In a medical emergency, but only to the extent

30  necessary to protect the health or life of the individual.

31         3.  By court order upon a showing of good cause.

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  1         4.  To a health research entity, if the entity seeks

  2  the records or data pursuant to a research protocol approved

  3  by the department, maintains the records or data in accordance

  4  with the approved protocol, and enters into a purchase and

  5  data-use agreement with the department, the fee provisions of

  6  which are consistent with paragraph (1)(a).  The department

  7  may deny a request for records or data if the protocol

  8  provides for intrusive follow-back contacts, has not been

  9  approved by a human studies institutional review board, does

10  not plan for the destruction of confidential records after the

11  research is concluded, is administratively burdensome, or does

12  not have scientific merit.  The agreement must restrict the

13  release of any information, which would permit the

14  identification of persons, limit the use of records or data to

15  the approved research protocol, and prohibit any other use of

16  the records or data.  Copies of records or data issued

17  pursuant to this subparagraph remain the property of the

18  department.

19

20  This paragraph is subject to the Open Government Sunset Review

21  Act of 1995, in accordance with s. 119.15, and shall stand

22  repealed on October 2, 2006, unless reviewed and saved from

23  repeal through reenactment by the Legislature.

24         (dd)  Any videotape or video signal which, under an

25  agreement with an agency, is produced, made, or received by,

26  or is in the custody of, a federally licensed radio or

27  television station or its agent is exempt from this chapter.

28         (7)(4)  Nothing in this section shall be construed to

29  exempt from subsection (1) a public record which was made a

30  part of a court file and which is not specifically closed by

31  order of court, except as provided in paragraphs (c), (d),

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  1  (e), (k), (l), and (o) of subsection (6) (3) and except

  2  information or records which may reveal the identity of a

  3  person who is a victim of a sexual offense as provided in

  4  paragraph (f) of subsection (6) (3).

  5         (8)(5)  An exemption from this section does not imply

  6  an exemption from or exception to s. 286.011.  The exemption

  7  from or exception to s. 286.011 must be expressly provided.

  8         (9)(6)  Nothing in subsection (6) (3) or any other

  9  general or special law shall limit the access of the Auditor

10  General, the Office of Program Policy Analysis and Government

11  Accountability, or any state, county, municipal, university,

12  board of community college, school district, or special

13  district internal auditor to public records when such person

14  states in writing that such records are needed for a properly

15  authorized audit, examination, or investigation. Such person

16  shall maintain the confidentiality of any public records that

17  are confidential or exempt from the provisions of subsection

18  (1) and shall be subject to the same penalties as the

19  custodians of those public records for violating

20  confidentiality.

21         (10)(7)(a)  Any person or organization, including the

22  Department of Children and Family Services, may petition the

23  court for an order making public the records of the Department

24  of Children and Family Services that pertain to investigations

25  of alleged abuse, neglect, abandonment, or exploitation of a

26  child or a vulnerable adult. The court shall determine if good

27  cause exists for public access to the records sought or a

28  portion thereof. In making this determination, the court shall

29  balance the best interest of the vulnerable adult or child who

30  is the focus of the investigation, and in the case of the

31  child, the interest of that child's siblings, together with

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  1  the privacy right of other persons identified in the reports

  2  against the public interest. The public interest in access to

  3  such records is reflected in s. 119.01(1), and includes the

  4  need for citizens to know of and adequately evaluate the

  5  actions of the Department of Children and Family Services and

  6  the court system in providing vulnerable adults and children

  7  of this state with the protections enumerated in ss. 39.001

  8  and 415.101.  However, this subsection does not contravene ss.

  9  39.202 and 415.107, which protect the name of any person

10  reporting the abuse, neglect, or exploitation of a child or a

11  vulnerable adult.

12         (b)  In cases involving serious bodily injury to a

13  child or a vulnerable adult, the Department of Children and

14  Family Services may petition the court for an order for the

15  immediate public release of records of the department which

16  pertain to the protective investigation. The petition must be

17  personally served upon the child or vulnerable adult, the

18  child's parents or guardian, the legal guardian of that

19  person, if any, and any person named as an alleged perpetrator

20  in the report of abuse, neglect, abandonment, or exploitation.

21  The court must determine if good cause exists for the public

22  release of the records sought no later than 24 hours,

23  excluding Saturdays, Sundays, and legal holidays, after the

24  date the department filed the petition with the court. If the

25  court has neither granted nor denied the petition within the

26  24-hour time period, the department may release to the public

27  summary information including:

28         1.  A confirmation that an investigation has been

29  conducted concerning the alleged victim.

30         2.  The dates and brief description of procedural

31  activities undertaken during the department's investigation.

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  1         3.  The date of each judicial proceeding, a summary of

  2  each participant's recommendations made at the judicial

  3  proceedings, and the rulings of the court.

  4

  5  The summary information may not include the name of, or other

  6  identifying information with respect to, any person identified

  7  in any investigation. In making a determination to release

  8  confidential information, the court shall balance the best

  9  interests of the vulnerable adult or child who is the focus of

10  the investigation and, in the case of the child, the interests

11  of that child's siblings, together with the privacy rights of

12  other persons identified in the reports against the public

13  interest for access to public records. However, this paragraph

14  does not contravene ss. 39.202 and 415.107, which protect the

15  name of any person reporting abuse, neglect, or exploitation

16  of a child or a vulnerable adult.

17         (c)  When the court determines that good cause for

18  public access exists, the court shall direct that the

19  department redact the name of and other identifying

20  information with respect to any person identified in any

21  protective investigation report until such time as the court

22  finds that there is probable cause to believe that the person

23  identified committed an act of alleged abuse, neglect, or

24  abandonment.

25         (11)(8)  The provisions of this section are not

26  intended to expand or limit the provisions of Rule 3.220,

27  Florida Rules of Criminal Procedure, regarding the right and

28  extent of discovery by the state or by a defendant in a

29  criminal prosecution or in collateral postconviction

30  proceedings.  This section may not be used by any inmate as

31

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  1  the basis for failing to timely litigate any postconviction

  2  action.

  3         Section 7.  Sections 119.08 and 119.083, Florida

  4  Statutes, are repealed.

  5         Section 8.  Section 119.084, Florida Statutes, is

  6  amended to read:

  7         119.084  Definitions; copyright of data processing

  8  software created by governmental agencies; sale price and

  9  licensing fee; access to public records; prohibited

10  contracts.--

11         (1)  As used in this section, the term:

12         (a)  "agency" has the same meaning as in s. 119.011(2),

13  except that the term does not include any private agency,

14  person, partnership, corporation, or business entity.

15         (b)  "Data processing software" means the programs and

16  routines used to employ and control the capabilities of data

17  processing hardware, including, but not limited to, operating

18  systems, compilers, assemblers, utilities, library routines,

19  maintenance routines, applications, and computer networking

20  programs.

21         (c)  "Proprietary software" means data processing

22  software that is protected by copyright or trade secret laws.

23         (2)  Any agency is authorized to acquire and hold

24  copyrights for data processing software created by the agency

25  and to enforce its rights pertaining to such copyrights,

26  provided that the agency complies with the requirements of

27  this section.

28         (a)  Any agency that has acquired a copyright for data

29  processing software created by the agency may sell or license

30  the copyrighted data processing software to any public agency

31  or private person and may establish a price for the sale and a

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  1  license fee for the use of such data processing software.

  2  Proceeds from the sale or licensing of copyrighted data

  3  processing software shall be deposited by the agency into a

  4  trust fund for the agency's appropriate use for authorized

  5  purposes.  Counties, municipalities, and other political

  6  subdivisions of the state may designate how such sale and

  7  licensing proceeds are to be used. The price for the sale of

  8  and the fee for the licensing of copyrighted data processing

  9  software may be based on market considerations. However, the

10  prices or fees for the sale or licensing of copyrighted data

11  processing software to an individual or entity solely for

12  application to information maintained or generated by the

13  agency that created the copyrighted data processing software

14  shall be determined pursuant to s. 119.07(1).

15         (b)  The provisions of this subsection are supplemental

16  to, and shall not supplant or repeal, any other provision of

17  law that authorizes an agency to acquire and hold copyrights.

18         (3)  Subject to the restrictions of copyright and trade

19  secret laws and public records exemptions, agency use of

20  proprietary software must not diminish the right of the public

21  to inspect and copy a public record.

22         (4)  An agency must consider when designing or

23  acquiring an electronic recordkeeping system that such system

24  is capable of providing data in some common format such as,

25  but not limited to, the American Standard Code for Information

26  Interchange.

27         (5)  Each agency that maintains a public record in an

28  electronic recordkeeping system shall provide to any person,

29  pursuant to this chapter, a copy of any public record in that

30  system which is not exempted by law from public disclosure.

31  An agency must provide a copy of the record in the medium

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  1  requested if the agency maintains the record in that medium,

  2  and the agency may charge a fee which shall be in accordance

  3  with this chapter.  For the purpose of satisfying a public

  4  records request, the fee to be charged by an agency if it

  5  elects to provide a copy of a public record in a medium not

  6  routinely used by the agency, or if it elects to compile

  7  information not routinely developed or maintained by the

  8  agency or that requires a substantial amount of manipulation

  9  or programming, must be in accordance with s. 119.07(1)(b).

10         (6)  An agency may not enter into a contract for the

11  creation or maintenance of a public records database if that

12  contract impairs the ability of the public to inspect or copy

13  the public records of that agency, including public records

14  that are on-line or stored in an electronic recordkeeping

15  system used by the agency. Such contract may not allow any

16  impediment that as a practical matter makes it more difficult

17  for the public to inspect or copy the records than to inspect

18  or copy the agency's records. The fees and costs for the

19  production of such records may not be more than the fees or

20  costs charged by the agency.

21         (3)(7)  This section is subject to the Open Government

22  Sunset Review Act of 1995 in accordance with s. 119.15 and

23  shall stand repealed on October 2, 2006, unless reviewed and

24  saved from repeal through reenactment by the Legislature.

25         Section 9.  Sections 119.085 and 119.09, Florida

26  Statutes, are repealed.

27         Section 10.  Section 119.10, Florida Statutes, is

28  amended:

29         119.10  Violation of chapter; penalties.--

30

31

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  1         (1)  Any public officer who violates any provision of

  2  this chapter is guilty of a noncriminal infraction, punishable

  3  by fine not exceeding $500.

  4         (2)  Any person who willfully and knowingly violates:

  5  violating

  6         (a)  Any of the provisions of this chapter commits is

  7  guilty of a misdemeanor of the first degree, punishable as

  8  provided in s. 775.082 or s. 775.083.

  9         (b)(3)  Section Any person who willfully and knowingly

10  violates s. 119.105 commits a felony of the third degree,

11  punishable as provided in s. 775.082, s. 775.083, or s.

12  775.084.

13         Section 11.  Section 119.105, Florida Statutes, is

14  amended to read:

15         119.105  Protection of victims of crimes or

16  accidents.--Police reports are public records except as

17  otherwise made exempt or confidential by general or special

18  law. Every person is allowed to examine nonexempt or

19  nonconfidential police reports. No person who inspects or

20  copies police reports for the purpose of obtaining the names

21  and addresses of the victims of crimes or accidents shall use

22  any information contained therein for any commercial

23  solicitation of the victims or relatives of the victims of the

24  reported crimes or accidents. Nothing herein shall prohibit

25  the publication of such information by any news media or the

26  use of such information for any other data collection or

27  analysis purposes.

28         Section 12.  This act shall take effect July 1, 2002.

29

30

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Reorganizes various provisions of chapter 119, F.S.,
      which governs the maintenance and dissemination of public
  4    records by state agencies and local governments.

  5

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  9

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Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes. Copyright © 2000-2020 State of Florida.