The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 7008
INTRODUCER: Children, Families, and Elder Affairs Committee
SUBJECT: OGSR/Substance Abuse Impaired Persons
DATE: January 11, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Delia Cox CF Submitted as Comm. Bill/Fav
1. Delia Phelps RC Favorable
I. Summary:
SB 7008 saves from repeal the public records exemption for petitions for involuntary assessment
and stabilization, court orders, and related records filed with or by a court under Part V of the
Marchman Act, relating to involuntary admissions procedures.
The public records exemption stands repealed on October 2, 2022, unless reviewed and
reenacted by the Legislature under the Open Government Sunset Review Act. The bill removes
the scheduled repeal of the exemption to continue the confidential and exempt status of the
petitions, court orders, and related records.
This bill is effective October 1, 2022.
II. Present Situation:
Public Records Law
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.1 This applies to the official business
of any public body, officer, or employee of the state, including all three branches of state
government, local governmental entities, and any person acting on behalf of the government. 2
Chapter 119, F.S., known as the Public Records Act, constitutes the main body of public records
laws.3 The Public Records Act states that
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
Public records laws are found throughout the Florida Statutes.
BILL: SB 7008 Page 2
[i]t is the policy of this state that all state, county, and municipal records are open
for personal inspection and copying by any person. Providing access to public
records is a duty of each agency.4
The Public Records Act typically contains general exemptions that apply across agencies.
Agency- or program-specific exemptions often are placed in the substantive statutes
relating to that particular agency or program.
The Public Records Act does not apply to legislative or judicial records.5 Legislative records are
public pursuant to s. 11.0431, F.S. Public records exemptions for the Legislature are codified
primarily in s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the legislature.
Section 119.011(12), F.S., defines “public records” to include:
All documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or
received pursuant to law or ordinance or in connections with the transaction
of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business which are used to “perpetuate,
communicate, or formalize knowledge of some type.”6
The Florida Statutes specify conditions under which public access to governmental records must
be provided. The Public Records Act guarantees every person’s right to inspect and copy any
state or local government public record at any reasonable time, under reasonable conditions, and
under supervision by the custodian of the public record.7 A violation of the Public Records Act
may result in civil or criminal liability.8
Only the Legislature may create an exemption to public records requirements.9 An exemption
must be created by general law and must specifically state the public necessity justifying the
exemption.10 Further, the exemption must be no broader than necessary to accomplish the stated
purpose of the law. A bill enacting an exemption may not contain other substantive provisions11
and must pass by a two-thirds vote of the members present and voting in each house of the
Legislature.12
4
Section 119.01(1), F.S.
5
Locke v. Hawkes, 595 So. 2d 32, 34 (Fla. 1992); see also Times Pub. Co. v. Ake, 660 So. 2d 255 (Fla. 1995).
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc. Inc., 379 So. 2d 633, 640 (Fla. 1980).
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
9
FLA. CONST., art. I, s. 24(c).
10
Id.
11
The bill may, however, contain multiple exemptions that relate to one subject.
12
FLA. CONST., art. I, s. 24(c)
BILL: SB 7008 Page 3
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.13 Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.14 Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.15
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,16 with specified exceptions.17 The Act requires the repeal of such
exemption on October 2nd of the fifth year after creation or substantial amendment; in order to
save an exemption from repeal, the Legislature must reenact the exemption or repeal the sunset
date.18 In practice, many exemptions are continued by repealing the sunset date, rather than
reenacting the exemption.
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.19
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
 It allows the state or its political subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;20
 Releasing sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;21 or
 It protects trade or business secrets.22
The Act also requires specified questions to be considered during the review process.23 In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5th DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
16
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
17
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
18
Section 119.15(3), F.S.
19
Section 119.15(6)(b), F.S.
20
Section 119.15(6)(b)1., F.S.
21
Section 119.15(6)(b)2., F.S.
22
Section 119.15(6)(b)3., F.S.
23
Section 119.15(6)(a), F.S. The specified questions are:
 What specific records or meetings are affected by the exemption?
 Whom does the exemption uniquely affect, as opposed to the general public?
BILL: SB 7008 Page 4
If, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.24 If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is narrowed, then
a public necessity statement and a two-thirds vote for passage are not required. If the Legislature
allows an exemption to expire, the previously exempt records will remain exempt unless
otherwise provided by law.25
The Marchman Act
In the early 1970s, the federal government enacted laws creating formula grants for states to
develop continuums of care for individuals and families affected by substance abuse.26 The laws
resulted in separate funding streams and requirements for alcoholism and drug abuse. In response
to the laws, the Florida Legislature enacted chs. 396 and 397, F.S., relating to alcohol and drug
abuse, respectively.27 Each of these laws governed different aspects of addiction, and thus had
different rules promulgated by the state to fully implement the respective pieces of legislation.28
However, because persons with substance abuse issues often do not restrict their misuse to one
substance or another, having two separate laws dealing with the prevention and treatment of
addiction was cumbersome and did not adequately address Florida’s substance abuse problem.29
In 1993, legislation was adopted to combine ch. 396 and 397, F.S., into a single law, the Hal S.
Marchman Alcohol and Other Drug Services Act (Marchman Act).30
The Marchman Act encourages individuals to seek services on a voluntary basis within the
existing financial and space capacities of a service provider.31 However, denial of addiction is a
prevalent symptom of SUD, creating a barrier to timely intervention and effective treatment.32
As a result, treatment typically must stem from a third party providing the intervention needed
for SUD treatment.33
 What is the identifiable public purpose or goal of the exemption?
 Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
 Is the record or meeting protected by another exemption?
 Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
24
FLA. CONST. art. I, s. 24(c).
25
Section 119.15(7), F.S.
26
The Department of Children and Families, Baker Act and Marchman Act Project Team Report for Fiscal Year 2016-2017,
p. 4-5. (on file with the Senate Children, Families, and Elder Affairs Committee).
27
Id.
28
Id.
29
Id.
30
Chapter 93-39, s. 2, L.O.F., which codified current ch. 397, F.S.
31
See s. 397.601(1) and (2), F.S. An individual who wishes to enter treatment may apply to a service provider for voluntary
admission. Within the financial and space capabilities of the service provider, the individual must be admitted to treatment
when sufficient evidence exists that he or she is impaired by substance abuse and his or her medical and behavioral
conditions are not beyond the safe management capabilities of the service provider.
32
Darran Duchene and Patrick Lane, Fundamentals of the Marchman Act, Risk RX, Vol. 6 No. 2 (Apr. – Jun. 2006) State
University System of Florida Self-Insurance Programs, available at http://flbog.sip.ufl.edu/risk-rx-article/fundamentals-of-
the-marchman-act/ (last visited November 20, 2021) (hereinafter cited as “Fundamentals of the Marchman Act”).
33
Id.
BILL: SB 7008 Page 5
Involuntary Admissions
The Marchman Act establishes a variety of methods under which substance abuse assessment,
stabilization, and treatment can be obtained on an involuntary basis. There are five involuntary
admission procedures that can be broken down into two categories depending upon whether the
court is involved.34 Three of the procedures do not involve the court, while two require direct
petitions to the circuit court. The same criteria for involuntary admission apply regardless of the
admission process used.35
An individual meets the criteria for an involuntary admission under the Marchman Act when
there is good faith reason to believe the individual is substance abuse impaired and, because of
such impairment, has lost the power of self-control with respect to substance use, and either:
 Is in need of substance abuse services and, by reason of substance abuse impairment, his or
her judgment has been so impaired that he or she is incapable of appreciating his or her need
for such services and of making a rational decision in that regard;36 or
 Without care or treatment:
o The person is likely to suffer from neglect or refuse to care for himself or herself;
o Such neglect or refusal poses a real and present threat of substantial harm to his or her
well-being; and
o It is not apparent that such harm may be avoided through the help of willing family
members or friends or the provision of other services; or
o There is substantial likelihood that the person:
 Has inflicted, or threatened to or attempted to inflict physical harm on himself,
herself, or another; or
 Is likely to inflict, physical harm on himself, herself, or another unless he or she is
admitted.37
Non-Court Involved Involuntary Admissions
The three types of non-court procedures for involuntary admission for substance abuse treatment
under the Marchman Act include protective custody, emergency admission, and the alternative
involuntary assessment for minors.
Law enforcement officers use the protective custody procedure when an individual is substance-
impaired or intoxicated in public and such impairment is brought to the attention of the officer.38
The purpose of this procedure is to allow the person to be taken to a safe environment for
observation and assessment to determine the need for treatment. A law enforcement officer may
take the individual to their residence, to a hospital, a detoxification center, or an addiction
receiving facility, whichever the officer determines is most appropriate.39
34
Id.
35
Id.
36
Section 394.675(2)(a), F.S. However, mere refusal to receive services does not constitute evidence of lack of judgment
with respect to the person’s need for such services.
37
Section 397.675(2)(b), F.S.
38
Section 397.677, F.S. The individual can be a minor or adult under this process.
39
Section 397.6771, F.S. A person may be held in protective custody for no more than 72 hours, unless a petition for
involuntary assessment or treatment has been timely filed with the court within that timeframe to extend protective custody.
BILL: SB 7008 Page 6
If the individual in these circumstances does not consent to protective custody, the officer may
do so against the person’s will, without using unreasonable force. Additionally, the officer has
the option of taking an individual to a jail or detention facility for his or her own protection. Such
detention cannot be considered an arrest for any purpose and no record can be made to indicate
that the person has been detained or charged with any crime.40 However, if the individual is a
minor, the law enforcement officer must notify the nearest relative of a minor in protective
custody without consent.41
The second process, emergency admission, authorizes an individual who appears to meet the
criteria for involuntary admission to be admitted to a hospital, an addiction receiving facility, or
a detoxification facility for emergency assessment and stabilization, or to a less intensive
component of a licensed service provider for assessment only.42 Individuals admitted for
involuntary assessment and stabilization under this provision must have a certificate from a
specified health professional43 demonstrating the need for this type of placement and
recommending the least restrictive type of service that is appropriate to the needs of the
individual.44
Lastly, the altern