HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7009 PCB EEG 24-04 OGSR/Mental Health Treatment and Services
SPONSOR(S): Ethics, Elections & Open Government Subcommittee, Griffitts
TIED BILLS: IDEN./SIM. BILLS: SB 7034
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Ethics, Elections & Open 12 Y, 0 N Poreda Toliver
Government Subcommittee
1) Children, Families & Seniors Subcommittee 18 Y, 0 N DesRochers Brazzell
2) State Affairs Committee 19 Y, 0 N Poreda Williamson
SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record exemption
and each public meeting exemption five years after enactment. If the Legislature does not reenact the
exemption, it automatically repeals on October 2nd of the fifth year after enactment.
The Florida Mental Health Act, otherwise known as the Baker Act, provides legal procedures for voluntary and
involuntary mental health examination and treatment. A person may be admitted for mental health treatment on
a voluntary or involuntary basis. Voluntary admission of persons for psychiatric care may occur when the
individual is over the age of 18, deemed to be competent, expresses informed consent, and is suitable for
treatment. An involuntary examination is required if there is reason to believe the person has a mental illness
and, because of his or her mental illness, certain conditions are present, such as a substantial likelihood that
without care or treatment the person will cause serious bodily harm to himself or herself or others in the near
future.
Current law makes all petitions for voluntary and involuntary admission for mental health treatment, court
orders, and related records filed with or by a court pursuant to the Baker Act confidential and exempt from
public record requirements. The information contained in these court files may only be released to certain
entities and individuals.
The bill saves from repeal the public record exemption, which will repeal on October 2, 2024, if this bill does
not become law.
The bill does not appear to have a fiscal impact on state government or local governments.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 1/23/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act (OGSR Act)1 sets forth a legislative review process for
newly created or substantially amended public record or public meeting exemptions. It requires an
automatic repeal of the exemption on October 2nd of the fifth year after creation or substantial
amendment, unless the Legislature reenacts the exemption.2
The OGSR Act provides that a public record or public meeting exemption may be created or maintained
only if it serves an identifiable public purpose. In addition, it may be no broader than is necessary to
meet one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.3
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded, then a public
necessity statement and a two-thirds vote for passage are required.4 If the exemption is reenacted with
grammatical or stylistic changes that do not expand the exemption, if the exemption is narrowed, or if
an exception to the exemption is created, then a public necessity statement and a two-thirds vote for
passage are not required.
Florida Mental Health Act
The Florida Mental Health Act, otherwise known as the Baker Act (Baker Act), was enacted in 1971 to
revise the state’s mental health commitment laws.5 It provides legal procedures for mental health
examination and treatment. It also protects the rights of all individuals examined or treated for mental
illness in Florida.6 Individuals in acute mental or behavioral health crisis may require emergency
treatment to stabilize their condition. Emergency mental health examination and stabilization services
may be provided on a voluntary or involuntary basis.7
Voluntary Admissions
The Baker Act allows for the voluntary admission of persons for psychiatric care, but only when the
individual is over the age of 18, deemed to be competent, expresses informed consent, and is suitable
for treatment.8 Any person age 17 or under may be admitted voluntarily if a parent or legal guardian
applies for admission and only after a clinical review to verify the minor’s willingness to volunteer for
treatment under the Baker Act.9 If any condition for voluntary admission is not met, then that person
must be extended the due process rights assured under the involuntary provisions of the Baker Act.10
1 Section 119.15, F.S.
2 Section 119.15(3), F.S.
3 Section 119.15(6)(b), F.S.
4 Article I, s. 24(c), FLA. CONST .
5 Section 394.451, F.S.
6 Section 394.459, F.S.
7 Sections 394.4625 and 394.463, F.S.
8 Section 394.4625(1)(a), F.S.
9
Id.
10 Section 394.4625, F.S.
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Involuntary Examinations
An involuntary examination is required if there is reason to believe the person has a mental illness and,
because of his or her mental illness, the person has refused voluntary examination after conscientious
explanation and disclosure of the purpose of the examination or is unable to determine for himself or
herself whether examination is necessary, and either of the following determinations are made:11
Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself
or herself; such neglect or refusal poses a real and present threat of substantial harm to his or
her well-being; and 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
There is a substantial likelihood that without care or treatment the person will cause serious
bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
The involuntary examination may be initiated in one of three ways: 12
A court may enter an ex parte order stating that a person appears to meet the criteria for
involuntary examination, based on sworn testimony. The order of the court must be made a part
of the patient’s clinical record.
A law enforcement officer must take a person who appears to meet the criteria for involuntary
examination into custody and deliver the person, or have him or her delivered, to an
appropriate, or the nearest, receiving facility for examination. The officer must execute a written
report detailing the circumstances under which the person was taken into custody, and the
report must be made a part of the patient’s clinical record.
A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and
family therapist, or clinical social worker may execute a certificate stating that he or she has
examined a person within the preceding 48 hours and finds that the person appears to meet the
criteria for involuntary examination and stating the observations upon which that conclusion is
based. The report and certificate shall be made a part of the patient’s clinical record.
Involuntary patients must be taken to either a public or private facility that has been designated by the
Department of Children and Families (DCF) as a Baker Act receiving facility. 13 A receiving facility has
up to 72 hours to examine an involuntary patient.14 During that 72 hours, the patient must be examined
by a physician, a clinical psychologist, or, in certain circumstances, by a psychiatric nurse to determine
if the criteria for involuntary services are met.15 Within that 72-hour examination period, one of the
following must happen:16
The patient must be released, unless he or she is charged with a crime, in which case law
enforcement assumes custody;
The patient must be released for voluntary outpatient treatment;
The patient, unless charged with a crime, must give express and informed consent to be placed
and admitted as a voluntary patient; or
A petition for involuntary placement must be filed in circuit court for involuntary outpatient or
inpatient treatment.
The receiving facility may not release an involuntary examination patient without the documented
approval of a psychiatrist, a clinical psychologist or, in certain circumstances, a psychiatric nurse.17
Involuntary Inpatient Placements
A court may order a person into involuntary inpatient treatment if it finds the person has a mental illness
and, because of that mental illness, has refused voluntary inpatient treatment, is incapable of surviving
alone or with the help of willing and responsible family or friends, and, without treatment, is likely to
refuse to care for himself or herself to the extent such refusal threatens to cause substantial harm to his
11 Section 394.463(1), F.S.
12 Section 394.463(2)(a), F.S.
13 Section 394.461, F.S.
14 Section 394.463(2)(g), F.S.
15 Section 394.463(2)(f), F.S.
16 Id.
17 Section 394.463(2)(f), F.S.
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or her well-being, or will inflict serious bodily harm on himself or herself, or others, in the near future
based on recent behavior.18 Additionally, the court must find that all available less restrictive treatment
alternatives that would offer an opportunity for improvement of the person’s condition are
inappropriate.19
Involuntary Outpatient Services
Involuntary outpatient placement, also known as assisted outpatient treatment, is a court-ordered,
community-based treatment program for individuals with severe mental illness designed to assist
individuals with severe mental illness who have a history of treatment and medication noncompliance,
but do not require hospitalization.20 A petition for involuntary outpatient services may be filed with a
court by the administrator of either a receiving facility or a treatment facility. 21
Public Record Exemption under Review
In 2019, the Legislature made all petitions for voluntary and involuntary admission for mental health
treatment, court orders, and related records filed with or by a court pursuant to the Baker Act
confidential and exempt22 from public record requirements.23 The records may only be released to:24
The petitioner.
The petitioner’s attorney.
The respondent.
The respondent’s attorney.
The respondent’s guardian or guardian advocate, if applicable.
In the case of a minor respondent, the respondent’s legal custodian or guardian advocate.
The respondent’s treating health care practitioner.
The respondent’s health care surrogate or proxy.
DCF, without charge.
The Department of Corrections, without charge, if the respondent is committed or is to be
returned to the custody of the Department of Corrections from DCF.
A person or entity authorized to view records upon a court order for good cause. 25
The clerk of the court is prohibited from publishing any personal identifying information on a court
docket or in a publicly accessible file. However, the clerk of the court is not prohibited from submitting
the protected information to the Department of Law Enforcement for purposes of a criminal history
record check relating to the sale of firearms.26
In 2019, the public necessity statement27 stated that:
The mental health of a person, including a minor, is a medical condition, which
should be protected from dissemination to the public. A person's mental health is
also an intensely private matter. The public stigma associated with a mental health
18 Section 394.467(1), F.S.
19 Id.
20 Section 394.4655, F.S.
21 Section 394.4655(4), F.S.
22 There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
designates confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied, 892 So.2d 1015 (Fla.
2004); State v. Wooten, 260 So. 3d 1060, 1070 (Fla. 4th DCA 2018); City of Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA
1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential
and exempt from public disclosure, such record may not be released by the custodian of public records to anyone other than the
persons or entities specifically designated in statute. See Op. Att’y Gen. Fla. 04- 09 (2004).
23 Section 394.464, F.S.
24 Section 394.464(1), F.S.
25 In determining if good cause exists , the court must weigh the person or entity’s need for the information against the potential harm
to the respondent of disclosure. Section 3943464(1)(k), F.S.
26 Section 394.464(2), F.S.
27 Article I, s. 24(c), FLA. CONST ., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
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condition may cause persons in need of treatment to avoid seeking treatment and
related services if the record of such condition is accessible to the public. Without
treatment, a person's condition may worsen, the person may harm himself or
herself or others, and the person may become a financial burden on the state. The
content of such records or personal identifying information should not be made
public merely because they are filed with or by a court or placed on a docket.
Making such petitions, orders, records, and identifying information confidential and
exempt from disclosure will protect such persons from the release of sensitive,
personal information which could damage their and their families' reputations. 28
Pursuant to the OGSR Act, the exemption will repeal on October 2, 2024, unless reenacted by the
Legislature.
During the 2023 interim, House and Senate staff sent a questionnaire to the clerks of court as part of
their review under the OGSR Act and, in total, staff received 42 responses.29 Respondents indicated
they had not had any issues interpreting or applying the exemption and they were unaware of the
existence of any litigation concerning the exemption. Clerk staff noted that the Florida Supreme Court
had incorporated the public record exemption into Rule 2.420 of the Rules of General Practice and
Judicial Administration.30 All respondents recommended the exemption be reenacted as is.
Effect of the Bill
The bill removes the scheduled repeal date of the public record exemption, thereby maintaining the
public record exemption for all petitions for voluntary and involuntary admission for mental health
treatment, court orders, and related records filed with or by a court pursuant to the Baker Act.
B. SECTION DIRECTORY:
Section 1 amends s. 394.464, F.S., relating to court records; confidentiality.
Section 2 provides an effective date of October 1, 2024.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
28 Chapter 2019-51, L.O.F.
29 Open Government Sunset Review Questionnaire, Public Records Related to The Baker Act, responses on file with the Ethics,
Elections & Open Government Subcommittee.
30 See Rule 2.420(d)(1)(B)(viii), Fla. R. Gen. Prac. & Jud. Admin (2021).
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C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTI