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: CS/SB 418
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Burgess
SUBJECT: Public Records/Persons Provided Public Emergency Shelter
DATE: April 15, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stallard Caldwell MS Favorable
2. Candelaria McVaney GO Fav/CS
3. Stallard Phelps RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 418 exempts from public inspection and copying requirements the address and telephone
number of a person which are held by an agency providing public emergency shelter to the
person during a storm or catastrophic event.
The bill provides that the exemption created under the bill is subject to the Open Government
Sunset Review Act in accordance with s. 119.15, F.S., and will be repealed on October 2, 2026,
unless reviewed and saved from repeal by the Legislature.
The bill provides a statement of public necessity as required by the State Constitution, providing
that the exemption is necessary to limit the amount of privacy a person must forfeit by choosing
to enter a shelter, and to protect a person from those who might seek to exploit their vulnerability
following a catastrophic event.
Because the bill creates a new public records exemption, it requires a two-thirds vote of the
members present and voting in each house of the Legislature for final passage.
The bill is not expected to impact state or local government revenues and expenditures. See
Section V. Fiscal Impact Statement.
The bill takes effect upon becoming a law.
BILL: CS/SB 418 Page 2
II. Present Situation:
Access to Public Records - Generally
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 The right to inspect or copy 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
Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, s. 11.0431, F.S.,
provides public access requirements for legislative records. Relevant exemptions are codified in
s. 11.0431(2)-(3), F.S., and the statutory provisions are adopted in the rules of each house of the
legislature.3 Florida Rule of Judicial Administration 2.420 governs public access to judicial
branch records.4 Lastly, chapter 119, F.S., provides requirements for public records held by
executive agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county, and
municipal records are open for personal inspection and copying by any person, and that
providing access to public records is a duty of each agency.5
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.6 The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.”7
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Section 119.011(12), F.S., defines “public record” to mean “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 connection with the transaction of official business by
any agency.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
BILL: CS/SB 418 Page 3
custodian of the public record.8 A violation of the Public Records Act may result in civil or
criminal liability.9
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.10 The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.11
General exemptions from the public records requirements are contained in the Public Records
Act.12 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.14 Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.15
Open Government Sunset Review Act
The Open Government Sunset Review Act16 (the Act) prescribes a legislative review process for
newly created or substantially amended17 public records or open meetings exemptions, with
specified exceptions.18 It requires the automatic repeal of such exemption on October 2nd of the
fifth year after creation or substantial amendment, unless the Legislature reenacts the
exemption.19
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.20
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
12
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
13
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provide that exemptions that are required by federal law or are applicable solely to the
Legislature or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
BILL: CS/SB 418 Page 4
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 subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;21
 It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;22 or
 It protects information of a confidential nature concerning entities, such as trade or business
secrets.23
The Act also requires specified questions to be considered during the review process.24 In
examining an exemption, the Act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.25 If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to sunset, the previously
exempt records will remain exempt unless provided for by law.26
Public Shelters
The Division of Emergency Management (DEM) is established in the Executive Office of the
Governor to serve as the state’s emergency management agency.27 The State Emergency
Management Act28 directs the DEM to oversee and manage emergency preparedness, response,
recovery, and mitigation programs in Florida.
The DEM currently manages a program for surveying existing public and private buildings, with
the owner’s written agreement, to identify which facilities are appropriately designed and located
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
23
Section 119.15(6)(b)3., F.S.
24
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?
 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?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
Section 14.2016, F.S.
28
Section 252.31, F.S., through s. 252.60, F.S., are known as the State Emergency Management Act. Section 252.31, F.S.
BILL: CS/SB 418 Page 5
to serve as shelters in the event of an emergency.29 Public facilities, including schools, post-
secondary education facilities, and other facilities owned or leased by the state or local
governments, but excluding hospitals or nursing homes, suitable for use as public hurricane
evacuation shelters must be made available at the request of the local emergency management
agencies.30
The DEM is required to prepare a state comprehensive emergency management plan (CEMP)
that must be integrated into, and coordinated with, the emergency management plans of the
Federal Government.31 The CEMP32 must include a shelter component, the Statewide
Emergency Shelter Plan (plan),33 with specific planning provisions and the CEMP must promote
shelter activity coordination between the public, private, and nonprofit sectors.34 The plan must
include the following:
 Contain strategies to ensure the availability of adequate shelter space in each region of the
state;
 Establish strategies for refuge-of-last-resort programs;
 Provide strategies to assist local emergency management efforts to ensure that adequate
staffing plans exist for all shelters, including medical and security personnel;
 Provide for a post-disaster communications system for public shelters;
 Establish model shelter guidelines for operations, registration, inventory, power generation
capability, information management, and staffing; and
 Set forth policy guidance for sheltering people with special needs.35
The plan must be prepared and submitted to the Governor and Cabinet each even-numbered
year.36 The plan, among other requirements, must identify the location and square footage of
existing shelters as well as shelters needed in the next five years.37 The plan must also identify
the types of public facilities that should be constructed to comply with emergency shelter criteria
and must recommend an appropriate and available source of funding for the additional cost of
constructing emergency shelters within these public facilities.38
Public shelters are not required to gather personal information on shelter residents, however,
nothing in law prevents the collection of this information. Shelters that collect personal
information on their residents may do so to have an accurate accounting of all persons staying
within or to locate family members for the purpose of family reunification. While no public
29
Section 252.385(2)(a), F.S.
30
Section 252.385(4)(a), F.S.
31
Section 252.35(2)(a), F.S.; see also s. 1013.372, F.S.
32
FLA. ADMIN. CODE R. 27P-2.002, incorporates the CEMP by reference; See Comprehensive Emergency Management Plan,
Division of Emergency Management, available at https://www.floridadisaster.org/globalassets/importedpdfs/2014-state-
cemp-basic-plan.pdf (last visited January 27, 2021).
33
2018 Statewide Emergency Shelter Plan, DIVISION OF EMERGENCY MANAGEMENT, available at
https://www.floridadisaster.org/globalassets/dem/response/sesp/2018/2018-sesp-entire-document.pdf (last visited January 27,
2021).
34
Section 252.35(2)(a)2., F.S.
35
Id.
36
Section 1013.372(2), F.S.
37
Id.
38
Id.
BILL: CS/SB 418 Page 6
record exemption for this information exists, the plan states that shelter staff members should
“abide by principles of confidentiality.”39
III. Effect of Proposed Changes:
Section 1 amends s. 252.385, F.S., to exempt40 from public inspection and copying requirements
the address and telephone number of a person which are held by an agency, as defined in
s. 119.011, F.S., providing public emergency shelter to person during a storm or catastrophic
event.
The bill provides that the exemptions are subject to the Open Government Sunset Review Act
and will repeal October 2, 2026, unless the Legislature reviews and reenacts the exemptions by
that date.
Section 2 provides a public necessity statement as required by the Florida Constitution. The
statement asserts that:
Shelters are made available to the public to provide a safe place of
accommodation before, during, and immediately following an emergency.
During an emergency, the people affected are in a vulnerable state, as they have
voluntarily displaced themselves from their residences and possessions to seek
refuge. The information submitted to an agency by such a person seeking shelter
could be used by persons