Bill Summary – FastDemocracy

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/CS/SB 890
INTRODUCER:     Rules Committee; Criminal Justice Committee; and Senator Hooper
SUBJECT:        Use of Electronic Databases
DATE:           March 18, 2021                  REVISED:
           ANALYST                    STAFF DIRECTOR                 REFERENCE                                 ACTION
1. Stokes                           Jones                                  CJ             Fav/CS
2. Proctor                          Vickers                                TR             Favorable
3. Stokes                           Phelps                                 RC             Fav/CS
                     Please see Section IX. for Additional Information:
                                   COMMITTEE SUBSTITUTE - Substantial Changes
  I.    Summary:
        CS/CS/SB 890 amends s. 119.0712, F.S., providing that any person who uses or releases
        information contained in the Driver and Vehicle Information Database (DAVID) for a purpose
        not specifically authorized by law commits a noncriminal infraction, punishable by a fine not
        exceeding $2,000.
        This bill amends s. 943.125, F.S., providing that the law enforcement accreditation program must
        address access to and use of personal identification information, as defined in s. 817.568(1)(f),
        F.S., contained in electronic databases.
        This bill creates ss. 943.1719 and 943.17191, F.S., requiring the Criminal Justice Standards and
        Training Commission (CJSTC) to provide training on the authorized access to and use of
        personal identification information contained in electronic databases used by a law enforcement
        officer (LEO) in his or her official capacity. This training must be part of the curriculum required
        for initial certification of a LEO, and as part of the 40 hours of required instruction for continued
        employment or appointment as an officer. The training under ss. 943.1719 and 943.17191, F.S.,
        must at minimum include:
         The proper use and limitations on use of electronic databases in a LEO’s official capacity.
         The penalties associated with the misuse of such electronic databases.
        This bill may have a negative fiscal impact on the Florida Department of Law Enforcement
        (FDLE). See Section V. Fiscal Impact Statement.
BILL:     CS/CS/SB 890                                                                                         Page 2
           This bill is effective October 1, 2021.
    II.    Present Situation:
           Electronic Databases
           Government employees have access to various electronic databases. One database frequently
           accessed by government employees, including law enforcement, is the DAVID. The DAVID is a
           multifaceted database that affords immediate retrieval of driver and motor vehicle information
           that is indispensable for law enforcement and criminal justice officials.1 Information contained in
           DAVID is confidential and protected under the federal Driver’s Privacy Protection Act (DPPA).
           The DPPA provides that government agencies, including any court or law enforcement agency,
           may access this information in their official capacity to carry out their duties.2
           There have been recent reports of government employees abusing their access to electronic
           databases.3 One government employee admitted to searching both his ex-wife and ex-girlfriend.
           Other examples of misuse of electronic databases include an officer who was suspended for two
           days after using DAVID to access addresses for Christmas cards, an officer who was fired for
           using DAVID to access information on a teen girl he was talking to and her parents, and an
           officer who resigned after being accused of using DAVID to search personal information of
           young women he met while on duty.4
           Violation of Public Records Laws
           It is state policy 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. 5 Chapter
           119, F.S., provides various laws regarding public records, and public record exemptions.
           Section 119.0712(2), F.S., provides that personal information, including highly restricted
           personal information, contained in a motor vehicle record is confidential pursuant to the federal
           DPPA. Such information may be released pursuant to that act. However, information received
           pursuant to the DPPA may not be used for mass commercial solicitation of clients for litigation
           against motor vehicle dealers.6
           Section 119.10, F.S., provides that any public officer who violates any provision of ch. 119, F.S.,
           relating to public records, commits a noncriminal infraction, punishable by a fine of up to $500.
1
  Florida Highway Safety and Motor Vehicles, Driver and Vehicle Information Database (DAVID), available at Driver And
Vehicle Information Database (DAVID) - Florida Department of Highway Safety and Motor Vehicles (flhsmv.gov) (last
visited March 18, 2021).
2
  18 U.S.C. s. 2721.
3
  10 Tampa Bay, 10 Investigates: Government workers abusing access to your private info face few consequences,
November 25, 2020, available at Florida government workers abuse access to your private info | wtsp.com (last visited
March 18, 2021).
4
  Id.
5
  Section 119.01(1), F.S.
6
  Section 119.0712(2)(b), F.S.
BILL:   CS/CS/SB 890                                                                                                  Page 3
         A public officer who knowingly violates s. 119.07(1), F.S.,7 is subject to suspension and removal
         or impeachment and commits a first degree misdemeanor.8, 9
         Additionally, any person who willfully and knowingly violates any provisions of ch. 119, F.S.,
         commits a first degree misdemeanor.10 Any person who willfully and knowingly violates
         s. 119.105, F.S.11 commits a third degree felony.12, 13
         Misuse of an Electronic Database
         Misuse of an electronic database is a violation of an officer’s good moral character.14 An officer
         misuses an electronic database when he or she willfully and knowingly accesses an electronic
         database and uses the database to access restricted information for an illegitimate or personal
         purpose with bad intent. Bad intent may be demonstrated by:
          A pattern of misuse that demonstrates improper access or violations.
          If the violation occurred after the officer received agency or the Criminal Justice Standards
             and Training Commission (CJSTC) discipline for improperly accessing a computer database,
             or after the officer received formal training on the database(s) that includes provisions on the
             improper use of a database.
          The existence of a current or past non-amicable or otherwise contentious relationship
             between the officer and the subject of the query, or when the purpose of the query is to
             identify person(s) linked or associated to the relationship.
          Pre-textual queries based on age, race, sex, gender, or other personal identifying
             characteristics.
          Any additional action taken by the officer as a result of the information obtained from the
             query, for example, retaining, copying, or reproducing the information obtained from the
             query, or disseminating information not listed as confidential or exempt in ch. 119, F.S.,
             obtained as a result of the query.15
         Misuse of an electronic database, such as DAVID, may result in disciplinary action. The
         recommended penalty the CJSTC should impose for misuse of an electronic database ranges
         from probation to suspension.16 Additionally, misuse of an electronic database may subject an
         officer to the penalties in s. 119.10, F.S., including being charged with a first degree
         misdemeanor.
7
  Section 119.07(1), F.S., relates to the responsibilities of custodians of public records.
8
  Section 119.10(1)(a) and (b), F.S.
9
  A first degree misdemeanor is punishable by up to one year in jail and up to a $1,000 fine. Sections 775.082 and 775.083,
F.S.
10
   Section 119.10(2)(a), F.S.
11
   Section 119.105, F.S., provides that police reports are public records unless otherwise made confidential and exempt.
Nonexempt or nonconfidential police reports may be examined by any person. However, any person who has possession of
exempt or confidential information in a police report may not commercially solicit the victims or relatives of the victims in
the report and may not knowingly disclose such information for the purpose of solicitation. This does not apply to publication
by any news media legally entitled to possess the information.
12
   Section 119.10(2)(b), F.S.
13
   A third degree felony is punishable by up to five years imprisonment, a $5,000 fine, or enhanced penalties as a habitual
felony offender. Sections 775.082, 775.083, and 775.084, F.S.
14
   Rule 11B-27.0011, F.A.C.
15
   Rule 11B-27.0011(4)(c)(14), F.A.C.
16
   Rule 11B-27.005(5)(c), F.A.C.
BILL:   CS/CS/SB 890                                                                                                     Page 4
         The Criminal Justice Standards and Training Commission
         The CJSTC’s mission is to ensure that all citizens of Florida are served by criminal justice
         officers who are ethical, qualified, and well-trained.17 The CJSTC is comprised of:
          Three sheriffs.
          Three chiefs of police.
          Five LEOs who are neither sheriffs nor chiefs who are the rank of Sergeant or below.
          Two correctional officers, one of which is an administrator of a state correctional institution
             and one who is of the rank of sergeant or below.
          One Florida resident who falls into none of the above categories.
          The Attorney General or designated proxy.
          The Secretary of Department of Corrections or designated proxy.
          The Director of the Florida Highway Patrol.18
         The primary responsibilities of the CJSTC are to:
          Establish uniform minimum standards for employment and training of full-time, part-time,
            and auxiliary law enforcement, and correctional and correctional probation officers.
          Establish and maintain officer training programs, curricula requirements, and certification of
            training schools and training school instructors.
          Certify officers who complete a Florida Basic Recruit Training Program, or who are
            diversely qualified through experience and training, and who meet minimum employment
            standards.
          Review and administer appropriate administrative sanctions in instances when an officer, a
            training school instructor, or a training school is found in violation of Florida Statutes and
            CJSTC standards.
          Promulgate rules and procedures to administer the requirements of ch. 943.085-943.257, F.S.
          Conduct studies of compensation, education, and training for the correctional, correctional
            probation, and law enforcement disciplines.
          Maintain a central repository of records of all certified officers.
          Conduct quarterly meetings to discuss issues and approve rules that relate to officer standards
            and training.
          Develop, maintain, and administer the State Officer Certification Examination for criminal
            justice officers.19
         Accreditation
         An accreditation program has long been recognized as a means of maintaining the highest
         standards of professionalism. Accreditation is the certification by an independent reviewing
         authority that an entity has met specific requirements and prescribed standards.20
17
   Florida Department of Law Enforcement, Criminal Justice Standards & Training Commission (CJSTC), available at
https://www.fdle.state.fl.us/CJSTC/Commission/CJSTC-Home.aspx (last visited March 18, 2021).
18
   Id.
19
   Id.
20
   Florida Accreditation, Introduction to Florida Accreditation, available at http://www.flaccreditation.org/ (last visited
March 18, 2021).
BILL:   CS/CS/SB 890                                                                                Page 5
         Section 943.125, F.S., provides legislative intent that law enforcement agencies voluntarily adopt
         meaningful standards of operation designed to promote enhanced professionalism and to
         maximize the capability of law enforcement agencies to enforce the law and prevent and control
         criminal activity.21 The statute further encourages the continuation of a voluntary state
         accreditation program to facilitate enhanced professionalism. The accreditation program must be
         independent of any law enforcement agency, the Department of Corrections, the Florida Sheriff’s
         Association, or the Florida Police Chiefs Association.22
         The law enforcement accreditation program must address, at minimum, the following aspects of
         law enforcement:
          Vehicle pursuits.
          Seizure and forfeiture of contraband articles.
          Recording and processing citizens’ complaints.
          Use of force.
          Traffic stops.
          Handling natural and manmade disasters.
          Special operations.
          Prisoner transfer.
          Collection and preservation of evidence.
          Recruitment and selection.
          Officer training.
          Performance evaluations.
          Law enforcement disciplinary procedures and rights.
          Use of criminal investigative funds.23
         Commission for Florida Law Enforcement Accreditation, Inc.
         The Commission for Florida Law Enforcement Accreditation, Inc. (CFA) was originally formed
         in 1993 as a response to s. 943.125, F.S. 24 The CFA is comprised of:
          Five police chiefs, from agencies either CFA accredited or with a signed agreement to pursue
             accreditation;
          Five sheriffs from agencies either CFA accredited or with a signed agreement to pursue
             accreditation;
          One mayor, city commissioner, city manager, or other member appointed by the Florida
             League of Cities;
          One county commissioner or other member appointed by the Florida Association of
             Counties;
          One appellate or circuit court judge appointed by the Florida Supreme Court;
          One law enforcement executive from a state law enforcement agency either CFA accredited
             or with a signed agreement to pursue accreditation; and
21
   Section 943.125(1) and (2), F.S.
22
   Section 943.125(3), F.S.
23
   Section 942.125(4)(a)-(n), F.S.
24
   Florida Department of Law Enforcement, Florida Accreditation Office, available at
https://www.fdle.state.fl.us/Accreditation/Accreditation (last visited March 18, 2021).
BILL:   CS/CS/SB 890                                                                                            Page 6
            One representative from the Office of Inspector General either CFA accredited or with a
             signed agreement to pursue accreditation.25
         The commission meets three times a year to oversee the accreditation program and to officially
         accredit agencies that have passed the review process.26
III.     Effect of Proposed Changes:
         The bill amends s. 119.0712, F.S., providing that any person who uses or releases information
         contained in the DAVID for a purpose not specifically authorized by law commits a noncriminal
         infraction, punishable by a fine not exceeding $2,000.
         This bill amends s. 943.125, F.S., providing that the law enforcement accreditation program must
         address access to and use of personal identification information contained in electronic
         databases.
         The bill defines personal identification information as it is defined in s. 817.568(1)(f), F.S.
         Section 817.568(1)(f), F.S., defines “personal identification information,” as any name or
         number that may be used, alone or in conjunction with any other information, to identify a
         specific person, including any:
          Name, postal or electronic mail address, telephone number, social security number, date of
            birth, mother’s maiden name, official state issued or U.S. issued driver license or
            identification number, alien registration number, government passport number, employer or
            taxpayer identification number, Medicaid or food assistance account number, bank account
            number, credit or debit card number, or personal identification number or code assigned to
            the holder of a debit card by the issuer to permit authorized electronic use of such card;
          Unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique
            physical representation;
          Unique electronic identification number, address, or routing code;
          Medical records;
          Telecommunication identifying information or access device; or
          Other number or information that can be used to access a person’s financial resources.
         This bill creates s. 943.1719, F.S., requiring the commission to provide training on the authorized
         access to and use of personal identification information contained in electronic databases used by
         a LEO in his or her official capacity. This training must be part of the