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 Transportation
BILL: CS/SB 1502
INTRODUCER: Committee on Transportation and Senator Harrell
SUBJECT: Public Records/Department of Highway Safety and Motor Vehicles
DATE: March 10, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Proctor Vickers TR Fav/CS
2. ATD
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1502 relates the Department of Highway Safety and Motor Vehicles (DHSMV), and
contains a public record exemption for information received by the DHSMV as a result of an
investigation or examination until the investigation or examination ceases to be active or
administrative action taken by the DHSMV has concluded or been made part of any hearing or
court proceeding.
The bill provides that the DHSMV may release information that is made confidential and exempt
in furtherance of its official duties and responsibilities or, if released to another governmental
agency, in the furtherance of that agency’s official duties and responsibilities.
The bill is subject to the Open Government Sunset Review Act and will stand repealed on
October 2, 2026, unless reviewed and reenacted by the Legislature. The bill contains a public
necessity statement as required by the Florida Constitution. Because this bill creates a new public
records exemption, a two-thirds vote of the members present and voting in each house of the
Legislature is required for passage.
The bill takes effect on the same date that SB 1500 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof and becomes a law.
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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, ch. 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 1502 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 1502 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
Subpoenas
A subpoena is a written order to compel an individual to give testimony on a particular subject,
often before a court, but sometimes in other proceedings.27 A subpoena duces tecum is a type of
subpoena that requires the witness to produce a document or documents pertinent to a
proceeding.28 Section 27.04, F.S., “allows the state attorney to issue subpoenas duces tecum for
records as part of an ongoing investigation.”29 The state does not need to establish the relevance
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
Subpoena, Legal Information Institute (available at https://www.law.cornell.edu/wex/subpoena).
28
Subpoena duces tecum, Legal Information Institute, (available at
https://www.law.cornell.edu/wex/subpoena_duces_tecum).
29
State v. Investigation, 802 So. 2d 1141, 1144 (Fla. 2d DCA 2001).
BILL: CS/SB 1502 Page 5
and materiality of the information sought through an investigative subpoena,30 but the subject
matter of the investigation must be confined to violations of criminal law.31
Section 92.605(2), F.S., describes subpoenas, court orders, and warrants issued in compliance
with the Electronic Communications and Privacy Act.32 The federal act and its Florida
counterpart, s. 934.23, F.S., authorize a law enforcement officer, state attorney, or judge to
subpoena the records of an out-of-state corporation that provides electronic communication
services or remote computing services to the public. A corporation must comply within 20 days
after receipt of the subpoena. However, if the recipient cannot comply within that time period, it
must notify the law enforcement officer who sought the subpoena within the 20-day time period
that the records cannot be provided and comply as soon as possible.33 An “out-of-state
corporation,” i.e., any corporation qualified to do business in Florida under s. 607.1501, F.S,34 is
“properly served,” by subpoena or otherwise, when service is effected on that corporation’s
registered agent.35
Subpoenas in General
A subpoena is an order directed to a person requiring attendance at a particular time and place. A
subpoena ad testificandum requires attendance to testify as a witness, while a subpoena duces
tecum orders a witness to appear and bring certain documents, records, or other tangible
evidence that may be introduced as evidence in a case.36 Subpoenas may be issued in a criminal
investigation,37 a criminal prosecution during discovery,38 or for trial39 by a defendant, his or her
counsel,40 or the state attorney. Generally, a subpoena must state the name of the court, title of
action, and time and place the witness is ordered to give testimony or produce other evidence.41
When a witness is subpoenaed by either party in a criminal case, he or she must remain available
30
Id.
31
Morgan v. State, 309 So. 2d 552, 553 (Fla. 1975).
32
18 U.S.C. § 2701 et seq.
33
Section 92.605(2)(b), F.S. If the entity seeking the subpoena shows and the court finds that failure to produce the requested
records would produce an “adverse result,” i.e., physical harm, flight from prosecution, destruction of evidence, intimidation
of witnesses, or jeopardy to the investigation, the court may order the records be produced earlier than 20 days.
Section 92.605(c), (1)(a), F.S. The court may also extend the time to comply with a subpoena if doing so will not cause an
adverse result.
34
Section 92.605(1)(e), F.S.
35
Section 92.605(1)(h), F.S. Per s. 607.0505, F.S., a foreign corporation doing business in Florida must have a registered
agent, and per s. 607.1507, F.S., such agent must be located in or authorized to transact business in Florida.
36
Black's Law Dictionary (11th ed. 2019).
37
Florida law authorizes certain entities to use subpoenas to conduct criminal investigations, including, but not limited to, s.
409.920, F.S. (authorizing the Attorney General to subpoena witnesses or materials, including medical records, during an
investigation for Medicaid fraud); s. 415.107, F.S. (authorizing a criminal justice agency investigating a report related to
abuse, neglect, or exploitation of a vulnerable adult to subpoena related records); and s. 414.411, F.S. (authorizing the
Department of Financial Services to subpoena witnesses and records related to a public assistance fraud investigation).
38
Fla. R. Civ. P. 3.220(h) allows any party to conduct a deposition by oral examination of any person authorized by the rule,
generally including listed witnesses, co-defendants, or unlisted witnesses who have information relevant to the offense
charged.
39
A subpoena for testimony before the court and subpoenas for production of tangible evidence before the court may
generally be issued by the clerk of the court or by any attorney of record in the case. Fla. R. Civ. P. 3.361(a).
40
The United States Constitution guarantees a defendant in a criminal case the right to compulsory processes for obtaining
witnesses in his or her favor; U.S. Const. amend. 6.
41
Id.
BILL: CS/SB 1502 Page 6
for attendance until the case is resolved or until he or she is excused by the court.42 If a witness
departs without permission of the court or intentionally fails to produce requested tangible
evidence, he or she may be held in contempt of court.43
Contempt of Court
Contempt is a refu