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 Governmental Oversight and Accountability
BILL: CS/SB 1824
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Powell
SUBJECT: Public Records/Division of Emergency Management or a Local Emergency Management
Agency
DATE: April 6, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Stallard Caldwell MS Favorable
2. Candelaria McVaney GO Fav/CS
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1824 expands the current public records exemption relating to any information furnished
by a person or business to the Division of Emergency Management or a local emergency
management agency for the purpose of receiving assistance with emergency planning to exempt
from public inspection and copying requirements the following information held by the Division
of Emergency Management or a local emergency management agency:
 Emergency response assessment reports prepared by the division or a local emergency
management agency;
 Evaluation tools prepared by the division or a local emergency management agency; and
 After-action reports prepared by the division or a local emergency management agency.
The bill provides a public necessity statement as required by the Florida Constitution. According
to this statement, the exemption is necessary to protect sensitive information regarding the state’s
vulnerabilities in responding to emergencies. The public necessity statement also asserts that the
exemption is needed to allow agencies to make candid written assessments of their responses to
emergencies without making a public record of the assessments, which could be misunderstood
or misinterpreted by the public.
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.
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The bill is not expected to impact state and local government revenues and expenditures.
The bill takes effect July 1, 2021.
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
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 1824 Page 3
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
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
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.
BILL: CS/SB 1824 Page 4
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
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
Information Furnished to the Division of Emergency Management
Information furnished by a person or a business to the Division of Emergency Management for
the purpose of being provided assistance with emergency planning is exempt from disclosure
under this state’s public records laws.27
20
Section 119.15(6)(b), F.S.
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 252.905, F.S.
BILL: CS/SB 1824 Page 5
III. Effect of Proposed Changes:
The bill expands the current public records exemption relating to any information furnished by a
person or business to the Division of Emergency Management or a local emergency management
agency for the purpose of receiving assistance with emergency planning to exempt from public
inspection and copying requirements the following information held by the Division of
Emergency Management or a local emergency management agency:
 Emergency response assessment reports prepared by the division or a local emergency
management agency;
 Evaluation tools prepared by the division or a local emergency management agency; and
 After-action reports prepared by the division or a local emergency management agency.
The bill defines the following terms. The term “Emergency response assessment report” is
defined to mean:
A report containing analysis and evaluation of collected data and information
pertinent to the response actions taken by first responders and disaster response
stakeholders before, during, or after a disaster or an emergency. For the purposes
of this definition, response actions include, but are not limited to, saving lives or
relieving suffering, protecting the health and safety of the public, preventing the
escalation of an incident, mitigating further damage, maintaining or restoring
critical functions, safeguarding the environment, and restoring normal services.
The term “Evaluation tool” is defined to mean:
An instrument or technique used to measure and evaluate the quality or efficacy of
disaster response actions or interventions.
The term “after-action report” is defined to mean:
A report containing observations of a disaster, an incident, an emergency, or an
exercise and recommendations identifying specific corrective actions for post-event
improvements.
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.
The bill’s public necessity statement reads as follows:
The Legislature finds it is a public necessity that emergency response assessment
reports, evaluation tools, and after-action reports relied upon by emergency
management agencies to evaluate the effectiveness of a response and used to
improve that response be made exempt from s. 119.07(1), Florida Statutes, and
s. 24(a), Article I of the State Constitution. Such assessments, tools, and reports
cover a cross-section of agencies and entities and may include protected
information, such as threat, vulnerability, and capability assessment information.
BILL: CS/SB 1824 Page 6
This protected information must be exempt from public records requirements not
only because of its sensitive nature, but to assure participating agencies that their
candid assessments of response techniques or procedures will not be misunderstood
or misinterpreted, but instead be the basis for meaningful evaluation and
improvement of existing response systems. This need outweighs the value of
publicly disclosing these emergency response assessment reports, evaluations tools,
and after-action reports.
The bill takes effect July 1, 2021.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not appear to require cities and counties to expend funds or limit their
authority to raise revenue or receive state-shared revenues as specified by Article VII,
Section 18 of the State Constitution.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
public records requirements. This bill enacts a new public records exemption. Thus, the
bill requires a two-thirds vote to be enacted.
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requiremen