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 Regulated Industries
BILL: SPB 7078
INTRODUCER: For consideration by the Regulated Industries Committee
SUBJECT: Public Records and Public Meetings/Gaming Control Commission
DATE: April 8, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Kraemer Imhof Pre-meeting
I. Summary:
SPB 7078, which is linked to the passage of SPB 7076 (2021), related to Gaming Enforcement,
makes confidential and exempt from public copying and inspection requirements certain
information obtained by the Florida Gaming Control Commission (commission). Portions of the
commission’s meetings during which exempted or confidential and exempt information is
discussed are also exempt from open meeting requirements.
The bill provides that the public record exemptions are subject to the Open Government Sunset
Review Act and will repeal on October 2, 2026, unless the Legislature reviews and reenacts the
exemptions by that date.
The bill will become effective on the same date that SPB 7076 (2021) or similar legislation takes
effect, if such legislation is adopted in the same legislative session or an extension thereof and
becomes law.
Section 24(c) of Article I of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a newly created or expanded public record or public
meeting exemption. The bill creates public record exemptions; thus, it requires a two-thirds vote
for final passage.
II. Present Situation:
Public Records
Section 24(a) of Article I of the State Constitution sets forth the state’s public policy regarding
access to government records. This section guarantees every person a right to inspect or copy any
public record of the legislative, executive, and judicial branches of government. The Legislature,
however, may provide by general law for the exemption of records from the requirements of
section 24(a) of Article I of the State Constitution.1 The general law must state with specificity
1
FLA. CONST. art. I, s. 24(c).
BILL: SPB 7078 Page 2
the public necessity justifying the exemption2 and must be no broader than necessary to
accomplish its purpose.3
Public policy regarding access to government records is addressed further in s. 119.07(1)(a),
F.S., which guarantees every person a right to inspect and copy any state, county, or municipal
record, unless the record is exempt. Furthermore, the Open Government Sunset Review Act4
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 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; and
 Protect trade or business secrets.5
The Open Government Sunset Review Act requires the automatic repeal of a newly created
public record exemption on October 2nd of the fifth year after creation or substantial
amendment, unless the Legislature reenacts the exemption.6
Open Meetings Laws
The State Constitution also provides that the public has a right to access governmental meetings.7
Each collegial body must provide notice of its meetings to the public and permit the public to
attend any meeting at which official acts are taken or at which public business is transacted or
discussed.8 This applies to the meetings of any collegial body of the executive branch of state
government, counties, municipalities, school districts, or special districts.9
Public policy regarding access to government meetings is also addressed in the Florida Statutes.
Section 286.011, F.S., which is also known as the “Government in the Sunshine Law,”10 or the
“Sunshine Law,”11 requires all meetings of any board or commission of any state or local agency
2
This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3
FLA. CONST. art. I., s. 24(c).
4
Section 119.15, F.S.
5
Section 119.15(6)(b), F.S.
6
Section 119.15(3), F.S.
7
FLA. CONST. art. I, s. 24(b).
8
Id.
9
FLA. CONST. art. I, s. 24(b). Meetings of the Legislature are governed by section 4(e) of Article III of the State Constitution,
which states: “The rules of procedure of each house shall further provide that all prearranged gatherings, between more than
two members of the legislature, or between the governor, the president of the senate, or the speaker of the house of
representatives, the purpose of which is to agree upon formal legislative action that will be taken at a subsequent time, or at
which formal legislative action is taken, regarding pending legislation or amendments, shall be reasonably open to the
public.”
10
Times Pub. Co. v. Williams, 222 So. 2d 470, 472 (Fla. 2d DCA 1969).
11
Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 695 (Fla. 1969).
BILL: SPB 7078 Page 3
or authority at which official acts are to be taken, to be open to the public.12 The board or
commission must provide the public reasonable notice of such meetings.13 Public meetings may
not be held at any location that discriminates on the basis of sex, age, race, creed, color, origin,
or economic status, or which operates in a manner that unreasonably restricts the public’s access
to the facility.14 Minutes of a public meeting must be promptly recorded and open to public
inspection.15
Failure to abide by open meetings requirements will invalidate any resolution, rule, or formal
action adopted at a meeting.16 A public officer or member of a governmental entity who violates
the Sunshine Law is subject to civil and criminal penalties.17
The Legislature may create an exemption to open meetings requirements by passing a general
law by at least a two-thirds vote of both the Senate and the House of Representatives.18 The
exemption must explicitly lay out the public necessity justifying the exemption and must be no
broader than necessary to accomplish the stated purpose of the exemption.19 A statutory
exemption which does not meet these two criteria may be unconstitutional and may not be
judicially saved.20
III. Effect of Proposed Changes:
Section 1 of the bill creates s. 16.71(11), F.S., to make information obtained by the Florida
Gaming Control Commission that is exempt or confidential and exempt21 from s. 119.07(1), F.S.
or s. 24(a) Art I. of the State Constitution retains its exempt or confidential and exempt status.
The information may be released by the commission to other governmental entities as needed in
the performance of its official duties and responsibilities, but such entities must maintain the
exempt or confidential and exempt status of the information.
The bill provides portions of commission meetings during which information that is exempt or
confidential and exempt is discussed are exempt from s. 286.011 and s. 24(b), Art I. of the State
Constitution.
Under the bill, the commission is a criminal justice agency, as defined in s. 119.011, F.S., which
states a criminal justice agency is:
12
Section 286.011(1)-(2), F.S.
13
Id.
14
Section 286.011(6), F.S.
15
Section 286.011(2), F.S.
16
Section 286.011(1), F.S.
17
Section 286.011(3), F.S.
18
FLA. CONST. art. I, s. 24(c).
19
Id.
20
Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999).
21
There is a difference between records the Legislature designates exempt from public record requirements and those the
Legislature deems 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); 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. (1985).
BILL: SPB 7078 Page 4
 Any law enforcement agency, court, or prosecutor;
 Any other agency charged by law with criminal law enforcement duties;
 Any agency having custody of criminal intelligence information or criminal investigative
information for the purpose of assisting such law enforcement agencies in the conduct of
active criminal investigation or prosecution or for the purpose of litigating civil actions under
the Racketeer Influenced and Corrupt Organization Act, during the time that such agencies
are in possession of criminal intelligence information or criminal investigative information
pursuant to their criminal law enforcement duties; or
 The Department of Corrections.
The bill authorizes the commission to close portions of meetings during which the commission
will hear or discuss active criminal intelligence information or active criminal investigative
information, as those terms are defined in s. 119.011(3), F.S., and such portions of meetings shall
be exempt from the provisions of s. 286.011,, F.S., and s. 24(b), Art. I of the State Constitution,
provided the following conditions are met:
 The commission chair must advise the commission at a public meeting that, in connection
with the performance of a commission duty, it is necessary that the commission hear or
discuss active criminal investigative information or active criminal intelligence information.
 The chair’s declaration of necessity for closure and the specific reasons for such necessity
must be stated in a document that is a public record that must be filed with the official
records of the commission.
 The entire closed session must be recorded. The recording must be maintained by the
commission and include the times of commencement and termination of the closed session,
all discussion and proceedings, and the names of all persons present. No portion of the
session may be off the record.
Further, only members of the commission, Department of Law Enforcement staff supporting the
commission’s function, and other persons whose presence has been authorized by the chair may
be allowed to attend the exempted portions of the commission meetings. The commission must
assure that any authorized closure of its meetings is limited, in order to maintain the general
policy in Florida in favor of public meetings.
The bill provides the tape recording of, and any minutes and notes generated during a closed
portion of a commission meeting are confidential and exempt from s. 119.07(1), F.S., and
s. 24(a), Art. I of the State Constitution, until the criminal investigative information or criminal
intelligence information ceases to be active.
This section provides that the exemptions are subject to the Open Government Sunset Review
Act and will repeal on October 2, 2026, unless the Legislature reviews and reenacts the
exemptions by that date.
Section 2 of the bill provides public necessity statements as required by section 24(c) of Article I
of the State Constitution. As to information obtained by the commission, the public necessity
statement provides in the absence of this exemption, sensitive confidential or exempt information
would be disclosed. As to portions of meetings of the commission at which confidential and
exempt information is discussed, the public necessity statement provides the release of
BILL: SPB 7078 Page 5
confidential and exempt information via a public meeting defeats the purpose of a public records
exemption, and the harm to the public that would result from the release of such information
substantially outweighs any minimal public benefit derived therefrom.
The bill provides the following findings of the Legislature:
[D]uring limited portions of the meetings of the Florida Gaming Control
Commission it is necessary that the commission be presented with and
discuss details, information, and documents related to active criminal
intelligence information or active criminal investigative information. These
presentations and discussions are necessary for the commission to make its
decisions for licensing of persons for pari-mutuel and gaming activities, and
for decisions related to gaming enforcement and enforcement of gambling
laws as required by the Legislature under this act.
The Legislature finds that to reveal the contents of documents containing
active criminal investigative or intelligence information or to allow active
criminal investigative or active criminal intelligence matters to be discussed
in a meeting open to the public negatively impacts the ability of law
enforcement agencies to efficiently continue their investigative or
intelligence gathering activities.
The Legislature finds that information coming before the commission that
pertains to active criminal investigations or intelligence should remain
confidential and exempt from public disclosure.
The Legislature finds that the Florida Gaming Control Commission may,
by declaring only those portions of commission meetings in which active
criminal investigative or active criminal intelligence information is to be
presented or discussed closed to the public, assure an appropriate balance
between the policy of this state that meetings be public and the policy of
this state to facilitate efficient law enforcement efforts.
Accordingly, the Legislature finds that the harm to the public that would
result from the release of such information substantially outweighs any
minimal public benefit derived therefrom.
The bill takes effect on the same date that SPB 7076 (2021) or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and becomes a
law.
BILL: SPB 7078 Page 6
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The mandate restrictions do not apply because the bill does not require counties and
municipalities to spend funds, reduce counties’ or municipalities’ ability to raise revenue,
or reduce the percentage of state tax shared with counties and municipalities.
B. Public Records/Open Meetings Issues:
Vote Requirement
Section 24(c) of Article I of the State Constitution requires a two-thirds vote of the
members present and voting for final passage of a newly created or expanded public
record or public meeting exemption. The bill creates new public record exemptions.
Thus, the bill requires a two-thirds vote for final passage.
Public Necessity Statement
Section 24(c) of Article I of the State Constitution requires a public necessity statement
for a newly created or expanded public record or public meeting exemption. The bill
creates new public record exemptions. Thus, the bill includes a public necessity
statement.
Breadth of Exemption
Section 24(c) of Article I of the State Constitution requires a newly created or expanded
public record or public meeting exemption to be no broader than necessary to accomplish
the stated purpose of the law. The bill creates public record exemptions for sensitive
investigative materials, which does not appear to be broader than necessary to accomplish
its purpose.
C.