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 590
INTRODUCER: Rules Committee; Governmental Oversight and Accountability Committee; and Senator
Rodriguez
SUBJECT: Public Records and Meetings/Professional Counselors Licensure Compact
DATE: February 16, 2022 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Smith Brown HP Favorable
2. Ponder McVaney GO Fav/CS
3. Smith Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 590 exempts from public inspection and copying requirements the personal
identifying information of a mental health counselor, other than the counselor’s name, licensure
status, or licensure number, obtained from the data system under the Professional Counselors
Licensure Compact, as established in s. 491.017, F.S.,1 and held by the Department of Health
(DOH) or the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health
Counseling (Board). This information is not exempt from public records requirements under the
bill if the state originally reporting the information to the data system authorizes disclosure of
such information by law.
The bill exempts from open meeting requirements a closed meeting or a closed portion of a
meeting of the Compact Commission or the executive committee of the commission, established
under the Professional Counselors Licensure Compact. The exemption applies when the chair of
the commission declares the specific reasons it is necessary to close the meeting or a portion
thereof in a document that is a public record and held by the commission and announces at a
public meeting that, in connection with the performance of the commission’s duties, it is
necessary that the commission discuss one of five enumerated issues. The bill provides that
1
Section 491.017, F.S., is created in SB 358 (2022) and authorizes the state’s participation in the Professional Counselors
Licensure Compact and the coordinated information system.
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recordings, minutes, and records generated from those closed meetings are also exempt from
requirements to disclose such public records.
The bill has no impact on state revenues or state expenditures.
The bill provides an effective date of the same date that SB 358 or similar legislation takes
effect. SB 358, the substantive bill authorizing Florida’s participation in the Professional
Counselors Licensure Compact, has an effective date contingent upon the enactment of the
compact into law by 10 states.
The bill provides for the repeal of the public records and open meeting exemptions on October 2,
2027, unless reviewed and reenacted by the Legislature. It also provides statements of public
necessity for the public records and public meetings exemptions as required by the State
Constitution.
The bill creates new public records exemptions and public meeting exemptions; therefore, a two-
thirds vote of the members present and voting in each house of the Legislature is required for
final passage.
II. Present Situation:
Access to Public Records - Generally
The State Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.2 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.3
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 adopted in the rules of each house of the legislature.4 Florida Rule of
Judicial Administration 2.420 governs public access to judicial branch records.5 Lastly, ch. 119,
F.S., known as the Public Records Act, provides requirements for public records held by
executive agencies.
2
FLA. CONST. art. I, s. 24(a).
3
Id.
4
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)
5
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
BILL: CS/CS/SB 590 Page 3
Executive Agency Records – The Public Records Act
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.6
Section 119.011(12), F.S., defines “public records” to include:
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 connections with the transaction of official
business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business that are used 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
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
6
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.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
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).
BILL: CS/CS/SB 590 Page 4
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.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.14 Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.15 Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.16
Open Meetings Laws
The State Constitution provides that the public has a right to access governmental meetings. 17
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.18 This applies to the meetings of any collegial body of the executive branch of state
government, counties, municipalities, school districts or special districts.19
Public policy regarding access to government meetings also is addressed in the Florida Statutes.
Section 286.011, F.S., known as the “Government in the Sunshine Law,”20 or the “Sunshine
Law,”21 requires all meetings of any board or commission of any state or local agency or
authority at which official acts are to be taken be open to the public.22 The board or commission
must provide the public reasonable notice of such meetings.23 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.24 Minutes of a public meeting must be promptly recorded and open to public
inspection.25 Failure to abide by open meetings requirements will invalidate any resolution, rule
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
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5th DCA 2004).
15
Id.
16
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
17
FLA. CONST., art. I, s. 24(b).
18
Id.
19
FLA. CONST., art. I, s. 24(b). Meetings of the Legislature are governed by Article III, section 4(e) of the Florida
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.”
20
Times Pub. Co. v. Williams, 222 So. 2d 470, 472 (Fla. 2d DCA 1969).
21
Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, 695 (Fla. 1969).
22
Section 286.011(1)-(2), F.S.
23
Id.
24
Section 286.011(6), F.S.
25
Section 286.011(2), F.S.
BILL: CS/CS/SB 590 Page 5
or formal action adopted at a meeting.26 A public officer or member of a governmental entity
who violates the Sunshine Law is subject to civil and criminal penalties.27
The Legislature may create an exemption to open meetings requirements by passing a general
law by at least a two-thirds vote of each house of the Legislature.28 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.29 A statutory exemption which
does not meet these two criteria may be unconstitutional and may not be judicially saved.30
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act31 (the
Act), prescribe a legislative review process for newly created or substantially amended 32 public
records or open meetings exemptions, with specified exceptions.33 The Act requires the repeal of
such exemption on October 2nd of the fifth year after creation or substantial amendment, unless
the Legislature reenacts the exemption.34
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.35
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;36
 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;37 or
26
Section 286.011(1), F.S.
27
Section 286.011(3), F.S.
28
FLA. CONST., art. I, s. 24(c).
29
Id.
30
Halifax Hosp. Medical Center v. New-Journal Corp., 724 So. 2d 567 (Fla. 1999). In Halifax Hospital, the Florida Supreme
Court found 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. Id. at 570. The Florida Supreme Court also declined to
narrow the exemption in order to save it. Id. In Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d
189 (Fla. 1st DCA 2004), the court found that the intent of a public records statute was to create a public records exemption.
The Baker County Press court found that since the law did not contain a public necessity statement, it was unconstitutional.
Id. at 196.
31
Section 119.15, F.S.
32
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.
33
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
34
Section 119.15(3), F.S.
35
Section 119.15(6)(b), F.S.
36
Section 119.15(6)(b)1., F.S.
37
Section 119.15(6)(b)2., F.S.
BILL: CS/CS/SB 590 Page 6
 It protects information of a confidential nature concerning entities, such as trade or business
secrets.38
The Act also requires specified questions to be considered during the review process.39 In
examining an exemption, the Act directs the Legislature to 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.40 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 expire, the previously
exempt records will remain exempt unless otherwise provided by law.41
Professional Counselors Licensure Compact
The Professional Counselors Licensure Compact (compact) provides a pathway for a licensed
professional counselor who is licensed in his or her primary state of residence (the licensee’s
“home state”) the ability to apply and be granted a privilege to practice professional counseling
(equivalent to a license to practice) in another member state, both in-person and through
telehealth.
The compact will become effective after 10 states enact the legislation for the compact. The
counselin