HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 873 Pub. Rec./Execution Information
SPONSOR(S): Maney
TIED BILLS: IDEN./SIM. BILLS: SB 1204
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice & Public Safety Subcommittee 14 Y, 0 N Padgett Hall
2) Government Operations Subcommittee 13 Y, 5 N Roth Toliver
3) Judiciary Committee 13 Y, 4 N Padgett Kramer
SUMMARY ANALYSIS
Section 922.105, F.S., requires a death sentence to be carried out by lethal injection unless the person
sentenced to death affirmatively elects to be executed by electrocution. The Secretary of the Department of
Corrections (DOC) is responsible for developing the protocols for executing a person under sentence of death
by lethal injection or electrocution, including selecting and procuring the drugs and equipment which are used
in a lethal injection.
Because of the controversial nature of the death penalty, a person involved in carrying out an execution could
be subject to harassment, intimidation, or physical harm. Similarly, an entity involved in supplying the drugs or
equipment used in administering a lethal injection could be the subject of negative publicity and a resulting loss
of business. Recognizing this, the Legislature enacted s. 945.10(1)(g), F.S., which provides that information
which identifies an executioner, or any person prescribing, preparing, compounding, dispensing, or
administering a lethal injection is confidential and exempt from disclosure as a public record. This public
records exemption clearly applies to the executioner and persons participating in an execution, however,
because the exemption does not explicitly exempt manufacturers and retailers that are the source of the drugs
and equipment used in lethal injections, it is unclear how a court would interpret such exemption.
HB 873 creates s. 945.10(1)(j), F.S., to exempt information or records that identify or could reasonably lead to
the identification of any person or entity that participates in, has participated in, or will participate in an
execution, including persons or entities administering, compounding, dispensing, distributing, maintaining,
manufacturing, ordering, preparing, prescribing, providing, purchasing, or supplying drugs, chemicals, supplies,
or equipment necessary to conduct an execution in compliance with law. The bill provides the exemption
applies to information and records held by DOC before, on, or after the date the bill becomes a law. The bill
ensures that the identities of the manufacturers and retailers that supply lethal injection drugs to DOC are
exempt from disclosure and ensures DOC will be able to obtain the drugs necessary to carry out executions in
the future.
The exemption is subject to the Open Government Sunset Review Act and will be automatically repealed on
October 2, 2027, unless the Legislature reenacts the exemption. The bill provides a statement of public
necessity as required by the Florida Constitution.
The bill does not appear to have a fiscal impact on state or local governments.
The bill is effective upon becoming a law.
Article I, section 24(c) of the Florida 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 appears to expand an existing public record exemption; thus, it requires a two-
thirds vote for final passage.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0873e.JDC
DATE: 2/23/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Public Records
Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
government records. The 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 exemption from public records requirements provided the exemption passes
by two-thirds vote of each chamber, states with specificity the public necessity justifying the exemption
(public necessity statement), and is no broader than necessary to meet its public purpose. 1
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., 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 Act 2 provides
that a public record exemption may be created or maintained only if it serves an identifiable public
purpose and the “Legislature finds that the purpose is sufficiently compelling to override the strong
public policy of open government and cannot be accomplished without the exemption.” 3 An identifiable
public purpose is served if the exemption meets 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; or
Protect trade or business secrets.4
Pursuant to s. 119.15(3), F.S., a new public records exemption or substantial amendment of an existing
public records exemption is repealed on October 2 of the fifth year following enactment, unless the
Legislature reenacts the exemption.
Executions
Methods of Execution
Section 922.105, F.S., requires a death sentence to be carried out by lethal injection unless the person
sentenced to death affirmatively elects to be executed by electrocution. The Secretary of DOC is
responsible for developing the protocols for executing a person under sentence of death by lethal
injection or electrocution, including selecting and procuring the drugs and equipment which are used in
a lethal injection.5 Currently, Florida uses a combination of three drugs to carry out a death sentence:
etomidate, rocuronium bromide, and potassium acetate. 6 Etomidate is a sedative that induces
unconsciousness, rocuronium bromide is a paralytic, and potassium acetate stops the heart. 7
Public Records Exemption
1 Art. I, s. 24(c), Fla. Const.
2 S. 119.15, F.S.
3 S. 119.15(6)(b), F.S.
4 Id.
5 S. 922.105(1), F.S.
6 Florida Department of Corrections, Lethal Injection Protocol, http://www.dc.state.fl.us/ci/docs/Lethal-Injection-Protocol-2021-05-07.pdf
(last visited Feb. 23, 2022).
7 Death Penalty Information Center, Overview of Lethal Injection Protocols, https://deathpenaltyinfo.org/executions/lethal-
injection/overview-of-lethal-injection-protocols (last visited Feb. 23, 2022).
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DATE: 2/23/2022
Because of the controversial nature of the death penalty, a person involved in carrying out an execution
could be subject to harassment, intimidation, or physical harm. Similarly, an entity involved in supplying
the drugs or equipment used in administering a lethal injection could be the subject of negative publicity
and a resulting loss of business. Recognizing this, the Legislature enacted s. 945.10(1)(g), F.S., which
provides that information which identifies an executioner, or any person prescribing, preparing,
compounding, dispensing, or administering a lethal injection is confidential and exempt from disclosure
as a public record. This public records exemption clearly applies to the executioner and persons
participating in an execution, however, because the exemption does not explicitly exempt
manufacturers and retailers that are the source of the drugs and equipment used in lethal injections, it
is unclear how a court would interpret such exemption.
Objection to Use of Lethal Injection Drugs
In recent years, in response to public pressure and Europe’s prohibition against the export of execution
drugs, many pharmaceutical companies have objected to states using drugs which they manufacture in
lethal injections, including major drug companies such as Pfizer, Roche, and Janssen (Johnson &
Johnson).8 As such, many drug manufacturers have either placed strict controls on the sale of drugs
commonly used in lethal injections, or have refused to supply such drugs to correctional agencies in
states that have the death penalty.9 In response, many states, including Florida, have had to repeatedly
amend their lethal injection protocols to account for the difficulty in obtaining lethal injection drugs. 10
Florida last changed the drugs used in the lethal injection protocol in January 2017 when it began using
etomidate and potassium acetate instead of midazolam hydrochloride and potassium chloride. 11
Effect of Proposed Changes
HB 873 creates s. 945.10(1)(j), F.S., to exempt information or records that identify or could reasonably
lead to the identification of any person or entity that participates in, has participated in, or will participate
in an execution, including persons or entities administering, compounding, dispensing, distributing,
maintaining, manufacturing, ordering, preparing, prescribing, providing, purchasing, or supplying drugs,
chemicals, supplies, or equipment necessary to conduct an execution in compliance with ch. 922, F.S.
The bill provides the exemption applies to information and records held by DOC before, on, or after the
date the bill becomes a law. The bill ensures that the identities of the manufacturers and retailers that
supply lethal injection drugs to DOC are exempt from disclosure and ensures DOC will be able to
obtain the drugs necessary to carry out executions in the future.
The exemption is subject to the Open Government Sunset Review Act and will be automatically
repealed on October 2, 2027, unless the Legislature reenacts the exemption.
The bill provides a statement of public necessity as required by the Florida Constitution, stating that
disclosure of records that identify or could lead to the identification of persons or entities that participate
in an execution could jeopardize the safety of such persons or entities and expose them to harassment,
intimidation, or harm and also thwart the ability of DOC to obtain the necessary personnel, drugs,
chemicals, supplies, or equipment needed to carry out an execution.
The bill is effective upon becoming a law.
B. SECTION DIRECTORY:
8 Erick Eckholm, Pfizer Blocks the Use of Its Drugs in Executions, New York Times (May 13, 2016),
https://www.nytimes.com/2016/05/14/us/pfizer-execution-drugs-lethal-injection.html (last visited Feb. 23, 2022); Death Penalty
Information Center, Statements from drug manufacturers and medical professionals, https://deathpenaltyinfo.org/executions/lethal-
injection/statements-from-drug-manufacturers-and-medical-professionals (last visited Feb. 23, 2022).
9 Death Penalty Information Center, Johnson & Johnson unit speaks out at planned death row drug use ,
https://files.deathpenaltyinfo.org/legacy/files/pdf/2017.08.21_JansenStatement_LethalInjection.pd f (last visited Feb. 23, 2022).
10 Bernie Woodall, Florida set to carry out execution with drug not previously used in lethal injections , Reuters (Aug. 24, 2017),
https://www.reuters.com/article/florida-execution/corrected-florida-set-to-carry-out-execution-with-drug-not-previously-used-in-lethal-
injections-idUSL2N1L805A (last visited Feb. 23, 2022).
11 Dara Kam, Florida changes lethal injection drugs, News4Jax (Jan. 5, 2017), https://www.news4jax.com/news/2017/01/05/florida -
changes-lethal-injection-drugs/ (last visited Feb. 23, 2022).
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Section 1: Amends s. 945.10, F.S., relating to confidential information.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides an effective date of upon becoming a law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
Vote Requirement
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record exemption. The bill
appears to expand an existing public record exemption; thus, it requires a two-thirds vote for final
passage.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record exemption. The bill appears to expand an existing public records
exemption; thus, it includes a public necessity statement.
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created or expanded public record
exemption to be no broader than necessary to accomplish the stated purpose of the law. The bill
appears to expand an existing public records exemption to protect the suppliers of drugs and
equipment used in lethal injections from disclosure, as such it does not appear to be broader than
necessary to accomplish the stated purpose of the law.
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B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
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