HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1327 Pub. Rec./Investigative Genetic Genealogy Information and Materials
SPONSOR(S): Criminal Justice Subcommittee, Anderson
TIED BILLS: IDEN./SIM. BILLS: SB 1402
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Criminal Justice Subcommittee 17 Y, 0 N, As CS Leshko Hall
2) Ethics, Elections & Open Government 17 Y, 0 N Poreda Toliver
Subcommittee
3) Judiciary Committee 21 Y, 0 N Leshko Kramer
SUMMARY ANALYSIS
Section 119.071, F.S., currently exempts active criminal intelligence and investigative information from public
records requirements. Criminal investigative information means information with respect to an identifiable
person or group of persons compiled by a criminal justice agency in the course of conducting a criminal
investigation and is considered “active” as long as it is related to an ongoing investigation which is continuing
with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future.
Investigative genetic genealogy (IGG) utilizes single nucleotide polymorphism-based DNA matching combined
with family tree research to produce investigative leads in criminal investigations and missing persons cases .
IGG information and materials may be exempt as active criminal intelligence or investigative information but
would become subject to public record requirements when no longer considered active.
CS/HB 1327 amends s. 119.071, F.S., to make confidential and exempt from public record requirements IGG
information and materials. “IGG information and materials” means the information, records, and DNA records
created or collected by or on behalf of a law enforcement agency conducting IGG research, and includes the
names and personal identifying information (PII) of persons identified through the use of genealogy databases,
traditional genealogical methods, or other investigative means.
The bill does not protect the name or PII of the donor of a biological sample attributable to a perpetrator or a
person identified through IGG who is a witness to or has personal knowledge related to the crime under
investigation. The bill provides an exception to the confidential and exempt status of IGG information and
materials for law enforcement agencies to: allow an agency to disclose IGG information and materials in
furtherance of its official duties and responsibilities or to another government agency in furtherance of its
official duties and responsibilities; and require an agency to disclose IGG information and materials pursuant to
a court order to further a criminal prosecution. The recipient of such a disclosure must maintain the confidential
and exempt status of the information and materials, unless further disclosure is court-ordered.
The bill provides for retroactive application of the newly-created public record exemption. The public record
exemption created by the bill is subject to the Open Government Sunset Review Act and will automatically
repeal on October 2, 2028, unless reviewed and saved from repeal by the Legislature.
The bill may have an insignificant negative fiscal impact on local and state governments.
The bill provides an effective date of July 1, 2023.
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 creates a 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 .
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DATE: 4/11/2023
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. This section guarantees every person the right to inspect or copy any public
record of the legislative, executive, and judicial branches of government.1 The Legislature, however,
may provide by general law for exemption from public record requirements provided the exemption
passes by two-thirds vote of each chamber, states with specificity the public necessity justifying the
exemption, and is no broader than necessary to meet its public purpose. 2
The Florida Statutes also address the public policy regarding access to government records. Section
119.07(1), F.S., guarantees every person the right to inspect and copy any state, county, or municipal
record, unless the record is exempt.3 Furthermore, the Open Government Sunset Review Act 4 provides
that a public record exemption may be created, revised, 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. 5 An
identifiable public purpose is served if the exemption meets one of the following purposes:
Allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protects 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
Protects trade or business secrets.6
Pursuant to the Open Government Sunset Review Act, a new public record exemption or substantial
amendment of an existing public record exemption is repealed on October 2nd of the fifth year following
enactment, unless the Legislature reenacts the exemption. 7
Active Criminal Intelligence and Investigative Information Exemption
Section 119.071, F.S., currently exempts active criminal intelligence information and active criminal
investigative information from public records requirements.8 Additionally, a law enforcement agency’s
request to inspect or copy a public record that is in another agency’s custody and the custodian’s
response to the request, and any information that would identify whether a law enforcement agency has
requested or received that public record are exempt from public records requirements during the period
the information constitutes active criminal intelligence information or active criminal investigative
information.9
1 Art. I, s. 24(a), Fla. Const.
2 Art. I, s. 24(c), Fla. Const.
3 A public record exemption means a provision of general law which provides that a specified record, or portion thereof, is not subject to
the access requirements of s. 119.07(1), F.S., or s. 24, Art. I of the State Constitution. S. 119.011(8), F.S.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6 Id.
7 S. 119.15(3), F.S.
8 S. 119.071(2)(c), F.S.
9 S. 119.071(2)(c)2.a., F.S.
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“Criminal intelligence information” means information with respect to an identifiable person or group of
persons collected by a criminal justice agency10 in an effort to anticipate, prevent, or monitor possible
criminal activity.11
“Criminal investigative information” means information with respect to an identifiable person or group of
persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a
specific act or omission, including, but not limited to, information derived from laboratory tests, reports
of investigators or informants, or any type of surveillance. 12 Criminal investigative information does not
include documents given to the person arrested, except that a court in a criminal case may order that
the information given to the person arrested be maintained in a confidential manner and be exempt
from public records requirements until released at trial if it is found that the release of such information
would be defamatory to the good name of a victim or witness or would jeopardize the safety of such
victim or witness.13
Criminal intelligence and investigative information is considered “active” as long as it is related to
intelligence gathering conducted with a reasonable, good faith belief that it will lead to detection of
ongoing or reasonably anticipated crimes; or is related to an ongoing investigation which is continuing
with a reasonable, good faith anticipation of securing an arrest or prosecution in the foreseeable future,
respectively.14
FBI’s Combined DNA Index System (CODIS)
Deoxyribonucleic acid (DNA) is hereditary material existing in the cells of all living organisms. A DNA
profile may be created by testing the DNA in a person’s cells. Similar to fingerprints, a person’s DNA
profile is a unique identifier, except for identical twins, who have the exact same DNA profile. DNA
evidence may be collected from any biological material, such as hair, teeth, bones, skin cells, blood,
semen, saliva, urine, feces, and other bodily substances. 15 “It is a fundamental principle of genetics that
individuals who are closely related will share DNA from their common ancestors; and the more distant
the relationship, the less DNA is shared.” 16
Historically, the most common form of DNA analysis used to match samples and test for identification in
forensic laboratories analyzes only certain parts of DNA, known as short tandem repeats (STRs).17 In
the early 1990s, the Federal Bureau of Investigation (FBI) chose 13 STRs as the basis for a DNA
identification profile, and the 13 STRs became known as the Combined DNA Index System (CODIS). 18
CODIS is now the general term used to describe the FBI’s program of support for local, state, and
national criminal justice DNA databases, as well as the software used to run these databases.19
10 “Criminal justice agency” means: 1) any law enforcement agency, court, or prosecutor; 2) any other agency charged by law with
criminal law enforcement duties; 3) any agency having custody of criminal intelligence information or criminal investigative information
for the purpose of assisting law enforcement agencies in the conduct of active criminal investigation or prosecution or for t he purpose of
litigating civil actions under the Racketeer Influenced and Corrupt Organization Act, during the time that su ch agencies are in
possession of criminal intelligence information or criminal investigative information pursuant to their criminal law enforcem ent duties;
and 4) the Department of Corrections. S. 119.011(4), F.S.
11 S. 119.011(3)(a), F.S.
12 S. 119.011(3)(b), F.S.
13
S. 119.011(3)(c)5., F.S.
14 S. 119.011(3)(d), F.S.
15 FindLaw, How DNA Evidence Works, https://criminal.findlaw.com/criminal-procedure/how-dna-evidence-works.html (last visited Apr.
11, 2023).
16 Daniel Kling, Christopher Phillips, Debbie Kennett, and Andreas Tillmar, Investigative genetic genealogy: Current methods,
knowledge and practice, Vol. 52, FSI Genetics, p. 1, (May 2021), https://www.fsigenetics.com/action/showPdf?pii=S1872-
4973%2821%2900013-2 (last visited Apr. 11, 2023).
17 Kelly Lowenberg, Applying the Fourth Amendment when DNA Collected for One Purpose is Tested for Another , 79 U. Cin. L. Rev.
1289, 1293 (2011), https://law.stanford.edu/wp-content/uploads/2011/11/APPLYING-THE-FOURTH-AMENDMENT-WHEN-DNA-
COLLECTED-FOR-ONE-PURPOSE.pdf (last visited Apr. 11, 2023).
18 Id.
19 FBI, Frequently Asked Questions on CODIS and NDIS, https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-
ndis-fact-sheet (last visited Apr. 11, 2023).
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When a suspect’s identity is unknown, a participating crime laboratory may upload a forensic profile
into CODIS to compare against additional DNA profiles uploaded by other federal, state, or local
participating laboratories. If a match is identified, the laboratories involved exchange information to
verify the match and establish coordination between the two agencies. This match can provide
probable cause for law enforcement to obtain a warrant to collect a biological reference sample from an
offender. A laboratory can then perform DNA analysis on the known biological sample and present the
analysis as evidence in court.20
Investigative Genetic Genealogy (IGG)
In contrast to traditional methods of DNA comparison using STR profiles in CODIS, investigative
genetic genealogy (IGG), also known as forensic genetic genealogical DNA analysis and searching 21 or
forensic genetic genealogy,22 utilizes single nucleotide polymorphism (SNP) 23-based DNA matching
combined with family tree research to produce investigative leads in criminal investigations and missing
persons cases.24 IGG differs from the traditional STR DNA matching utilized on CODIS in the
technology employed, the nature of the databases utilized, the genetic markers involved, and the
algorithms run. Information and data derived from IGG is not, and cannot be, uploaded, searched, or
retained in any CODIS DNA Index.25
IGG examines more than half a million SNP DNA markers which replace the STR DNA markers
typically analyzed.26 Based on the nature of SNP markers scientists are able to identify shared blocks
of DNA between a forensic sample and the sample donor’s potential relatives.27 SNP markers have
been identified as being more stable than STR markers and allow for increased accuracy in identifying
potential familial connections.28
The technology to conduct SNP testing became readily available to the general public in 2007 through
direct-to-consumer testing companies (DTCs). Consumers purchase test kits and provide DNA samples
to the companies who then generate genetic data using SNP microarrays 29, 30 that produce 600,000 to
700,000 SNP markers. The companies can then analyze the SNP markers for purposes such as:
Biogeographical ancestry information;
Identifying potential genetic relatives; and
Health, wellness, and trait conditions and predispositions. 31
When the purpose is to search for potential genetic relatives, the SNP DNA profile is compared against
genetic profiles of individuals who have voluntarily submitted their biological samples to these
databases. A computer algorithm then evaluates potential familial relationships between the sample
donor and service users.32
20 Id.
21 U.S. Department of Justice, Interim Policy: Forensic Genetic Genealogical DNA Analysis and Searching ,
https://www.justice.gov/olp/page/file/1204386/download (last visited Apr. 11, 2023).
22 Supra note 16, at 2.
23 Each SNP represents a variation in a single DNA building block. Medline Plus, National Library of Medicine, What are single
nucleotide polymorphisms (SNPs)?, https://medlineplus.gov/genetics/understanding/genomicresearch/snp/ (last visited Apr. 11, 2023).
24 Supra note 16, at 2.
25
Supra note 21, at 3-4.
26 Supra note 21, at 3.
27 Supra note 21, at 3.
28 Alasdair Macdonald and Graham Holton, What is STR and SNP DNA?, Who Do You Think You Are?,
https://www.whodoyouthinkyouaremagazine.com/tutorials/dna/what-is-str-and-snp-dna/ (last visited Apr. 11, 2023).
29 A microarray tool is used to determine whether DNA from a particular individual contains a mutation in genes. National Human
Genome Research Institute, DNA Microarray Technology Fact Sheet, https://www.genome.gov/about-genomics/fact-sheets/DNA-
Microarray-Technology (last visited Apr. 11, 2023).
30 Whole genome sequencing (WGS) is another way to create SNP datasets that mirrors microarray technology and has been widely
adopted to ensure sensitivity to challenging forensic sampling. Supra note 16.
31 Scientific Working Group DNA Analysis Methods, Overview of Investigative Genetic Genealogy,
https://www.swgdam.org/_files/ugd/4344b0_6cc9e7c82ccc4fc0b5d10217af64e31b.pdf (last visited Apr. 11, 2023).
32 Supra note 21, at 3.
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There are four principal DTCs: Ancestry, FamilyTreeDNA (FTDNA), MyHeritage, and 23andMe. As of
August 2020, the four principal DTCs have tested over 36 million people. Many DTC genetic testing
providers maintain their customers’ SNP data in a database. However, the DTCs permit customers to
retrieve their data to personally maintain, control, and share their SNP file. Individuals can share their
SNP file with researchers and third-party services, such as GEDmatch, that offer to interpret their SNP
data.33
In addition to the four principal DTCs there are also two frequently-utilized third-party services:
GEDmatch and DNASolves. GEDmatch does not provide genetic testing services but instead provides
a central location for users to upload and share their SNP file. GEDmatch allows users to search for
matches with people who have tested on different platforms at different testing companies and have
subsequently shared their SNP file with GEDmatch. 34 GEDmatch is also able to accept raw data from