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/SB 1402
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Martin
SUBJECT: Public Records/Investigative Genetic Genealogy Materials
DATE: April 18, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Cellon Stokes CJ Favorable
2. Limones-Borja McVaney GO Fav/CS
3. Cellon Twogood RC Favorable
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1402 makes confidential and exempt from public record inspection and copying
requirements investigative genetic genealogy information and materials.
The exemption must be given retroactive application and must apply to all investigative genetic
genealogy materials, including a single nucleotide polymorphism or whole genome sequencing
profile, or a portion thereof, held in the possession of an agency before, on, or after July 1, 2023.
“Investigative genetic genealogy information and materials” and other technical terms are
defined in the bill.
The exemption is subject to the Open Government Sunset Review Act and will stand repealed on
October 2, 2028, unless reviewed and saved from repeal through reenactment by the Legislature.
The bill provides a statement of public necessity as required by the State Constitution.
The bill creates a new public records exemption and, therefore, requires a two-thirds vote of the
members present and voting for final passage.
The bill is not expected to impact state or local government revenues and expenditures.
The bill becomes effective July 1, 2023.
BILL: CS/SB 1402 Page 2
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 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, ch. 119,
F.S., known as the Public Records Act, provides requirements for public records held by
executive agencies.
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.5 Section 119.011(12), F.S., defines “public records” to include:
Section 119.011(12), F.S., defines “public records” to include:
[a] ll 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.”6
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
1
FLA. CONST. art. I, s. 24(a).
2
Id.
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2022-2024) 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
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
BILL: CS/SB 1402 Page 3
record at any reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record.7 A violation of the Public Records Act may result in civil or
criminal liability.8
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.9 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.10
General exemptions from the public records requirements are contained in the Public Records
Act.11 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.12
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.13 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.14 Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.15
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act16 (the
Act), prescribe a legislative review process for newly created or substantially amended17 public
records or open meetings exemptions, with specified exceptions.18 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.19
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
9
FLA. CONST. art. I, s. 24(c).
10
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).
11
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).
12
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).
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5th DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5th DCA 1991).
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., 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.
19
Section 119.15(3), F.S.
BILL: CS/SB 1402 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 the Legislature finds that the purpose of the
exemption outweighs open government policy and cannot be accomplished without the
exemption and it meets one of the following purposes:
 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 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 expire, the previously
exempt records will remain exempt unless otherwise provided by law.26
Agency Investigations
Section 119.071(2), F.S., contains general exemptions from the public records law for agency
investigations. For purposes of ch. 119, F.S., the definition of “agency” is 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
chapter 119, F.S., 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
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.
BILL: CS/SB 1402 Page 5
business entity acting on behalf of any public agency.27 Active criminal intelligence information
and active criminal investigative information are exempt from s. 119.07(1), F.S., and s. 24(a),
Art. I of the State Constitution.28
“Criminal intelligence information” means information with respect to an identifiable person or
group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or
monitor possible criminal activity.29 “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.30
In this context, the word “active” means:
 Criminal intelligence information shall be 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 criminal activities.
 Criminal investigative information shall be 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.
In addition, criminal intelligence and criminal investigative information shall be considered
“active” while such information is directly related to pending prosecutions or appeals. The word
“active” shall not apply to information in cases which are barred from prosecution under the
provisions of statutes of limitation.31
Genetics
Genetics is the scientific study of genes and heredity, of how certain qualities or traits are passed
from parents to offspring as a result of changes in DNA sequence.A gene is a segment of DNA
that contains instructions for building one or more molecules that help the body work. DNA is
shaped like a corkscrew-twisted ladder, called a double helix. The two ladder rails are called
backbones, and the rungs are pairs of four building blocks (adenine, thymine, guanine, and
cytosine) called bases. The sequences of these bases provide the instructions for building
molecules, most of which are proteins. Researchers estimate that humans have about 20,000
genes. All of an organism’s genetic material, including its genes and other elements that control
the activity of those genes, is its genome. An organism’s entire genome is found in nearly all of
its cells.32
27
Section 119.011(2), F.S.
28
Section 119.071(2)(c)1. F.S.
29
Section 119.011(3)(a), F.S.
30
Section 119.011(3)(b), F.S.
31
Sections 119.011(3)(d) and 775.15, F.S.
32
National Institute of Health, General Medicine Sciences, Genetics, What is Genetics?, available at
https://nigms.nih.gov/education/fact-
sheets/Pages/genetics.aspx#:~:text=Genetics%20is%20the%20scientific%20study,that%20help%20the%20body%20work
(last visited Mar. 30, 2023).
BILL: CS/SB 1402 Page 6
Our DNA, including all of our genes, is stored in chromosomes, structures where proteins wind
up DNA tightly so that it fits in the nucleus. Humans typically have 23 pairs of chromosomes in
our cells. The two chromosomes in each pair contain the same genes, but they may have different
versions of those genes because we inherit one chromosome in each pair from our mother and
the other from our father.33
Genealogy Research by the Public
Advances in DNA testing have allowed people to uncover information about their genetic
ancestry and find out where some of their ancestors came from. Many companies are offering
genetic testing services for individuals to find out about their ancestry using several different
testing methods. These are the three types of DNA tests used in home testing kits:
 Autosomal, which uses autosomal chromosomes from both parents to determine a person’s
ethnic background. Can be taken by all genders, and does not determine haplogroups. This is
the test most frequently used by genealogy researchers.
 mtDNA, which traces a person’s maternal ancestry by testing mitochondria, which are passed
down from mother to child. Can be taken by all genders. Also determines the test taker’s
maternal haplogroup, an ancient group of people from which they descend on their mother’s
side.
 Y-DNA, which traces a person’s pate