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 7040
INTRODUCER: Rules Committee; Banking and Insurance Committee
SUBJECT: OGSR/Security or Firesafety System Plans
DATE: April 20, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Thomas Knudson BI Submitted as Committee Bill
1. Thomas Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 7040 saves from repeal the current public records exemptions for security or firesafety
systems or plans for any state owned or leased buildings and any privately owned or leased
property and information relating to such systems or plans that are held by a state agency. The
bill also saves from repeal the current public meetings exemptions for any portion of a meeting
that would reveal security or firesafety systems or plans that are exempt from public records
requirements. The bill repeals a duplicative public record and public meeting exemption for
security or firesafety system plans and related information.
The exemptions are necessitated because it is believed that disclosure of sensitive information
relating to the security or firesafety systems or plans could result in identification of
vulnerabilities in such systems and allow a security breach that could damage the systems and
disrupt their safe and reliable operation.
The Open Government Sunset Review Act requires the Legislature to review each public record
and public meeting exemption 5 years after enactment. These exemptions are scheduled to repeal
on October 2, 2023. The bill removes the scheduled repeals to continue the exempt status.
The bill is not expected to impact state and local revenues and expenditures.
The bill takes effect October 1, 2023.
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II. Present Situation:
Public Records Law
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 This 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 who acts on behalf of the government. 2
In addition to the Florida Constitution, the Florida Statutes provide that the public may access
legislative and executive branch records.3 Chapter 119, F.S., constitutes the main body of public
records laws, and is known as the Public Records Act.4 The Public Records Act states that:
It is the policy of this state that all state, county and municipal records are open for
personal inspection and copying by any person. Providing access to public records is
a duty of each agency.5
According to the Public Records Act, a public record includes virtually any document or
recording, regardless of its physical form or how it may be transmitted. 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 connection with the transaction of official business by any agency.6
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business which are used to “perpetuate,
communicate, or formalize knowledge of some type.”7
The Florida Statutes specify conditions under which public access to governmental records must
be provided. The Public Records Act guarantees every person’s right to inspect and copy any
state or local government 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
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
The Public Records Act does not apply to legislative or judicial records. Locke v. Hawkes, 595 So.2d 32 (Fla. 1992). Also
see Times Pub. Co. v. Ake, 660 So.2d 255 (Fla. 1995). The Legislature’s records are public pursuant to s. 11.0431, F.S. Public
records exemptions for the Legislature are primarily located in s. 11.0431(2)-(3), F.S.
4
Public records laws are found throughout the Florida Statutes.
5
Section 119.01(1), F.S.
6
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.
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The Public Records Act contains general exemptions that apply across agencies. Agency or
program-specific exemptions often are placed in the substantive statutes relating to that particular
agency or program. Only the Legislature may create an exemption to public records
requirements.10 An exemption must be created by general law and must specifically state the
public necessity which justifies the exemption.11 Further, the exemption must be no broader than
necessary to accomplish the stated purpose of the law. A bill that enacts an exemption may not
contain other substantive provisions12 and must pass by a two-thirds vote of the members present
and voting in each house of the Legislature.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 Florida 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., which is also 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
10
FLA. CONST.,
art. I, s. 24(c).
11
Id.
12
The bill may, however, contain multiple exemptions that relate to one subject.
13
FLA. CONST., art. I, s. 24(c).
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.
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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,
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 a two-thirds vote of the House and the Senate.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 Act (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,31 with specified exceptions.32 The Act requires the repeal of such
exemption on October 2nd of the fifth year after creation or substantial amendment; in order to
save an exemption from repeal, the Legislature must reenact the exemption or repeal the sunset
date.33 In practice, many exemptions are continued by repealing the sunset date, rather than
reenacting the exemption.
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. 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 subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;34
 The release of sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;35 or
24
Section 286.011(6), F.S.
25
Section 286.011(2), F.S.
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
See supra note 11.
31
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
32
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.
33
Section 119.15(3), F.S.
34
Section 119.15(6)(b)1., F.S.
35
Section 119.15(6)(b)2., F.S.
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 It protects trade or business secrets.36
The Act also requires specified questions to be considered during the review process.37 In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.38 If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is 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.39
Public Record and Public Meeting Exemptions Related to Security or Firesafety Systems or
Plans
Current law provides public record and public meeting exemptions for certain information
related to security or firesafety systems or plans held by an agency.40 The law specifies the
circumstances under which the information may be disclosed.41
Security or Firesafety System Plans
Section 119.071(3)(a), F.S., defines “security or firesafety system plan” to include all:
 Records, information, photographs, audio and visual representations, schematic diagrams,
surveys, recommendations, or consultations or portions thereof relating directly to the
physical security or firesafety of the facility or revealing security or firesafety systems;
 Threat assessments conducted by an agency or any private entity;
 Threat response plans;
 Emergency evacuation plans;
 Sheltering arrangements; or
 Manuals for security or firesafety personnel, emergency equipment, or security or firesafety
training.
36
Section 119.15(6)(b)3., F.S.
37
Section 119.15(6)(a), F.S. The specific 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?
38
FLA. CONST. art. I, s. 24(c).
39
Section 119.15(7), F.S.
40
Sections 119.071(3)(a), 281.301(1), and 286.0113(1), F.S. “Agency” means 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
business entity acting on behalf of any public agency. See s. 119.011(2), F.S.
41
Sections 119.071(3)(a) and 281.301(2), F.S.
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A security or firesafety system plan, or portion thereof, held by an agency is confidential and
exempt42 from public record requirements if the plan is for any property owned by or leased to
the state or any of its political subdivisions or any privately owned or leased property. 43 An
agency is authorized, but not required, to disclose such confidential and exempt plan:
 To the property owner or leaseholder;
 In furtherance of the official duties and responsibilities of the agency holding the
information;
 To another local, state, or federal agency in furtherance of that agency’s official duties and
responsibilities; or
 Upon a showing of good cause before a court of competent jurisdiction.44
Section 119.071(3)(a), F.S., also provides for retroactive application of the public record
exemption.
Pursuant to s. 286.0113(1), F.S., any portion of a meeting that would reveal a security or