House Bill hb1699c1

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    Florida House of Representatives - 2001             CS/HB 1699

        By the Committee on Insurance and Representative Waters






  1                      A bill to be entitled

  2         An act relating to public records; amending s.

  3         624.319, F.S.; exempting workpapers relating to

  4         examinations and investigations of insurers

  5         from public records requirements; providing

  6         legislative findings; providing for future

  7         review and repeal; amending s. 627.351, F.S.;

  8         providing exemptions from the public records

  9         law for specified records of the Florida

10         Windstorm Underwriting Association; providing

11         for future review and repeal; providing

12         findings of public necessity; providing an

13         effective date.

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15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Subsection (3) of section 624.319, Florida

18  Statutes, is amended to read:

19         624.319  Examination and investigation reports.--

20         (3)(a)  Examination reports, until filed, are

21  confidential and exempt from the provisions of s. 119.07(1).

22  Investigation reports are confidential and exempt from the

23  provisions of s. 119.07(1) until the investigation is

24  completed or ceases to be active.  For purposes of this

25  subsection, an investigation is active while it is being

26  conducted by the department with a reasonable, good faith

27  belief that it could lead to the filing of administrative,

28  civil, or criminal proceedings.  An investigation does not

29  cease to be active if the department is proceeding with

30  reasonable dispatch and has a good faith belief that action

31  could be initiated by the department or other administrative

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  1  or law enforcement agency. After an investigation is completed

  2  or ceases to be active, portions of the investigation report

  3  relating to the investigation remain confidential and exempt

  4  from the provisions of s. 119.07(1) if disclosure would:

  5         1.  Jeopardize the integrity of another active

  6  investigation;

  7         2.  Impair the safety and financial soundness of the

  8  licensee or affiliated party;

  9         3.  Reveal personal financial information;

10         4.  Reveal the identity of a confidential source;

11         5.  Defame or cause unwarranted damage to the good name

12  or reputation of an individual or jeopardize the safety of an

13  individual; or

14         6.  Reveal investigative techniques or procedures.

15         (b)  Workpapers, or portions of workpapers, prepared by

16  or for the use of the department in the performance of its

17  examination or investigation duties pursuant to ss. 624.316

18  and 624.3161 or of an insurance supervisory official of

19  another state are confidential and exempt from the provisions

20  of s. 119.07(1) and s. 24(a), Art. I of the State

21  Constitution. This paragraph is subject to the Open Government

22  Sunset Review Act of 1995 in accordance with s. 119.15 and

23  shall stand repealed on October 2, 2006, unless reviewed and

24  saved from repeal through reenactment by the Legislature.

25         (c)(b)  Lists of insurers or regulated companies are

26  confidential and exempt from the provisions of s. 119.07(1)

27  if:

28         1.  The financial solvency, condition, or soundness of

29  such insurers or regulated companies is being monitored by the

30  department;

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  1         2.  The list is prepared to internally coordinate

  2  regulation by the department of the financial solvency,

  3  condition, or soundness of the insurers or regulated

  4  companies; and

  5         3.  The Insurance Commissioner and Treasurer determine

  6  that public inspection of such list could impair the financial

  7  solvency, condition, or soundness of such insurers or

  8  regulated companies.

  9         Section 2.  Paragraph (f) is added to subsection (2) of

10  section 627.351, Florida Statutes, to read:

11         627.351  Insurance risk apportionment plans.--

12         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

13         (f)1.  The following records of the Florida Windstorm

14  Underwriting Association are confidential and exempt from the

15  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

16  Constitution:

17         a.(I)  Appraisals, surveys, applications, and other

18  information relating to a policyholder's property, including

19  its location, type of construction, and valuation, and related

20  information.

21         (II)  The name and address of the policyholder and the

22  producer of record.

23         (III)  All information relating to underlying property

24  coverages on the policyholder's property, including the name

25  and address of the underlying property insurer and its agent

26  of record and policy expirations.

27         (IV)  All information generated in connection with

28  applications for coverage.

29         (V)  All information included in underwriting files.

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  1  However, the policyholder shall have access to all of this

  2  information.

  3         b.  Claims files until termination of all litigation

  4  and settlement of all claims arising out of the same incident,

  5  although portions of the claims files may remain exempt as

  6  otherwise provided by law. Confidential and exempt claims file

  7  records may be released to other governmental agencies upon

  8  written request and demonstration of need; however, such

  9  records held by the receiving agency remain confidential and

10  exempt as provided for in this paragraph.

11         c.  Records obtained or generated by an internal

12  auditor pursuant to a routine audit until the audit is

13  completed or, if the audit is conducted as part of an

14  investigation, until the investigation is closed or ceases to

15  be active.  An investigation is considered active while the

16  investigation is being conducted with a reasonable, good faith

17  belief that the investigation could lead to the filing of

18  administrative, civil, or criminal proceedings.

19         d.  Matters reasonably encompassed in privileged

20  attorney-client communications.

21         e.  All proprietary information and data, including,

22  but not limited to, computer models, and all data, programs,

23  or supporting documentation that is a trade secret as defined

24  in s. 812.081 licensed or furnished to or used by the

25  association as part of a response to a request for proposals

26  or under separate contract between the owner and the

27  association if such response or contract provides for

28  confidentiality.

29         f.  All information relating to the medical condition

30  or medical status of an association employee which is not

31  relevant to the employee's capacity to perform his or her

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  1  duties, except as otherwise provided in this paragraph.

  2  Information that is exempt includes, but is not limited to,

  3  information relating to workers' compensation, insurance

  4  benefits, and retirement or disability benefits.

  5         g.  Upon an employee's entrance into the employee

  6  assistance program or a program to assist any employee who has

  7  a behavioral or medical disorder, substance abuse problem, or

  8  emotional difficulty that affects the employee's job

  9  performance, all records relative to that participation,

10  except as otherwise provided in s. 112.0455(11).

11         h.  Information relating to negotiations for financing,

12  reinsurance, depopulation, or contractual services until the

13  conclusion of the negotiations.

14         2.  When an authorized insurer is considering assuming

15  or taking out a risk insured by the association, relevant

16  underwriting files and confidential claims files may be

17  released to the insurer if the insurer or licensed agent

18  agrees in writing, notarized and under oath, to maintain the

19  confidentiality of such files and use the files only for the

20  purpose of writing coverage assuming or taking out a risk

21  insured by the association.  A file transferred to an insurer

22  or authorized agent is not held by an agency subject to the

23  provisions of the public records law and therefore is no

24  longer a public record.

25         3.  Nothing in this paragraph prohibits the department

26  from obtaining access to records to which the department is

27  otherwise entitled.  Records in the possession of the

28  association that are exempt pursuant to this paragraph are

29  exempt to the same extent as provided by this paragraph if

30  such records are in the possession of a state agency.

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  1         4.  The exemptions provided in this paragraph are

  2  subject to the Open Government Sunset Review Act of 1995 in

  3  accordance with s. 119.15 and shall stand repealed on October

  4  2, 2006, unless reviewed and saved from repeal through

  5  reenactment by the Legislature.

  6         Section 3.  The Legislature finds that the exemption

  7  from public disclosure of workpapers relating to an

  8  examination or investigation is necessary for the effective

  9  and efficient administration of a government program.

10  Disclosure of workpapers could indicate the contents of

11  examination reports, which are otherwise confidential until

12  they are filed, and of investigation reports, which are

13  otherwise confidential until the investigation is completed or

14  ceases to be active, and could thus thwart the state's

15  interest in assuring the integrity of the regulatory process.

16  Furthermore, workpapers, by the nature of their

17  incompleteness, have a higher risk of containing inaccurate

18  information about insurers and persons which, if disclosed,

19  could harm the business of a regulated entity or an employee

20  or officer of that entity.

21         Section 4.  The Legislature finds that it is a public

22  necessity that certain records of the Florida Windstorm

23  Underwriting Association be held confidential and exempt.  It

24  is a public necessity that appraisals, surveys, applications,

25  and other information relating to a policyholder's property,

26  and certain policyholder and policy information including

27  information relating to underlying coverage, as well as

28  underwriting files, be held confidential and exempt because

29  such records and information contain proprietary confidential

30  business information and disclosure of such records and

31  information could be harmful to the policyholder. It is a

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  1  public necessity that open claims files records be held

  2  confidential and exempt because if such records were not

  3  confidential and exempt, claimants would have unfettered

  4  access to information held by the association which could be

  5  used as evidence and for purposes of negotiation, claim

  6  evaluation, and settlement considerations, which would result

  7  in higher awards and settlements paid out by the association

  8  and ultimately the consumer.  Additionally, it is a public

  9  necessity that records held by an internal auditor, while an

10  audit is incomplete or while an investigation is pending, be

11  held confidential and exempt because otherwise inaccurate

12  information would possibly be released or investigations

13  jeopardized.  It is a public necessity that matters reasonably

14  encompassed in privileged attorney-client communications be

15  held confidential and exempt because the release of such

16  information could jeopardize ongoing or pending litigation or

17  other business matters.  It is a public necessity that all

18  proprietary information and trade secrets furnished to the

19  association as part of a response to a request for proposal,

20  or under separate contract, be held confidential and exempt

21  when such response or contract provides for confidentiality.

22  If proprietary information and trade secrets were not held

23  confidential and exempt, the type and quality of information

24  the association receives in a response would be limited and

25  inadequate for the association to make an informed decision

26  that is in the public interest.  Likewise, the association's

27  ability to enter into necessary contracts that require

28  confidentiality would be impaired if proprietary information

29  and trade secrets related to those contracts were not held

30  confidential and exempt from public disclosure.  More

31  particularly, it is a public necessity that certain medical

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  1  records of association employees and employee assistance

  2  program participation records be held confidential and exempt

  3  because such records contain personal, sensitive information

  4  regarding an employee's medical condition and behavioral,

  5  emotional, or medical disorders, the disclosure of which would

  6  be harmful to the employee.  Finally, it is a public necessity

  7  that information relating to negotiations for financing,

  8  reinsurance, depopulation, or contractual services be held

  9  confidential and exempt.  If such information were not

10  confidential and exempt, those contracting with the

11  association would have an economic advantage over the

12  association, thus increasing the costs of doing business,

13  which could be passed on to the consumer.

14         Section 5.  This act shall take effect upon becoming a

15  law.

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