Senate Bill sb0668c1

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    Florida Senate - 2002                            CS for SB 668

    By the Committee on Judiciary; and Senator Burt





    308-1940A-02

  1                      A bill to be entitled

  2         An act relating to public records; creating the

  3         Study Commission on Public Records to examine

  4         existing policies, practices, and laws relating

  5         to public records in light of technological

  6         advances and privacy and security concerns

  7         relating to personal and sensitive information

  8         concerning individuals; amending s. 28.2221,

  9         F.S., relating to electronic access to official

10         records, to impose a legislative moratorium on

11         Internet publication and accessibility to

12         public records until the Legislature authorizes

13         public access via the Internet; providing

14         exceptions; providing an effective date.

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

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18         Section 1.  Study Commission on Public Records;

19  creation, membership, duties.--

20         (1)  There is created a Study Commission on Public

21  Records.  The commission shall be composed of 21 members, 8 of

22  whom will serve in an advisory, nonvoting capacity.  The

23  commission shall be composed of the following members:

24         (a)  The Governor shall appoint one public citizen, one

25  attorney with expertise in Florida's public records and

26  privacy laws, a representative from the First Amendment

27  Foundation, and a representative from the Florida Department

28  of Law Enforcement.  The Governor shall also appoint a

29  representative from the Department of Children and Family

30  Services, a representative from the Department of Juvenile

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    Florida Senate - 2002                            CS for SB 668
    308-1940A-02




  1  Justice, and a representative from the Department of

  2  Education, to serve in an advisory capacity.

  3         (b)  The President of the Senate shall appoint a member

  4  of the Senate interested in and knowledgeable regarding public

  5  records law, judicial records, and real property and probate

  6  issues; one attorney with expertise in family law; and a

  7  representative of the real-property title industry.  The

  8  President of the Senate shall also appoint a domestic violence

  9  advocate and a child and family advocate to serve in an

10  advisory capacity.

11         (c)  The Speaker of the House of Representatives shall

12  appoint a member of the House of Representatives interested in

13  and knowledgeable regarding public records law, judicial

14  records, and family law issues; one attorney with expertise in

15  real property and probate law; and a representative from a

16  financial institution or from the credit industry.  The

17  Speaker of the House of Representatives shall also appoint two

18  representatives from among local or community service

19  providers to serve in an advisory capacity.

20         (d)  The Chief Justice of the Supreme Court shall

21  appoint two judges or justices who are interested and

22  knowledgeable regarding public records law and who are

23  familiar with the variety and types of judicial records.  The

24  Chief Justice of the Supreme Court shall also appoint a

25  representative from the judicial branch to serve in an

26  advisory capacity.

27         (e)  The Florida Association of Circuit Court Clerks

28  and Comptrollers shall appoint one Clerk of the Circuit Court.

29         (f)  The Speaker of the House of Representatives and

30  the President of the Senate shall designate legislative staff

31  knowledgeable regarding public records and privacy law to

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    Florida Senate - 2002                            CS for SB 668
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  1  assist the commission and provide all necessary

  2  data-collection, analysis, research, and support services.

  3         (2)  The attorney appointed by the Governor shall serve

  4  as chair of the commission.  Members must be appointed within

  5  30 days after the effective date of this act.  Within 40 to 60

  6  days after the effective date of this act, the commission

  7  shall meet to establish procedures for the conduct of its

  8  business and to elect a vice-chair.  The commission shall meet

  9  at the call of the chair but no less frequently than every 2

10  months.  A majority of the members of the commission

11  constitutes a quorum, and a quorum is necessary for the

12  purpose of voting on any action or recommendation of the

13  commission.  All meetings shall be held in Tallahassee, unless

14  otherwise decided by the commission, and then no more than two

15  such meetings can be held in other locations for the purpose

16  of taking public testimony regarding the issues below

17  described.

18         (3)  The commission shall address:

19         (a)  The issues of privacy and public access as they

20  relate to the collection and dissemination of information

21  contained in court records.  Specifically, the commission

22  shall address:

23         1.  How the collection, storage, retrieval,

24  dissemination and accessibility of court records through

25  advanced technologies such as remote electronic access

26  including over the Internet has affected: the expectation of

27  privacy to sensitive,  personal, or other evidentiary

28  information contained in court records; the role and

29  effectiveness of the court, and the clerks of the court over

30  these records; and the operations of other governmental

31  entities that use information in court records; the security

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    Florida Senate - 2002                            CS for SB 668
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  1  and safety of citizens; and the interests of business,

  2  research, and media industries in these records.

  3         2.  How best to balance the positive and negative

  4  affects of electronic access to court records.

  5         3.  Whether the courts and participants in the judicial

  6  process require or provide excessive and unnecessary

  7  information, and if so how are such issues best addressed.

  8         4.  Whether categories of cases or information such as

  9  financial affidavits, names and addresses of children,

10  psychological evaluations, testimony and reports of therapists

11  and counselors, and other evidentiary information found in

12  court records should be made confidential or exempt from

13  public disclosure in part or in totality.

14         5.  What information is and should be accessible and

15  whether levels of accessibility should be established

16  depending on the nature of the information and the user of the

17  information and under what circumstances or restrictions.

18         6.  How to ensure the privacy, security, and full

19  participation of children and families within the judicial

20  system without undermining the fairness of the judicial

21  process.

22         7.  What changes, if any, in law, rule, policy, or

23  practice related to the collection, filing, and dissemination

24  of information contained in court records are necessary to

25  facilitate information sharing, admissibility of evidence, and

26  public access to court records, yet at the same time balance

27  security and privacy needs.

28         8.  What impediments exist with regard to preventing

29  the unauthorized or inadvertent disclosure of confidential or

30  exempt information in current and future court records; whose

31  responsibility should it be to ensure that such information is

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    Florida Senate - 2002                            CS for SB 668
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  1  kept exempt from public disclosure; and what, if any,

  2  penalties should be in place if such disclosure occurs.

  3         (b)  The issues of privacy and public access as they

  4  relate to the collection and dissemination of information

  5  contained in all official records. Specifically, the

  6  commission shall address:

  7         1.  How the storage, retrieval, dissemination, and

  8  accessibility of official records through advanced

  9  technologies such as remote electronic access and the

10  Internet, has affected: the expectation of privacy to

11  sensitive, personal, or other evidentiary information

12  contained in official records; the role and effectiveness of

13  the county recorder; the operations of other governmental

14  entities who use official records; the security and safety of

15  citizens; and the interests of business, research, and media

16  industries.

17         2.  How best to balance the positive and negative

18  affects of access to official records regardless of the

19  medium.

20         3.  Should confidential or exempt information contained

21  in official records continue to be disclosed to the public in

22  copies of records disclosed at the clerk's office or obtained

23  through electronic means.

24         4.  Whose responsibility should it be to ensure that

25  confidential or exempted information is identified, kept out

26  of official records, and kept exempt from public disclosure,

27  and what changes to the law, practices and procedures need to

28  occur in order to most effectively and efficiently keep

29  confidential or exempt information out of official records.

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    Florida Senate - 2002                            CS for SB 668
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  1         5.  How the public and the legal and business community

  2  can be educated with regard to limiting what personal

  3  information is put in official records.

  4         6.  How do we promote greater communication between all

  5  branches of government regarding the collection and disclosure

  6  of sensitive, personal, or other evidentiary information.

  7         7.  What procedural safeguards, enforcement practices,

  8  and underlying policies used by public records custodians

  9  currently exist or could be implemented to protect the

10  disclosure of confidential or exempt information.

11         8.  Should sanctions be created with regard to what is

12  placed in official records as well as for disclosing

13  confidential or exempt information.

14         (4)  Those members serving in an advisory capacity are

15  to provide information to the commission, as requested.

16  Advisory members are, in part, responsible for reporting back

17  to the commission any recommendations regarding the following

18  issues:

19         (a)  What information contained in agency records

20  pertaining to minors and family issues of a sensitive nature

21  should be exempt from public disclosure, and how to protect

22  against the unlawful dissemination of such information when

23  these records are used for court proceedings.

24         (b)  What changes to agency policies and procedures are

25  necessary in order to ensure that sensitive, personal, or

26  other evidentiary information relating to minors and family is

27  most effectively and efficiently disseminated to the judiciary

28  when such information is pertinent to court proceedings.

29         (5)  The commission, as it deems appropriate, may

30  examine and recommend changes to laws, rules, and policies

31  governing all public records.

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    Florida Senate - 2002                            CS for SB 668
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  1         (6)  The commission shall review, at a minimum,

  2  documents compiled by the legislative, executive, and judicial

  3  branches; the clerks of court; and The Florida Bar, relating

  4  to the topics of privacy, technology, and public records,

  5  including official records and court records.

  6         (7)  The commission shall submit a final report to the

  7  Governor, the Chief Justice of the Supreme Court, the

  8  President of the Senate, and the Speaker of the House of

  9  Representatives, by January 1, 2003.  The final report shall

10  include specific recommendations regarding the privacy and

11  public records issues identified in this act.  To the extent

12  possible the report should include proposed legislation or

13  rule change recommendations.  The report shall identify any

14  necessary support services, additional training, and fiscal

15  impact resulting from its recommendations.

16         (8)  Members of the commission shall serve without

17  compensation but are entitled to be reimbursed for per diem

18  and travel expenses as provided in section 112.061, Florida

19  Statutes.  Any member of the commission who is a government

20  employee shall have their per diem and travel expenses

21  reimbursed by their employer.  There is hereby appropriated

22  $25,000 from the General Revenue Fund to the Executive Office

23  of the Governor for the purpose of reimbursement for per diem

24  and travel expenses as authorized by this act.

25         (9)  The commission is terminated June 30, 2003.

26         Section 2.  Section 28.2221, Florida Statutes, is

27  amended to read:

28         28.2221  Electronic access to official records.--

29         (1)  The Legislature finds that a proper and legitimate

30  state purpose is served by providing the public with access to

31  public records and information on the Internet. The

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    Florida Senate - 2002                            CS for SB 668
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  1  Legislature further finds that a proper and legitimate state

  2  purpose is also served by preventing the disclosure of records

  3  and information made exempt by law from public disclosure and

  4  hereby determines that the provisions of this section fulfill

  5  and further an important state interest.

  6         (2)  No later than January 1, 2002, the county recorder

  7  in each county shall provide a current index of documents

  8  recorded in the official records of the county for the period

  9  beginning no later than January 1, 1990, on a publicly

10  available Internet website which shall also contain a document

11  requisition point for obtaining images or copies of the

12  documents reflected in the index and which has the capability

13  of electronically providing the index data to a central

14  statewide search site. The index shall be limited to grantor

15  and grantee names, party names, data, book and page number,

16  and type of record.

17         (3)  Each county recorder shall use appropriate

18  Internet security measures to ensure that no person has the

19  ability to alter or to modify records placed on the Internet

20  by the county recorder any public record.

21         (4)  Unless otherwise provided by law, no information

22  retrieved electronically pursuant to this section shall be

23  admissible in court as an authenticated document.

24         (5)  No county recorder may place an image or copy of

25  an official record on a publicly available Internet website

26  for general public display if that image or copy is of a

27  military discharge; death certificate; and any court files,

28  records, and papers relating to matters or cases governed by

29  the Florida Rules of Family Law, the Florida Rules of Juvenile

30  Procedure, and the Florida Probate Rules.  Any such records on

31  the Internet for general public display prior to the effective

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    Florida Senate - 2002                            CS for SB 668
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  1  date of this act must be removed upon identification of the

  2  document and request of any affected party.  Any affected

  3  person may petition the circuit court for an order directing

  4  compliance with this provision. By January 1, 2006, each

  5  county recorder shall provide for electronic retrieval, at a

  6  minimum, of images of documents referenced as the index

  7  required to be maintained on the county's official records

  8  website by this section.

  9         (6)  This section does not prohibit a title insurance

10  company licensed in this state or its designee from

11  maintaining a secure Internet site that makes official records

12  available for the exclusive use of its agents and customers.

13  This section also does not prohibit a title insurance company

14  from continuing to maintain such site during the moratorium

15  imposed on the transfer of records and other documents under

16  subsection (5). The county recorder of each county in this

17  state is expressly authorized to continue any arrangement with

18  a title insurance company for the timely transfer of

19  electronic records.

20         Section 3.  This act shall take effect upon becoming a

21  law.

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    Florida Senate - 2002                            CS for SB 668
    308-1940A-02




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                         Senate Bill 668

  3

  4       --     Revamps the composition of the 28-member Study
                Commission on Public Records and reduce the
  5              membership to 21 of whom 8 serve in an advisory
                capacity.
  6
         --     Revises the provision regarding the moratorium on
  7              the placement of official records on the Internet
                to narrow the class of documents that are to be
  8              withheld from the Internet for general public
                access and to preclude the county recorders from
  9              denying title insurance companies access to such
                records when the title insurance companies have
10              arrangements with the county recorders to access
                these records through a secure Internet website.
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         --     Provides that those records already posted on the
12              Internet that are statutorily protected by this
                future moratorium must be removed upon the request
13              of an affected person and identification of the
                specified document and provides a person with a
14              right to petition for writ of mandamus to order
                compliance;
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         --     Reinstates existing law which requires the county
16              recorder to post documents, other than those
                statutorily protected by the moratorium, on the
17              Internet by January 1, 2006.

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