Senate Bill sb2122c1

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    Florida Senate - 2004                           CS for SB 2122

    By the Committee on Banking and Insurance; and Senator Atwater





    311-2654-04

  1                      A bill to be entitled

  2         An act relating to public records and meetings

  3         exemptions; creating s. 440.3851 F.S.;

  4         exempting from public records and public

  5         meetings requirements certain records of the

  6         Florida Self-Insurers Guaranty Association,

  7         Incorporated, and meetings of the board of

  8         directors of the association; providing for

  9         future legislative review and repeal; providing

10         findings of public necessity; providing an

11         effective date.

12  

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

14  

15         Section 1.  Section 440.3851, Florida Statutes, is

16  created to read:

17         440.3851  Public records and meeting exceptions.--

18         (1)  The following records held by the Florida

19  Self-Insurers Guaranty Association authorized and created in

20  s. 440.385, are confidential and exempt from the provisions of

21  s. 119.07(1) and s. 24(a), Art. I of the State Constitution:

22         (a)  Claims files, until termination of all litigation

23  and settlement of all claims arising out of the same incident.

24         (b)  Medical records that are part of a claims file.

25         (c)  Personal identifying information in records that

26  are part of a claims file.

27         (d)  Minutes of those portions of meetings at which a

28  record that is made confidential and exempt by this section is

29  discussed as provided in subsection (3), until termination of

30  all litigation and settlement of all claims with regard to

31  that claim.

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    Florida Senate - 2004                           CS for SB 2122
    311-2654-04




 1         (2)  Records or portions of records made confidential

 2  and exempt by this section may be released, upon written

 3  request, to another agency in the performance of that agency's

 4  official duties and responsibilities. The receiving agency

 5  shall maintain the confidential and exempt status of such

 6  record or portion of record made confidential and exempt by

 7  this section.

 8         (3)  That portion of a meeting of the association board

 9  of directors or a subcommittee of the association board of

10  directors at which records made confidential and exempt by

11  this section are discussed are exempt from the provisions of

12  s. 286.011 and s. 24(b), Art. I of the State Constitution. All

13  portions of meetings which are closed to the public shall be

14  recorded and transcribed. The board shall record the times of

15  commencement and termination of the meeting, all discussion

16  and proceedings, the names of all persons present at any time,

17  and the names of all persons speaking. No portion of any

18  closed meeting shall be off the record. Subject to this

19  subsection and s. 119.07(2)(a), the court reporter's notes of

20  any closed meeting shall be retained by the corporation for a

21  minimum of 5 years. A copy of the transcript of any closed

22  meeting wherein claims are discussed shall become public as to

23  individual claims after settlement of the claim with any

24  exempt and confidential information redacted.

25         Section 2.  Section 440.3851, Florida Statutes, is

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

27  accordance with section 119.15, Florida Statutes, and shall

28  stand repealed on October 2, 2009, unless reviewed and saved

29  from repeal through reenactment by the Legislature.

30         Section 3.  (1)  The Legislature finds that it is a

31  public necessity that claims files of the Florida

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    Florida Senate - 2004                           CS for SB 2122
    311-2654-04




 1  Self-Insurers Guaranty Association, Incorporated, be held

 2  confidential and exempt from public disclosure and that

 3  portions of meetings of the board of directors of the

 4  association, or meetings of any subcommittee of the board,

 5  wherein these claims files are reviewed and evaluated be

 6  closed. The Legislature finds that the association was created

 7  to stand in the place of private businesses that are self

 8  insured for workers' compensation claims if any of such

 9  businesses becomes insolvent. The Legislature finds that the

10  exemption of the open compensation files of the association is

11  necessary for the effective and efficient administration of a

12  government program created to insure workers with claims

13  against insolvent businesses which can otherwise seek

14  compensation from the funds collected by the association from

15  its member businesses. Claims files are created by the

16  association after a claim against one of its insolvent members

17  is made, contain detailed information about the claim, medical

18  information, and other personal identifying information about

19  the claimant, and also contain information detailing the

20  evaluation of the legitimacy of the claim, the extent of

21  incapacity and a valuation of the award, if any, that should

22  be made. Information in a claim file held by the association

23  includes the medical records of a claimant. The Legislature

24  finds that the claimants' medical records are personal and

25  sensitive. Therefore, the Legislature finds that an exemption

26  for medical records and personal identifying information of a

27  claimant is a public necessity in order to protect a

28  claimant's health-related information. Matters of personal

29  health are traditionally a private and confidential concern.

30  The release of the medical records of a claimant or personal

31  identifying information of a claimant would be defamatory to

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    Florida Senate - 2004                           CS for SB 2122
    311-2654-04




 1  the individuals or could cause unwarranted damage to the name

 2  or reputation of the individuals. When a claim is contested,

 3  the work product of legal counsel may also be included in the

 4  file in the form of direction to claims professionals or other

 5  attorney-client privileged communications. Allowing the

 6  claimant or their lawyer's access to the files, which could be

 7  used for purposes of negotiation, claim evaluation, and

 8  settlement considerations, would weaken the legal position of

 9  the association and could result in higher awards and

10  settlements paid out by the guaranty fund and ultimately the

11  membership of the association. Additionally, information in

12  claims files that reasonably encompass privileged

13  attorney-client communications should be held confidential and

14  exempt because the release of such information could

15  jeopardize ongoing or pending litigation. The Legislature

16  further finds that the exempt records contain confidential

17  medical information of a personal, sensitive nature about the

18  claimant.

19         (2)  The Legislature further finds that closing access

20  to meetings of the board of directors of the association or

21  meetings of a subcommittee of the board, wherein claims files

22  are reviewed and evaluated, is necessary for the effective and

23  efficient administration of the claims evaluation work of the

24  association. The directors of the fund act in a trustee

25  capacity and must take care that the assets of the fund are

26  managed wisely. Their efforts to meet as a collegial body to

27  closely review individual files in an open and frank setting

28  that includes staff are thwarted by the current requirement

29  that such meetings be noticed and open. Furthermore,

30  discussion of individual files in an open and public setting

31  

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    Florida Senate - 2004                           CS for SB 2122
    311-2654-04




 1  might reveal private, sensitive medical information that is

 2  otherwise confidential.

 3         Section 4.  This act shall take effect upon becoming a

 4  law.

 5  

 6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 7                         Senate Bill 2122

 8                                 

 9  Provides that medical records and personal identifying
    information regarding a claimant would continue to be
10  confidential and exempt from s. 119.07(1), F.S., and s. 24(a),
    Art. I of the State Constitution after the litigation of a
11  claim is terminated.

12  Creates the public records exemption in ch. 440, F.S., rather
    than ch. 624, F.S., since the Florida Self-Insurers Guaranty
13  Association is created under ch. 440, F.S.

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