| 1 | A bill to be entitled |
| 2 | An act relating to public records exemptions; amending ss. |
| 3 | 637.1009, 637.1012, 637.1019, 637.1022, 637.1046, |
| 4 | 637.30145, 637.30147, and 637.30295, F.S.; exempting |
| 5 | certain information relating to title insurance, title |
| 6 | insurers, and title insurance agents from certain public |
| 7 | records disclosure requirements; creating s. 637.2052, |
| 8 | F.S.; exempting certain proceedings and records from |
| 9 | public meetings and records requirements; providing for |
| 10 | future review and repeal of the exemptions in this act |
| 11 | under the Open Government Sunset Review Act; providing a |
| 12 | statement of public necessity; providing a contingent |
| 13 | effective date. |
| 14 |
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| 15 | Be It Enacted by the Legislature of the State of Florida: |
| 16 |
|
| 17 | Section 1. Paragraph (g) is added to subsection (3) of |
| 18 | section 637.1009, Florida Statutes, to read: |
| 19 | 637.1009 Enforcement; cease and desist orders; removal of |
| 20 | certain persons; fines; confidential information.- |
| 21 | (3) CEASE AND DESIST ORDERS.- |
| 22 | (g) Any emergency order entered under this subsection is |
| 23 | confidential and exempt from the provisions of s. 119.07(1) and |
| 24 | s. 24(a), Art. I of the State Constitution and shall remain |
| 25 | confidential until it is made permanent unless the department |
| 26 | finds that the confidentiality will result in substantial risk |
| 27 | of financial loss to the public. All emergency cease and desist |
| 28 | orders that are not made permanent are available for public |
| 29 | inspection 1 year after the date the emergency cease and desist |
| 30 | order expires. However, portions of an emergency cease and |
| 31 | desist order remain confidential and exempt from the provisions |
| 32 | of s. 119.07(1) and s. 24(a), Art. I of the State Constitution |
| 33 | if disclosure would: |
| 34 | 1. Jeopardize the integrity of another active |
| 35 | investigation; |
| 36 | 2. Impair the safety and financial soundness of the |
| 37 | licensee or affiliated party; |
| 38 | 3. Reveal personal financial information; |
| 39 | 4. Reveal the identity of a confidential source; |
| 40 | 5. Defame or cause unwarranted damage to the good name or |
| 41 | reputation of an individual or jeopardize the safety of an |
| 42 | individual; or |
| 43 | 6. Reveal investigative techniques or procedures. |
| 44 |
|
| 45 | This paragraph is subject to the Open Government Sunset Review |
| 46 | Act in accordance with s. 119.15 and shall stand repealed on |
| 47 | October 2, 2015, unless reviewed and saved from repeal through |
| 48 | reenactment by the Legislature. |
| 49 | Section 2. Subsection (4) is added to section 637.1012, |
| 50 | Florida Statutes, to read: |
| 51 | 637.1012 Records; reproductions; destruction; confidential |
| 52 | information.- |
| 53 | (4) The records of insurance claim negotiations of any |
| 54 | state agency or political subdivision are confidential and |
| 55 | exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I |
| 56 | of the State Constitution until termination of all litigation |
| 57 | and settlement of all claims arising out of the same incident. |
| 58 | This subsection is subject to the Open Government Sunset Review |
| 59 | Act in accordance with s. 119.15 and shall stand repealed on |
| 60 | October 2, 2015, unless reviewed and saved from repeal through |
| 61 | reenactment by the Legislature. |
| 62 | Section 3. Subsection (7) is added to section 637.1019, |
| 63 | Florida Statutes, to read: |
| 64 | 637.1019 Investigation of title insurance agents and |
| 65 | others; confidential information.-If the department has reason |
| 66 | to believe that any title insurance agent has violated or is |
| 67 | violating any provision of this chapter, or upon the written |
| 68 | complaint signed by any interested person indicating that any |
| 69 | such violation may exist: |
| 70 | (7) The complaint and any information obtained pursuant to |
| 71 | the investigation by the department or office are confidential |
| 72 | and exempt from the provisions of s. 119.07(1) and s. 24(a), |
| 73 | Art. I of the State Constitution unless the department or office |
| 74 | files a formal administrative complaint, emergency order, or |
| 75 | consent order against the licensee. Nothing in this subsection |
| 76 | shall be construed to prevent the department or office from |
| 77 | disclosing the complaint or such information as it deems |
| 78 | necessary to conduct the investigation, to update the |
| 79 | complainant as to the status and outcome of the complaint, or to |
| 80 | share such information with any law enforcement agency. This |
| 81 | subsection is subject to the Open Government Sunset Review Act |
| 82 | in accordance with s. 119.15 and shall stand repealed on October |
| 83 | 2, 2015, unless reviewed and saved from repeal through |
| 84 | reenactment by the Legislature. |
| 85 | Section 4. Subsection (5) is added to section 637.1022, |
| 86 | Florida Statutes, to read: |
| 87 | 637.1022 Examination and investigation reports; |
| 88 | confidential information.- |
| 89 | (5)(a)1. Until filed, examination reports are confidential |
| 90 | and exempt from the provisions of s. 119.07(1) and s. 24(a), |
| 91 | Art. I of the State Constitution. |
| 92 | 2. Investigation reports are confidential and exempt from |
| 93 | the provisions of s. 119.07(1) and s. 24(a), Art. I of the State |
| 94 | Constitution until the investigation is completed or ceases to |
| 95 | be active. |
| 96 | 3. For purposes of this subsection, an investigation is |
| 97 | active while it is being conducted by the department with a |
| 98 | reasonable, good faith belief that it could lead to the filing |
| 99 | of administrative, civil, or criminal proceedings. An |
| 100 | investigation does not cease to be active if the department is |
| 101 | proceeding with reasonable dispatch and has a good faith belief |
| 102 | that action could be initiated by the department or other |
| 103 | administrative or law enforcement agency. After an investigation |
| 104 | is completed or ceases to be active, portions of the |
| 105 | investigation report relating to the investigation remain |
| 106 | confidential and exempt from the provisions of s. 119.07(1) and |
| 107 | s. 24(a), Art. I of the State Constitution if disclosure would: |
| 108 | a. Jeopardize the integrity of another active |
| 109 | investigation; |
| 110 | b. Impair the safety and financial soundness of the |
| 111 | licensee or affiliated party; |
| 112 | c. Reveal personal financial information; |
| 113 | d. Reveal the identity of a confidential source; |
| 114 | e. Defame or cause unwarranted damage to the good name or |
| 115 | reputation of an individual or jeopardize the safety of an |
| 116 | individual; or |
| 117 | f. Reveal investigative techniques or procedures. |
| 118 | (b)1. For purposes of this paragraph, the term "work |
| 119 | papers" means the records of the procedures followed, the tests |
| 120 | performed, the information obtained, and the conclusions reached |
| 121 | in an examination or investigation performed under this section, |
| 122 | s. 637.1017, s. 637.1018, s. 637.1019, or s. 637.1021. Work |
| 123 | papers include, but are not limited to, planning documentation, |
| 124 | work programs, analyses, memoranda, letters of confirmation and |
| 125 | representation, abstracts of company documents, and schedules or |
| 126 | commentaries prepared or obtained in the course of such |
| 127 | examination or investigation. |
| 128 | 2.a. Work papers held by the department are confidential |
| 129 | and exempt from the provisions of s. 119.07(1) and s. 24(a), |
| 130 | Art. I of the State Constitution until the examination report is |
| 131 | filed or until the investigation is completed or ceases to be |
| 132 | active. |
| 133 | b. Information received from another governmental entity |
| 134 | or the National Association of Insurance Commissioners, which is |
| 135 | confidential or exempt when held by that entity, for use by the |
| 136 | department in the performance of its examination or |
| 137 | investigation duties pursuant to this section, s. 637.1017, s. |
| 138 | 637.1018, s. 637.1019, or s. 637.1021 is confidential and exempt |
| 139 | from s. 119.07(1) and s. 24(a), Art. I of the State |
| 140 | Constitution. |
| 141 | c. This exemption applies to work papers and such |
| 142 | information held by the department before, on, or after the |
| 143 | effective date of this exemption. |
| 144 | 3. Confidential and exempt work papers and information may |
| 145 | be disclosed to: |
| 146 | a. Another governmental entity, if disclosure is necessary |
| 147 | for the receiving entity to perform its duties and |
| 148 | responsibilities; and |
| 149 | b. The National Association of Insurance Commissioners. |
| 150 | 4. After an examination report is filed or an |
| 151 | investigation is completed or ceases to be active, portions of |
| 152 | work papers may remain confidential and exempt from the |
| 153 | provisions of s. 119.07(1) and s. 24(a), Art. I of the State |
| 154 | Constitution if disclosure would: |
| 155 | a. Jeopardize the integrity of another active examination |
| 156 | or investigation; |
| 157 | b. Impair the safety or financial soundness of the |
| 158 | licensee, affiliated party, or insured; |
| 159 | c. Reveal personal financial, medical, or health |
| 160 | information; |
| 161 | d. Reveal the identity of a confidential source; |
| 162 | e. Defame or cause unwarranted damage to the good name or |
| 163 | reputation of an individual or jeopardize the safety of an |
| 164 | individual; |
| 165 | f. Reveal examination techniques or procedures; or |
| 166 | g. Reveal information that is confidential or exempt under |
| 167 | sub-subparagraph 2.b. |
| 168 | (c) Lists of insurers or regulated companies are |
| 169 | confidential and exempt from the provisions of s. 119.07(1) and |
| 170 | s. 24(a), Art. I of the State Constitution if: |
| 171 | 1. The financial solvency, condition, or soundness of such |
| 172 | insurers or regulated companies is being monitored by the |
| 173 | department. |
| 174 | 2. The list is prepared to internally coordinate |
| 175 | regulation by the department of the financial solvency, |
| 176 | condition, or soundness of the insurers or regulated companies. |
| 177 | 3. The department determines that public inspection of |
| 178 | such list could impair the financial solvency, condition, or |
| 179 | soundness of such insurers or regulated companies. |
| 180 | (d) This subsection is subject to the Open Government |
| 181 | Sunset Review Act in accordance with s. 119.15 and shall stand |
| 182 | repealed on October 2, 2015, unless reviewed and saved from |
| 183 | repeal through reenactment by the Legislature. |
| 184 | Section 5. Subsection (8) is added to section 637.1046, |
| 185 | Florida Statutes, to read: |
| 186 | 637.1046 Investigation by department or Division of |
| 187 | Insurance Fraud; compliance; immunity; confidential information; |
| 188 | reports to division; division investigator's power of arrest; |
| 189 | confidential information.- |
| 190 | (8) The department's papers, documents, reports, and |
| 191 | evidence relative to the subject of an investigation under this |
| 192 | section are confidential and exempt from the provisions of s. |
| 193 | 119.07(1) and s. 24(a), Art. I of the State Constitution until |
| 194 | such investigation is completed or ceases to be active. For |
| 195 | purposes of this subsection, an investigation is considered |
| 196 | active while the investigation is being conducted by the |
| 197 | department with a reasonable, good faith belief that it could |
| 198 | lead to the filing of administrative, civil, or criminal |
| 199 | proceedings. An investigation does not cease to be active if the |
| 200 | department is proceeding with reasonable dispatch and has a good |
| 201 | faith belief that action could be initiated by the department or |
| 202 | any other administrative or law enforcement agency. After an |
| 203 | investigation is completed or ceases to be active, portions of |
| 204 | records relating to the investigation shall remain confidential |
| 205 | and exempt from the provisions of s. 119.07(1) and s. 24(a), |
| 206 | Art. I of the State Constitution if disclosure would: |
| 207 | (a) Jeopardize the integrity of another active |
| 208 | investigation; |
| 209 | (b) Impair the safety and soundness of an insurer; |
| 210 | (c) Reveal personal financial information; |
| 211 | (d) Reveal the identity of a confidential source; |
| 212 | (e) Defame or cause unwarranted damage to the good name or |
| 213 | reputation of an individual or jeopardize the safety of an |
| 214 | individual; or |
| 215 | (f) Reveal investigative techniques or procedures. |
| 216 | Further, such papers, documents, reports, or evidence relative |
| 217 | to the subject of an investigation under this section shall not |
| 218 | be subject to discovery until the investigation is completed or |
| 219 | ceases to be active. Department or division investigators shall |
| 220 | not be subject to subpoena in civil actions by any court of this |
| 221 | state to testify concerning any matter of which they have |
| 222 | knowledge pursuant to a pending insurance fraud investigation by |
| 223 | the division. This subsection is subject to the Open Government |
| 224 | Sunset Review Act in accordance with s. 119.15 and shall stand |
| 225 | repealed on October 2, 2015, unless reviewed and saved from |
| 226 | repeal through reenactment by the Legislature. |
| 227 | Section 6. Section 637.2052, Florida Statutes, is created |
| 228 | to read: |
| 229 | 637.2052 Confidentiality of proceedings and records.- |
| 230 | (1) Orders, notices, correspondence, reports, records, and |
| 231 | other information in the possession of the department relating |
| 232 | to the supervision of any insurer are confidential and exempt |
| 233 | from the provisions of s. 119.07(1) and s. 24(a), Art. I of the |
| 234 | State Constitution, except as otherwise provided in this |
| 235 | section. Proceedings and hearings relating to the department's |
| 236 | supervision of any insurer are exempt from the provisions of s. |
| 237 | 286.011, except as otherwise provided in this section. |
| 238 | (2) The personnel of the department shall have access to |
| 239 | proceedings, hearings, notices, correspondence, reports, |
| 240 | records, or other information as permitted by the department. |
| 241 | (3) The department may open the proceedings or hearings or |
| 242 | disclose the contents of the notices, correspondence, reports, |
| 243 | records, or other information to a department, agency, or |
| 244 | instrumentality of this or another state or the United States if |
| 245 | it determines that the disclosure is necessary or proper for the |
| 246 | enforcement of the laws of this or another state or the United |
| 247 | States. |
| 248 | (4) The department may open the proceedings or hearings or |
| 249 | make public the notices, correspondence, reports, records, or |
| 250 | other information if the department finds that it is in the best |
| 251 | interest of the public, the insurer in supervision, or the |
| 252 | insurer's insureds. |
| 253 | (5) This section does not apply to proceedings, hearings, |
| 254 | notices, correspondence, reports, records, or other information |
| 255 | obtained upon the appointment of a receiver for the insurer by a |
| 256 | court of competent jurisdiction. |
| 257 | (6) The exemptions provided by this section shall |
| 258 | terminate on the earlier of the following dates: |
| 259 | (a) One year after the conclusion of the entire period of |
| 260 | supervision, as determined pursuant to s. 637.2051(3); or |
| 261 | (b) The date of the entry of an order of seizure, |
| 262 | rehabilitation, or liquidation pursuant to chapter 631. |
| 263 | (7) This subsection is subject to the Open Government |
| 264 | Sunset Review Act in accordance with s. 119.15 and shall stand |
| 265 | repealed on October 2, 2015, unless reviewed and saved from |
| 266 | repeal through reenactment by the Legislature. |
| 267 | Section 7. Subsection (3) is added to section 637.30145, |
| 268 | Florida Statutes, to read: |
| 269 | 637.30145 Reasons for termination; confidential |
| 270 | information.- |
| 271 | (3) Any information, document, record, or statement |
| 272 | furnished to the department or office under subsection (1) is |
| 273 | confidential and exempt from the provisions of s. 119.07(1) |
| 274 | and s. 24(a), Art. I of the State Constitution. This subsection |
| 275 | is subject to the Open Government Sunset Review Act in |
| 276 | accordance with s. 119.15 and shall stand repealed on October 2, |
| 277 | 2015, unless reviewed and saved from repeal through reenactment |
| 278 | by the Legislature. |
| 279 | Section 8. Section 637.30147, Florida Statutes, is amended |
| 280 | to read: |
| 281 | 637.30147 Procedure for refusal, suspension, or revocation |
| 282 | of license; confidential information.- |
| 283 | (1) If any licensee is convicted of a violation of this |
| 284 | code or a felony, the licenses and appointments of such |
| 285 | person shall be immediately revoked by the department. The |
| 286 | licensee may subsequently request a hearing pursuant to ss. |
| 287 | 120.569 and 120.57, and the department shall expedite any such |
| 288 | requested hearing. The sole issue at such hearing shall be |
| 289 | whether the revocation should be rescinded because such person |
| 290 | was not in fact convicted of a violation of this code or a |
| 291 | felony. |
| 292 | (2) The papers, documents, reports, and items of evidence |
| 293 | of the department relative to a hearing for revocation or |
| 294 | suspension of a license or appointment pursuant to the provisions |
| 295 | of this chapter and chapter 120 are confidential and exempt from |
| 296 | the provisions of s. 119.07(1) and s. 24(a), Art. I of the State |
| 297 | Constitution until after the same have been published at the |
| 298 | hearing. However, such papers, documents, reports, or items |
| 299 | of evidence are subject to discovery in a hearing for |
| 300 | revocation or suspension of a license or appointment. This |
| 301 | subsection is subject to the Open Government Sunset Review Act |
| 302 | in accordance with s. 119.15 and shall stand repealed on October |
| 303 | 2, 2015, unless reviewed and saved from repeal through |
| 304 | reenactment by the Legislature. |
| 305 | Section 9. Section 637.30295, Florida Statutes, is amended |
| 306 | to read: |
| 307 | 637.30295 Collection of title insurance information; |
| 308 | confidential information.- |
| 309 | (1) Each title insurance agency licensed to do business in |
| 310 | this state and each insurer doing direct, retail or affiliated |
| 311 | business in this state shall maintain and submit information, |
| 312 | including revenue, loss, and expense data, as the department |
| 313 | determines to be necessary to assist in the analysis of title |
| 314 | insurance premium rates, title search costs, and the condition |
| 315 | of the title insurance industry in this state. This information |
| 316 | must be transmitted to the department no later than March 31 of |
| 317 | each year following the reporting year. The department shall |
| 318 | adopt rules to assist in the collection and analysis of the data |
| 319 | from the title insurance industry. |
| 320 | (2) The financial information supplied by each licensee is |
| 321 | confidential and exempt from the provisions of s. 119.07(1) and |
| 322 | s. 24(a), Art. I of the State Constitution to prevent disclosure |
| 323 | of private information of that licensee to the public. However, |
| 324 | the total combined responses of all the agencies and |
| 325 | reporting entities may be disclosed to the public as long as the |
| 326 | specific identities of the licensees are not revealed. This |
| 327 | subsection is subject to the Open Government Sunset Review Act |
| 328 | in accordance with s. 119.15 and shall stand repealed on October |
| 329 | 2, 2015, unless reviewed and saved from repeal through |
| 330 | reenactment by the Legislature. |
| 331 | Section 10. The Legislature finds that it is a public |
| 332 | necessity that proprietary business information relating to the |
| 333 | title insurance industry, title insurers, and title insurance |
| 334 | agents, including, but not limited to, trade secrets, be made |
| 335 | confidential and exempt from s. 24(a), Art. I of the State |
| 336 | Constitution and s. 119.07(1), Florida Statutes. The disclosure |
| 337 | of information, such as revenue, loss expense data, analyses of |
| 338 | gross receipts, the amount of taxes paid, the amount of capital |
| 339 | investment, customer identification, the amount of employee |
| 340 | wages paid, and the detailed documentation to substantiate such |
| 341 | performance information, could injure a business in the |
| 342 | marketplace by providing its competitors with detailed insights |
| 343 | into the financial status and the strategic plans of the |
| 344 | business, thereby diminishing the advantage that the business |
| 345 | maintains over competitors that do not possess such information. |
| 346 | Without this exemption, title insurance agencies and title |
| 347 | insurers, whose records are generally not required to be open to |
| 348 | the public, may refrain from providing accurate and unbiased |
| 349 | data and would thus impair the Department of Financial Services |
| 350 | in setting fair and adequate title insurance rates. Proprietary |
| 351 | business information derives independent economic value, actual |
| 352 | or potential, from not being generally known to, and not being |
| 353 | readily ascertainable by proper means by, other persons who can |
| 354 | derive economic value from its disclosure or use. The Department |
| 355 | of Financial Services, or any subsidiary or contractor of the |
| 356 | department, in performing its lawful duties and |
| 357 | responsibilities, may need to obtain from the proprietary |
| 358 | business information. Without an exemption from public records |
| 359 | requirements for proprietary business information held by the |
| 360 | department or its designee, such information becomes a public |
| 361 | record when received and must be divulged upon request. |
| 362 | Divulgence of any proprietary business information under public |
| 363 | records laws would destroy the value of that property to the |
| 364 | proprietor causing a financial loss not only to the proprietor |
| 365 | but also to the citizens of this state due to loss of reliable |
| 366 | financial data necessary for fair and adequate rate regulation. |
| 367 | Release of proprietary business information would give business |
| 368 | competitors an unfair advantage and weaken the position of the |
| 369 | proprietor of the proprietary business information in the |
| 370 | marketplace. The harm to businesses in the marketplace and to |
| 371 | the effective administration of the ratemaking function caused |
| 372 | by the public disclosure of such information far outweighs the |
| 373 | public benefits derived from its release. In addition, the |
| 374 | confidentiality provided by the amendments to Florida Statutes |
| 375 | made by this act shall not preclude the reporting of statistics |
| 376 | in the aggregate concerning the collection of data, as well as |
| 377 | the names of the title insurance agencies and title insurers |
| 378 | participating in the data collection. Such aggregate reported |
| 379 | data should be available to the public and is important to an |
| 380 | assessment of the setting of title insurance premiums. Thus, the |
| 381 | Legislature declares that it is a public necessity that |
| 382 | proprietary business information of title insurers, title |
| 383 | insurance agents, and the title insurance industry held by the |
| 384 | Department of Financial Services, or any subsidiary, contractor, |
| 385 | or agent of the department, be made confidential and exempt from |
| 386 | s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the |
| 387 | State Constitution. |
| 388 | Section 11. This act shall take effect October 1, 2010, |
| 389 | only if House Bill 853 or similar legislation is adopted in the |
| 390 | same legislative session or an extension thereof and becomes |
| 391 | law. |