Florida Senate - 2013                                    SB 1486
       By Senator Smith
       31-01591-13                                           20131486__
    1                        A bill to be entitled                      
    2         An act relating to public records; creating s.
    3         790.0652, F.S.; providing definitions; creating an
    4         exemption from public records requirements for certain
    5         information of patients and health care providers
    6         under the mandatory reporting of mental health status
    7         for firearm safety program; providing for disclosure
    8         of such information under specified conditions;
    9         providing guidelines for the use of such information
   10         and penalties for violations; providing for future
   11         legislative review and repeal of the exemption under
   12         the Open Government Sunset Review Act; providing a
   13         statement of public necessity; providing a contingent
   14         effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Section 790.0652, Florida Statutes, is created
   19  to read:
   20         790.0652Public records exemption for reports of mental
   21  health status for firearm safety.—
   22         (1) As used in this section, the term:
   23         (a) “Department” means the Department of Law Enforcement.
   24         (b) “Firearm-prohibited persons database” has the same
   25  meaning as in s. 790.0651.
   26         (c) “Health care provider” has the same meaning as in s.
   27  790.0651.
   28         (d) “Patient” means a person who is the subject of a mental
   29  health status report under s. 790.0651.
   30         (e) “Personal identifying information” means the name,
   31  address, social security number or other unique government
   32  issued identification number, race, sex, date of birth, or known
   33  alias of a referenced person.
   34         (2) The following information that is contained in records
   35  held by the department under s. 790.065 or s. 790.0651 is
   36  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   37  of the State Constitution:
   38         (a) Any information contained in a report made by a health
   39  care provider pursuant to s. 790.0651, which includes:
   40         1. The personal identifying information of a patient.
   41         2. Protected health information of a patient.
   42         (b) The personal identifying information and license number
   43  of a health care provider who makes a report pursuant to s.
   44  790.0651.
   45         (c) Any record created by the department for inclusion in
   46  the firearm-prohibited persons database based upon a report
   47  pursuant to s. 790.0651.
   48         (d) Any information contained in a certification provided
   49  to the department by a patient to facilitate the removal of the
   50  patient’s record from the firearm-prohibited persons database.
   51         (3) The department may disclose such confidential and
   52  exempt information to the following entities after using a
   53  verification process to ensure the legitimacy of the entity’s
   54  request for the information:
   55         (a) The relevant Department of Health regulatory boards
   56  responsible for the licensure, regulation, or discipline of a
   57  health care provider for the purpose of imposing discipline for
   58  failure to comply with s. 790.0651 or investigating a complaint
   59  of reporting abuse. The regulatory boards may request
   60  information but may not have direct access to the firearm
   61  prohibited persons database.
   62         (b) A law enforcement agency that has initiated an active
   63  investigation involving a specific violation of the law. A law
   64  enforcement agency may request information but may not have
   65  direct access to the firearm-prohibited persons database.
   66         (c) A patient or patient’s legal representative to confirm
   67  that a record of the patient in the firearm-prohibited persons
   68  database which was based solely upon a health care provider
   69  report pursuant to s. 790.0651 was removed from the database in
   70  accordance with s. 790.065. For purposes of this paragraph, the
   71  department shall disclose confidential and exempt information
   72  relating only to the patient, not the reporting health care
   73  provider.
   74         (d) An entity with authorized access to the firearm
   75  prohibited persons database under s. 790.065(2)(a) in order to
   76  determine the lawfulness of a firearm sale or transfer, or the
   77  eligibility to carry a concealed weapon. For purposes of this
   78  paragraph, the department may disclose information contained
   79  only in active mental health records of the firearm-prohibited
   80  persons database.
   81         (4) An agency or person who obtains confidential and exempt
   82  information pursuant to this section must maintain the
   83  confidential and exempt status of that information.
   84         (5) A person who willfully and knowingly violates this
   85  section commits a felony of the third degree, punishable as
   86  provided in s. 775.082, s. 775.083, or s. 775.084.
   87         (6) This section is subject to the Open Government Sunset
   88  Review Act in accordance with s. 119.15 and shall stand repealed
   89  on October 2, 2018, unless reviewed and saved from repeal
   90  through reenactment by the Legislature.
   91         Section 2. The Legislature finds that it is a public
   92  necessity that certain information of a patient or a health care
   93  provider which is contained in records held by the Department of
   94  Law Enforcement under s. 790.0651, Florida Statutes, the
   95  mandatory reporting program of mental health status for firearm
   96  safety, be made confidential and exempt from public records
   97  requirements. Information concerning the mental health status of
   98  a patient is a private, personal matter between the patient, his
   99  or her family, and his or her health care provider.
  100  Nevertheless, the reporting to law enforcement of those patients
  101  who suffer a mental illness or disorder and who pose a risk of
  102  harm to themselves or others will ensure the ability of the
  103  state to prevent access to firearms to those who may use them to
  104  harm innocent persons in this state. However, if the information
  105  that would identify a patient or the reporting health care
  106  provider is not made confidential and exempt from disclosure,
  107  any person could inspect and copy such records and have access
  108  to a patient’s protected health information. The availability of
  109  such information to the public would result in the invasion of
  110  the patient’s privacy, and this information could be used to
  111  embarrass or humiliate the patient or to discriminate against
  112  him or her. Requiring the reporting of patients who suffer
  113  certain mental illnesses and pose a risk of harm to themselves
  114  or others, while protecting patient personal identifying
  115  information, will ensure that the patient does not have the
  116  ability to purchase a firearm while maintaining patient privacy.
  117  Additionally, exempting the personal identifying information of
  118  the reporting health care provider from disclosure ensures that
  119  health care providers are not targeted in acts of retaliation by
  120  patients who have been identified as having a risk of causing
  121  harm to others. This exemption from public records requirements
  122  also prevents a person with mental illness who poses a risk of
  123  harm to others from identifying and seeking out health care
  124  providers who make the fewest reports to the Department of Law
  125  Enforcement pursuant to s. 790.0651, Florida Statutes, thereby
  126  increasing the likelihood of escaping detection by the
  127  department during a firearm background check. Thus, the
  128  Legislature finds that the harm to patients, health care
  129  providers, and the public which would result from the release of
  130  protected health information and personal identifying
  131  information contained in reports and records made pursuant to s.
  132  790.0651, Florida Statutes, outweighs any minimal public benefit
  133  derived from disclosure to the public.
  134         Section 3. This act shall take effect July 1, 2013, if SB
  135  ____, or similar legislation establishing a mandatory reporting
  136  program of mental health status for firearm safety, is adopted
  137  in the same legislative session or an extension thereof and
  138  becomes a law.