House Staff Analysis: PCS for HB 1311 Public Records and Public Meetings/Public Service Commission

Summary

A Florida House of Representatives staff analysis of PCS for HB 1311, Public Records and Public Meetings/Public Service Commission, sponsored by the Commerce Committee, dated 4/12/2021. It states the bill creates a public meeting exemption for portions of a Public Service Commission hearing discussing proprietary confidential business information, which must be recorded and transcribed. It states the bill also exempts those recordings and transcriptions from disclosure unless a court finds the portion was not restricted to such information. The exemption is subject to the Open Government Sunset Review Act and stands repealed on October 2, 2026 unless reenacted, and the bill takes effect upon becoming law. The analysis states the bill requires a two-thirds vote for final passage under Article I, section 24(c) of the Florida Constitution and does not appear to have a fiscal impact.

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                                    HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #:     PCS for HB 1311 Public Records and Public Meetings/Public Service Commission
SPONSOR(S): Commerce Committee
TIED BILLS:       IDEN./SIM. BILLS: SB 7066

  REFERENCE                                                        ACTION                   ANALYST                STAFF DIRECTOR or
                                                                                                                   BUDGET/POLICY CHIEF

  Orig. Comm.: Commerce Committee                                                           Keating                Hamon

                                                         SUMMARY ANALYSIS

Current law provides public record exemptions for proprietary confidential business information provided to and
held by the Public Service Commission (PSC). The PSC has established practices and procedures to ensure
that this information is protected from disclosure during evidentiary hearings that must be held in compliance
with the Sunshine Law. Rarely, however, the PSC may find that a case is so heavily intertwined with
confidential information, or the volume of that information so substantial, that its practices and procedures are
not sufficient to allow it conduct a public hearing while also protecting the confidential information. In this
circumstance, the PSC may forward the matter for a formal administrative hearing before the Division of
Administrative Hearings (DOAH), which is authorized to hold a closed hearing.

The bill creates a public meeting exemption for those portions of a hearing held by the PSC in which
proprietary confidential business information that is confidential or exempt from disclosure as a public record is
discussed. The bill provides that no exempt portion of a hearing may be off the record and that all exempt
portions must be recorded and transcribed.

The bill also creates a public record exemption for these recordings and transcriptions. Each such recording or
transcription is confidential and exempt from disclosure as a public record unless a court of competent
jurisdiction determines that the relevant portion of the hearing was not restricted to the discussion of
proprietary confidential business information that is confidential or exempt from disclosure as a public record.
If the court makes such a determination, only that portion of the recording and transcript which reveals
nonexempt information may be disclosed to a third party.

These exemptions will allow the PSC to close those portions of a hearing in which information that is
confidential or exempt from disclosure as a public record is discussed. This may avoid the need for the PSC to
send certain cases to DOAH for a closed hearing when those cases are heavily intertwined with or involve a
substantial volume of confidential or exempt information.

The bill provides a statement of public necessity as required by the Florida Constitution. The bill provides that
this public meeting and public record exemption is subject to the Open Government Sunset Review Act and
will stand repealed on October 2, 2026, unless the Legislature reviews and reenacts the exemptions by that
date.

The bill does not appear to have a fiscal impact on state or local governments.

The bill provides an effective date of upon becoming law.

Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public meeting or public record
exemption. The bill creates a new public meeting and public record exemption; thus, it requires a two-
thirds vote for final passage.




This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: pcs1311.COM
DATE: 4/12/2021
                                                              FULL ANALYSIS

                                                      I. SUBSTANTIVE ANALYSIS

     A. EFFECT OF PROPOSED CHANGES:
          Present Situation

          Public Records
          Article I, section 24(a) of the Florida Constitution sets forth the state’s public policy regarding access to
          government records. This section guarantees every person a right to inspect or copy any public record
          of the legislative, executive, and judicial branches of government; counties, municipalities, and districts;
          and each constitutional officer, board, and commission, or entity created pursuant to law or the Florida
          Constitution. The Legislature, however, may provide by general law for the exemption of records from
          the requirements of article I, section 24(a) of the Florida Constitution.1 The general law must state with
          specificity the public necessity justifying the exemption2 and must be no broader than necessary to
          accomplish its purpose.3

          Public policy regarding access to government records is addressed further in s. 119.07(1)(a), F.S.,
          which guarantees every person a right to inspect and copy any state, county, or municipal record,
          unless the record is exempt. Furthermore, the Open Government Sunset Review Act 4 provides that a
          public record or public meeting exemption may be created or maintained only if it serves an identifiable
          public purpose. In addition, it may be no broader than necessary to meet one of the following purposes:
               Allow the state or its political subdivisions to effectively and efficiently administer a
                  governmental program, which administration would be significantly impaired without the
                  exemption.
               Protect sensitive personal information that, if released, would be defamatory or would
                  jeopardize an individual’s safety; however, only the identity of an individual may be exempted
                  under this provision.
               Protect trade or business secrets.5

          The Open Government Sunset Review Act requires the automatic repeal of a newly created public
          record exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
          Legislature reenacts the exemption.6

          Public Meetings
          The Florida Constitution requires all meetings of any collegial public body of the executive branch of
          state government or any collegial public body of a county, municipality, school district, or special
          district, at which official acts are to be taken or at which public business of such body is to be
          transacted or discussed, be open and noticed to the public.7 Public policy regarding access to
          government meetings also is addressed in the Florida Statutes. Section 286.011, F.S., known as the
          “Government in the Sunshine Law” or “Sunshine Law,” further requires all meetings of any board or
          commission of any state agency or authority, or of any agency or authority of any county, municipality,
          or political subdivision, at which official acts are to be taken must be open to the public at all times.8
          The board or commission must provide reasonable notice of all public meetings.9 Public meetings may
          not be held at any location that discriminates on the basis of sex, age, race, creed, color, origin, or
          economic status or that operates in a manner that unreasonably restricts the public’s access to the
          facility.10 Minutes of a public meeting must be promptly recorded and open to public inspection.11

1 Art. I, s. 24(c), FLA. CONST.
2 This portion of a public record exemption is commonly referred to as a “public necessity statement.”
3 Art. I. s. 24(c), FLA. CONST.
4 S. 119.15, F.S.
5 S. 119.15(6)(b), F.S.
6 S. 119.15(3), F.S.
7 Art. 1, s. 24(b), FLA. CONST.
8 S. 286.011(1), F.S.
9 S. 286.011(1), F.S.
10 S. 286.011(6), F.S.
11 S. 286.011(2), F.S.

STORAGE NAME: pcs1311.COM                                                                                       PAGE: 2
DATE: 4/12/2021
          Failure to abide by public requirements will invalidate any resolution, rule, or formal action adopted at a
          meeting.12 A public officer or member of a governmental entity who violates the Sunshine Law is
          subject to civil and criminal penalties.13

          Proceedings before the Public Service Commission
          The Public Service Commission (PSC) is an arm of the legislative branch of government.14 The role of
          the PSC is to ensure that Florida's consumers receive some of their most essential services – electric,
          natural gas, telephone, water, and wastewater – in a safe, affordable, and reliable manner. In doing so,
          the PSC exercises regulatory authority over utilities in one or more of three key areas: rate
          base/economic regulation; competitive market oversight; and monitoring of safety, reliability, and
          service issues.15 The PSC possesses extensive expertise in the unique legal and policy considerations
          applicable to Florida’s regulated utilities and their ratepayers and employs this expertise when it
          conducts administrative hearings and independently weighs the evidence presented.16

          Each meeting, workshop, hearing, or other proceeding attended by two or more PSC commissioners,
          and each proceeding where a decision that concerns the rights or obligations of any person is made,
          must be streamed live on the Internet.17 Further, a recorded copy of each such meeting, workshop,
          hearing, or proceeding must be made available on the commission's website.18

          Although it is authorized to refer matters to the Division of Administrative Hearings (DOAH) for formal
          evidentiary hearings and fact finding,19 the PSC is unique among state agencies in that it conducts
          most of its own formal evidentiary hearings.20 In these hearings, commissioners rule on procedural
          matters, establish evidence of record, weigh the record evidence, and apply the law to the facts of the
          case. Many of these hearings involve some amount of proprietary confidential business information
          that is exempted by statute from public disclosure,21 as described below.

          All formal administrative hearings conducted by the PSC are noticed and open to the public, consistent
          with the Sunshine Law. The PSC has established practices and procedures that allow these hearings
          to be conducted in a manner that complies with the Sunshine Law and protects proprietary confidential
          business information from disclosure. In these hearings, confidential material typically plays a minor
          role in the resolution of any particular issue, and the parties avoid public disclosure of this material by
          stipulating to certain matters and keeping discussions of confidential matters, which generally occur
          during cross examination, minimal and without mention of critical details. Recently, however, the PSC
          has found certain dockets where fact-finding on one or more issues is so intertwined with confidential
          information, and the volume of that information is so substantial, that it cannot afford the parties a full
          and fair hearing in the public and also protect the confidential information.22

          Public Record Exemptions for Proprietary Confidential Business Information held by the PSC
          Current law provides that any records received by the PSC which are shown and found by the PSC to
          be proprietary confidential business information must be kept confidential and are exempt from public
          disclosure.23 For these purposes, the law defines proprietary confidential business information as
          “information, regardless of form or characteristics, which is owned or controlled by the person or
          company, is intended to be and is treated by the person or company as private in that the disclosure of
          the information would cause harm to the ratepayers or the person’s or company’s business operations,
          and has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or


12 S. 286.011(1), F.S.
13 S. 286.011(3), F.S. Penalties include a fine of up to $500 or a second degree misdemeanor.
14 S. 350.001, F.S.
15 Florida Public Service Commission, http://www.psc.state.fl.us/ (last visited March 11, 2021).
16 Florida Public Service Commission, Agency Analysis of 2021 House Bill 1311, p. 1 (March 4, 2021).
17 S. 350.01(8), F.S.
18 Id.
19 Ss. 350.125 and 120.569(2), F.S.
20 FPSC, supra note 16, at 1.   These formal evidentiary hearings consist of hearings conducted pursuant to ss. 120.569 and 120.57, F.S.
21 Id.
22 FPSC, supra note 16, at 1.
23 See ss. 366.093, 367.156, and 368.108, F.S.Records obtained under ch. 364 must be kept confidential by the PSC and are exempt from public
disclosure upon a claim by the person providing the records. S. 364.183, F.S.
STORAGE NAME: pcs1311.COM                                                                                                                  PAGE: 3
DATE: 4/12/2021
          administrative body, or private agreement that provides that the information will not be released to the
          public.” This information includes, but is not limited to:
              Trade secrets.
              Internal auditing controls and reports of internal auditors.
              Security measures, systems, or procedures.
              Information concerning bids or other contractual data, the disclosure of which would impair the
                  efforts of the public utility or its affiliates to contract for goods or services on favorable terms.
              Information relating to competitive interests, the disclosure of which would impair the
                  competitive business of the provider of the information.
              Employee personnel information unrelated to compensation, duties, qualifications, or
                  responsibilities.24

          Any PSC finding that records contain proprietary confidential business information is effective for a
          period set by the PSC not to exceed 18 months, unless the PSC finds, for good cause, that the
          protection from disclosure should be for a specified longer period.25

          Effect of the Bill

          The bill creates a public meeting exemption for those portions of a hearing held by the PSC wherein
          proprietary confidential business information that is confidential or exempt from disclosure as a public
          record is discussed. The bill provides that no exempt portion of a hearing may be off the record and
          that all exempt portions must be recorded and transcribed.

          The bill also creates a public record exemption for these recordings and transcriptions. Each such
          recording or transcription is confidential and exempt from disclosure as a public record unless a court of
          competent jurisdiction determines that the relevant portion of the hearing was not restricted to the
          discussion of proprietary confidential business information that is confidential or exempt from disclosure
          as a public record. If the court makes such a determination, only that portion of the recording and
          transcript which reveals nonexempt information may be disclosed to a third party.

          These exemptions will allow the PSC to close those portions of a hearing in which information that is
          confidential or exempt from disclosure as a public record is discussed. This may avoid the need for the
          PSC to send certain cases to DOAH for a closed hearing when those cases are heavily intertwined with
          or involve a substantial volume of confidential or exempt information.

          The bill provides a statement of public necessity as required by the Florida Constitution, which provides
          the following legislative findings:
               The PSC is charged by statute with establishing just, fair, and compensatory utility rates, and
                   the fact-finding role of the PSC is integral in its decision making, as all PSC decisions must be
                   supported by a record of competent, substantial evidence.
               Under certain circumstances, the PSC must be able to evaluate and discuss proprietary
                   confidential business information in order to make a determination in the public interest, and
                   parties must be able to conduct cross-examination on such information in formal evidentiary
                   proceedings.
               It is a public necessity that those portions of formal administrative hearings before the PSC at
                   which proprietary confidential business information is discussed, and the associated portions of
                   hearing transcripts, be made exempt from the Sunshine Law to allow parties to conduct cross-
                   examination on such information and the PSC to evaluate the information and make a
                   determination in the public interest.

          The bill provides that the exemptions are subject to the Open Government Sunset Review Act and will
          repeal on October 2, 2026, unless the Legislature reviews and reenacts the exemption by that date.

     B. SECTION DIRECTORY:

24 See ss. 364.183, 366.093, 367.156, and 368.108, F.S.
25 Id.

STORAGE NAME: pcs1311.COM                                                                                         PAGE: 4
DATE: 4/12/2021
       Section 1 Amends s. 350.01, F.S., to create a public record and public meeting exemption.

       Section 2 Provides a statement of public necessity.

       Section 3 Provides an effective date of upon becoming a law.


                        II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

   A. FISCAL IMPACT ON STATE GOVERNMENT:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

       1. Revenues:
           None.

       2. Expenditures:
           None.

   C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
       None.

   D. FISCAL COMMENTS:
       None.


                                               III. COMMENTS

   A. CONSTITUTIONAL ISSUES:

       1. Applicability of Municipality/County Mandates Provision:
          Not Applicable. This bill does not appear to affect county or municipal governments.




STORAGE NAME: pcs1311.COM                                                                          PAGE: 5
DATE: 4/12/2021
       2. Other:
           Vote Requirement
           Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
           and voting for final passage of a newly created public meeting or public record exemption. The bill
           creates a new public meeting and public record exemption; thus, it requires a two-thirds vote for final
           passage.

           Public Necessity Statement
           Article I, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
           created or expanded public meeting or public record exemption. The bill creates a new public
           meeting and public record exemption and includes a statement supporting the public necessity for
           these exemptions.

           Breadth of Exemption
           Article I, section 24(c) of the Florida Constitution requires a newly created public meeting or public
           record exemption to be no broader than necessary to accomplish the stated purpose of the law. The
           bill creates a public meeting exemption for only those portions of a hearing held by the PSC in which
           confidential proprietary business information that is confidential or exempt from disclosure under
           existing public record exemptions in ss. 364.183, 366.093, 367.156, and 368.108, F.S., is discussed.
           The bill creates a public record exemption for only those portions of the associated hearing
           recordings and transcripts that reveal such information. As such, these exemptions do not appear to
           be in conflict with the constitutional requirement that they be no broader than necessary to
           accomplish their purpose.

   B. RULE-MAKING AUTHORITY:
       None.

   C. DRAFTING ISSUES OR OTHER COMMENTS:
       None.


                          IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
   None.




STORAGE NAME: pcs1311.COM                                                                                    PAGE: 6
DATE: 4/12/2021


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