         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-2493
                  _____________________________

STATE OF FLORIDA, DEPARTMENT
OF FINANCIAL SERVICES, and
JIMMY PATRONIS,

    Appellants,

    v.

DANAHY & MURRAY, P.A., and
BENNETT DENNISON, PLLC,

    Appellees.
                  _____________________________


On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

                         April 20, 2018

ROBERTS, J.

     The defendants/appellants, Department of Financial Services
and Chief Financial Officer Jimmy Patronis (collectively “the
Department”), appeal an order from the Second Judicial Circuit
Court, in and for Leon County, declaring sections 624.23(1)(b)7.
and (2), Florida Statutes (2016), unconstitutional.           The
Department argues that under the two-pronged test in Article I,
section 24(c) of the Florida Constitution and Halifax Hospital
Medical Center v. News-Journal Corp., 724 So. 2d 567, 569 (Fla.
1999), section 624.23 is constitutional. We agree that the statute
is constitutional and reverse the order on appeal.
                      Factual Background

     Section 624.23 creates a public records exemption for certain
information held by the Department under the Florida Insurance
Code. 1 The plaintiffs/appellees are two law firms (collectively “the
plaintiffs”) who routinely submitted public records requests
seeking information about participants in two programs that the
Department oversees under the Insurance Code – a mediation
program for residential property insurance claim disputes and
“neutral evaluations” of disputed sinkhole insurance claims. See
§§ 627.7015 & 627.7074, Fla. Stat. (2016). To participate in either
program, an individual policyholder or an insurer submits a
request to the Department providing the policyholder’s name, the
insurer’s name, as well as other personal identifying information
about the policyholder. The plaintiffs sought this type of personal
identifying information.

     For many years, the Department provided the plaintiffs with
spreadsheets including the names of policyholders, their address,
phone number, email address, type of insurance, reason for
contacting the Department, and insurance company information.
In April 2016, the Department determined it was incorrectly
interpreting section 624.23, which it concluded created a public
records exemption for this type of personal identifying
information.

    Section 624.23(2) provides,

    Personal financial and health information held by the
    department or office relating to a consumer's complaint
    or inquiry regarding a matter or activity regulated under
    the Florida Insurance Code . . . are confidential and
    exempt from s. 119.07(1) and s. 24(a), Art. I of the State
    Constitution[.]




    1  Section 624.23 also exempts information regulated by
section 440.191, Florida Statutes (2016), which is not relevant to
the issues in this appeal.

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“Personal health and financial information” is defined to include
“[t]he existence, identification, nature or value of a consumer’s [2]
interest in any insurance policy, annuity contract, or trust.” §
624.23(1)(b)7., Fla. Stat. (2016). The Department asserted that
information identifying a specific consumer in connection with an
insurance policy was confidential and exempt under sections
624.23(1)(b)7. and (2). Thereafter, it declined to produce personal
identifying information to the plaintiffs.

     The plaintiffs each filed suit, the cases were consolidated, and
all parties moved for summary judgment on the Department’s
interpretation of section 624.23. Before summary judgment was
entered, the Department conceded that it had initially applied
section 624.23 in an overly broad manner and agreed to provide
consumer names and addresses where requests for mediation or
neutral evaluation came from an insurance company, but still
refused to release the information when the request to participate
came from a consumer.

     The trial court granted summary judgment in favor of the
Department, finding its interpretation was correct. Having looked
at the legislative intent that sought to protect a person’s “sensitive
financial and health information” from identity theft or fraud, the
court questioned how the exemption furthered that goal.
Nonetheless, the court concluded that the broad language as it
currently existed was within the power of the Legislature and the
constitutionality of the statute had not been raised.

     The plaintiffs did not appeal the order on summary judgment.
Instead, they moved to declare section 624.23 unconstitutional in
violation of Article I, section 24 of the Florida Constitution and
Halifax. The trial court ultimately agreed with the plaintiffs,
declaring sections 624.23(1)(b)7. and (2) unconstitutional for the
following reasons. Prohibiting disclosure of the information at
issue did not “further the stated purpose of the law.” The statute

    2 “Consumer” is defined to include “[a] prospective purchaser,
purchaser, or beneficiary of, or applicant for, any product or service
regulated under the Florida Insurance Code, and a family member
or dependent of a consumer.” § 624.23(1)(a)1., Fla. Stat. (2016).

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and the public necessity statement did not contain any thoroughly
articulated public policy setting forth why this information needed
to be exempt to prevent fraud or theft or to protect a person’s
financial interests. The statute was overbroad to the extent it
prohibited disclosure of information such as names and addresses.
Finally, the court questioned the disparate treatment between
information withheld when a consumer requested to participate in
the programs as opposed to disclosed when an insurer requested
to participate. The court held the exemption was broader than
necessary to accomplish the stated purpose of the law and directed
the Department to furnish the plaintiffs the requested records.

     The Department thereafter moved for clarification on whether
the court intended to declare the statute facially unconstitutional
or unconstitutional as-applied. The trial court entered a clarifying
order holding the sections were unconstitutional “only as applied
to the personal identifying information, including names and
addresses, of consumers requesting to participate in the
defendant’s residential property mediation and neutral evaluation
programs.” On appeal, the Department argues the trial court
erroneously applied the two-pronged test to find the statute
unconstitutional. We agree and reverse.

                Constitutionality of the Statute

     Although the trial court’s clarifying order used the language
“as applied,” the scope of its order amounted to a facial invalidation
of a portion of the statute in that it reads to generally apply to all
future requests involving “personal identifying information,” not
just to the particular circumstances in this case.                The
constitutionality of a statute is a question of law reviewed de novo.
Crist v. Ervin, 56 So. 3d 745, 747 (Fla. 2010). The statute comes
to the Court clothed with a presumption of constitutionality, and
any doubt about its validity must be resolved in favor of
constitutionality where reasonably possible. Campus Commc’ns,
Inc. v. Earnhardt, 821 So. 2d 388, 392 (Fla. 5th DCA 2002);
Halifax, 724 So. 2d at 570.

    Under Article I, section 24 of the Florida Constitution, the
public has a constitutional right of access to public records and
meetings. Article I, section 24(c) authorizes the Legislature to

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create exemptions to these rights by general law passed by two-
thirds vote of each house. In order for legislatively created
exemptions to be valid, the exemption “shall state with specificity
the public necessity justifying the exemption and shall be no
broader than necessary to accomplish the stated purpose of the
law.” Art. I, § 24(c), Fla. Const. This “exacting constitutional
standard” is the two-pronged test we must apply to section 624.23.
Halifax, 724 So. 2d at 569-70.

                           Specificity

     The exemption here, formerly section 627.311, Florida
Statutes (2002), originally included language providing the
exemption did not include “the name and address of an inquirer or
complainant to the department or the name of an insurer or other
regulated entity which is the subject of the inquiry or complaint.”
In 2007, the Legislature amended the exemption to its current
version 3 wherein the language allowing for the disclosure of names
and addresses was removed. The 2007 public necessity statement
for section 624.23 stated the exemption was a public necessity in
order to protect an individual’s “sensitive financial and health
information” and limiting disclosure of personal financial
information, to which an individual had an expectation of privacy,
was necessary because the information “could be used for
fraudulent and other illegal purposes, including identity theft, and
could result in substantial financial harm.” Ch. 2007-70, § 2, Laws
of Fla.

     We agree with the Department that the public necessity
statement is sufficiently specific to justify the exemption. See
Campus Commc’ns, 821 So. 2d at 392. It is logical that disclosure
of personal identifying information could be used for fraud or
identity theft, especially when disclosed in this context where the
entity requesting the information also knows that a consumer has
an insurance policy and has been involved in a dispute with an
insurance company. The Legislature stated a specific justification
– prevention of fraud and identity theft as well as protection of a

    3 A subsequent 2012 amendment added language that is not
relevant to this appeal.

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person’s privacy – that justified denying public access to personal
financial information.     The public necessity statement also
explained that disclosure of this information could be used for
fraudulent and other illegal purposes, including identity theft, and
could result in substantial financial harm. While the trial court
may have disagreed that prohibiting disclosure of name and
address information furthered the public necessity of fraud and
identity theft prevention, that inquiry was not in its purview.
Instead of considering the specificity of the public necessity
statement itself, the trial court improperly delved into policy
considerations behind its inception and disagreed that including
names and addresses as confidential and exempt information
furthered the Legislature’s purpose. This was outside of the trial
court’s scope of review. See Bush v. Holmes, 919 So. 2d 392, 398
(Fla. 2006) (recognizing the general rule that it is not the court’s
role to reweigh competing policy concerns underlying a legislative
enactment).

     Unlike the public necessity statement challenged in Halifax,
the public necessity statement here is specific enough to justify the
exemption. In Halifax, the Court found the public necessity
statement lacked specificity in that it only explained that the
disclosure of “critical confidential information” regarding
“strategic plans,” neither of which term was defined, would make
it “exceptionally difficult” for public hospitals to effectively
compete in the marketplace against private hospitals. 724 So. 2d
at 570.      In contrast here, “personal financial and health
information” is defined, and the public necessity statement
articulates a justification for prohibiting its disclosure that
involves prevention of certain crimes against consumers. Cf.
Bryan v. State, 753 So. 2d 1244, 1251 (Fla. 2000) (finding public
necessity statement supporting exemption for records identifying
individuals involved in death penalty executions was sufficiently
specific where the Legislature detailed that disclosure of this
information would jeopardize the individual’s safety and welfare
by exposing them to potential harassment, intimidation, and
harm). In order to be constitutional under Article I, section 24(c),
the Legislature had to articulate a specific purpose justifying the
exemption. The Legislature did just that; therefore, section 624.23
satisfies the first prong for constitutionality.


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                          Overbreadth

     The second prong of inquiry is whether the exemption is
overbroad. In Halifax, the exemption was overbroad because it
created a “categorical exemption,” which was undefined, thus
allowing it to include more information than necessary to
accomplish the exemption’s purpose. 724 So. 2d at 570 (quoting
the lower court’s order). The plaintiffs make a similar assertion
here. That is, by amending the exemption to broadly define
“personal financial information,” the Legislature improperly
created a categorical exemption that captured personal identifying
information that should not be exempt because it was not exempt
under the previous version of the statute and because prohibiting
its disclosure does not accomplish the stated purpose of the law.
We disagree.

     The plain language of the exemption clearly defines “personal
financial and health information” to include seven subsets,
including “[t]he existence, identification, nature, or value of a
consumer's interest in any insurance policy, annuity contract, or
trust.” § 624.23(1)(b)7., Fla. Stat. (2016). Unlike the exemption in
Halifax, which exempted all public meetings discussing written
strategic plans, the scope of the exemption here is limited as to
content, with the relevant terms and circumstances being defined.

     Moreover, even if the trial court could properly consider
whether names and addresses should or should not be included
under the umbrella of the exemption, the Legislature already
decided that question. The 2007 amendment to the exemption
explicitly removed the previous language stating names and
addresses were not subject to the exemption. The plaintiffs argue
that there is nothing to suggest the Legislature intended to include
names and addresses under “personal financial and health
information” or knew that the 2007 amendment to the statute
would have the present effect. Despite any suggestion of error, the
Legislature must be presumed to know the action it is taking when
amending a statute. Bd. of Tr., Jacksonville Police & Fire Pension
Fund v. Lee, 189 So. 3d 120, 125 (Fla. 2016) (“When a statute is
amended to change a key term or to delete a provision, ‘it is
presumed that the Legislature intended it to have a meaning
different from that accorded to it before the amendment.’”) (citing

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Carlile v. Game & Fresh Water Fish Comm’n, 354 So. 2d 362, 364
(Fla. 1977)). In 2007, the Legislature made the decision to remove
the language stating the exemption did not apply to name and
address information. The Legislature was then free to define the
term “personal health and financial information” as it saw fit.

     We decline the plaintiffs’ invitation to speculate as to the
reason for the disparate treatment of information when a
consumer requests to participate in the programs as opposed to
when the request comes from an insurer. If anything, this
supports the argument that the Legislature intentionally drafted
the exemption no broader than necessary. Our inquiry is not
whether the Legislature has taken all steps necessary to protect
this type of information anywhere it may exist. Nor can we
speculate about any unspoken justification for the law. Rather, we
have been asked to review the trial court’s determination that
sections 624.23(1)(b)7. and (2) are unconstitutional. We find that
section 624.23 satisfies the two-pronged test for constitutionality
under Article I, section 24(c) and Halifax and reverse the order on
appeal.

    REVERSED.

KELSEY and M.K. THOMAS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

Dustin William Metz and Katie Beth Privett, Senior Attorneys,
and Gregory D. Venz, Deputy General Counsel, Tallahassee, for
Appellants.

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett,
P.A., Tampa; Matthew R. Danahy and Howard William Weber of
Danahy & Murray, P.A., Tampa; Alexander Scott Dennison of
Dennison Law, Sarasota; and Ryan Martin Bennett of Bennet
Legal, Bradenton, for Appellees.

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