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State, Department of Financial Services v. Danahy & Murray, P.A.

Florida Court of Appeals, First District

April 20, 2018

State of Florida, Department of Financial Services, and Jimmy Patronis, Appellants,
Danahy & Murray, P.A., and Bennett Dennison, PLLC, Appellees.

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

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

          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.

          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[.]

         "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 ...

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