FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-2493

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STATE OF FLORIDA, DEPARTMENT 

OF FINANCIAL SERVICES, and

JIMMY PATRONIS,

Appellants,

v.

DANAHY & MURRAY, P.A., and

BENNETT DENNISON, PLLC,

Appellees.

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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.
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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.
3

“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). 
4

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 twothirds 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 

version3 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.
6

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.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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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.