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Election Law Update: Eleventh Circuit Upholds Florida's Ban on "Soliciting" within 100 feet of a Polling Place

The Eleventh Circuit Court of Appeals upheld Florida's ban on "soliciting" within 100 feet of a polling place.  Soliciting includes "seeking or attempting to seek a signature on any petition."  Citizens for Police Accountability Political Committee v. Browning, Case No. 08-15115 (11th Cir. June 25, 2009), which can be found here.

Noting that the statute codifies the Legislature's "view that the right of Florida's citizens to vote warrants substantial protection from commotion--that is, bustle, stir, confusion--around the voting place," the Eleventh Circuit concluded that the statute appropriately "balances the right to engage in political speech against the right to vote without harassment."

Florida Governor Signs Electronic Health Records Exchange Act

On June 16, 2009, Florida Governor Charile Crist signed into law the "Florida Electronic Health Records Exchange Act", (SB 162).  The Act amends 395.3025, F.S., and 483.181, F.S., both of which were seen as  barriers to electronic health information exchange for treatment purposes.  Additionally, the Act creates 408.051, F.S., which deals with a number of issues related to health information exchange.

395.3025(4)(a), F.S., was amended to allow hospitals to release patient records, without patient consent, to health care practitioners and providers currently involved in the care or treatment of the patient for use use only in connection with the treatment of the patient.  Previously, the statute had only allow such disclosures to health care practitioners that were credentialed by the facility.  This was seen as a barrier to the appropriate and timely exchange of health of information for patient care purposes.

483.181(2), F.S., was amended to allow clinical laboratories to report laboratory results to health care practitioners and providers, other than the provider that ordered the laboratory test, so long as the health care practitioner or provider is involved in the care or treatment of the patient.  As with the amendment to the hospital statute, the clinical laboratory statute was seen as a barrier to appropriate and timely health information exchange.

408.051, F.S., the "Florida Electronic Health Records Exchange Act", sets forth guidance for Florida health care practitioners and providers engaged in the electronic exchange of health information.  The Act sets forth a number of definitions, including several directly related to "electronic health records".  

Additionally, the Act also addresses the following:

*Emergency Release of Identifiable Health Record - Allows health care providers to release or access a patient's health record, without the patient's consent, for use in the treatment of the patient for an emergency medical condition when the health care provider is unable to obtain the patient's consent due to the patient's condition or nature of the situation requiring immediate medical attention.

*Universal Patient Authorization Form - Requires the Agency for Health Care Administration to develop, in electronic and paper format, forms to document patient authorization for the use or release of the patient's health record.  Health care providers will not be required to use the form, however, they will be required to honor a properly completed form.  Health care providers releasing information upon receipt of a properly completed authorization form will enjoy a rebuttable presumption that the release of the information was appropriate. 

The Act also provides for compensatory damages to either a health care provider or patient in situations in which a person forged or materially altered a patient's authorization form without permission or otherwise obtains a patient's records under false pretenses.

*Electronic Health Records System Adoption Loan Program - Subject to the availability of funds from either public or private entities or through Section 3014 of the Public Health Service Act, the Agency for Health Care Administration may operate loan fund to assist health care practitioners and providers in obtaining certified electronic health record technology.

Florida Supreme Court / Election Law Update

Yesterday, the Florida Supreme Court issued a brief order in Browning v. Florida Hometown Democracy, Inc., Case No. 1D07-6024, which can be found here.   In a 4-2 decision, the Court affirmed the First District Court of Appeal's ruling that the signature-revocation provisions provided in Section 100.371, Florida Statutes, and Florida Administrative Code Rules 1S-2.0091 and 1S-2.0095 violate the Florida Constitution and are void, unenforceable and without effect.

The Court noted it would issue a written opinion at a later time.  Chief Justice Quince, and Justices Pariente, Lewis and Labarga concurred in the order.  Justices Canady and Polston dissented.  Justice Perry did not participate.

Florida Supreme Court Casewatch

Florida Supreme Court rules in Liberty Counsel v. The Florida Bar, Case No. SC09-363 (Fla. June 4, 2009).

The Florida Supreme Court issued an opinion in Liberty Counsel v. The Florida Bar today.  The opinion can be found here.

As you may recall from previous posts, Liberty Counsel sought an injunction to prevent The Florida Bar from permitting the Family Law Section (a voluntary section of The Florida Bar) to file an amicus curiae brief in the Third District Court of Appeal in support of a trial court ruling that held unconstitutional a law that prohibits homosexuals from adopting children.

The Florida Supreme Court, in an opinion written by Justice Pariente, concluded that Liberty Counsel did not meet the requirement for injunctive relief because:  (1) the Bar's actions in permitting the Family Law Section to file an amicus curiae brief did not violate the First Amendment rights of the petitioners because membership in the Family Law Section is voluntary and any such advocacy by a section is not funded with compulsory dues; (2) the Bar's actions do not constitute an ultra vires act requiring the Court to grant an injunction.  Chief Justice Quince, and Justices Lewis, Labarga and Perry concurred.

Justice Polston wrote a dissenting opinion, which was joined by Justice Canady, on the grounds that The Florida Bar did not follow, or did not vote to waive, Standing Board Policy 8.10(a)(3) in approving the request for the amicus curiae brief.  Standing Board Policy 8.10(a)(3) provides that sections of the Bar may not submit an amicus curiae brief in pending litigation if the issue involved "carries the potential of deep philosophical or emotional division among a substantial sefment of the membership of the bar." 

First District Rules that Judicial Records are Not Subject to Chapter 119

In an opinion issued June 1, 2009, the First District Court of Appeal reiterated that courts are not "agencies" under Florida's Public Records Act, Chapter 119, Florida Statutes.  Morris Publishing Group, LLC, d/b/a The Florida Times Union v. State of Florida, Case No. 1D09-1474 (Fla. 1st DCA June 1, 2009), which can be found here.  The Court points out that public access to records of the judicial branch is governed by Rule 2.420, Florida Rules of Judicial Administration, which, in part, requires that "[r]equests for access to records shall be in writing and shall be directed to the custodian."  Rule 2.420(f).  Under Chapter 119, Florida Statutes, no written request for public records is necessary.

Requirements for disclosure of "records of the judicial branch" pursuant to Rule 2.420, Florida Rules of Judicial Administration, appear to vary from requirements of disclosure under Chapter 119 as well.  Recently, the Second District Court of Appeal held that the audio recording of a sentencing hearing "created by the digial electronic reporting system is not, in and of itself, an 'electronic record' of the proceeding."  The Court concluded that the audio recording "is merely a 'precusor' of a record[.]"  Media General, Inc. v. State of Florida, Case No. 2D08-1154 (Fla. 2d DCA May 6, 2009), which can be found here.  The Court noted that under Rule 2.420(f), the custodian of court records shall determine the form in which the record is provided.  In the Media General case, the custodian elected to provide a written transcript of the sentencing hearing, but not the underlying audio recording of the hearing as requested.