Florida’s Right to Privacy

The State of Florida has enacted laws to protect individuals’ privacy in a variety of specific areas, including financial records and medical records. Even without specific statutory protections, the Courts in Florida have found a right to privacy exists in other contexts such as the right to an abortion.

The Constitution of the State of Florida expressly recognizes a right to privacy under Article I, Section 12 – Florida’s Constitutional Right to Privacy:

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

The courts in Florida have interpreted the Florida Constitution to afford greater privacy rights than those provided by the U.S. Constitution because unlike the U.S. Constitution, Article I, s. 23 of the Florida Constitution contains an express right to privacy

In fact, the U.S. Supreme Court has noted that state constitutions may provide greater protections than those provided by the federal Constitution which traditionally shields enumerated and implied individual liberties from state or federal intrusion. See Pruneyard Shopping Center v. Robins, 100 S.Ct. 2035, 2040 (1980), cited in In re T.W., 551 So.2d 1186, 1191 (Fla. 1989).

For this reason, the Florida Supreme Court concluded in the In re T.W. case that Florida’s Constitutional Right to Privacy found in Article I, Section 12 provides greater privacy rights than those implied by the U.S. Constitution. Id. at 1191-92.

For more information about how Florida’s right to privacy can impact the defense in a criminal case, contact the criminal defense attorneys at the Sammis Law Firm.

Call (813) 250-0500.

Right to Privacy When the Prosecutor Wants Your Medical Records

For the State Attorney to use an investigative subpoena to compel disclosure of a patient’s medical records, it must give the patient notice before the issuance of the subpoena. If the patient objects, the State has the burden of then demonstrating to the Court the relevance of the requested records. See Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994).

The State’s burden arises from the patient’s “constitutional right to privacy in his medical information, which requires the State to demonstrate a compelling interest in the disclosure.” Tyson v. State, 114 So. 3d 443,445 (Fla. 5th DCA 2013).

Generally, that burden can be met if the State demonstrates that ”there is a reasonable, founded suspicion that the materials contain information relevant to an ongoing criminal investigation.” State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001).

These issues are common after a traffic crash when one or both of the drivers are suspected of DUI. If the driver is taken to the hospital where their blood is taken for medical purposes, then the medical records will show a blood alcohol concentration (BAC) or the presence of a controlled substance that might have caused impairment at the time of driving.

In those cases, the hospital might even inform law enforcement that blood was taken and the results indicate possible impairment. The police might then request that the State Attorney use an investigative subpoena to obtain the medical records showing the BAC.

Before issuing the investigative subpoena, the prosecutor must send a notice with the proposed subpoena attached to the patient. The patient should then hire an attorney to object to the disclosure of the medical records and demand a Hunter Hearing in court.

Read more about how Florida’s right to privacy impacts Hunter Hearings.

Right to Privacy for Abortions

Florida’s constitutional right to privacy “is clearly implicated in a woman’s decision whether or not to continue her pregnancy.” In re T.W., 551 So.2d 1186, 1191-92 (Fla. 1989). In fact, in that case, the Florida Supreme Court found:

[P]rior to the end of the first trimester, the abortion decision must be left to the woman and may not be significantly restricted by the state. Following this point, the state may impose significant restrictions only in the least intrusive manner designed to safeguard the health of the mother.

Insignificant burdens during either period must substantially further important state interests….Under our Florida Constitution, the state’s interest becomes compelling upon viability….

Viability under Florida law occurs at that point in time when the fetus becomes capable of meaningful life outside the womb through standard medical procedures. The court recognized that after viability, the state can regulate abortion in the interest of the unborn child if the mother’s health is not in jeopardy.

Id. at 1194.

So the law recognized the state’s ability to regulate abortion pre-viability because of its interest in maternal health beginning in the second trimester.

Furthermore, in Fla. Women’s Medical Clinic, Inc. v. Smith, 536 F.Supp. 1048 (S.D. Fla. 1982), the court recognized that the state’s interest in maternal health begins after the first trimester, but not before. For this reason, the court found Florida may not impose substantive clinical standards in the first trimester. Id.

The Florida legislature just passed CS/HB 5, entitled “Reducing Fetal and Infant Mortality” which takes effect July 1, 2022, The new legislation contains the following requirements:

• it required the Department of Health (DOH) to contract with local healthy start coalitions to create fetal & infant mortality review committees;
• it prohibits physicians from performing an abortion if the gestational age of the fetus is determined to be more than the specified number of weeks;
• it requires directors of certain medical facilities and certain physicians to submit monthly reports to AHCA electronically; and
• it requires hospitals to participate in the minimum number of quality improvement initiatives.

The bill also appropriates $1,602,000 in recurring General Revenue to the Department of Health.

Department of Health (DOH) Prosecution Services Unit

Shortly after the “Reducing Fetal and Infant Mortality” passed, the Department of Health (DOH) Prosecution Services Unit began advertising for the Senior Attorney Emergency Action Unit. These senior attorneys will be assigned cases in which the allegations represent a “significant risk to the public.

The attorneys in this position have the task of proactively evaluating complaints, initiating the collection of evidence, drafting emergency suspension orders, coordinating with law enforcement officials, and initiating legal proceedings necessary to protect the public.

The attorneys will also provide legal services to the DOH in evaluating and prosecuting violations of statutes and administrative rules by licensees of the various healthcare professions regulated by the Division of Medical Quality Assurance.

This article was last updated on Monday. August 1, 2022.