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Synopsis: Florida has broad laws providing that meetings of governmental agencies must take place in public forums and that most documents held by public agencies must be made available to the public. These laws extend to private parties carrying out governmental functions on behalf of public agencies. Upon reviewing a 2016 filing by the National Council on Compensation Insurance (“NCCI”) for a statewide average rate increase of 19.6%, the Florida Office of Insurance Regulation (“OIR”) ultimately approved an increase of 14.5%. A workers’ compensation ratepayer challenged the rates alleging that both NCCI and OIR violated several aspects of Florida’s open meetings and public records laws. A trial court agreed with the ratepayer, but an appellate court overturned the ruling, found that NCCI and OIR complied with applicable requirements, and upheld the rate approval.

Florida has broad laws providing that most meetings of governmental agencies must be open to the public. The primary laws relating to open meetings are found at Chapter 286, Florida Statutes, although other statutes either cross-reference Chapter 286 or create additional specific obligations on governmental agencies relating to holding open meetings. Likewise, Florida law grants public access to most documents and records in the possession of governmental agencies. The primary public records law is found at Section 119.07, Florida Statutes, but as with the open meetings laws, other statutes cross-reference this provision or place additional obligations on agencies relating to public access to records. For purposes of the article, the combination of Florida’s open government and public records laws are referred to generally as the “Sunshine Laws.”

The Sunshine Laws apply to governmental agencies. However, in some instances private parties perform functions that are inherently governmental and therefore can be subject to certain requirements of the Sunshine Laws. Extending the Sunshine Laws in this manner prevents governmental agencies from avoiding their responsibilities under these laws by delegating governmental functions to private parties.

In 2016, the National Council on Compensation Insurance (“NCCI”) submitted a rate filing to the Florida Office of Insurance Regulation (“OIR”) proposing a statewide average rate increase of 19.6%. [1] The filing process followed the traditional pattern in which an insurer, or in this case a rating organization, prepares a filing and submits it for review by the OIR. As is customary with NCCI rate filings, the OIR then held a public hearing to discuss the filing. The OIR rejected the 19.6% rate increase but indicated that with certain adjustments producing a statewide average rate increase of 14.5%, the filing could be approved. NCCI amended the filing as suggested, and the OIR approved the amended filing. [2]

OIR approval typically marks the last step in the rate filing process. However, in NCCI’s case, an attorney who operates a firm that purchases workers’ compensation insurance alleged that both NCCI and OIR violated several requirements of the Sunshine Laws during the development and review of the rates. The attorney argued that NCCI failed to hold required public meetings during its internal development of its filing; that OIR violated the Sunshine Laws by improperly delegating its authority to approve rates to NCCI as a private party; and that NCCI improperly denied him access to documents pertaining to the development of the rates. If substantiated, these alleged violations would have invalidated NCCI’s filing and the OIR’s subsequent approval.

Florida Supreme Court Decisions Prompt Rate Increases

NCCI’s proposed rate increase arose from two prominent Florida Supreme Court decisions in 2016 that are expected to increase costs associated with workers’ compensation insurance claims in Florida. In Castellanos v. Next Door Co., 192 So.3d 431 (Fla. 2016), the Florida Supreme Court determined that a mandatory attorneys’ fee schedule in the workers’ compensation law was unconstitutional as a violation of due process because it created an irrebuttable presumption relating to attorneys’ compensation that precluded consideration of whether the attorneys’ fees were reasonable. The result of this decision was to eliminate statutory caps on claimants’ attorneys’ fees and return Florida law to its position prior to July 1, 2009, when claimants could recover reasonable attorneys’ fees. [3] The resulting increase in insurers’ costs prompted a proposed increase in rates.

The OIR announced on May 27, 2016, that it had received a workers’ compensation rating filing from NCCI arising largely from Castellanos. The OIR noted that the filing proposed a 17.1% rate increase, of which 15% was attributable to Castellanos. The OIR announced that it would hold a public hearing to discuss the filing and allow interested parties to submit testimony or comments.

While the rate filing relating to Castellanos was pending, the Florida Supreme Court, on June 9, 2016, issued its opinion inWestphal v. City of St. Petersburg, 194 So.3d 311 (Fla. 2016). In Westphal, the Supreme Court determined that a maximum 104-week duration for temporary total disability benefits did not present a reasonable alternative to tort litigation for a person such as the plaintiff, who had not yet reached maximum medical improvement but was denied permanent total disability. The Supreme Court concluded that the limitation on temporary total disability benefits unconstitutionally denied the plaintiff’s right of access to the court. This had the effect of restoring Florida’s pre-1994, 260-week limitation of temporary total disability benefits. [4]

NCCI estimated the impact of Westphal as a 2.2% statewide average increase in rates. NCCI amended its rate filing to take both Castellanos and Westphal into account. The resulting proposed rate increase was 19.6%.

After the public hearing, on September 27, 2016, the OIR issued an order to NCCI indicating that the rate filing would not be approved with the proposed 19.6% increase but could be approved with certain adjustments resulting in the rate increase being reduced to 14.5%. NCCI responded to the order by amending the filing on October 4, 2016, to meet the stipulations set forth by the OIR. On October 5, 2016, the OIR approved the NCCI filing with a statewide average increase of 14.5%. The proposed effective date of the filing was December 1, 2016.

Trial Court Invalidates Rates Based on Sunshine Law Violations

During the rate filing process, an attorney and owner of a law firm that purchases workers’ compensation insurance made public records requests seeking information about the NCCI rate filing. He then sought to enjoin the public hearing scheduled by the OIR to discuss and receive testimony regarding the rate filing. The attorney alleged that NCCI violated Florida’s Sunshine Laws by failing to provide notice or a meaningful opportunity to participate in the “committee meetings” where its rate proposals were discussed and by failing to provide the attorney with requested information pertaining to the development of the rate filing. The attorney also argued that OIR somehow abdicated its responsibility to act upon the rates and improperly delegated ratemaking authority to NCCI. The trial court held the evidentiary hearing on the attorney’s complaint after the OIR approved the rate increase, but before its effective date. The trial court concluded that both NCCI and OIR violated portions of Florida’s Sunshine Laws, invalidating the filing. NCCI and the OIR appealed the order.

Appellate Court Reverses Trial Court’s Findings and Upholds Rate Increase

The First District Court of Appeal (“First DCA”) in National Council on Compensation Insurance v. Fee, No. 1D16-5408 & 1D16-5146, 2017 WL 1908370 *1 (Fla. 1st DCA May 9, 2017), reviewed the trial court’s order invalidating the rate approval. The First DCA’s decision to reverse the trial court’s order turned on unique aspects of Florida’s insurance and public records laws.

The court observed that the Florida Insurance Code requires the OIR to review rate filings under statutory standards prohibiting excessive, inadequate, or unfairly discriminatory rates. The ultimate decision rests with the agency head or Insurance Commissioner. Insurers may file rates with the OIR, or may be members of a licensed rating organization that files rates on their behalf. The First DCA traced the history of workers’ compensation ratemaking, finding that prior to 1991 the responsibility for developing NCCI’s rates fell upon NCCI’s Classification and Ratings Committee. The committee was disbanded in 1991, and in Florida the responsibility for developing NCCI’s rate filings rests with a single actuary (subject to peer review and other assistance). This actuary ultimately is responsible for preparing rate filing documents for submission to OIR even though the actuary enlists certain assistance and peer review. [5]

Although the trial court concluded that NCCI violated the Sunshine Laws because it did not hold open meetings of its “committee” responsible for developing workers’ compensation insurance rates, NCCI argued on appeal that no such committee has existed for more than 25 years. [6] Its ratemaking responsibility in Florida rests with a single actuary, and therefore statutory provisions applicable to the ratemaking committees of rating organizations do not apply. The First DCA agreed, finding that a NCCI actuary responsible for ratemaking did not constitute a committee as contemplated by the statute. The First DCA also rejected a position by the trial court that the review and input of other persons in the ratemaking process resulted in a violation of the Sunshine Laws because only the actuary responsible for the filing had the ultimate authority to determine the rates to be filed with the OIR.

The First DCA reviewed a determination by the trial court that the OIR violated the Sunshine Law because it essentially delegated ratemaking authority to NCCI. The First DCA found no evidence in the record to support this position. NCCI and individual insurers have the ability to file rates with the OIR, but the OIR retains authority to review and approve or disapprove the filings. The First DCA therefore concluded that the OIR did not delegate its agency function to OIR. [7]

The First DCA also considered an assertion that NCCI should have made ratemaking documents available to the attorney upon his request. Section 627.291, Florida Statutes, allows persons aggrieved by workers’ compensation insurance rates or rules to seek review of the manner in which the rates have been applied. They attorney argued this statute gave him the right to obtain information on the manner in which the rates were made. The First DCA rejected this argument because the attorneys’ demands for documents related to NCCI’s proposed filing seeking a rate increase of 19.6%. The OIR did not approve the 19.6% increase, and instead approved an amended filing seeking a 14.5% increase. The attorney therefore could not have been aggrieved by the filing that proposed the 19.6% rate increase. [8]

Finally, the attorney argued, and the trial court agreed, that NCCI was required to provide documents relating to the rate filing pursuant to a provision of the Sunshine Laws extending its application to private entities that “act on behalf of” public agencies. The purpose of extending access to public records to private entities in these situations is to prevent public agencies from avoiding requirements of the Sunshine Laws by delegating responsibilities to private parties. The trial court found that NCCI indeed was required to make records publicly available because it purportedly acted on behalf of the state. However, the First DCA pointed out that the trial court did not apply the factors listed in News & Sun-Sentinel Co. v. Schwab, Twitty & Hanser Architectural Group, Inc. , 596 So.2d. 1029 (Fla. 1992) in making this determination. The basis upon which the trial court reached its decision was not clear, and the First DCA determined the decision to be in error. [9]

In sum, the First DCA disagreed with the trial court with respect to each of its findings that NCCI and the OIR violated Florida’s Sunshine Laws. Accordingly, the First DCA reversed the trial court’s final order invalidating the rate increase. The First DCA remanded the case for reinstatement of the OIR’s final order dated October 5, 2016, which approved NCCI’s amended filing providing for a 14.5% statewide average increase in workers’ compensation insurance rates.


Florida has expansive laws giving the public access to meetings of governmental agencies and to information in their possession. These laws sometimes extend to meetings held by, and records in the possession of, private parties when public agencies have delegated functions to the private parties. NCCI developed its workers’ compensation 2016 rate filing in the usual manner and submitted the filing for review by the OIR. The OIR conducted its own review of the filing and held a public hearing to consider testimony and input from interested parties. The OIR ultimately approved a statewide average rate increase of 14.5%. An attorney attempted to invalidate the filing based upon NCCI’s alleged failure to hold certain internal meetings in public and to provide requested information about its rate development process. In addition, the attorney attempted to argue that the OIR participated in violations of the Sunshine Laws by delegating its rate review authority to NCCI. Although a trial court agreed with these arguments, the First DCA disagreed in all respects. The First DCA determined that NCCI carried out its responsibility to prepare and submit a rate filing, and the OIR fulfilled its obligation to review and act upon the filing. As a result, the First DCA reversed the trial court’s final order and directed that the OIR’s approval of the 14.5% rate increase be reinstated.


[1] Florida Office of Insurance Regulation. (2017). Office Statement on NCCI Workers’ Compensation Rate Filing to Address Recent Legal Changes [Press release].

[2] Florida Office of Insurance Regulation, Case No. 191880-16 Final Order on Rate Filing (Oct. 5, 2016).

[3] Castellanos v. Next Door Co. , 192 So.3d 431, 448-449 (Fla. 2016).

[4] Westphal v. City of St. Petersburg, 194 So.3d 311, 327 (Fla. 2016).

[5] National Council on Compensation Insurance v. Fee , No. 1D16-5408 & 1D16-5146, 2017 WL 1908370 *1, at *3 (Fla. 1 st DCA May 9, 2017),

[6] Id. at *3.

[7] Id. at *5.

[8] Id. at *6.

[9] Id. at *7.