IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

NATIONAL COUNCIL ON                   NOT FINAL UNTIL TIME EXPIRES TO
COMPENSATION                          FILE MOTION FOR REHEARING AND
INSURANCE, FLORIDA                    DISPOSITION THEREOF IF FILED
OFFICE OF INSURANCE
REGULATION, and DAVID                 CASE NO. 1D16-5408 & 1D16-5416
ALTMAIER, IN HIS OFFICIAL
CAPACITY AS
COMMISSIONER OF THE
FLORIDA OFFICE OF
INSURANCE REGULATION,

      Appellants,

v.

JAMES F. FEE, JR.,
INDIVIDUALLY,

      Appellee.


_____________________________/

Opinion filed May 9, 2017.

An appeal from the Circuit Court for Leon County.
Karen A. Gievers, Judge.

Thomas J. Maida, James A. McKee, Benjamin J. Grossman, and Nicholas R.
Paquette of Foley & Lardner LLP, Tallahassee, for Appellant National Council on
Compensation Insurance, Inc.; Shaw P. Stiller, Chief Assistant General Counsel, and
C. Timothy Gray and Lacy End-Of-Horn, Assistant General Counsels, for
Appellants Florida Office of Insurance Regulation and David Altmaier.

John K. Shubin, Salvatore H. Fasulo, Lauren G. Brunswick, and Mark E. Grafton of
Shubin & Bass, P.A., Miami, for Appellee.
Andrea Flynn Mogensen of Law Office of Andrea Flynn Mogensen, P.A., Sarasota,
for Amicus Curiae The Florida Press Association, The First Amendment
Foundation, and The Associated Press, Inc.

Richard A. Sicking of Touby, Chait & Sicking, P.L., Coral Gables, for Amicus
Curiae Florida Professional Firefighters, Inc.




ROWE, J.

      The National Council on Compensation Insurance (NCCI) and the Office of

Insurance Regulation (OIR) appeal the trial court’s order invalidating OIR’s

approval of a 14.5% increase in workers’ compensation insurance rates.       For the

reasons that follow, we reverse the order in its entirety.

                                       I. Facts

      OIR regulates all insurance activities in Florida, including all activities

relating to workers’ compensation insurance. Insurance companies writing workers’

compensation insurance policies in Florida must seek approval from OIR when

setting or changing insurance rates by filing a rate proposal. OIR reviews filings

seeking a rate change to determine if the proposed rate is “excessive, inadequate, or

unfairly discriminatory . . . in accordance with generally accepted and reasonable

actuarial techniques.” § 627.062(3)(b), Fla. Stat. (2015). In determining whether

the rate proposal should be approved, OIR may examine the statistical data

supporting the proposed rate, and it may hold a public hearing. §§ 627.091(2), .101,
                                           2
Fla. Stat. (2015). OIR takes official action on rate filings through its agency head,

the Commissioner of Insurance Regulation, currently David Altmaier. See §§

20.121(3)(a)1., (4), Fla. Stat. (2015).

      Insurers have the option of directly filing rate change proposals with OIR or

joining a licensed rating organization that will file the proposals on their behalf.

§ 627.091(4), Fla. Stat. (2015). A rating organization is defined as “every person,

other than an authorized insurer, whether located within or outside this state, who

has as his or her object or purpose the making of rates, rating plans, or rating

systems.” § 627.041(3), Fla. Stat. (2015). NCCI is a licensed rating organization

operating in more than forty states. And it represents and files rate proposals on

behalf of most of the workers’ compensation insurers in Florida. 1 Before 1991, the

responsibility for establishing rates fell to NCCI’s Classification and Ratings

Committee. NCCI had such a committee in each state in which it operated, including

Florida. These rate-determination committees were composed of representatives of

competing workers’ compensation insurers who would meet periodically to fix the

rates to be submitted for approval to insurance regulators. The committees were

disbanded in 1991. Since then, no specific committee at NCCI has been assigned



1
  Pursuant to a separate contract with OIR, NCCI also serves as the statistical agent
for Florida. In this role, NCCI compiles data regarding the loss, expense, and claims
experience of workers’ compensation insurance carriers. See § 627.331(3), Fla. Stat.
(2015).
                                          3
responsibility for overseeing, reviewing, or preparing rate filings. In Florida, the

responsibility for rate determinations falls to a single employee of NCCI, one of its

actuaries – Jay Rosen.

      Before filing a rate proposal with OIR, Rosen analyzes certain data to

determine whether there is a need for a change in insurance rates. After he decides

that a rate change is needed, a Technical Peer Review meeting is convened where

other NCCI actuaries challenge Rosen’s conclusions in order to assist him in

defending his recommended rate proposal. The next step in the process is a Phase

II meeting where Rosen provides an overview to other actuaries and members of

NCCI’s regulatory division explaining how he arrived at his rate proposal. After

these meetings, Rosen prepares the documents that are filed with OIR.

                              II. Procedural History

      NCCI announced in a May 2016 press release that, as a consequence of the

supreme court’s decision in Castellanos v. Next Door Company, 

(Fla. 2016), which declared unconstitutional the statutory cap on claimants’

attorneys’ fees in workers’ compensation cases, a significant increase in workers’

compensation insurance rates would be necessary. Following this announcement,

James F. Fee, Jr., an attorney and the sole owner of a law firm that purchases

workers’ compensation insurance in Florida, requested from NCCI “all pertinent

information relating to all NCCI rate and rule filings affecting Florida Workers’

                                         4
Compensation premiums that were in effect for the calendar years 2006 through

2016.” Fee made this request shortly before NCCI submitted a proposal to OIR for

a 17.1% increase in the overall statewide workers’ compensation insurance rate; he

made a second records request after the proposal was submitted. NCCI responded

by providing Fee with the records it submitted to OIR with its rate filing.

      Before OIR could act on NCCI’s rate filing, the supreme court

decided Westphal v. City of St. Petersburg, 

(Fla. 2016), holding that

the 104-week statutory limit on temporary total disability benefits was

unconstitutional, and reinstating a 206-week limitation on these benefits. NCCI

responded to the Westphal decision by amending its filing to propose a rate increase

of 19.6% to go into effect on October 1, 2016. After NCCI amended its filing, OIR

provided notice that it would conduct a public hearing on the proposed rate increase.

Fee then made another request to NCCI, seeking any information related to the

amended rate filing and any additional information related to his prior requests. Two

weeks later, NCCI provided Fee with documents it submitted to OIR associated with

its 2016 amended rate filing. Days later, OIR published on the internet all of NCCI’s

rate filings from 2006 through 2016.

      Fee then filed suit against NCCI, OIR, and Commissioner Altmaier and

sought to enjoin the public hearing on NCCI’s amended rate filing. Fee alleged that

(1) NCCI violated the Sunshine Law, section 286.011, Florida Statutes (2015), by

                                          5
failing to provide notice of or a meaningful opportunity to participate in committee

meetings where its rate proposals were discussed; (2) the amended rate filing was

void ab initio due to violations of the Sunshine Law; (3) NCCI violated section

627.291(1), Florida Statutes, by denying Fee access to records regarding the rate

proposal; and (4) NCCI violated the Public Records Act by failing to respond to

Fee’s records requests.

      Despite the pending complaint, the public hearing proceeded as scheduled on

August 16, 2016. At the four-hour hearing, every person who filled out a speaker

card spoke, including an actuary Fee hired to present testimony in opposition to the

proposed rate increase. OIR also allowed for additional commentary by holding

open the time for written public comments for an extra seven days. But after

reviewing NCCI’s rate proposal and considering public comments on the proposal,

OIR rejected the proposed 19.6% increase as unjustified. OIR determined that only

a 14.5% rate increase was appropriate. NCCI then submitted a revised rate proposal

requesting a 14.5% rate increase. On October 5, 2016, Commissioner Altmaier

issued a final order approving the revised rate proposal.

      The trial court held an evidentiary hearing on Fee’s complaint after the

Commissioner approved the final order, but before the rate went into effect. After

hearing testimony and receiving documentary evidence, the court determined that

the order approving the rate increase was void because NCCI and OIR violated the

                                          6
Sunshine Law under three separate statutory provisions: section 627.091(6), Florida

Statutes; section 286.011, Florida Statutes; and section 627.093, Florida Statutes.

The trial court also concluded that NCCI violated sections 627.291(1) and 119.07,

Florida Statutes, when it denied Fee access to its records. NCCI and OIR appeal.

                                    III. Analysis

      We review the trial court’s factual findings to determine whether they are

supported by competent, substantial evidence. McDougall v. Culver, 

,

392 (Fla. 2d DCA 2009). But we review the trial court’s interpretation of the law de

novo. Liner v. Workers Temp. Staffing, Inc., 

, 476 (Fla. 2008) (“We

review the statutory interpretation conducted by the trial court to reach this ultimate

ruling de novo, while we defer to those factual findings of the trial court that are

supported by competent, substantial evidence from the record.”).

                        A. Alleged Sunshine Law Violations

      The trial court found that NCCI and OIR violated Florida’s Sunshine Law in

three respects.   First, the trial court determined that NCCI violated section

627.091(6), Florida Statutes, by conducting meetings of the statutory rate-

determination committee outside the sunshine. Second, the trial court found that

OIR delegated its authority over rate filings to NCCI, subjecting NCCI’s rate

proposal activities to the sunshine requirements of section 286.011, Florida Statutes.




                                          7
And third, the trial court concluded that section 627.093, Florida Statutes, requires

NCCI to conduct its activities in the sunshine.

                      i. Section 627.091(6), Florida Statutes

      Florida’s Sunshine Law finds its origins in section 286.011, Florida Statutes

(2015), which provides:

      All meetings of any board or commission of any state agency or
      authority or of any agency or authority of any county, municipal
      corporation, or political subdivision, except as otherwise provided in
      the Constitution, including meetings with or attended by any person
      elected to such board or commission, but who has not yet taken office,
      at which official acts are to be taken are declared to be public meetings
      open to the public at all times, and no resolution, rule, or formal action
      shall be considered binding except as taken or made at such meeting.
      The board or commission must provide reasonable notice of all such
      meetings.

The Sunshine Law was made part of the Florida Constitution in 1992, in article I,

section 24, which requires “[a]ll meetings of any collegial public body” to be open

and noticed to the public. By its express terms, the Sunshine Law applies exclusively

to governmental bodies and not to private entities. See Op. Att’y Gen. Fla. 16-01

(2016).

      Despite this limitation, the Florida Legislature extended the scope of the law

to include licensed insurance rating organizations, such as NCCI, under certain

specified circumstances:

      Whenever the committee of a recognized rating organization with
      responsibility for workers’ compensation and employer’s liability
      insurance rates in this state meets to discuss the necessity for, or a
                                          8
      request for, Florida rate increases or decreases, the determination
      of Florida rates, the rates to be requested, and any other matters
      pertaining specifically and directly to such Florida rates, such
      meetings shall be held in this state and shall be subject to s. 286.011.
      The committee of such a rating organization shall provide at least 3
      weeks’ prior notice of such meetings to the office and shall provide at
      least 14 days’ prior notice of such meetings to the public by publication
      in the Florida Administrative Register.

§ 627.091(6), Fla. Stat. (2015) (emphasis added). This unique extension of the

Sunshine Law applies only when the rate-determination committee of a rating

organization meets to determine workers’ compensation insurance rates. NCCI

argues, and it is undisputed, that no committee at NCCI has been charged with the

responsibility for determining worker’s compensation insurance rates in over

twenty-five years. 2

      Although NCCI does not entrust a specific committee with responsibility for

determining workers’ compensation insurance rates in Florida, Fee contends, and

the trial court found, that the following configurations of NCCI’s and OIR’s

employees met and acted in place of the rate-determination committee contemplated

under the statute and that meetings of those groups were subject to the sunshine:


2
 The trial court concluded that NCCI’s disbanding of its Classification and Rate
Committee in 1991 and its delegation of the responsibility for rate proposals to one
person was an attempt to evade the sunshine. But the application of the Sunshine
Law does not depend on a party’s “intentions, sincerity of purpose or noble
motives.” IDS Props., Inc. v. Town of Palm Beach, 

, 357 (Fla. 4th
DCA 1973). Further, it is unclear on this record how the trial court reached the
conclusion that NCCI restructured its rate-proposal process in over forty states to
avoid compliance with Florida’s Sunshine Law.
                                        9
(1) Jay Rosen, in his individual capacity; (2) the Team Peer Review and Phase II

meeting participants; (3) Rosen and his staff; and (4) NCCI’s and OIR’s staff. We

conclude that none of these individuals or groups meets the definition of the rate-

determination committee under the statute, and thus, none of these meetings was

subject to the sunshine.

      Fee asserts that Rosen, in his individual capacity, acted in place of the rate-

determination committee contemplated by section 627.091(6).           This argument

ignores the plain language of the statute and the ordinary meaning of the terms within

it. See McKenzie Check Advance of Fla., LLC v. Betts, 

, 1208 (Fla.

2006) (explaining that statutory construction starts with an examination of the plain

language of the statute); State v. Bodden, 

, 685 (Fla. 2004) (observing

that it is assumed that the legislature knows the ordinary meaning of words when it

enacts a statute). The statute applies only to meetings of a rating organization

committee where workers’ compensations insurance rates are discussed and

determined. A “committee” has been defined as a “subordinate group,” not a single

person. See Committee, Black’s Law Dictionary (10th ed. 2014). Moreover, the use

of the term “meets” indicates that the statute is designed to apply to a group of

people, not a single individual. The multi-person concept of the term “committee”

further finds support in well-established precedent construing the Sunshine

Law. See Sarasota Citizens for Responsible Gov’t v. City of Sarasota, 

755, 764 (Fla. 2010) (explaining that Sunshine Law protections extend to formal and

informal meetings only when two or more members of the same board or

commission meet to deal with a matter on which action will be taken in the future);

Office of the Attorney General, Government-In-The-Sunshine Manual, at 18 (2016

ed.) (observing that the Sunshine Law does not “ordinarily apply to an individual

member of a public board or commission or to public officials who are not board or

commission members.” (emphasis added)). Thus, under the plain and ordinary

meaning of the terms “committee” and “meet,” Rosen, in his individual capacity,

does not act or “meet” as the statutory rate-determination committee contemplated

by section 627.091(6).

      The trial court also concluded that NCCI’s Team Peer Review and Phase II

meetings, the meetings between Rosen and his own staff, and the meetings between

NCCI and OIR3 were the functional equivalent of the rate-determination committee

meetings described in section 627.091(6) and that the actions of these groups were

subject to the Sunshine Law. The trial court’s conclusions are incorrect. With regard

to NCCI’s internal meetings, the Sunshine Law does not apply because none of the


3
   Fee did not allege that the meetings between NCCI and OIR were subject to the
sunshine under this provision, and the issue was not listed in the pre-hearing
stipulation; thus, the trial court erred by addressing this issue. See LPI/Key W.
Assocs., Ltd. v. Beachcomber Jewelers, Inc., 

, 854 (Fla. 3d DCA 2012)
(“A pretrial stipulation limiting the issues to be tried is ‘binding upon the parties and
the trial court, and should be strictly enforced.’”) (quoting Broche v. Cohn, 

124, 127 (Fla. 4th DCA 2008))).
                                           11
participants, other than Rosen, had any authority to determine the worker’s

compensation insurance rate to be proposed to OIR. See Sarasota Citizens, 

at 762 (holding that the dispositive question for whether the Sunshine Law applies

to a committee subordinate to or selected by a traditional governmental authority is

whether decision-making authority has been delegated to the committee); Cape

Publ’ns, Inc. v. City of Palm Bay, 

(Fla. 5th DCA 1985) (holding that

a committee that was formed to supply a city manager with information so that he

could properly exercise his duty to select a new police chief was not subject to the

Sunshine Law because the committee had no decision-making authority). Instead,

these   meetings    were     held   solely    for   the   purpose     of   gathering

information. See Molina v. City of Miami, 

, 463 (Fla. 3d DCA 2002)

(“In short, the committee is nothing more than a meeting of staff members who serve

in a fact-finding, advisory capacity to the chief. The Government-in-the-Sunshine

Law is not applicable to meetings of staffers serving this function.”); Lyon v. Lake

Cty., 

, 789 (Fla. 5th DCA 2000) (“When a committee has been

established for and conducts only information gathering and reporting, the activities

of that committee are not subject to section 286.011, Florida Statutes.”). And with

regard to the meetings between NCCI and OIR, those meetings occurred after NCCI

made a rate determination and filed its rate proposal with OIR. In no way could

those meetings be considered a meeting of a rate-determination committee of a rating

                                         12
organization to determine the rates to be filed. Accordingly, neither NCCI’s internal

meetings nor the meetings between OIR and NCCI was subject to the sunshine

pursuant to section 627.091(6).

                       ii. Section 286.011, Florida Statutes

      Fee also argued, and the trial court found, that NCCI violated the Sunshine

Law itself. Section 286.011, Florida Statutes (2015), requires “[a]ll meetings of any

board or commission of any state agency or authority or of any agency or authority

of any county, municipal corporation, or political subdivision” to be held in the

sunshine. The Sunshine Law thus applies to governmental bodies and does not apply

to private organizations that were not created by a public entity. See Op. Att’y Gen.

Fla. 07-27 (2007). However, the sunshine requirements may apply if a public entity

has delegated “the performance of its public purpose” to a private entity. Mem’l

Hosp.-W. Volusia, Inc. v. News-Journal Corp., 

, 382-83 (Fla. 1999).

      Fee contends that NCCI was subject to the sunshine because OIR delegated

its authority over rate filings to NCCI. However, no evidence in the record supports

Fee’s argument. OIR approves and disapproves rate filings; it does not make rate

filings. Conversely, NCCI and individual insurers have no authority to approve or

disapprove rate filings; rather, they are under a statutory mandate to file such

proposals. §§ 627.091(1), (4), Fla. Stat. (2015). OIR did not delegate to NCCI any




                                         13
authority to carry out an agency function required to be performed in the sunshine.

Thus, Fee’s argument under section 286.011 fails.

                       iii. Section 627.093, Florida Statutes

      The trial court also concluded, without any argument by the parties, that NCCI

was subject to the sunshine pursuant to section 627.093, Florida Statutes. This

statute provides as follows: “Section 286.011 shall be applicable to every rate filing,

approval or disapproval of filing, rating deviation from filing, or appeal from any of

these regarding workers’ compensation and employer’s liability insurances.” §

627.093, Fla. Stat. (2015). The plain language of the statute thus extends sunshine

requirements only to rate filings; actions taken by OIR subsequent to receiving a rate

filing (approval, disapproval or deviation); and appeals of OIR’s actions. The only

portion of the statute that has any nexus to NCCI’s activities in this case is the rate

filing itself. And a rate filing is specifically defined by statute to include the

following information: (1) “[t]he experience or judgment of the insurer or rating

organization”; (2) an “interpretation of any statistical data”; 4 (3) “[t]he experience

of other insurers or rating organizations;” or (4) “[a]ny other factors which the

insurer or rating organization deems relevant.” § 627.091(2), Fla. Stat. (2015).

Reading section 627.093 in conjunction with the statutory definition of a rate filing,


4
  We note that if OIR requests an examination of the underlying statistical data for a
certain rate filing, this information would not be subject to public disclosure due to
the exemptions described in section 624.319, Florida Statutes (2015).
                                          14
it is clear that the sunshine requirements of section 627.093 do not apply to NCCI

beyond the rate filing itself. It does not extend to NCCI’s rate determination

activities or to its decision-making process leading to the filing of a rate proposal.

The trial court’s conclusion to the contrary is incorrect.

                                B. Access to Records

      Fee also alleges that NCCI failed to fully and completely respond to his

records requests, in violation of two statutes: section 627.291, Florida Statutes; and

section 119.07, Florida Statutes. We conclude that NCCI was not required to

provide Fee with access to its records under either provision.

                          i. Section 627.291, Florida Statutes

      Fee contends that he is entitled to access NCCI’s records pursuant to section

627.291, Florida Statutes (2015), as an insured affected by a rate or aggrieved by a

rating system. The statute provides as follows:

      (1) As to workers’ compensation and employer’s liability insurances,
      every rating organization and every insurer which makes its own rates
      shall, within a reasonable time after receiving written request therefor
      and upon payment of such reasonable charge as it may make, furnish to
      any insured affected by a rate made by it, or to the authorized
      representative of such insured, all pertinent information as to such
      rate.

      (2) As to workers’ compensation and employer’s liability insurances,
      every rating organization and every insurer which makes its own rates
      shall provide within this state reasonable means whereby any person
      aggrieved by the application of its rating system may be heard, in
      person or by his or her authorized representative, on his or her written
      request to review the manner in which such rating system has been
                                          15
      applied in connection with the insurance afforded him or her. If the
      rating organization or insurer fails to grant or rejects such request within
      30 days after it is made, the applicant may proceed in the same manner
      as if his or her application had been rejected. Any party affected by the
      action of such rating organization or insurer on such request may,
      within 30 days after written notice of such action, appeal to the office,
      which may affirm or reverse such action.

§ 627.291, Fla. Stat. (2015) (emphasis added).

      Fee asserts that as an insured who would be affected by NCCI’s proposed rate

increase, he was entitled to access all pertinent records relating to NCCI’s rate filing.

But the plain language of the statute requires rating organizations to turn over “all

pertinent information” to an insured who has been “affected” by a rate. Even

assuming that Fee had standing as an insured, he could not have been “affected” by

a rate that had yet to go into effect and would never go into effect as OIR ultimately

rejected NCCI’s request for a 19.6% rate increase. The legislature drafted the statute

in the past tense, and it is presumed that the legislature understood this language

would limit any rating organization’s obligation to turn over rate information to rates

that were already in effect. See State v. McNeil, 

, 279 (Fla. 5th DCA

2015) (holding that the legislature is presumed to understand the rules of grammar

when enacting a statute).

      Moreover, all portions of a statute must be read together to achieve a

consistent whole. Borden v. East-European Ins. Co., 

, 595 (Fla.

2006). The language contained in section 627.291(2), also written in the past tense,

                                           16
supports a construction of the statute that would require disclosure of information

for only rates that are already in effect. Subsection (2) requires rating organizations

to provide reasonable means for any person “aggrieved by the application of its

rating system” to review the manner in which “such rating system has been applied”

to his or her insurance. § 627.291(2), Fla. Stat. (2015). Further, when both

subsections are read together, it is apparent that this statute was designed to allow

an insured to obtain information about a rate that is in effect or was in effect and to

determine whether he has grounds to challenge the application of the rate to him.

Because nothing in section 627.291 makes it applicable to pending or rejected rate

filings, NCCI was not required to provide records in response to Fee’s requests.

                           ii. Section 119.07, Florida Statutes

      Fee also argues, and the trial court found, that NCCI violated the Public

Records Act, which provides that “[i]t is the policy of this state that all state, county,

and municipal records are open for personal inspection and copying by any person.

Providing access to public records is a duty of each agency.” § 119.01, Fla. Stat.

(2015). The Act defines an “agency” to include any private business entity “acting

on behalf of any public agency.” § 119.011(2), Fla. Stat. (2015). “This broad

definition [of agency] serves to ensure that a public agency cannot avoid disclosure

under the Act by contractually delegating to a private entity that which otherwise

would be an agency responsibility.” News & Sun-Sentinel Co. v. Schwab, Twitty

                                           17
& Hanser Architectural Grp., Inc., 

, 1031 (Fla. 1992). Thus, in order

to find that NCCI was subject to section 119.07, the trial court was required to

determine whether NCCI acted on behalf of a governmental agency. In making this

determination, it was necessary for the court to examine multiple factors, including

the nine factors outlined in 

. But, here, the trial court

expressly declined to apply the Schwab factors and concluded that NCCI was subject

to section 119.07. 5 This was error. Economic Dev. Comm’n v. Ellis, 

, 121 (Fla. 5th DCA 2015).

                                  IV. Conclusion

      The trial court erred in declaring OIR’s final order void and in concluding that

NCCI and OIR violated the Sunshine Law. The trial court also erred in determining

NCCI violated section 627.291, Florida Statutes, and the Florida Public Records Act,

by not providing Fee with access to certain records. Accordingly, we REVERSE

the trial court’s final order, and REMAND for reinstatement of OIR’s final order

issued on October 5, 2016, approving a 14.5% increase in the workers’

compensation insurance rates.


5
  In the brief filed with this Court, neither Fee nor Amicus Florida Press Association
attempt to defend the trial court’s ruling that NCCI was subject to the Public Records
Act. However, when asked at oral argument to concede error on this point, Fee’s
counsel instead attempted to defend the trial court’s ruling by arguing that the trial
court did not need to rely on the Schwab factors because of the other relevant
statutory provisions dealing with an insured’s access to records from a workers’
compensation insurance company.
                                            18
KELSEY and JAY, JJ., CONCUR.




                               19