2.3 Confidentiality, Records Retention & Advertising Requirements (ss. 493.6119, 493.6121(2), 493.6122 & 493.6111(6))

Confidentiality, Records Retention & Advertising Requirements

Quick Answer: Section 493.6119 controls what you may say about a case. Section 493.6121(2) controls how long you keep the file and how fast you produce it. Section 493.6122 protects your own home address. Section 493.6111(6) - not a section numbered 493.6204, which does not exist - controls what must appear in your advertising.

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1. Divulging Investigative Information (s. 493.6119, F.S.)

The rule (s. 493.6119(1))

Except as otherwise provided by the chapter or other law, no licensee, or any employee of a licensee or licensed agency, shall divulge or release to anyone other than her or his client or employer the contents of an investigative file acquired in the course of licensed investigative activity.

Three drafting details matter:

• The protected thing is the contents of an investigative file, and the qualifier is that it was acquired in the course of licensed investigative activity.
• The permitted recipients are the client and the employer - the statute names no one else.
• The duty binds the licensee and any employee of the licensee or licensed agency, which sweeps in unlicensed clerical and administrative staff.

The two statutory exceptions in subsection (1)

The prohibition does not apply when:

1. The client for whom the information was acquired, or the client's lawful representative, has alleged a violation of this chapter by the licensee, licensed agency, or any employee; or
2. The prior written consent of the client to divulge or release the information has been obtained.

Department access (s. 493.6119(2))

Nothing in the section denies an authorized representative of the department access to business or operational records - other than the investigative file contents described in subsection (1) - during an official investigation, inspection, or inquiry.

The 2-working-day written denial (s. 493.6119(3))

A licensee or employee who, relying on subsection (1), denies the department access to an investigative file must state that denial in writing within 2 working days of the request. The written statement must include:

False reports prohibited (s. 493.6119(4))

No licensee, or any employer or employee of a licensee or licensed agency, may willfully make a false statement or report to a client, employer, or authorized department representative concerning information acquired in the course of regulated activities.

[!CAUTION] Confidentiality is not a testimonial privilege. Section 493.6119 is a licensing duty, not an evidentiary privilege like attorney-client. It does not authorize you to defy a lawful court order or judicial subpoena; it tells you what you may voluntarily divulge and what you must do when the department asks. When a court process arrives, the correct move is to notify the client promptly and let counsel address the process - not to hand over the file informally, and not to ignore the court.

Related disciplinary hooks

• s. 493.6118(1)(e) - willful betrayal of a professional secret or any unauthorized release of information acquired through regulated activity.
• s. 493.6118(1)(o) - failure or refusal to cooperate with, or refusal of access to, an authorized department representative.
• s. 493.6118(1)(d) - a false statement by the licensee that any individual is or has been in his or her employ.

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2. Records Retention (s. 493.6121(2), F.S.)

What belongs in the file. Chapter 493 does not itemize the contents, so build the file around what proves the work and the billing: the written client engagement agreement and retainer, investigator field notes and surveillance logs, recorded media and photographs, database and public-record search records, the delivered report, invoices and expense receipts, and - where physical items were collected - a chain of custody log. Class "DS" and "RS" schools have their own 2-year record rule with an itemized list in Rule 5N-1.140(5), F.A.C.

[!NOTE] The statute keys the 2 years to the records themselves and to the department's power to demand them - it does not designate "final billing" or "case closure" as the trigger. Because the practical risk is a department demand or a lawsuit, prudent agencies retain well beyond two years, at least through the applicable civil statute of limitations.

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3. Confidentiality of the Licensee's Own Information (s. 493.6122, F.S.)

The residence telephone number and residence address of any Class "C," "CC," "E," or "EE" licensee maintained by the department is confidential and exempt from s. 119.07(1) - meaning it is not released in response to a public records request. The department may provide the information to local, state, or federal law enforcement agencies.

The catch: when the residence telephone number or residence address is, or appears to be, the business telephone number or business address, the information is public record. An investigator who registers a home-based agency at the home address forfeits the exemption for that address.

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4. Advertising Requirements (s. 493.6111(6), F.S.)

The actual statutory mandate

Section 493.6111(6), F.S.: "A licensed agency must include its agency license number in any advertisement in any print medium or directory, and must include its agency license number in any written bid or offer to provide services."

Two operative categories:

[!IMPORTANT] There is no section 493.6204, Florida Statutes. Part II of Chapter 493 ends at s. 493.6203. Any study material citing "F.S. 493.6204" for advertising rules is citing a statute that does not exist. The requirement is s. 493.6111(6), and what it mandates is the agency license number - the statute does not separately require the agency's legal name, and it does not by its terms reach websites, social media, or business cards. Include the license number everywhere as a matter of professional practice, but know what the statute actually says.

The definition that gives "advertising" its reach

Section 493.6101(6), F.S., defines advertising as "the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration." That definition matters far beyond s. 493.6111(6): it is why an unlicensed person who merely advertises investigative services is already engaged in regulated conduct under s. 493.6101(15)-(16), before performing a single hour of work.

Names, seals, and deception

• Fictitious names (s. 493.6111(4)). An agency may not conduct regulated activities under a fictitious name without prior written authorization from the department, even with a valid Florida corporate registration, and the authorization is conditioned on filing a fictitious name certificate under s. 865.09. The department may not authorize a name so similar to a public officer, an agency, or another licensee that the public may be confused or misled. A licensee may not do business under more than one name except as separately licensed.
• Use of a fictitious name without approval is a disciplinary ground under s. 493.6118(1)(b).
• The state seal (s. 493.6124). No person or licensee may use any facsimile reproduction or pictorial portion of the Great Seal of the State of Florida on any badge, credentials, identification card, or other means of identification used in connection with regulated activities.
• Implying official status (s. 493.6118(1)(i)). Presenting badges, credentials, uniforms, or non-amber flashing or warning vehicle lights that would cause a reasonable person to believe the licensee is a law enforcement officer is a disciplinary ground - and separately a crime under ss. 843.08 and 843.085, F.S., covered in section 3.4 of this guide.

Who must be behind the advertisement

Because s. 493.6101(15) defines the private investigative agency as the person who, for consideration, advertises as providing or is engaged in the business of furnishing private investigations, and s. 493.6201(1) requires that business to hold a Class "A" license, an individual Class "C" licensee cannot lawfully run an investigative business on his or her own account. Section 493.6201(4) requires a Class "C" or "CC" licensee to own or be an employee of a Class "A" agency or branch. The advertisement therefore has to run under the agency, and the agency license number goes in it.

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5. Applying It

Scenario 1 - the friendly police request

A detective stops by and asks to see the surveillance video and notes from a corporate theft case you closed last week. He has no subpoena, no court order, and no written client consent.

Analysis: Section 493.6119(1) permits release of investigative file contents only to the client or employer, subject to the two exceptions in that subsection. Voluntarily handing the file over is an unauthorized release exposing you to discipline under s. 493.6118(1)(e). Refer the detective to counsel and to lawful process, and notify your client.

Scenario 2 - the department demand

A division investigator requests an investigative file. Your client instructs you not to release it.

Analysis: You may decline under s. 493.6119(1), but you must state the denial in writing within 2 working days, saying that the information was obtained by a licensed private investigator on behalf of a client and that the client, having been advised of the request, denied permission. Silence is not an option - s. 493.6118(1)(o) makes refusal of access without the statutory procedure a disciplinary ground.

Scenario 3 - the directory ad

An agency buys a display advertisement in a county legal directory listing its services and phone number, with no license number.

Analysis: That is a print-medium advertisement under s. 493.6111(6), and the agency license number must appear in it. Omitting it violates the chapter and is disciplinable through the catch-all in s. 493.6118(1)(t).