Florida Senate - 2012                                     SB 798
       
       
       
       By the Committee on Commerce and Tourism
       
       
       
       
       577-00807-12                                           2012798__
    1                        A bill to be entitled                      
    2         An act relating to a review under the Open Government
    3         Sunset Review Act; amending s. 288.9626, F.S., which
    4         provides exemptions from public records and open
    5         meeting requirements for the Florida Opportunity Fund
    6         and the Institute for the Commercialization of Public
    7         Research; reorganizing the exemptions by removing
    8         references to the Institute for the Commercialization
    9         of Public Research and transferring the exemptions
   10         relating to the institute to a new statute; saving the
   11         exemptions from repeal under the Open Government
   12         Sunset Review Act; removing the scheduled repeal of
   13         the exemptions; revising definitions; clarifying that
   14         the exemptions pertaining to the Florida Opportunity
   15         Fund apply to prospective investments, alternative
   16         investments, and certain confidential proprietary
   17         information provided by a proprietor; reducing the
   18         time period during which proprietary confidential
   19         business information is confidential and exempt from
   20         disclosure; creating s. 288.9627, F.S.; providing
   21         exemptions from public records and open meetings
   22         requirements relating to the Institute for the
   23         Commercialization of Public Research which were
   24         transferred from s. 288.9626, F.S.; defining terms;
   25         providing exemptions from public records requirements
   26         for information relating to methods of manufacturing,
   27         trade secrets, patents, and research by universities
   28         or other publically supported organizations, materials
   29         supplied by a proprietor, information that would
   30         identify investors or potential investors, and
   31         information that is confidential and exempt under
   32         other laws; reducing the time period during which
   33         proprietary confidential business information is
   34         confidential and exempt from disclosure; requiring the
   35         recording and transcription of closed meetings;
   36         requiring a proprietor of information to prevent the
   37         disclosure of proprietary confidential business
   38         information if a request for the information is made
   39         to the institute; authorizing a person to petition a
   40         court in Palm Beach County or Alachua County for the
   41         release of confidential and exempt information;
   42         requiring a court to make specific findings before the
   43         information may be released; imposing criminal
   44         penalties on a person who willfully and knowingly
   45         violates the public records or public meetings
   46         exemptions pertaining to the institute; providing an
   47         effective date.
   48  
   49  Be It Enacted by the Legislature of the State of Florida:
   50  
   51         Section 1. Section 288.9626, Florida Statutes, is amended
   52  to read:
   53         288.9626 Exemptions from public records and public meetings
   54  requirements for the; Florida Opportunity Fund and the Institute
   55  for the Commercialization of Public Research.—
   56         (1) DEFINITIONS.—As used in this section, the term:
   57         (a) “Alternative investment” means an investment or
   58  prospective investment through a loan, acquisition of an equity
   59  interest, or other investment method by the Florida Opportunity
   60  Fund in a private equity fund, venture capital fund, or angel
   61  fund; an investment by the Florida Opportunity Fund or an
   62  alternative investment or a direct investment in a portfolio
   63  company; or an investment through a distribution of securities
   64  to its partners or shareholders by an alternative investment
   65  vehicle.
   66         (b) “Alternative investment vehicle” means the limited
   67  partnership, limited liability company, or similar legal fund
   68  structure through which funds of, or funds managed by, the
   69  Florida Opportunity Fund are invested may elect to invest in a
   70  portfolio company.
   71         (c) “Florida Opportunity Fund” or “fund” means the Florida
   72  Opportunity Fund as defined in s. 288.9623.
   73         (d) “Institute for the Commercialization of Public
   74  Research” or “institute” means the institute established by s.
   75  288.9625.
   76         (d)(e) “Portfolio company” means a corporation or other
   77  issuer, any of whose securities or debt obligations are owned,
   78  or are being considered for ownership, by an alternative
   79  investment vehicle or the Florida Opportunity Fund and any
   80  subsidiary of such corporation or other issuer.
   81         (e)(f) “Portfolio positions” means individual investments
   82  in portfolio companies that are made by an alternative
   83  investment vehicle or the Florida Opportunity Fund, including
   84  information or specific investment terms associated with any
   85  portfolio company investment.
   86         (f)(g)1. “Proprietary confidential business information”
   87  means information that has been designated by the proprietor
   88  when provided to the Florida Opportunity Fund or the Institute
   89  for the Commercialization of Public Research as information that
   90  is owned, held, or controlled by a proprietor; that is intended
   91  to be and is treated by the proprietor as private, the
   92  disclosure of which would harm the business operations of the
   93  proprietor and has not been intentionally disclosed by the
   94  proprietor unless pursuant to a private agreement that provides
   95  that the information will not be released to the public except
   96  as required by law or legal process, or pursuant to law or an
   97  order of a court or administrative body; and that concerns:
   98         a. Trade secrets as defined in s. 688.002.
   99         b. Information provided to the Florida Opportunity Fund or
  100  the Institute for the Commercialization of Public Research
  101  regarding an existing or a prospective alternative investment in
  102  a private equity fund, venture capital fund, angel fund, or
  103  portfolio company that is proprietary to the provider of the
  104  information.
  105         c. Financial statements and auditor reports of an
  106  alternative investment vehicle or portfolio company, unless
  107  publicly released by the alternative investment vehicle or
  108  portfolio company.
  109         d. Meeting materials of an alternative investment vehicle
  110  or portfolio company relating to financial, operating, or
  111  marketing information of the alternative investment vehicle or
  112  portfolio company.
  113         e. Information regarding the portfolio positions in which
  114  the alternative investment vehicles or Florida Opportunity Fund
  115  invest.
  116         f. Capital call and distribution notices to investors or
  117  the Florida Opportunity Fund of an alternative investment
  118  vehicle.
  119         g. Alternative investment agreements and related records.
  120         h. Information concerning investors, other than the Florida
  121  Opportunity Fund, in an alternative investment vehicle or
  122  portfolio company.
  123         2. “Proprietary confidential business information” does not
  124  include:
  125         a. The name, address, and vintage year of an alternative
  126  investment vehicle or Florida Opportunity Fund and the identity
  127  of the principals involved in the management of the alternative
  128  investment vehicle or Florida Opportunity Fund.
  129         b. The dollar amount of the commitment made by the Florida
  130  Opportunity Fund to each alternative investment vehicle since
  131  inception, if any.
  132         c. The dollar amount and date of cash contributions made by
  133  the Florida Opportunity Fund to each alternative investment
  134  vehicle since inception, if any.
  135         d. The dollar amount, on a fiscal-year-end basis, of cash
  136  or other fungible distributions received by the Florida
  137  Opportunity Fund from each alternative investment vehicle.
  138         e. The dollar amount, on a fiscal-year-end basis, of cash
  139  or other fungible distributions received by the Florida
  140  Opportunity Fund plus the remaining value of alternative-vehicle
  141  assets that are attributable to the Florida Opportunity Fund’s
  142  investment in each alternative investment vehicle.
  143         f. The net internal rate of return of each alternative
  144  investment vehicle since inception.
  145         g. The investment multiple of each alternative investment
  146  vehicle since inception.
  147         h. The dollar amount of the total management fees and costs
  148  paid on an annual fiscal-year-end basis by the Florida
  149  Opportunity Fund to each alternative investment vehicle.
  150         i. The dollar amount of cash profit received by the Florida
  151  Opportunity Fund from each alternative investment vehicle on a
  152  fiscal-year-end basis.
  153         (g)(h) “Proprietor” means an alternative investment vehicle
  154  or, a portfolio company in which an the alternative investment
  155  vehicle or Florida Opportunity Fund invests, or is considering
  156  for investment is invested, or an outside consultant, including
  157  the respective authorized officers, employees, agents, or
  158  successors in interest, that controls or owns information.
  159         (2) PUBLIC RECORDS EXEMPTION.—
  160         (a) The following records held by the Florida Opportunity
  161  Fund or the Institute for the Commercialization of Public
  162  Research are confidential and exempt from s. 119.07(1) and s.
  163  24(a), Art. I of the State Constitution:
  164         1. Information Materials that relates relate to methods of
  165  manufacture or production, potential trade secrets, or
  166  patentable material received, generated, ascertained, or
  167  discovered during the course of research or through research
  168  projects and that is included in materials provided by a
  169  proprietor conducted by universities and other publicly
  170  supported organizations in this state.
  171         2. Information that would identify an investor or potential
  172  investor who desires to remain anonymous in projects reviewed by
  173  the Florida Opportunity Fund or institute.
  174         3. Any information received from a person from another
  175  state or nation or the Federal Government which is otherwise
  176  confidential or exempt pursuant to the laws of that state or
  177  nation or pursuant to federal law.
  178         3.4. Proprietary confidential business information
  179  regarding alternative investments for 7 10 years after the
  180  termination of the alternative investment.
  181         (b) At the time any record made confidential and exempt by
  182  this subsection, or portion thereof, is legally available or
  183  subject to public disclosure for any other reason, that record,
  184  or portion thereof, shall no longer be confidential and exempt
  185  and shall be made available for inspection and copying.
  186         (3) PUBLIC MEETINGS EXEMPTION.—
  187         (a) That portion of a meeting of the board of directors of
  188  the Florida Opportunity Fund or the board of directors of the
  189  Institute for the Commercialization of Public Research at which
  190  information is discussed which is confidential and exempt under
  191  subsection (2) is exempt from s. 286.011 and s. 24(b), Art. I of
  192  the State Constitution.
  193         (b) Any exempt portion of a meeting shall be recorded and
  194  transcribed. The board boards of directors shall record the
  195  times of commencement and termination of the meeting, all
  196  discussion and proceedings, the names of all persons present at
  197  any time, and the names of all persons speaking. An exempt
  198  portion of any meeting may not be off the record.
  199         (c) A transcript and minutes of exempt portions of meetings
  200  are confidential and exempt from s. 119.07(1) and s. 24(a), Art.
  201  I of the State Constitution.
  202         (4) REQUEST TO INSPECT OR COPY A RECORD.—
  203         (a) Records made confidential and exempt by this section
  204  may be released, upon written request, to a governmental entity
  205  in the performance of its official duties and responsibilities.
  206         (b) Notwithstanding the provisions of paragraph (2)(a), a
  207  request to inspect or copy a public record that contains
  208  proprietary confidential business information shall be granted
  209  if the proprietor of the information fails, within a reasonable
  210  period of time after the request is received by the Florida
  211  Opportunity Fund or the Institute for the Commercialization of
  212  Public Research, to verify the following to the Florida
  213  Opportunity Fund through a written declaration in the manner
  214  provided by s. 92.525:
  215         1. That the requested record contains proprietary
  216  confidential business information and the specific location of
  217  such information within the record;
  218         2. If the proprietary confidential business information is
  219  a trade secret, a verification that it is a trade secret as
  220  defined in s. 688.002;
  221         3. That the proprietary confidential business information
  222  is intended to be and is treated by the proprietor as private,
  223  is the subject of efforts of the proprietor to maintain its
  224  privacy, and is not readily ascertainable or publicly available
  225  from any other source; and
  226         4. That the disclosure of the proprietary confidential
  227  business information to the public would harm the business
  228  operations of the proprietor.
  229         (c)1. Any person may petition a court of competent
  230  jurisdiction for an order for the public release of those
  231  portions of any record made confidential and exempt by
  232  subsection (2).
  233         2. Any action under this subsection must be brought in
  234  Orange County, and the petition or other initial pleading shall
  235  be served on the Florida Opportunity Fund or the institute,
  236  whichever is applicable, and, if determinable upon diligent
  237  inquiry, on the proprietor of the information sought to be
  238  released.
  239         3. In any order for the public release of a record under
  240  this subsection, the court shall make a finding that:
  241         a. The record or portion thereof is not a trade secret as
  242  defined in s. 688.002;
  243         b. A compelling public interest is served by the release of
  244  the record or portions thereof which exceed the public necessity
  245  for maintaining the confidentiality of such record; and
  246         c. The release of the record will not cause damage to or
  247  adversely affect the interests of the proprietor of the released
  248  information, other private persons or business entities, or the
  249  fund, or any trust fund the assets of which are invested by the
  250  Florida Opportunity Fund.
  251         (5) PENALTIES.—Any person who willfully and knowingly
  252  violates this section commits a misdemeanor of the first degree,
  253  punishable as provided in s. 775.082 or s. 775.083.
  254         (6) OPEN GOVERNMENT SUNSET REVIEW.—This section is subject
  255  to the Open Government Sunset Review Act in accordance with s.
  256  119.15 and shall stand repealed on October 2, 2012, unless
  257  reviewed and saved from repeal through reenactment by the
  258  Legislature.
  259         Section 2. Section 288.9627, Florida Statutes, is created
  260  to read:
  261         288.9627Exemptions from public records and public meetings
  262  requirements for the Institute for the Commercialization of
  263  Public Research.—
  264         (1) DEFINITIONS.—As used in this section, the term:
  265         (a) “Institute for the Commercialization of Public
  266  Research” or “institute” means the institute established by s.
  267  288.9625.
  268         (b)1. “Proprietary confidential business information” means
  269  information that has been designated by the proprietor when
  270  provided to the institute as information that is owned, held, or
  271  controlled by a proprietor; that is intended to be and is
  272  treated by the proprietor as private, the disclosure of which
  273  would harm the business operations of the proprietor and has not
  274  been intentionally disclosed by the proprietor unless pursuant
  275  to a private agreement that provides that the information will
  276  not be released to the public except as required by law or legal
  277  process, or pursuant to law or an order of a court or
  278  administrative body; and that concerns:
  279         a. Trade secrets as defined in s. 688.002.
  280         b. Financial statements and internal or external auditor
  281  reports of a proprietor corporation, partnership, or person
  282  requesting confidentiality under this statute, unless publicly
  283  released by the proprietor.
  284         c. Meeting materials related to financial, operating,
  285  investment, or marketing information of the proprietor
  286  corporation, partnership, or person.
  287         d. Information concerning private investors in the
  288  proprietor corporation, partnership, or person.
  289         2. “Proprietary confidential business information” does not
  290  include:
  291         a. The identity and primary address of the proprietor’s
  292  principals.
  293         b. The dollar amount and date of the financial commitment
  294  or contribution made by the institute.
  295         c. The dollar amount, on a fiscal-year-end basis, of cash
  296  repayments or other fungible distributions received by the
  297  institute from each proprietor.
  298         d. The dollar amount, if any, of the total management fees
  299  and costs paid on an annual fiscal-year-end basis by the
  300  institute.
  301         (c)“Proprietor” means a corporation, partnership, or
  302  person that has applied for or received assistance, financial or
  303  otherwise, from the institute and that controls or owns the
  304  proprietary confidential business information.
  305         (2) PUBLIC RECORDS EXEMPTION.—
  306         (a) The following records held by the institute are
  307  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
  308  of the State Constitution:
  309         1. Information that relates to methods of manufacture or
  310  production, potential trade secrets, or patentable material
  311  received, generated, ascertained, or discovered during the
  312  course of research or through research projects conducted by
  313  universities and other publicly supported organizations in this
  314  state and that is included in materials provided to the
  315  institute by a proprietor.
  316         2. Information that would identify an investor or potential
  317  investor who desires to remain anonymous in projects reviewed by
  318  the institute for assistance.
  319         3. Any information received from a person from another
  320  state or nation or the Federal Government which is otherwise
  321  confidential or exempt pursuant to the laws of that state or
  322  nation or pursuant to federal law.
  323         4. Proprietary confidential business for 7 years after the
  324  termination of the institute’s financial commitment to the
  325  company.
  326         (b) At the time any record made confidential and exempt by
  327  this subsection, or portion thereof, is legally available or
  328  subject to public disclosure for any other reason, that record,
  329  or portion thereof, shall no longer be confidential and exempt
  330  and shall be made available for inspection and copying.
  331         (3) PUBLIC MEETINGS EXEMPTION.—
  332         (a) That portion of a meeting of the institute’s board of
  333  directors at which information is discussed which is
  334  confidential and exempt under subsection (2) is exempt from s.
  335  286.011 and s. 24(b), Art. I of the State Constitution.
  336         (b) Any exempt portion of a meeting shall be recorded and
  337  transcribed. The board of directors shall record the times of
  338  commencement and termination of the meeting, all discussion and
  339  proceedings, the names of all persons present at any time, and
  340  the names of all persons speaking. An exempt portion of any
  341  meeting may not be off the record.
  342         (c) A transcript and minutes of exempt portions of meetings
  343  are confidential and exempt from s. 119.07(1) and s. 24(a), Art.
  344  I of the State Constitution.
  345         (4) REQUEST TO INSPECT OR COPY A RECORD.—
  346         (a) Records made confidential and exempt by this section
  347  may be released, upon written request, to a governmental entity
  348  in the performance of its official duties and responsibilities.
  349         (b) Notwithstanding the provisions of paragraph (2)(a), a
  350  request to inspect or copy a public record that contains
  351  proprietary confidential business information shall be granted
  352  if the proprietor of the information fails, within a reasonable
  353  period of time after the request is received by the institute,
  354  to verify the following to the institute through a written
  355  declaration in the manner provided by s. 92.525:
  356         1. That the requested record contains proprietary
  357  confidential business information and the specific location of
  358  such information within the record;
  359         2. If the proprietary confidential business information is
  360  a trade secret, a verification that it is a trade secret as
  361  defined in s. 688.002;
  362         3. That the proprietary confidential business information
  363  is intended to be and is treated by the proprietor as private,
  364  is the subject of efforts of the proprietor to maintain its
  365  privacy, and is not readily ascertainable or publicly available
  366  from any other source; and
  367         4. That the disclosure of the proprietary confidential
  368  business information to the public would harm the business
  369  operations of the proprietor.
  370         (c)1. Any person may petition a court of competent
  371  jurisdiction for an order for the public release of those
  372  portions of any record made confidential and exempt by
  373  subsection (2).
  374         2. Any action under this subsection must be brought in Palm
  375  Beach County or Alachua County, and the petition or other
  376  initial pleading shall be served on the institute and, if
  377  determinable upon diligent inquiry, on the proprietor of the
  378  information sought to be released.
  379         3. In any order for the public release of a record under
  380  this subsection, the court shall make a finding that:
  381         a. The record or portion thereof is not a trade secret as
  382  defined in s. 688.002;
  383         b. A compelling public interest is served by the release of
  384  the record or portions thereof which exceed the public necessity
  385  for maintaining the confidentiality of such record; and
  386         c. The release of the record will not cause damage to or
  387  adversely affect the interests of the proprietor of the released
  388  information, other private persons or business entities, or the
  389  institute.
  390         (5) PENALTIES.—Any person who willfully and knowingly
  391  violates this section commits a misdemeanor of the first degree,
  392  punishable as provided in s. 775.082 or s. 775.083.
  393         Section 3. This act shall take effect upon becoming a law.