CS/HB 131

1	A bill to be entitled
2	An act relating to public records and meetings; creating
3	s. 288.9626, F.S.; providing definitions; providing an
4	exemption from public records requirements for certain
5	information held by the Florida Opportunity Fund;
6	providing exceptions to the exemption; providing an
7	exemption from public meetings requirements for portions
8	of meetings of the board of directors of the Florida
9	Opportunity Fund at which confidential and exempt records
10	are discussed; providing penalties; providing for future
11	legislative review and repeal; providing a statement of
12	public necessity; providing a contingent effective date.
13
14	Be It Enacted by the Legislature of the State of Florida:
15
16	Section 1.  Section 288.9626, Florida Statutes, is created
17	to read:
18	288.9626  Exemptions from public records and public
19	meetings requirements; Florida Opportunity Fund.--
20	(1)  DEFINITIONS.--As used in this section, the term:
21	(a)  "Alternative investment" means an investment by the
22	Florida Opportunity Fund in a private equity fund, venture
23	capital fund, or angel fund or a direct investment in a
24	portfolio company or investment through a distribution of
25	securities to its partners or shareholders by an alternative
26	investment vehicle.
27	(b)  "Alternative investment vehicle" means the limited
28	partnership, limited liability company, or similar legal
29	structure through which the Florida Opportunity Fund may elect
30	to invest in a portfolio company.
31	(c)  "Florida Opportunity Fund" or "fund" means the Florida
32	Opportunity Fund as defined in s. 288.9623.
33	(d)  "Portfolio company" means a corporation or other
34	issuer, any of whose securities are owned by an alternative
35	investment vehicle or the Florida Opportunity Fund and any
36	subsidiary of such corporation or other issuer.
37	(e)  "Portfolio positions" means individual investments in
38	portfolio companies that are made by the Florida Opportunity
39	Fund, including information or specific investment terms
40	associated with any portfolio company investment.
41	(f)1.  "Proprietary confidential business information"
42	means information that has been designated by the proprietor
43	when provided to the Florida Opportunity Fund as information
44	that is owned or controlled by a proprietor; that is intended to
45	be and is treated by the proprietor as private, the disclosure
46	of which would harm the business operations of the proprietor
47	and has not been intentionally disclosed by the proprietor
48	unless pursuant to a private agreement that provides that the
49	information will not be released to the public except as
50	required by law or legal process, or pursuant to law or an order
51	of a court or administrative body; and that concerns:
52	a.  Trade secrets as defined in s. 688.002.
53	b.  Information provided to the Florida Opportunity Fund
54	regarding a prospective investment in a private equity fund,
55	venture capital fund, angel fund, or portfolio company that is
56	proprietary to the provider of the information.
57	c.  Financial statements and auditor reports of an
58	alternative investment vehicle or portfolio company, unless
59	publicly released by the alternative investment vehicle or
60	portfolio company.
61	d.  Meeting materials of an alternative investment vehicle
62	or portfolio company relating to financial, operating, or
63	marketing information of the alternative investment vehicle or
64	portfolio company.
65	e.  Information regarding the portfolio positions in which
66	the alternative investment vehicles or Florida Opportunity Fund
67	invest.
68	f.  Capital call and distribution notices to investors or
69	the Florida Opportunity Fund of an alternative investment
70	vehicle.
71	g.  Alternative investment agreements and related records.
72	h.  Information concerning investors, other than the
73	Florida Opportunity Fund, in an alternative investment vehicle
74	or portfolio company.
75	2.  "Proprietary confidential business information" does
76	not include:
77	a.  The name, address, and vintage year of an alternative
78	investment vehicle or Florida Opportunity Fund and the identity
79	of the principals involved in the management of the alternative
80	investment vehicle or Florida Opportunity Fund.
81	b.  The dollar amount of the commitment made by the Florida
82	Opportunity Fund to each alternative investment vehicle since
83	inception, if any.
84	c.  The dollar amount and date of cash contributions made
85	by the Florida Opportunity Fund to each alternative investment
86	vehicle since inception, if any.
87	d.  The dollar amount, on a fiscal-year-end basis, of cash
88	or other fungible distributions received by the Florida
89	Opportunity Fund from each alternative investment vehicle.
90	e.  The dollar amount, on a fiscal-year-end basis, of cash
91	or other fungible distributions received by the Florida
92	Opportunity Fund plus the remaining value of alternative-vehicle
93	assets that are attributable to the Florida Opportunity Fund's
94	investment in each alternative investment vehicle.
95	f.  The net internal rate of return of each alternative
96	investment vehicle since inception.
97	g.  The investment multiple of each alternative investment
98	vehicle since inception.
99	h.  The dollar amount of the total management fees and
100	costs paid on an annual fiscal-year-end basis by the Florida
101	Opportunity Fund to each alternative investment vehicle.
102	i.  The dollar amount of cash profit received by the
103	Florida Opportunity Fund from each alternative investment
104	vehicle on a fiscal-year-end basis.
105	(g)  "Proprietor" means an alternative investment vehicle,
106	a portfolio company in which the alternative investment vehicle
107	or Florida Opportunity Fund is invested, or an outside
108	consultant, including the respective authorized officers,
109	employees, agents, or successors in interest, that controls or
110	owns information provided to the Florida Opportunity Fund.
111	(2)  PUBLIC RECORDS EXEMPTION.--
112	(a)  The following records held by the Florida Opportunity
113	Fund are confidential and exempt from s. 119.07(1) and s. 24(a),
114	Art. I of the State Constitution:
115	1.  Materials that relate to methods of manufacture or
116	production, potential trade secrets, or patentable material
117	received, generated, ascertained, or discovered during the
118	course of research or through research projects conducted by
119	universities and other publicly supported organizations in this
120	state.
121	2.  Information that would identify an investor or
122	potential investor, who desires to remain anonymous, in projects
123	reviewed by the fund.
124	3.  Any information received from a person, another state
125	or nation, or the Federal Government which is otherwise
126	confidential or exempt pursuant to the laws of that state or
127	nation or pursuant to federal law.
128	4.  Proprietary confidential business information regarding
129	alternative investments for 10 years after the termination of
130	the alternative investment.
131	(b)  At the time any record made confidential and exempt by
132	this subsection, or portion thereof, is legally available or
133	subject to public disclosure for any other reason, that record,
134	or portion thereof, shall no longer be confidential and exempt
135	and shall be made available for inspection and copying.
136	(3)  PUBLIC MEETINGS EXEMPTION.--
137	(a)  That portion of a meeting of the board of directors of
138	the Florida Opportunity Fund at which information is discussed
139	which is confidential and exempt under subsection (2) is exempt
140	from s. 286.011 and s. 24(b), Art. I of the State Constitution.
141	(b)  Any exempt portion of a meeting shall be recorded and
142	transcribed. The board shall record the times of commencement
143	and termination of the meeting, all discussion and proceedings,
144	the names of all persons present at any time, and the names of
145	all persons speaking. An exempt portion of any meeting may not
146	be off the record.
147	(c)  A transcript and minutes of exempt portions of
148	meetings are confidential and exempt from s. 119.07(1) and s.
149	24(a), Art. I of the State Constitution.
150	(4)  REQUEST TO INSPECT OR COPY A RECORD.--
151	(a)  Records made confidential and exempt by this section
152	may be released, upon written request, to a governmental entity
153	in the performance of its official duties and responsibilities.
154	(b)  Notwithstanding the provisions of paragraph (2)(a), a
155	request to inspect or copy a public record that contains
156	proprietary confidential business information shall be granted
157	if the proprietor of the information fails, within a reasonable
158	period of time after the request is received by the Florida
159	Opportunity Fund, to verify the following to the fund through a
160	written declaration in the manner provided by s. 92.525:
161	1.  That the requested record contains proprietary
162	confidential business information and the specific location of
163	such information within the record;
164	2.  If the proprietary confidential business information is
165	a trade secret, a verification that it is a trade secret as
166	defined in s. 688.002;
167	3.  That the proprietary confidential business information
168	is intended to be and is treated by the proprietor as private,
169	is the subject of efforts of the proprietor to maintain its
170	privacy, and is not readily ascertainable or publicly available
171	from any other source; and
172	4.  That the disclosure of the proprietary confidential
173	business information to the public would harm the business
174	operations of the proprietor.
175	(c)1.  Any person may petition a court of competent
176	jurisdiction for an order for the public release of those
177	portions of any record made confidential and exempt by
178	subsection (2).
179	2.  Any action under this subsection must be brought in
180	Orange County, Florida, and the petition or other initial
181	pleading shall be served on the fund, whichever is applicable,
182	and, if determinable upon diligent inquiry, on the proprietor of
183	the information sought to be released.
184	3.  In any order for the public release of a record under
185	this subsection, the court shall make a finding that:
186	a.  The record or portion thereof is not a trade secret as
187	defined in s. 688.002;
188	b.  A compelling public interest is served by the release
189	of the record or portions thereof which exceed the public
190	necessity for maintaining the confidentiality of such record;
191	and
192	c.  The release of the record will not cause damage to or
193	adversely affect the interests of the proprietor of the released
194	information, other private persons or business entities, the
195	fund, or any trust fund, the assets of which are invested by the
196	Florida Opportunity Fund.
197	(5)  PENALTIES.--Any person who willfully and knowingly
198	violates this section commits a misdemeanor of the first degree,
199	punishable as provided in s. 775.082 or s. 775.083.
200	(6)  OPEN GOVERNMENT SUNSET REVIEW.--This section is
201	subject to the Open Government Sunset Review Act in accordance
202	with s. 119.15 and shall stand repealed on October 2, 2012,
203	unless reviewed and saved from repeal through reenactment by the
204	Legislature.
205	Section 2.  The Legislature finds that it is a public
206	necessity that certain information held by the Florida
207	Opportunity Fund be made confidential and exempt from s.
208	119.07(1), Florida Statutes, and s. 24(a), Art. I of the State
209	Constitution. Materials that relate to methods of manufacture or
210	production, potential trade secrets, or patentable materials
211	received, generated, ascertained, or discovered during the
212	course of research must be confidential and exempt because the
213	disclosure of such information would create an unfair
214	competitive advantage for persons receiving such information.
215	Disclosure of proprietary confidential business information to
216	the public would harm the business operations of the proprietor.
217	The Legislature further finds that information received by the
218	fund from a person, from another state or nation, or the Federal
219	Government which is otherwise exempt or confidential pursuant to
220	the laws of that state or nation or pursuant to federal law
221	should remain exempt or confidential because the highly
222	confidential nature of research necessitates that it be
223	protected. Without the exemptions provided by this act, the
224	disclosure of confidential and exempt information would
225	jeopardize the effective and efficient administration of this
226	program. In addition, the Legislature further finds that the
227	identity of an investor or prospective investor who wishes to
228	remain anonymous should be confidential and exempt from public
229	disclosure. This exemption is necessary because the disclosure
230	of investor identities may adversely impact the ability of the
231	fund to attract investors who desire anonymity. The Legislature
232	also finds that it is a public necessity that proprietary
233	confidential business information held by the fund regarding
234	alternative investments be held confidential and exempt for 10
235	years after the termination of the alternative investment.
236	Disclosing proprietary confidential business information used in
237	determining how private equity investments are made or managed
238	by private partnerships investing assets on behalf of the fund
239	would negatively affect the business interests of private
240	partnerships that rely heavily on their information advantage to
241	generate investment returns, and competitor partnerships could
242	gain an unfair competitive advantage if provided access to such
243	information. The release of proprietary confidential business
244	information revealing how alternative investments are made could
245	result in inadequate returns and ultimately frustrate attainment
246	of the investment objective of the fund. It is the Legislature's
247	intent to allow the public access to sufficient information in
248	order to be informed regarding the alternative investments of
249	the fund and to balance the public's right to information
250	against the right of business entities to be protected from
251	harmful disclosure of proprietary confidential business
252	information, the disclosure of which would injure them in the
253	marketplace. The Legislature further finds that it is a public
254	necessity that portions of meetings of the board of directors of
255	the fund at which records made confidential and exempt by this
256	act are discussed be made exempt from public meetings
257	requirements in order to allow the corporation to maintain the
258	confidential and exempt status of this information. Public
259	oversight is preserved by requiring a transcript of any portion
260	of a closed meeting of these boards.
261	Section 3.  This act shall take effect July 1, 2007, if
262	House Bill 83 or similar legislation is adopted in the same
263	legislative session or an extension thereof and becomes law.

CODING: Words stricken are deletions; words underlined are additions.