HB 7225

1	A bill to be entitled
2	An act relating to a review under the Open Government
3	Sunset Review Act; transferring, renumbering, and amending
4	s. 215.44(8), F.S., which provides exemptions from public
5	records requirements for the State Board of
6	Administration; creating s. 215.440, F.S.; specifying
7	information that does not constitute proprietary
8	confidential business information held by the State Board
9	of Administration; requiring the State Board of
10	Administration to maintain a written list of records
11	covered under a verified, written declaration; conforming
12	cross-references; making editorial changes; removing the
13	scheduled repeal of the exemption; amending s. 215.47,
14	F.S.; conforming cross-references; providing an effective
15	date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Subsection (8) of section 215.44, Florida
20	Statutes, is transferred and renumbered as section 215.440,
21	Florida Statutes, and amended to read:
22	215.440  Board of Administration; public record
23	exemptions.-
24	(1)(8)(a)  In order to effectively and efficiently
25	administer the real estate investment program of the State Board
26	of Administration, the Legislature finds a public necessity in
27	protecting specified records of the board. Accordingly, records
28	and information relating to acquiring, hypothecating, or
29	disposing of real property or related personal property or
30	mortgage interests in same, as well as interest in collective
31	real estate investment funds, publicly traded securities, or
32	private placement investments, are confidential and exempt from
33	s. 119.07(1) in order to protect proprietary information
34	requisite to the board's ability to transact arms length
35	negotiations necessary to successfully compete in the real
36	estate investment market. All reports and documents relating to
37	value, offers, counteroffers, or negotiations are confidential
38	and exempt from s. 119.07(1) until closing is complete and all
39	funds have been disbursed. Reports and documents relating to
40	tenants, leases, contracts, rent rolls, and negotiations in
41	progress are confidential and exempt from the provisions of s.
42	119.07(1) until the executive director determines that releasing
43	such information would not be detrimental to the interests of
44	the board and would not cause a conflict with the fiduciary
45	responsibilities of the State Board of Administration.
46	(2)(b)  In order to effectively and efficiently administer
47	the investment programs of the board, the Legislature finds a
48	public necessity in protecting records other than those
49	described in subsection (1) paragraph (a). Accordingly, records
50	and other information relating to investments made by the board
51	pursuant to its constitutional and statutory investment duties
52	and responsibilities are confidential and exempt from s.
53	119.07(1) until 30 days after completion of an investment
54	transaction. However, if in the opinion of the executive
55	director of the board it would be detrimental to the financial
56	interests of the board or would cause a conflict with the
57	fiduciary responsibilities of the board, information concerning
58	service provider fees may be maintained as confidential and
59	exempt from s. 119.07(1) until 6 months after negotiations
60	relating to such fees have been terminated. This exemption
61	prevents the use of confidential internal investment decisions
62	of the State Board of Administration for improper personal gain.
63	(3)(a)(c)1.  As used in this subsection paragraph, the
64	term:
65	1.a.  "Alternative investment" means an investment by the
66	State Board of Administration in a private equity fund, venture
67	fund, hedge fund, or distress fund or a direct investment in a
68	portfolio company through an investment manager.
69	2.b.  "Alternative investment vehicle" means the limited
70	partnership, limited liability company, or similar legal
71	structure or investment manager through which the State Board of
72	Administration invests in a portfolio company.
73	3.c.  "Portfolio company" means a corporation or other
74	issuer, any of whose securities are owned by an alternative
75	investment vehicle or the State Board of Administration and any
76	subsidiary of such corporation or other issuer.
77	4.d.  "Portfolio positions" means individual investments in
78	portfolio companies which are made by the alternative investment
79	vehicles, including information or specific investment terms
80	associated with any portfolio company investment.
81	5.e.  "Proprietor" means an alternative investment vehicle,
82	a portfolio company in which the alternative investment vehicle
83	is invested, or an outside consultant, including the respective
84	authorized officers, employees, agents, or successors in
85	interest, which controls or owns information provided to the
86	State Board of Administration.
87	6.f.  "Proprietary confidential business information" means
88	information that has been designated by the proprietor when
89	provided to the State Board of Administration as information
90	that is owned or controlled by a proprietor; that is intended to
91	be and is treated by the proprietor as private, the disclosure
92	of which would harm the business operations of the proprietor
93	and has not been intentionally disclosed by the proprietor
94	unless pursuant to a private agreement that provides that the
95	information will not be released to the public except as
96	required by law or legal process, or pursuant to law or an order
97	of a court or administrative body; and that concerns:
98	a.(I)  Trade secrets as defined in s. 688.002.
99	b.(II)  Information provided to the State Board of
100	Administration regarding a prospective investment in a private
101	equity fund, venture fund, hedge fund, distress fund, or
102	portfolio company which is proprietary to the provider of the
103	information.
104	c.(III)  Financial statements and auditor reports of an
105	alternative investment vehicle.
106	d.(IV)  Meeting materials of an alternative investment
107	vehicle relating to financial, operating, or marketing
108	information of the alternative investment vehicle.
109	e.(V)  Information regarding the portfolio positions in
110	which the alternative investment vehicles invest.
111	f.(VI)  Capital call and distribution notices to investors
112	of an alternative investment vehicle.
113	g.(VII)  Alternative investment agreements and related
114	records.
115	h.(VIII)  Information concerning investors, other than the
116	State Board of Administration, in an alternative investment
117	vehicle.
118	7.g.  "Proprietary confidential business information" does
119	not include:
120	a.(I)  The name, address, and vintage year of an
121	alternative investment vehicle and the identity of the
122	principals involved in the management of the alternative
123	investment vehicle.
124	b.(II)  The dollar amount of the commitment made by the
125	State Board of Administration to each alternative investment
126	vehicle since inception.
127	c.(III)  The dollar amount and date of cash contributions
128	made by the State Board of Administration to each alternative
129	investment vehicle since inception.
130	d.(IV)  The dollar amount, on a fiscal-year-end basis, of
131	cash distributions received by the State Board of Administration
132	from each alternative investment vehicle.
133	e.(V)  The dollar amount, on a fiscal-year-end basis, of
134	cash distributions received by the State Board of Administration
135	plus the remaining value of alternative-vehicle assets that are
136	attributable to the State Board of Administration's investment
137	in each alternative investment vehicle.
138	f.(VI)  The net internal rate of return of each alternative
139	investment vehicle since inception.
140	g.(VII)  The investment multiple of each alternative
141	investment vehicle since inception.
142	h.(VIII)  The dollar amount of the total management fees
143	and costs paid on an annual fiscal-year-end basis by the State
144	Board of Administration to each alternative investment vehicle.
145	i.(IX)  The dollar amount of cash profit received by the
146	State Board of Administration from each alternative investment
147	vehicle on a fiscal-year-end basis.
148	j.  A description of any compensation, fees, or expenses,
149	including the amount or value, paid or agreed to be paid by a
150	proprietor to any person to solicit the board to make an
151	alternative investment or investment through an alternative
152	investment vehicle. This does not apply to an executive officer,
153	general partner, managing member, or other employee of the
154	proprietor, who is paid by the proprietor to solicit the board
155	to make such investments.
156	(b)2.  Proprietary confidential business information held
157	by the State Board of Administration regarding alternative
158	investments is confidential and exempt from s. 119.07(1) and s.
159	24(a), Art. I of the State Constitution for 10 years after the
160	termination of the alternative investment. This exemption
161	applies to proprietary confidential business information held by
162	the State Board of Administration before, on, or after October
163	1, 2006.
164	(c)1.3.  Notwithstanding the provisions of paragraph (b)
165	subparagraph 2., a request to inspect or copy a record under s.
166	119.07(1) that which contains proprietary confidential business
167	information shall be granted if the proprietor of the
168	information fails, within a reasonable period of time after the
169	request is received by the State Board of Administration, to
170	verify the following to the State Board of Administration
171	through a written declaration in the manner provided by s.
172	92.525:
173	a.  That the requested record contains proprietary
174	confidential business information and the specific location of
175	such information within the record;
176	b.  If the proprietary confidential business information is
177	a trade secret, a verification that it is a trade secret as
178	defined in s. 688.002;
179	c.  That the proprietary confidential business information
180	is intended to be and is treated by the proprietor as private,
181	is the subject of efforts of the proprietor to maintain its
182	privacy, and is not readily ascertainable or publicly available
183	from any other source; and
184	d.  That the disclosure of the proprietary confidential
185	business information to the public would harm the business
186	operations of the proprietor.
187	2.  The State Board of Administration shall maintain a list
188	and a description of the records covered by any verified,
189	written declaration made under this paragraph.
190	(d)4.  Any person may petition a court of competent
191	jurisdiction for an order for the public release of those
192	portions of any record made confidential and exempt by paragraph
193	(b) subparagraph 2. Any action under this paragraph subparagraph
194	must be brought in Leon County, Florida, and the petition or
195	other initial pleading shall be served on the State Board of
196	Administration and, if determinable upon diligent inquiry, on
197	the proprietor of the information sought to be released. In any
198	order for the public release of a record under this paragraph
199	subparagraph, the court shall make a finding that the record or
200	portion thereof is not a trade secret as defined in s. 688.002,
201	that a compelling public interest is served by the release of
202	the record or portions thereof which exceed the public necessity
203	for maintaining the confidentiality of such record, and that the
204	release of the record will not cause damage to or adversely
205	affect the interests of the proprietor of the released
206	information, other private persons or business entities, the
207	State Board of Administration, or any trust fund, the assets of
208	which are invested by the State Board of Administration.
209	5.  This paragraph is subject to the Open Government Sunset
210	Review Act in accordance with s. 119.15 and shall stand repealed
211	on October 2, 2011, unless reviewed and saved from repeal
212	through reenactment by the Legislature.
213	Section 2.  Subsection (15) of section 215.47, Florida
214	Statutes, is amended to read:
215	215.47  Investments; authorized securities; loan of
216	securities.-Subject to the limitations and conditions of the
217	State Constitution or of the trust agreement relating to a trust
218	fund, moneys available for investments under ss. 215.44-215.53
219	may be invested as follows:
220	(15)  With no more, in the aggregate, than 10 percent of
221	any fund in alternative investments, as defined in s.
222	215.440(3)(a)1. 215.44(8)(c)1.a., through participation in the
223	vehicles defined in s. 215.440(3)(a)2. 215.44(8)(c)1.b., or in
224	securities or investments that are not publicly traded and are
225	not otherwise authorized by this section.
226	Section 3.  This act shall take effect October 1, 2011.

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