2014 Legislature            CS for CS for SB 1300, 1st Engrossed
    2         An act relating to public records; creating s.
    3         624.4212, F.S.; defining the term “proprietary
    4         business information”; creating an exemption from
    5         public records requirements for proprietary business
    6         information and information that is confidential when
    7         held by another entity in this state, the Federal
    8         Government, or another state or nation, and which is
    9         held by the Office of Insurance Regulation; providing
   10         exceptions; providing for future legislative review
   11         and repeal; providing a statement of public necessity;
   12         providing a contingent effective date.
   14  Be It Enacted by the Legislature of the State of Florida:
   16         Section 1. Section 624.4212, Florida Statutes, is created
   17  to read:
   18         624.4212Confidentiality of proprietary business and other
   19  information.—
   20         (1) As used in this section, the term “proprietary business
   21  information” means information, regardless of form or
   22  characteristics, which is owned or controlled by an insurer, or
   23  a person or an affiliated person who seeks acquisition of
   24  controlling stock in a domestic stock insurer or controlling
   25  company, and which:
   26         (a) Is intended to be and is treated by the insurer or the
   27  person as private in that the disclosure of the information
   28  would cause harm to the insurer, the person, or the company’s
   29  business operations and that the information has not been
   30  disclosed unless disclosed pursuant to a statutory requirement,
   31  an order of a court or administrative body, or a private
   32  agreement that provides that the information will not be
   33  released to the public;
   34         (b) Is not otherwise readily ascertainable or publicly
   35  available by proper means by other persons from another source
   36  in the same configuration as requested by the office; and
   37         (c) Includes:
   38         1. Trade secrets as defined in s. 688.002 which comply with
   39  s. 624.4213.
   40         2. Information relating to competitive interests, the
   41  disclosure of which would impair the competitive business of the
   42  provider of the information.
   43         3. The source, nature, and amount of the consideration used
   44  or to be used in carrying out a merger or other acquisition of
   45  control in the ordinary course of business, including the
   46  identity of the lender, if the person filing a statement
   47  regarding consideration so requests.
   48         4. Information relating to bids or other contractual data,
   49  the disclosure of which would impair the efforts of the insurer
   50  or its affiliates to contract for goods or services on favorable
   51  terms.
   52         5. Internal auditing controls and reports of internal
   53  auditors.
   54         (2) Proprietary business information contained in the
   55  following items held by the office is confidential and exempt
   56  from s. 119.07(1) and s. 24(a), Art. I of the State
   57  Constitution:
   58         (a)The actuarial opinion summary required under ss.
   59  624.424(1)(b) and 625.121(3) and information related thereto.
   60         (b) A notice filed with the office by the person or
   61  affiliated person who seeks to divest controlling stock in an
   62  insurer pursuant to s. 628.461.
   63         (c) The filings required under s. 628.801 and information
   64  related thereto.
   65         (d) The enterprise risk report required under ss.
   66  628.461(3) and 628.801 and information related thereto.
   67         (e) Information provided to or obtained by the office
   68  pursuant to participation in a supervisory college established
   69  under s. 628.805.
   70         (f) Beginning on the operative date of the valuation manual
   71  as defined in s. 625.1212(2):
   72         1. An actuarial examination conducted pursuant to s.
   73  625.1212(5)(c), and information related thereto;
   74         2. The annual certification submitted by the insurer
   75  pursuant to s. 625.1212(6)(b)2., and information related
   76  thereto;
   77         3. The principle-based valuation report filed pursuant to
   78  s. 625.1212(6)(b)3., and information related thereto; and
   79         4. Mortality, morbidity, policyholder behavior, or expense
   80  experience and other data submitted pursuant to s. 625.1212(7),
   81  which includes potentially company-identifiable or personally
   82  identifiable information.
   83         (3) Information received from the NAIC or another
   84  governmental entity in this or another state, the Federal
   85  Government, or another nation which is confidential or exempt if
   86  held by that entity and which is held by the office for use in
   87  the office’s performance of its duties relating to insurer
   88  valuation and solvency is confidential and exempt from s.
   89  119.07(1) and s. 24(a), Art. I of the State Constitution.
   90         (4) The office may disclose information made confidential
   91  and exempt under this section:
   92         (a) If the insurer to which it pertains gives prior written
   93  consent;
   94         (b) Pursuant to a court order;
   95         (c)To the American Academy of Actuaries upon a request
   96  stating that the information is for the purpose of professional
   97  disciplinary proceedings and specifying procedures satisfactory
   98  to the office for preserving the confidentiality of the
   99  information;
  100         (d) To other states, federal and international agencies,
  101  the National Association of Insurance Commissioners and its
  102  affiliates and subsidiaries, and state, federal, and
  103  international law enforcement authorities, including members of
  104  a supervisory college described in s. 628.805 if the recipient
  105  agrees in writing to maintain the confidential and exempt status
  106  of the document, material, or other information and has
  107  certified in writing its legal authority to maintain such
  108  confidentiality; or
  109         (e)For the purpose of aggregating information on an
  110  industrywide basis and disclosing the information to the public
  111  only if the specific identities of the insurers, or persons or
  112  affiliated persons, are not revealed.
  113         (5) This section is subject to the Open Government Sunset
  114  Review Act in accordance with s. 119.15 and is repealed on
  115  October 2, 2019, unless reviewed and saved from repeal through
  116  reenactment by the Legislature.
  117         Section 2. (1) The Legislature finds that it is a public
  118  necessity that proprietary business information that is provided
  119  to the Office of Insurance Regulation by an insurer or by an
  120  acquiring party pursuant to the Florida Insurance Code or the
  121  Holding Company System Regulatory Act of the National
  122  Association of Insurance Commissioners in order for the office
  123  to conduct its regulatory duties with respect to insurer
  124  valuation and solvency, be made confidential and exempt from s.
  125  119.07(1), Florida Statutes, and s. 24(a), Article I of the
  126  State Constitution. The disclosure of such information could
  127  injure an insurer in the marketplace by providing its
  128  competitors with detailed insight into the reserve assumptions
  129  and strategies, modeling methodologies, business plans, pricing
  130  and marketing strategies, management systems and operational
  131  protocols, and financial status of the insurer, thereby
  132  diminishing the advantage that the insurer maintains over
  133  competitors that do not possess such information. Without this
  134  exemption, an insurer or an acquiring party might refrain from
  135  providing accurate and unbiased data, thus impairing the
  136  office’s ability to accurately evaluate the propriety of
  137  proposed acquisitions in the state and the financial condition
  138  of insurers and their affiliates. Proprietary business
  139  information derives actual or potential independent economic
  140  value from not being generally known to, and not being readily
  141  ascertainable by proper means by, other persons who can derive
  142  economic value from its disclosure or use. The office, in
  143  performing its duties and responsibilities, may need to obtain
  144  proprietary business information from insurers and regulated
  145  entities. Without an exemption from public records requirements
  146  for proprietary business information provided to the office,
  147  such information becomes a public record when received and must
  148  be divulged upon request. Divulgence of proprietary business
  149  information under the public records law would destroy the value
  150  of that property to the proprietor, causing a financial loss not
  151  only to the proprietor but also to the residents of this state
  152  due to the loss of reliable financial data necessary for the
  153  accurate evaluation of proposed acquisitions. Release of
  154  proprietary business information would give business competitors
  155  an unfair advantage and weaken the position in the marketplace
  156  of the proprietor who owns or controls the business information.
  157         (2) The Legislature also finds that it is a public
  158  necessity that information received by the office from the
  159  National Association of Insurance Commissioners, or from an
  160  agency in this or another state or nation or the Federal
  161  Government, which is otherwise exempt or confidential pursuant
  162  to the laws of this or another state or nation or pursuant to
  163  federal law or which is confidential or exempt if held by that
  164  entity, for use by the office in the performance of duties
  165  related to insurer valuation and solvency under the Florida
  166  Insurance Code, be made confidential and exempt from s.
  167  119.07(1), Florida Statutes, and s. 24(a), Article I of the
  168  State Constitution. Divulgence of such information could impede
  169  the exchange of information and communication among regulators
  170  across multiple agencies and jurisdictions and jeopardize the
  171  ability of regulators to effectively supervise insurers and
  172  groups operating in multiple jurisdictions and engaged in
  173  significant cross-border activities.
  174         Section 3. This act shall take effect October 1, 2014, if
  175  SB 1308 or similar legislation is adopted in the same
  176  legislative session or an extension thereof and becomes a law.