Florida Senate - 2016                              CS for SB 624
       
       
        
       By the Committee on Governmental Oversight and Accountability;
       and Senator Hays
       
       
       
       
       585-01760-16                                           2016624c1
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         282.318, F.S.; creating exemptions from public records
    4         requirements for certain records held by a state
    5         agency which identify detection, investigation, or
    6         response practices for suspected or confirmed
    7         information technology security incidents and for
    8         certain portions of risk assessments, evaluations,
    9         external audits, and other reports of a state agency’s
   10         information technology program; authorizing disclosure
   11         of confidential and exempt information to certain
   12         agencies and officers; providing for retroactive
   13         application; providing for future legislative review
   14         and repeal of the exemptions; providing statements of
   15         public necessity; providing an effective date.
   16          
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Paragraph (i) of subsection (4) of section
   20  282.318, Florida Statutes, is amended, present subsection (5) of
   21  that section is renumbered as subsection (6), and a new
   22  subsection (5) is added to that section, to read:
   23         282.318 Security of data and information technology.—
   24         (4) Each state agency head shall, at a minimum:
   25         (i) Develop a process for detecting, reporting, and
   26  responding to threats, breaches, or information technology
   27  security incidents which is that are consistent with the
   28  security rules, guidelines, and processes established by the
   29  Agency for State Technology.
   30         1. All information technology security incidents and
   31  breaches must be reported to the Agency for State Technology.
   32         2. For information technology security breaches, state
   33  agencies shall provide notice in accordance with s. 501.171.
   34         3. Records held by a state agency which identify detection,
   35  investigation, or response practices for suspected or confirmed
   36  information technology security incidents, including suspected
   37  or confirmed breaches, are confidential and exempt from s.
   38  119.07(1) and s. 24(a), Art. I of the State Constitution, if the
   39  disclosure of such records would facilitate unauthorized access
   40  to or the unauthorized modification, disclosure, or destruction
   41  of:
   42         a. Data or information, whether physical or virtual; or
   43         b. Information technology resources, which includes:
   44         (I) Information relating to the security of the agency’s
   45  technologies, processes, and practices designed to protect
   46  networks, computers, data processing software, and data from
   47  attack, damage, or unauthorized access; or
   48         (II) Security information, whether physical or virtual,
   49  which relates to the agency’s existing or proposed information
   50  technology systems.
   51  
   52  Such records shall be available to the Auditor General, the
   53  Agency for State Technology, the Cybercrime Office of the
   54  Department of Law Enforcement, and, for state agencies under the
   55  jurisdiction of the Governor, the Chief Inspector General. Such
   56  records may be made available to a local government, another
   57  state agency, or a federal agency for information technology
   58  security purposes or in furtherance of the state agency’s
   59  official duties. This exemption applies to such records held by
   60  a state agency before, on, or after the effective date of this
   61  exemption. This subparagraph is subject to the Open Government
   62  Sunset Review Act in accordance with s. 119.15 and shall stand
   63  repealed on October 2, 2021, unless reviewed and saved from
   64  repeal through reenactment by the Legislature.
   65         (5) The portions of risk assessments, evaluations, external
   66  audits, and other reports of a state agency’s information
   67  technology security program for the data, information, and
   68  information technology resources of the state agency which are
   69  held by a state agency are confidential and exempt from s.
   70  119.07(1) and s. 24(a), Art. I of the State Constitution if the
   71  disclosure of such portions of records would facilitate
   72  unauthorized access to or the unauthorized modification,
   73  disclosure, or destruction of:
   74         (a) Data or information, whether physical or virtual; or
   75         (b) Information technology resources, which include:
   76         1. Information relating to the security of the agency’s
   77  technologies, processes, and practices designed to protect
   78  networks, computers, data processing software, and data from
   79  attack, damage, or unauthorized access; or
   80         2. Security information, whether physical or virtual, which
   81  relates to the agency’s existing or proposed information
   82  technology systems.
   83  
   84  Such portions of records shall be available to the Auditor
   85  General, the Cybercrime Office of the Department of Law
   86  Enforcement, the Agency for State Technology, and, for agencies
   87  under the jurisdiction of the Governor, the Chief Inspector
   88  General. Such portions of records may be made available to a
   89  local government, another state agency, or a federal agency for
   90  information technology security purposes or in furtherance of
   91  the state agency’s official duties. For purposes of this
   92  subsection, “external audit” means an audit that is conducted by
   93  an entity other than the state agency that is the subject of the
   94  audit. This exemption applies to such records held by a state
   95  agency before, on, or after the effective date of this
   96  exemption. This subsection is subject to the Open Government
   97  Sunset Review Act in accordance with s. 119.15 and shall stand
   98  repealed on October 2, 2021, unless reviewed and saved from
   99  repeal through reenactment by the Legislature.
  100         Section 2. (1)(a) The Legislature finds that it is a public
  101  necessity that public records held by a state agency which
  102  identify detection, investigation, or response practices for
  103  suspected or confirmed information technology security
  104  incidents, including suspected or confirmed breaches, be made
  105  confidential and exempt from s. 119.07(1), Florida Statutes, and
  106  s. 24(a), Article I of the State Constitution if the disclosure
  107  of such records would facilitate unauthorized access to or the
  108  unauthorized modification, disclosure, or destruction of:
  109         1. Data or information, whether physical or virtual; or
  110         2. Information technology resources, which includes:
  111         a. Information relating to the security of the agency’s
  112  technologies, processes, and practices designed to protect
  113  networks, computers, data processing software, and data from
  114  attack, damage, or unauthorized access; or
  115         b. Security information, whether physical or virtual, which
  116  relates to the agency’s existing or proposed information
  117  technology systems.
  118         (b) Such records shall be made confidential and exempt for
  119  the following reasons:
  120         1. Records held by a state agency which identify
  121  information technology detection, investigation, or response
  122  practices for suspected or confirmed information technology
  123  incidents or breaches are likely to be used in the investigation
  124  of the incident or breach. The release of such information could
  125  impede the investigation and impair the ability of reviewing
  126  entities to effectively and efficiently execute their
  127  investigative duties. In addition, the release of such
  128  information before completion of an active investigation could
  129  jeopardize the ongoing investigation.
  130         2. An investigation of an information technology security
  131  incident or breach is likely to result in the gathering of
  132  sensitive personal information, including identification numbers
  133  and personal financial and health information not otherwise
  134  exempt or confidential and exempt from public records
  135  requirements under any other law. Such information could be used
  136  for the purpose of identity theft or other crimes. In addition,
  137  release of such information could subject possible victims of
  138  the incident or breach to further harm.
  139         3. Disclosure of a record, including a computer forensic
  140  analysis, or other information that would reveal weaknesses in a
  141  state agency’s data security could compromise the future
  142  security of that agency or other entities if such information
  143  were available upon conclusion of an investigation or once an
  144  investigation ceased to be active. The disclosure of such a
  145  record or information could compromise the security of state
  146  agencies and make those state agencies susceptible to future
  147  data incidents or breaches.
  148         4. Such records are likely to contain proprietary
  149  information about the security of the system at issue. The
  150  disclosure of such information could result in the
  151  identification of vulnerabilities and further breaches of that
  152  system. In addition, the release of such information could give
  153  business competitors an unfair advantage and weaken the position
  154  of the entity supplying the proprietary information in the
  155  marketplace.
  156         5. The disclosure of such records could potentially
  157  compromise the confidentiality, integrity, and availability of
  158  state agency data and information technology resources, which
  159  would significantly impair the administration of vital
  160  governmental programs. It is necessary that this information be
  161  made confidential in order to protect the technology systems,
  162  resources, and data of state agencies. The Legislature further
  163  finds that this public records exemption be given retroactive
  164  application because it is remedial in nature.
  165         (2)(a) The Legislature also finds that it is a public
  166  necessity that portions of risk assessments, evaluations,
  167  external audits, and other reports of a state agency’s
  168  information technology security program for the data,
  169  information, and information technology resources of the state
  170  agency which are held by a state agency be made confidential and
  171  exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  172  Article I of the State Constitution if the disclosure of such
  173  portions of records would facilitate unauthorized access to or
  174  the unauthorized modification, disclosure, or destruction of:
  175         1. Data or information, whether physical or virtual; or
  176         2. Information technology resources, which includes:
  177         a. Information relating to the security of the agency’s
  178  technologies, processes, and practices designed to protect
  179  networks, computers, data processing software, and data from
  180  attack, damage, or unauthorized access; or
  181         b. Security information, whether physical or virtual, which
  182  relates to the agency’s existing or proposed information
  183  technology systems.
  184         (b) The Legislature finds that it may be valuable, prudent,
  185  or critical to a state agency to have an independent entity
  186  conduct a risk assessment, an audit, or an evaluation or
  187  complete a report of the state agency’s information technology
  188  program or related systems. Such documents would likely include
  189  an analysis of the state agency’s current information technology
  190  program or systems which could clearly identify vulnerabilities
  191  or gaps in current systems or processes and propose
  192  recommendations to remedy identified vulnerabilities. The
  193  disclosure of such portions of records would jeopardize the
  194  information technology security of the state agency, and
  195  compromise the integrity and availability of agency data and
  196  information technology resources, which would significantly
  197  impair the administration of governmental programs. It is
  198  necessary that such portions of records be made confidential and
  199  exempt from public records requirements in order to protect
  200  agency technology systems, resources, and data. The Legislature
  201  further finds that this public records exemption shall be given
  202  retroactive application because it is remedial in nature.
  203         Section 3. This act shall take effect upon becoming a law.