Florida Senate - 2017                                    SB 1504
       
       
        
       By Senator Rouson
       
       
       
       
       
       19-01991-17                                           20171504__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         119.071, F.S.; defining terms; providing that
    4         proprietary confidential business information held by
    5         an agency is confidential and exempt from public
    6         records requirements; authorizing the custodial agency
    7         to grant a request to inspect or copy a record that
    8         contains proprietary confidential business information
    9         under certain circumstances; authorizing any person to
   10         petition a court for the public release of those
   11         portions of a record made confidential and exempt by
   12         the act; providing requirements for the petition and
   13         the court order; providing that the act does not
   14         supersede any other applicable public records
   15         exemptions that existed before a certain date;
   16         providing for future legislative review and repeal of
   17         the exemption under the Open Government Sunset Review
   18         Act; providing a finding of public necessity;
   19         repealing s. 815.045, F.S., relating to trade secret
   20         information; providing an effective date.
   21  
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Paragraph (g) is added to subsection (1) of
   25  section 119.071, Florida Statutes, to read:
   26         119.071 General exemptions from inspection or copying of
   27  public records.—
   28         (1) AGENCY ADMINISTRATION.—
   29         (g)1.As used in this paragraph, the term:
   30         a.“Proprietary confidential business information” means
   31  information that has been designated by the proprietor when
   32  provided to an agency as information that is owned or controlled
   33  by the proprietor requesting confidentiality under this section;
   34  that is intended to be, and is, treated by that proprietor as
   35  private, is not readily ascertainable or publicly available from
   36  any other source, and, if disclosed, would cause harm to the
   37  business operations of the proprietor; that has not been
   38  intentionally disclosed by the proprietor other than under a
   39  private agreement that prohibits the release of the information
   40  to the public except as required by law or legal process or
   41  pursuant to an order of a court or administrative hearing
   42  officer; and that concerns:
   43         (I)Business plans;
   44         (II)Internal auditing controls and reports of internal
   45  auditors;
   46         (III)Reports of external auditors for privately held
   47  companies; or
   48         (IV)Trade secrets as defined in s. 688.002.
   49         b.“Proprietor” means any self-employed individual,
   50  proprietorship, corporation, partnership, limited partnership,
   51  firm, enterprise, franchise, association, trust, or business
   52  entity, whether fictitiously named or not, authorized to do or
   53  doing business in this state, including its respective
   54  authorized officer, employee, agent, or successor in interest,
   55  which controls or owns the proprietary confidential business
   56  information provided to an agency.
   57         2.Proprietary confidential business information held by an
   58  agency is confidential and exempt from s. 119.07(1) and s.
   59  24(a), Art. I of the State Constitution. This exemption applies
   60  to proprietary confidential business information held by an
   61  agency before, on, or after July 1, 2017.
   62         3. Notwithstanding subparagraph 2., if a person requests to
   63  inspect or copy a record under s. 119.07(1) which contains
   64  proprietary confidential business information, the custodial
   65  agency shall notify the proprietor of the information of the
   66  request. The request shall be granted unless, within a
   67  reasonable period of time, the proprietor verifies the following
   68  conditions to that agency through a written declaration in the
   69  manner provided by s. 92.525:
   70         a.That the requested record contains proprietary
   71  confidential business information and the specific location of
   72  such information within the record;
   73         b.If the proprietary confidential business information is
   74  a trade secret, a verification that it is a trade secret as
   75  defined in s. 688.002;
   76         c.That the proprietary confidential business information
   77  is intended to be, and is, treated by the proprietor as private,
   78  is the subject of efforts of the proprietor to maintain its
   79  privacy, and is not readily ascertainable or publicly available
   80  from any other source; and
   81         d.That the disclosure of the proprietary confidential
   82  business information to the public would harm the business
   83  operations of the proprietor.
   84         4.Any person may petition a court of competent
   85  jurisdiction for an order for the public release of those
   86  portions of any record made confidential and exempt by
   87  subparagraph 2. Any action under this subparagraph for
   88  information held by a state agency must be brought in Leon
   89  County, and the petition or other initial pleading shall be
   90  served on the custodial agency and, if determinable upon
   91  diligent inquiry, on the proprietor of the information. In any
   92  order for the public release of a record under this
   93  subparagraph, the court shall make a finding that the record or
   94  portion thereof is not a trade secret as defined in s. 688.002,
   95  that a compelling public interest is served by the release of
   96  the record or portions thereof which exceed the public necessity
   97  for maintaining the confidentiality of such record or portions
   98  thereof, and that the release of the record or portion thereof
   99  will not cause damage to or adversely affect the interests of
  100  the proprietor of the released information, other private
  101  persons or business entities, or the agency.
  102         5.This paragraph does not supersede any other applicable
  103  public records exemption existing before July 1, 2017, or
  104  created thereafter.
  105         6.This paragraph is subject to the Open Government Sunset
  106  Review Act in accordance with s. 119.15 and shall stand repealed
  107  on October 2, 2022, unless reviewed and saved from repeal
  108  through reenactment by the Legislature.
  109         Section 2. The Legislature finds that it is a public
  110  necessity that proprietary confidential business information,
  111  including trade secrets, be made confidential and exempt from s.
  112  119.07(1), Florida Statutes and s. 24(a), Art. I of the State
  113  Constitution. Proprietary confidential business information
  114  derives actual or potential independent economic value from not
  115  being generally known to, and not being readily ascertainable by
  116  proper means by, other persons who can obtain economic value
  117  from its disclosure or use. An agency, in performing its lawful
  118  duties and responsibilities, may need to obtain from the
  119  proprietor confidential business information. Without an
  120  exemption from public records requirements for proprietary
  121  confidential business information held by an agency, such
  122  information becomes a public record when received by the agency
  123  and must be divulged upon request. Divulgence of any proprietary
  124  confidential business information under public records laws
  125  would destroy the value of that property to the proprietor,
  126  causing a financial loss not only to the proprietor but also to
  127  the state or local governments due to loss of tax revenue and
  128  employment opportunities for residents. Release of that
  129  information would give business competitors an unfair advantage
  130  and weaken the position of the proprietor of the confidential
  131  business information in the marketplace. Thus, the Legislature
  132  finds that it is a public necessity that proprietary
  133  confidential business information held by an agency be made
  134  confidential and exempt from public records requirements.
  135         Section 3. Section 815.045, Florida Statutes, is repealed.
  136         Section 4. This act shall take effect July 1, 2017.