Florida Senate - 2018                                     SB 958
       By Senator Mayfield
       17-00950-18                                            2018958__
    1                        A bill to be entitled                      
    2         An act relating to public records; creating s. 688.01,
    3         F.S.; providing definitions; providing an exemption
    4         from public records requirements for a trade secret
    5         held by an agency; providing notice requirements;
    6         providing a process for responding to public records
    7         requests; providing an exception to the exemption;
    8         providing that an agency employee is not liable for
    9         the release of records in compliance with the act;
   10         providing for future legislative review and repeal of
   11         the exemption; amending ss. 688.001 and 688.006, F.S.;
   12         conforming cross-references; providing a statement of
   13         public necessity; providing a contingent effective
   14         date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Section 688.01, Florida Statutes, is created to
   19  read:
   20         688.01Trade secret exemption from inspecting or copying
   21  public records.—
   22         (1)DEFINITIONS.—As used in this section, the term:
   23         (a)“Agency” has the same meaning as in s. 119.011.
   24         (b)“Trade secret” has the same meaning as in s. 688.002,
   25  except that the term does not include:
   26         1.Any contract or agreement, or an addendum thereto, to
   27  which an agency is a party.
   28         2.Financial information related to any contract or
   29  agreement, or an addendum thereto, with an agency, including,
   30  but not limited to, the amount of money paid and any payment
   31  structure or plan, expenditures, incentives, fees, or penalties.
   32         (2)PUBLIC RECORDS EXEMPTION.—A trade secret held by an
   33  agency is confidential and exempt from s. 119.07(1) and s.
   34  24(a), Art. I of the State Constitution.
   35         (3)NOTICE OF TRADE SECRET.—
   36         (a)If a person who submits records to an agency claims
   37  that such submission contains a trade secret, such person must
   38  submit to the agency a notice of trade secret when such records
   39  are submitted to the agency. Failure to submit such notice
   40  constitutes a waiver of any claim by such person that the record
   41  contains a trade secret. The notice must provide the name,
   42  telephone number, and mailing address of the person claiming the
   43  record contains a trade secret. Such person is responsible for
   44  updating his or her contact information with the agency.
   45         (b)Each page of a record or specific portion of a record
   46  that contains a trade secret must be clearly marked with the
   47  words “trade secret.”
   48         (c)In submitting a notice of trade secret to the agency,
   49  the submitting party shall verify to the agency through a
   50  written declaration in the manner provided in s. 92.525 the
   51  following:
   53         ... (I have/my company has)... read the definition of a
   54  trade secret in s. 688.01, Florida Statutes, and ... (I
   55  believe/my company believes)... the information contained in
   56  this record is a trade secret as defined in s. 688.01, Florida
   57  Statutes.
   58         ... (I have/my company has)... taken measures to prevent
   59  the disclosure of the record or specific portion of a record
   60  claimed to be a trade secret to anyone other than those who have
   61  been selected to have access for limited purposes, and ...
   62  (intend/my company intends)... to continue to take such
   63  measures.
   64         The record or specific portion of a record claimed to be a
   65  trade secret is not, and has not been, reasonably obtainable
   66  without ... (my/our)... consent by other persons by use of
   67  legitimate means.
   68         The record or specific portion of a record claimed to be a
   69  trade secret is not publicly available elsewhere.
   72         (a)If an agency receives a request for a public record and
   73  the requested record or a specific portion of the record is
   74  marked and verified as containing a trade secret, the agency
   75  shall promptly notify the person who verified the record or
   76  specific portion of the record as containing a trade secret. The
   77  notice shall be sent to the address provided to the agency and
   78  must inform such person that, in order to avoid disclosure of
   79  the trade secret, the person must file an action in circuit
   80  court within 30 days after the date of the notice seeking a
   81  declaratory judgment that the record in question contains a
   82  trade secret and an order barring public disclosure of the
   83  record.
   84         (b)The petition or other initial pleading shall be served
   85  on the agency.
   86         (c)If the identity of and contact information for the
   87  person requesting a record are available to the agency, as soon
   88  as practicable after receiving a request under paragraph (a),
   89  the agency must notify such person that:
   90         1.The record has been verified as containing a trade
   91  secret. The notification must inform the person of the process
   92  provided in paragraph (a).
   93         2.An action has been filed.
   94         (d)The agency may not release the record pending the
   95  outcome of the legal action. Failure to file an action within 30
   96  days after the date of the notice constitutes a waiver of any
   97  claim of confidentiality, and the agency shall release the
   98  record as requested.
   99         (e)Any action under this subsection must be brought in the
  100  county in which the agency in possession of the record is
  101  headquartered.
  102         (5)AGENCY ACCESS.—An agency may disclose a trade secret,
  103  together with the notice of trade secret, to an officer or
  104  employee of another agency or governmental entity whose use of
  105  the trade secret is within the scope of his or her lawful duties
  106  and responsibilities.
  107         (6)LIABILITY.—An agency employee who, while acting in good
  108  faith and in the performance of his or her duties, releases a
  109  record containing a trade secret pursuant to this act is not
  110  liable, civilly or criminally, for such release.
  111         (7)OPEN GOVERNMENT SUNSET REVIEW.—This section is subject
  112  to the Open Government Sunset Review Act in accordance with s.
  113  119.15 and shall stand repealed on October 2, 2023, unless
  114  reviewed and saved from repeal through reenactment by the
  115  Legislature.
  116         Section 2. Section 688.001, Florida Statutes, is amended to
  117  read:
  118         688.001 Short title.—Sections 688.001-688.01 Sections
  119  688.001-688.009 may be cited as the “Uniform Trade Secrets Act.”
  120         Section 3. Section 688.006, Florida Statutes, is amended to
  121  read:
  122         688.006 Preservation of secrecy.—In an action under ss.
  123  688.001-688.01 ss. 688.001-688.009, a court shall preserve the
  124  secrecy of an alleged trade secret by reasonable means, which
  125  may include granting protective orders in connection with
  126  discovery proceedings, holding in camera hearings, sealing the
  127  records of the action, and ordering any person involved in the
  128  litigation not to disclose an alleged trade secret without prior
  129  court approval.
  130         Section 4. The Legislature finds that it is a public
  131  necessity that trade secrets held by an agency be made
  132  confidential and exempt from s. 119.07(1), Florida Statutes, and
  133  s. 24(a), Article I of the State Constitution. The Legislature
  134  recognizes that, in many instances, individuals and businesses
  135  provide trade secret information for regulatory or other
  136  purposes to an agency and that disclosure of such information to
  137  competitors of those businesses would be detrimental to the
  138  businesses. Without the public records exemption, those entities
  139  would hesitate to cooperate with an agency, which would impair
  140  the effective and efficient administration of governmental
  141  functions. As such, the Legislature’s intent is to protect trade
  142  secret information of a confidential nature that includes a
  143  formula, pattern, compilation, program, device, method,
  144  technique, or process used that derives independent economic
  145  value, actual or potential, from not being generally known to,
  146  and not being readily ascertainable by proper means by, other
  147  persons who can obtain economic value from its disclosure or
  148  use. Therefore, the Legislature finds that the need to protect
  149  trade secrets is sufficiently compelling to override this
  150  state’s public policy of open government and that the protection
  151  of such information cannot be accomplished without this
  152  exemption.
  153         Section 5. This act shall take effect on the same date that
  154  SB ___ or similar legislation takes effect, if such legislation
  155  is adopted in the same legislative session or an extension
  156  thereof and becomes a law.