Florida Senate - 2021                                    SB 7074
       
       
        
       By the Committee on Governmental Oversight and Accountability
       
       
       
       
       
       585-03841-21                                          20217074__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         287.137, F.S.; providing a public records exemption
    4         for information received by the Attorney General
    5         pursuant to an investigation by the Attorney General
    6         or a law enforcement agency into certain social media
    7         platform activities; authorizing release of
    8         confidential and exempt information in certain
    9         instances; requiring certain information to remain
   10         confidential and exempt after an investigation is
   11         completed or ceases to be active; defining the term
   12         “proprietary business information”; providing for
   13         future legislative review and repeal of the exemption;
   14         amending s. 501.2041, F.S.; providing a public records
   15         exemption for information received by the Department
   16         of Legal Affairs pursuant to an investigation by the
   17         department or a law enforcement agency into violations
   18         by certain social media platforms; authorizing release
   19         of confidential and exempt information in certain
   20         instances; requiring certain information to remain
   21         confidential and exempt after an investigation is
   22         completed or ceases to be active; defining the term
   23         “proprietary business information”; providing for
   24         future legislative review and repeal of the exemption;
   25         providing a statement of public necessity; providing a
   26         contingent effective date.
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Subsection (8) is added to section 287.137,
   31  Florida Statutes, as created by SB 7072, 2021 Regular Session,
   32  to read:
   33         287.137 Antitrust violations; denial or revocation of the
   34  right to transact business with public entities; denial of
   35  economic benefits.—
   36         (8)(a)All information received by the Attorney General
   37  under paragraph (3)(d) pursuant to an investigation by the
   38  Attorney General or a law enforcement agency is confidential and
   39  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
   40  Constitution until such time as the investigation is completed
   41  or ceases to be active. This exemption shall be construed in
   42  conformity with s. 119.071(2)(c).
   43         (b)During an active investigation, information made
   44  confidential and exempt pursuant to paragraph (a) may be
   45  disclosed by the Attorney General:
   46         1.In the performance of his or her official duties and
   47  responsibilities; or
   48         2.To another governmental entity in performance of its
   49  official duties and responsibilities.
   50         (c)Once an investigation is completed or ceases to be
   51  active, the following information received by the Attorney
   52  General shall remain confidential and exempt from s. 119.07(1)
   53  and s. 24(a), Art. I of the State Constitution:
   54         1.All information to which another public records
   55  exemption applies.
   56         2.Personal identifying information.
   57         3.A computer forensic report.
   58         4.Information that would otherwise reveal weaknesses in a
   59  business’ data security.
   60         5.Proprietary business information.
   61         (d)For purposes of this subsection, the term “proprietary
   62  business information” means information that:
   63         1.Is owned or controlled by the business;
   64         2.Is intended to be private and is treated by the business
   65  as private because disclosure would harm the business or its
   66  business operations;
   67         3.Has not been disclosed except as required by law or a
   68  private agreement that provides that the information will not be
   69  released to the public;
   70         4.Is not publicly available or otherwise readily
   71  ascertainable through proper means from another source in the
   72  same configuration as received by the Attorney General; and
   73         5.Includes:
   74         a.Trade secrets as defined in s. 688.002.
   75         b.Competitive interests, the disclosure of which would
   76  impair the competitive advantage of the business that is the
   77  subject of the information.
   78         (e)This subsection is subject to the Open Government
   79  Sunset Review Act in accordance with s. 119.15 and shall stand
   80  repealed on October 2, 2026, unless reviewed and saved from
   81  repeal through reenactment by the Legislature.
   82         Section 2. Subsection (10) is added to section 501.2041,
   83  Florida Statutes, as created by SB 7072, 2021 Regular Session,
   84  to read:
   85         501.2041 Unlawful acts and practices by social media
   86  platforms.—
   87         (10)(a)All information received by the department pursuant
   88  to an investigation by the department or a law enforcement
   89  agency of a violation of this section is confidential and exempt
   90  from s. 119.07(1) and s. 24(a), Art. I of the State Constitution
   91  until such time as the investigation is completed or ceases to
   92  be active. This exemption shall be construed in conformity with
   93  s. 119.071(2)(c).
   94         (b)During an active investigation, information made
   95  confidential and exempt pursuant to paragraph (a) may be
   96  disclosed by the department:
   97         1.In the performance of its official duties and
   98  responsibilities; or
   99         2.To another governmental entity in performance of its
  100  official duties and responsibilities.
  101         (c)Once an investigation is completed or ceases to be
  102  active, the following information received by the department
  103  shall remain confidential and exempt from s. 119.07(1) and s.
  104  24(a), Art. I of the State Constitution:
  105         1.All information to which another public records
  106  exemption applies.
  107         2.Personal identifying information.
  108         3.A computer forensic report.
  109         4.Information that would otherwise reveal weaknesses in a
  110  business’ data security.
  111         5.Proprietary business information.
  112         (d)For purposes of this subsection, the term “proprietary
  113  business information” means information that:
  114         1.Is owned or controlled by the business;
  115         2.Is intended to be private and is treated by the business
  116  as private because disclosure would harm the business or its
  117  business operations;
  118         3.Has not been disclosed except as required by law or a
  119  private agreement that provides that the information will not be
  120  released to the public;
  121         4.Is not publicly available or otherwise readily
  122  ascertainable through proper means from another source in the
  123  same configuration as received by the department; and
  124         5.Includes:
  125         a.Trade secrets as defined in s. 688.002.
  126         b.Competitive interests, the disclosure of which would
  127  impair the competitive advantage of the business that is the
  128  subject of the information.
  129         (e)This subsection is subject to the Open Government
  130  Sunset Review Act in accordance with s. 119.15 and shall stand
  131  repealed on October 2, 2026, unless reviewed and saved from
  132  repeal through reenactment by the Legislature.
  133         Section 3. The Legislature finds that it is a public
  134  necessity that all information received by the Attorney General
  135  and the Department of Legal Affairs pursuant to an investigation
  136  by the Attorney General, the Department of Legal Affairs, or a
  137  law enforcement agency under ss. 287.137 and 501.2041, Florida
  138  Statutes, be made confidential and exempt from s. 119.07(1),
  139  Florida Statutes, and s. 24(a), Article I of the State
  140  Constitution for the following reasons:
  141         (1)A notification of a violation of s. 501.172, Florida
  142  Statutes, or antitrust laws may result in an investigation of
  143  such violations. The premature release of such investigatory
  144  information could frustrate or thwart the investigation and
  145  impair the ability of the Attorney General and the Department of
  146  Legal Affairs to effectively and efficiently administer ss.
  147  287.137 and 501.2041, Florida Statutes. In addition, release of
  148  such information before completion of an active investigation
  149  could jeopardize the ongoing investigation.
  150         (2)To continue to protect from public disclosure all
  151  information to which another public record exemption applies
  152  once an investigation is completed or ceases to be active.
  153  Release of such information by the Department of Legal Affairs
  154  and the Attorney General would undo the specific statutory
  155  exemption protecting that information.
  156         (3)An investigation of social media platform activities is
  157  likely to result in the gathering of personal identifying
  158  information that could be used for the purpose of identity
  159  theft. For this reason, personal identifying information should
  160  remain confidential and exempt once an investigation is
  161  completed or ceases to be active.
  162         (4)Information received by the Attorney General and the
  163  Department of Legal Affairs may contain proprietary business
  164  information, including trade secrets. Through such information,
  165  including trade secrets, a business derives independent,
  166  economic value, actual or potential, from the information being
  167  generally unknown to, and not readily ascertainable by, other
  168  persons who might obtain economic value from its disclosure or
  169  use. Allowing public access to proprietary business information,
  170  including trade secrets, through a public records request could
  171  destroy the value of the proprietary business information and
  172  cause a financial loss to the business submitting the
  173  information. Release of such information could give business
  174  competitors an unfair advantage and weaken the position of the
  175  entity supplying the proprietary business information in the
  176  marketplace.
  177         (5)Information received by the Attorney General and the
  178  Department of Legal Affairs may contain a computer forensic
  179  report or information that could reveal weaknesses in a
  180  business’ data security. The release of this information could
  181  result in the identification of vulnerabilities in the business’
  182  cybersecurity system and be used to harm the business and the
  183  business’ clients. For this reason, a computer forensic report
  184  and information that could reveal weaknesses in a business’ data
  185  security should remain confidential and exempt once an
  186  investigation is completed or ceases to be active.
  187         (6)The Legislature finds that the harm that may result
  188  from the release of information received by the Attorney General
  189  and the Department of Legal Affairs pursuant to an investigation
  190  by the Attorney General, the Department of Legal Affairs, or a
  191  law enforcement agency under ss. 287.137 and 501.2041, Florida
  192  Statutes, could impair the effective and efficient
  193  administration of these investigations and thus, outweighs the
  194  public benefit that may be derived from the disclosure of the
  195  information.
  196         Section 4. This act shall take effect July 1, 2021, if SB
  197  7072 or similar legislation takes effect, if such legislation is
  198  adopted in the same legislative session or an extension thereof
  199  and becomes a law.