Bill Text: FL S1504 | 2017 | Regular Session | Introduced
Bill Title: Public Records/Proprietary Confidential Business Information
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2017-05-05 - Died in Commerce and Tourism [S1504 Detail]
Download: Florida-2017-S1504-Introduced.html
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.
