Florida Senate - 2014                                    SB 1278
       
       
        
       By Senator Richter
       
       
       
       
       
       23-00423C-14                                          20141278__
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         655.057, F.S.; providing an exemption from public
    4         records requirements for certain informal enforcement
    5         actions by the Office of Financial Regulation, to
    6         which penalties apply for willful disclosure of such
    7         confidential information; providing an exemption from
    8         public records requirements for certain trade secrets
    9         held by the office, to which penalties apply for
   10         willful disclosure of such confidential information;
   11         defining terms; providing for future legislative
   12         review and repeal of the section; providing a
   13         statement of public necessity; providing a contingent
   14         effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 655.057, Florida Statutes, is amended to
   19  read:
   20         655.057 Records; limited restrictions upon public access.—
   21         (1) Except as otherwise provided in this section and except
   22  for such portions thereof which are otherwise public record, all
   23  records and information relating to an investigation by the
   24  office are confidential and exempt from the provisions of s.
   25  119.07(1) and s. 24(a), Art. I of the State Constitution until
   26  such investigation is completed or ceases to be active. For
   27  purposes of this subsection, an investigation is considered
   28  “active” while such investigation is being conducted by the
   29  office with a reasonable, good faith belief that it may lead to
   30  the filing of administrative, civil, or criminal proceedings. An
   31  investigation does not cease to be active if the office is
   32  proceeding with reasonable dispatch, and there is a good faith
   33  belief that action may be initiated by the office or other
   34  administrative or law enforcement agency. After an investigation
   35  is completed or ceases to be active, portions of the such
   36  records relating to the investigation are shall be confidential
   37  and exempt from the provisions of s. 119.07(1) and s. 24(a),
   38  Art. I of the State Constitution to the extent that disclosure
   39  would:
   40         (a) Jeopardize the integrity of another active
   41  investigation;
   42         (b) Impair the safety and soundness of the financial
   43  institution;
   44         (c) Reveal personal financial information;
   45         (d) Reveal the identity of a confidential source;
   46         (e) Defame or cause unwarranted damage to the good name or
   47  reputation of an individual or jeopardize the safety of an
   48  individual; or
   49         (f) Reveal investigative techniques or procedures.
   50         (2) Except as otherwise provided in this section and except
   51  for such portions thereof which are public record, reports of
   52  examinations, operations, or condition, including working
   53  papers, or portions thereof, prepared by, or for the use of, the
   54  office or any state or federal agency responsible for the
   55  regulation or supervision of financial institutions in this
   56  state are confidential and exempt from the provisions of s.
   57  119.07(1) and s. 24(a), Art. I of the State Constitution.
   58  However, such reports or papers or portions thereof may be
   59  released to:
   60         (a) The financial institution under examination;
   61         (b) Any holding company of which the financial institution
   62  is a subsidiary;
   63         (c) Proposed purchasers if necessary to protect the
   64  continued financial viability of the financial institution, upon
   65  prior approval by the board of directors of such institution;
   66         (d) Persons proposing in good faith to acquire a
   67  controlling interest in or to merge with the financial
   68  institution, upon prior approval by the board of directors of
   69  the such financial institution;
   70         (e) Any officer, director, committee member, employee,
   71  attorney, auditor, or independent auditor officially connected
   72  with the financial institution, holding company, proposed
   73  purchaser, or person seeking to acquire a controlling interest
   74  in or merge with the financial institution; or
   75         (f) A fidelity insurance company, upon approval of the
   76  financial institution’s board of directors. However, a fidelity
   77  insurance company may receive only that portion of an
   78  examination report relating to a claim or investigation being
   79  conducted by such fidelity insurance company.
   80         (g) Examination, operation, or condition reports of a
   81  financial institution shall be released by the office within 1
   82  year after the appointment of a liquidator, receiver, or
   83  conservator to the such financial institution. However, any
   84  portion of such reports which discloses the identities of
   85  depositors, bondholders, members, borrowers, or stockholders,
   86  other than directors, officers, or controlling stockholders of
   87  the institution, shall remain confidential and exempt from the
   88  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
   89  Constitution.
   90  
   91  Any confidential information or records obtained from the office
   92  pursuant to this paragraph shall be maintained as confidential
   93  and exempt from the provisions of s. 119.07(1) and s. 24(a),
   94  Art. I of the State Constitution.
   95         (3) Except as otherwise provided in this section and except
   96  for such portions thereof which are otherwise public record,
   97  after an investigation relating to an informal enforcement
   98  action is completed or ceases to be active, the informal
   99  enforcement action is confidential and exempt from s. 119.07(1)
  100  and s. 24(a), Art. I of the State Constitution to the extent
  101  that disclosure would:
  102         (a) Jeopardize the integrity of another active
  103  investigation;
  104         (b) Impair the safety and soundness of the financial
  105  institution;
  106         (c) Reveal personal financial information;
  107         (d) Reveal the identity of a confidential source;
  108         (e) Defame or cause unwarranted damage to the good name or
  109  reputation of an individual or jeopardize the safety of an
  110  individual; or
  111         (f) Reveal investigative techniques or procedures.
  112         (4) Except as otherwise provided in this section and except
  113  for such portions thereof which are otherwise public record,
  114  trade secrets, as defined in s. 688.002, which comply with s.
  115  655.0591 and which are held by the office in accordance with its
  116  statutory duties with respect to the financial institutions
  117  codes are confidential and exempt from s. 119.07(1) and s.
  118  24(a), Art. I of the State Constitution.
  119         (5)(3)The provisions of This section does do not prevent
  120  or restrict:
  121         (a) Publishing reports required to be submitted to the
  122  office pursuant to s. 655.045(2)(a) or required by applicable
  123  federal statutes or regulations to be published.
  124         (b) Furnishing records or information to any other state,
  125  federal, or foreign agency responsible for the regulation or
  126  supervision of financial institutions, including Federal Home
  127  Loan Banks.
  128         (c) Disclosing or publishing summaries of the condition of
  129  financial institutions and general economic and similar
  130  statistics and data, provided that the identity of a particular
  131  financial institution is not disclosed.
  132         (d) Reporting any suspected criminal activity, with
  133  supporting documents and information, to appropriate law
  134  enforcement and prosecutorial agencies.
  135         (e) Furnishing information upon request to the Chief
  136  Financial Officer or the Division of Treasury of the Department
  137  of Financial Services regarding the financial condition of any
  138  financial institution that is, or has applied to be, designated
  139  as a qualified public depository pursuant to chapter 280.
  140  
  141  Any confidential information or records obtained from the office
  142  pursuant to this subsection shall be maintained as confidential
  143  and exempt from the provisions of s. 119.07(1) and s. 24(a),
  144  Art. I of the State Constitution.
  145         (6)(4)(a) Orders of courts or of administrative law judges
  146  for the production of confidential records or information shall
  147  provide for inspection in camera by the court or the
  148  administrative law judge, and, after the court or administrative
  149  law judge has made a determination that the documents requested
  150  are relevant or would likely lead to the discovery of admissible
  151  evidence, such said documents shall be subject to further orders
  152  by the court or the administrative law judge to protect the
  153  confidentiality thereof. An Any order directing the release of
  154  information is shall be immediately reviewable, and a petition
  155  by the office for review of such order shall automatically stays
  156  stay further proceedings in the trial court or the
  157  administrative hearing until the disposition of such petition by
  158  the reviewing court. If any other party files such a petition
  159  for review, it operates will operate as a stay of such
  160  proceedings only upon order of the reviewing court.
  161         (b) Confidential records and information furnished pursuant
  162  to a legislative subpoena shall be kept confidential by the
  163  legislative body or committee that which received the records or
  164  information, except in a case involving investigation of charges
  165  against a public official subject to impeachment or removal.,
  166  and then Disclosure of such information shall be only to the
  167  extent determined necessary by the legislative body or committee
  168  to be necessary.
  169         (7)(5) Every credit union and mutual association shall
  170  maintain, in the principal office where its business is
  171  transacted, full and correct records of the names and residences
  172  of all the members of the credit union or mutual association.
  173  Such records are shall be subject to the inspection of all the
  174  members of the credit union or mutual association, and the
  175  officers authorized to assess taxes under state authority,
  176  during business hours of each business day. A current list of
  177  members shall be made available to the office’s examiners for
  178  their inspection and, upon the request of the office, shall be
  179  submitted to the office. Except as otherwise provided in this
  180  subsection, the list of the members of the credit union or
  181  mutual association is confidential and exempt from the
  182  provisions of s. 119.07(1) and s. 24(a), Art. I of the State
  183  Constitution.
  184         (8)(6) Every bank, trust company, and stock association
  185  shall maintain, in the principal office where its business is
  186  transacted, full and complete records of the names and
  187  residences of all the shareholders of the bank, trust company,
  188  or stock association and the number of shares held by each. Such
  189  records are shall be subject to the inspection of all the
  190  shareholders of the bank, trust company, or stock association,
  191  and the officers authorized to assess taxes under state
  192  authority, during business hours of each banking day. A current
  193  list of shareholders shall be made available to the office’s
  194  examiners for their inspection and, upon the request of the
  195  office, shall be submitted to the office. Except as otherwise
  196  provided in this subsection, any portion of this list which
  197  reveals the identities of the shareholders is confidential and
  198  exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
  199  of the State Constitution.
  200         (9)(7) Materials supplied to the office or to employees of
  201  any financial institution by other state or federal governmental
  202  agencies, federal or state, shall remain the property of the
  203  submitting agency or the corporation, and any document request
  204  must be made to the appropriate agency. Any confidential
  205  documents supplied to the office or to employees of any
  206  financial institution by other state or federal governmental
  207  agencies are, federal or state, shall be confidential and exempt
  208  from the provisions of s. 119.07(1) and s. 24(a), Art. I of the
  209  State Constitution. Such information shall be made public only
  210  with the consent of such agency or the corporation.
  211         (10)(8) Examination reports, investigatory records,
  212  applications, and related information compiled by the office, or
  213  photographic copies thereof, shall be retained by the office for
  214  a period of at least 10 years.
  215         (11)(9) A copy of any document on file with the office
  216  which is certified by the office as being a true copy may be
  217  introduced in evidence as if it were the original. The
  218  commission shall establish a schedule of fees for preparing true
  219  copies of documents.
  220         (12) As used in this section, the term:
  221         (a) “Examination report” means records submitted to or
  222  prepared by the office as part of the office’s duties performed
  223  pursuant to s. 655.012 or s. 655.045(1).
  224         (b) “Informal enforcement action” means a board resolution,
  225  a document of resolution, or an agreement in writing between the
  226  office and a financial institution which:
  227         1. The office imposes on the institution when the office
  228  considers the administrative enforcement guidelines in s.
  229  655.031 and determines that a formal enforcement action is not
  230  an appropriate administrative remedy;
  231         2. Sets forth a program of corrective action to address one
  232  or more safety and soundness deficiencies and violations of law
  233  or rule at the institution; and
  234         3. Is not subject to enforcement by imposition of an
  235  administrative fine pursuant to s. 655.041.
  236         (c) “Personal financial information” means:
  237         1.Information relating to the existence, nature, source,
  238  or amount of a person’s personal income, expenses, or debt.
  239         2. Information relating to a person’s financial
  240  transactions of any kind.
  241         3. Information relating to the existence, identification,
  242  nature, or value of a person’s assets, liabilities, or net
  243  worth.
  244         (d) “Working papers” means the records of the procedures
  245  followed, the tests performed, the information obtained, and the
  246  conclusions reached in an investigation or examination performed
  247  under ss. 655.032 or 655.045. Working papers include planning,
  248  documentation, work programs, analyses, memoranda, letters of
  249  confirmation and representation, abstracts of the books and
  250  records of a financial institution as defined in s.
  251  655.005(1)(i), and schedules or commentaries prepared or
  252  obtained in the course of such investigation or examination.
  253         (13)(10)A Any person who willfully discloses information
  254  made confidential by this section commits is guilty of a felony
  255  of the third degree, punishable as provided in s. 775.082, s.
  256  775.083, or s. 775.084.
  257         (14) This section is subject to the Open Government Sunset
  258  Review Act in accordance with s. 119.15 and shall stand repealed
  259  on October 2, 2019, unless otherwise saved from repeal through
  260  reenactment by the Legislature.
  261         Section 2. (1)The Legislature finds it a public necessity
  262  that informal enforcement actions and trade secrets, as defined
  263  in s. 688.002, Florida Statutes, be kept confidential and exempt
  264  from s. 119.07(1), Florida Statutes, and s. 24(a), Article I of
  265  the State Constitution.
  266         (2) Public disclosure of an informal enforcement action
  267  could further impair the safety and soundness of a financial
  268  institution that is subject to the action. Furthermore, the
  269  public disclosure of this information could erode public
  270  confidence in financial institutions and the financial
  271  institution system in this state and may lead to a reduced level
  272  of protection of the interests of the depositors and creditors
  273  of financial institutions. Maintaining informal enforcement
  274  actions as confidential and exempt from s. 119.07(1), Florida
  275  Statutes, and s. 24(a), Article I of the State Constitution will
  276  provide to the financial institutions that are chartered by this
  277  state the same protections as those already available to
  278  financial institutions chartered under federal law and by other
  279  states, maintain public confidence in financial institutions
  280  subject to the financial institutions codes, protect the safety
  281  and soundness of the financial institution system in this state,
  282  protect the interests of the depositors and creditors of
  283  financial institutions, promote the opportunity for state
  284  chartered financial institutions to be and remain competitive
  285  with financial institutions chartered by other states or the
  286  United States, and otherwise provide for and promote the
  287  purposes of the financial institutions codes as set forth in s.
  288  655.001, Florida Statutes.
  289         (3) A trade secret derives independent economic value,
  290  actual or potential, from not being generally known to, and not
  291  readily ascertainable by, other persons who can obtain economic
  292  value from the disclosure or use of the trade secret. Without an
  293  exemption for a trade secret held by the office, that trade
  294  secret becomes a public record when received and must be
  295  divulged upon request. Divulging a trade secret under the public
  296  records law would give business competitors an unfair advantage
  297  and destroy the value of that property, causing a financial loss
  298  to the person or entity submitting the trade secret and
  299  weakening the position of that person or entity in the
  300  marketplace.
  301         Section 3. This act shall take effect on the same date that
  302  SB ____ or similar legislation takes effect, if such legislation
  303  is adopted in the same legislative session or an extension
  304  thereof and becomes a law.