Senate Bill 1690

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 2000                                  SB 1690

    By Senator Campbell





    33-1281-00                                              See HB

  1                      A bill to be entitled

  2         An act relating to public records; creating s.

  3         287.0573, F.S.; providing an exemption from

  4         public records requirements for trade secrets

  5         received by an agency procuring commodities or

  6         services; requiring a person filing such

  7         material with the agency to file an affidavit

  8         of confidentiality and providing requirements

  9         with respect thereto; providing requirements

10         with respect to proceedings to compel

11         disclosure of such material; providing for

12         recovery of attorney's fees and costs;

13         specifying effect of a finding that the

14         material is not trade secret information;

15         providing for future review and repeal;

16         providing a finding of public necessity;

17         providing an effective date.

18

19  Be It Enacted by the Legislature of the State of Florida:

20

21         Section 1.  Section 287.0573, Florida Statutes, is

22  created to read:

23         287.0573  Trade secrets; exemption.--

24         (1)  Trade secrets, as defined by s. 812.081, received

25  by an agency procuring commodities or services are

26  confidential and exempt from the provisions of s. 119.07(1)

27  and s. 24(a), Art. I of the State Constitution.

28         (2)  If a vendor or any other person filing material

29  with an agency pursuant to the procurement process expects the

30  agency to keep the material confidential on grounds that the

31  material constitutes a trade secret, as defined by s. 812.081,

                                  1

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                                  SB 1690
    33-1281-00                                              See HB




  1  the vendor or other person shall file the material together

  2  with an affidavit of confidentiality. "Filed material," for

  3  purposes of this section, means material that is filed with an

  4  agency with the expectation that the material will be kept

  5  confidential and that is accompanied by an affidavit of

  6  confidentiality. Filed material that is trade secret

  7  information incudes, but is not limited to, those items and

  8  matters described in s. 815.04(3)(a).

  9         (3)  The affidavit that must accompany filed material

10  pursuant to subsection (2) shall contain a general claim of

11  confidentiality; describe the filed materials; identify the

12  basis upon which the claim of confidentiality is made; and

13  contain supporting argument, precedent, legal citation, or

14  other supporting documentation to enable the agency to satisfy

15  itself that the claim of confidentiality is not merely

16  specious. The agency shall have no duty to inquire into the

17  legal or technical sufficiency of a claim of confidentiality

18  that meets the minimum requirements of this subsection.

19         (4)  In the event that the agency is satisfied as to

20  the facial validity of the claim of confidentiality, the

21  agency shall keep confidential the affidavit and supporting

22  documentation as well as the filed material and shall not

23  disclose such affidavit, documentation, or filed material to

24  any third party, except upon administrative order pursuant to

25  chapter 120 or upon circuit court order.

26         (5)  In the event of any administrative or circuit

27  court proceeding relating to any third-party attempt to compel

28  disclosure of filed material or to challenge the

29  confidentiality thereof, the vendor or other person who filed

30  the material shall be granted leave to appear as amicus curiae

31  before the administrative law judge or the court. The

                                  2

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                                  SB 1690
    33-1281-00                                              See HB




  1  prevailing party in any such attempt to compel disclosure

  2  shall be entitled to recover his or her reasonable attorney's

  3  fees and costs from the losing party.

  4         (6)  In the event that an administrative law judge or

  5  court determines that the filed material is not trade secret

  6  information, the subsequent disclosure by the agency of the

  7  filed material pursuant to s. 119.07(1) shall not be construed

  8  as a commission of an offense against intellectual property

  9  within the meaning of s. 815.04, nor shall the prior refusal

10  of the agency to disclose the filed material subject the

11  agency to penalty or attorney's fees under chapter 119.

12         (7)  This section is subject to the Open Government

13  Sunset Review Act of 1995 in accordance with s. 119.15, and

14  shall stand repealed on October 2, 2005, unless reviewed and

15  saved from repeal through reenactment by the Legislature.

16         Section 2.  The Legislature finds that it is a public

17  necessity that trade secret information, as defined by section

18  812.081, Florida Statutes, be expressly made confidential and

19  exempt from the public records law because it is a felony to

20  disclose such records. Due to the legal uncertainty as to

21  whether a public employee would be protected from a felony

22  conviction if otherwise complying with chapter 119, Florida

23  Statutes, and with Section 24(a), Article I of the State

24  Constitution, it is imperative that a public records exemption

25  be created. The Legislature, in making disclosure of trade

26  secrets a crime, has clearly established the importance

27  attached to trade secret protection. Disclosing trade secrets

28  in an agency's possession would negatively impact the business

29  interests of those providing an agency such trade secrets by

30  damaging them in the marketplace, and those entities and

31  individuals disclosing such trade secrets would hesitate to

                                  3

CODING: Words stricken are deletions; words underlined are additions.






    Florida Senate - 2000                                  SB 1690
    33-1281-00                                              See HB




  1  cooperate with that agency, which would impair the effective

  2  and efficient administration of governmental functions. Thus,

  3  the public and private harm in disclosing trade secrets

  4  significantly outweighs any public benefit derived from

  5  disclosure, and the public's ability to scrutinize and monitor

  6  agency action is not diminished by nondisclosure of trade

  7  secrets.

  8         Section 3.  This act shall take effect October 1, 2000.

  9

10            *****************************************

11                       LEGISLATIVE SUMMARY

12
      Provides an exemption from public records requirements
13    for trade secrets received by an agency procuring
      commodities or services. Requires a person filing such
14    material with the agency to file an affidavit of
      confidentiality and provides requirements with respect
15    thereto. Provides requirements with respect to
      proceedings to compel disclosure of such material.
16    Provides for recovery of attorney's fees and costs.
      Specifies effect of a finding that the material is not
17    trade secret information. Provides for future review and
      repeal.
18

19

20

21

22

23

24

25

26

27

28

29

30

31

                                  4