HB 0387 2003
1	A bill to be entitled
2	An act relating to a public records exemption for
3	proprietary confidential business information owned or
4	controlled by the H. Lee Moffitt Cancer Center and
5	Research Institute; amending s. 1004.43, F.S.; revising
6	the exemption for proprietary confidential business
7	information owned or controlled by the not-for-profit
8	corporation which governs and operates the H. Lee Moffitt
9	Cancer Center and Research Institute or subsidiaries of
10	the corporation to include specified materials, potential
11	trade secrets, potentially patentable material, actual
12	trade secrets, business transactions, or proprietary
13	information received, generated, ascertained, or
14	discovered during the course of research conducted within
15	state universities that are exempt from public records
16	requirements under s. 1004.22(2), F.S.; providing for
17	future review and repeal of the exemption; providing a
18	statement of public necessity; providing an effective
19	date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1. Paragraph (b) of subsection (8) of section
24	1004.43, Florida Statutes, is amended to read:
25	1004.43 H. Lee Moffitt Cancer Center and Research
26	Institute.--There is established the H. Lee Moffitt Cancer
27	Center and Research Institute at the University of South
28	Florida.
29	(8)
30	(b) Proprietary confidential business information is
31	confidential and exempt from the provisions of s. 119.07(1) and
32	s. 24(a), Art. I of the State Constitution. However, the Auditor
33	General, the Office of Program Policy Analysis and Government
34	Accountability, and the State Board of Education, pursuant to
35	their oversight and auditing functions, must be given access to
36	all proprietary confidential business information upon request
37	and without subpoena and must maintain the confidentiality of
38	information so received. As used in this paragraph, the term
39	"proprietary confidential business information" means
40	information, regardless of its form or characteristics, which is
41	owned or controlled by the not-for-profit corporation or its
42	subsidiaries; is intended to be and is treated by the not-for-
43	profit corporation or its subsidiaries as private and the
44	disclosure of which would harm the business operations of the
45	not-for-profit corporation or its subsidiaries; has not been
46	intentionally disclosed by the corporation or its subsidiaries
47	unless pursuant to law, an order of a court or administrative
48	body, a legislative proceeding pursuant to s. 5, Art. III of the
49	State Constitution, or a private agreement that provides that
50	the information may be released to the public; and which is
51	information concerning:
52	1. Internal auditing controls and reports of internal
53	auditors;
54	2. Matters reasonably encompassed in privileged attorney-
55	client communications;
56	3. Contracts for managed-care arrangements, including
57	preferred provider organization contracts, health maintenance
58	organization contracts, and exclusive provider organization
59	contracts, and any documents directly relating to the
60	negotiation, performance, and implementation of any such
61	contracts for managed-care arrangements;
62	4. Bids or other contractual data, banking records, and
63	credit agreements the disclosure of which would impair the
64	efforts of the not-for-profit corporation or its subsidiaries to
65	contract for goods or services on favorable terms;
66	5. Information relating to private contractual data, the
67	disclosure of which would impair the competitive interest of the
68	provider of the information;
69	6. Corporate officer and employee personnel information;
70	7. Information relating to the proceedings and records of
71	credentialing panels and committees and of the governing board
72	of the not-for-profit corporation or its subsidiaries relating
73	to credentialing;
74	8. Minutes of meetings of the governing board of the not-
75	for-profit corporation and its subsidiaries, except minutes of
76	meetings open to the public pursuant to subsection (9);
77	9. Information that reveals plans for marketing services
78	that the corporation or its subsidiaries reasonably expect to be
79	provided by competitors;
80	10. Trade secrets as defined in s. 688.002, including
81	reimbursement methodologies or rates;or
82	11. The identity of donors or prospective donors of
83	property who wish to remain anonymous or any information
84	identifying such donors or prospective donors. The anonymity of
85	these donors or prospective donors must be maintained in the
86	auditor's report; or.
87	12. Materials and information exempted under s.
88	1004.22(2). This subparagraph is subject to the Open Government
89	Sunset Review Act of 1995 in accordance with s. 119.15 and shall
90	stand repealed on October 2, 2008, unless reviewed and saved
91	from repeal through reenactment by the Legislature.
92
93	As used in this paragraph, the term "managed care" means systems
94	or techniques generally used by third-party payors or their
95	agents to affect access to and control payment for health care
96	services. Managed-care techniques most often include one or more
97	of the following: prior, concurrent, and retrospective review of
98	the medical necessity and appropriateness of services or site of
99	services; contracts with selected health care providers;
100	financial incentives or disincentives related to the use of
101	specific providers, services, or service sites; controlled
102	access to and coordination of services by a case manager; and
103	payor efforts to identify treatment alternatives and modify
104	benefit restrictions for high-cost patient care.
105	Section 2.(1) In 1995, the Legislature, in its
106	discretion as expressed in chapter 95-263, Laws of Florida, made
107	the not-for-profit corporation organized solely for the purpose
108	of governing and operating the H. Lee Moffitt Cancer Center and
109	Research Institute and its subsidiaries subject to the public
110	records requirements of s. 119.07(1), Florida Statutes, and the
111	open meeting requirements of s. 286.011, Florida Statutes. The
112	provisions of chapter 95-263, Laws of Florida, currently
113	expressed in s. 1004.43, Florida Statutes, exempted from the
114	public records requirements of the not-for-profit corporation
115	trade secrets as defined in s. 688.002, Florida Statutes, owned
116	or controlled by the not-for-profit corporation or its
117	subsidiaries. "Trade secret" which is broadly defined in s.
118	688.002, Florida Statutes, includes a "device, method,
119	technique, or process" that "derives economic value, actual or
120	potential, from not being generally known." As the not-for-
121	profit corporation's research activities have grown, the not-
122	for-profit corporation has enjoyed significant coordination and
123	joint development of research with the University of South
124	Florida Division of Sponsored Research. The public records
125	exemption for divisions of sponsored research at state
126	universities contained in s. 1004.22(2), Florida Statutes, which
127	applies to the Division of Sponsored Research at the University
128	of South Florida, is different than the exemption in s.
129	1004.43(8), Florida Statutes, for the H. Lee Moffitt Cancer
130	Center and Research Institute, and this has led to confusion
131	over the scope of protection of intellectual property enjoyed by
132	the Division of Sponsored Research and the not-for-profit
133	corporation. Conforming the public records exemption in s.
134	1004.43(8), Florida Statutes, with the exemption in s.
135	1004.22(2), Florida Statutes, will eliminate this confusion and
136	allow the not-for-profit corporation to fulfill the institute's
137	mission in the area of cancer research.
138	(2) In the event that the public records exemption in s.
139	1004.22(2), Florida Statutes, is determined to be broader than
140	the public records exemption in s. 1004.43(8), Florida Statutes,
141	a statement of public necessity would be appropriate. Because
142	of the high incidence of cancer in the state, the Legislature
143	recognizes the public need among the citizens of the state for
144	access to the services provided by the H. Lee Moffitt Cancer
145	Center and Research Institute, the public need for rapid
146	advances in cancer prevention, treatments, and cures through
147	medical research, and the public need for the not-for-profit
148	corporation and its subsidiaries that operate the institute to
149	be allowed the maximum degree of flexibility possible to fulfill
150	the institute's mission in cancer treatment, research, and
151	education. The Legislature finds that a public-sector and
152	private-sector partnership between the state and the not-for-
153	profit corporation and its subsidiaries is essential to fulfill
154	the institute's mission. The Legislature further finds that the
155	not-for-profit corporation and its subsidiaries must compete
156	directly with their private-sector counterparts and that their
157	economic survival depends on their ability to so compete. It is
158	the intent of the Legislature that the not-for-profit
159	corporation and its subsidiaries not be at a disadvantage in the
160	competitive health care and medical research environment.
161	(3) The Legislature finds that it is a public necessity
162	that certain records of the not-for-profit corporation which
163	governs and operates the H. Lee Moffitt Cancer Center and
164	Research Institute and its subsidiaries, which contain
165	proprietary confidential business information, including
166	materials that relate to methods of manufacture or production,
167	potential trade secrets, potentially patentable material, actual
168	trade secrets, business transactions, or proprietary information
169	received, generated, ascertained, or discovered during the
170	course of research conducted at the institute or by the not-for-
171	profit corporation or its subsidiaries be confidential and
172	exempt from disclosure in the same manner as provided in s.
173	1004.22(2), Florida Statutes. This exemption is necessary, to
174	the extent that the exemption in s. 1004.22(2), Florida
175	Statutes, is broader than the exemption in s. 1004.43(8),
176	Florida Statutes, because the records contain information that,
177	if disclosed, would adversely impact the not-for-profit
178	corporation or its subsidiaries in the competitive health care
179	and medical research environment. The highly confidential
180	nature of cancer-related research discoveries necessitates that
181	the not-for-profit corporation and its subsidiaries continue to
182	be authorized to maintain confidential information it receives
183	from, or generates for, the sponsors of its research. Without
184	the exemption from public records requirements provided by
185	section 1 of this act, the potential for the disclosure of
186	confidential information would place the not-for-profit
187	corporation and its subsidiaries on an unequal footing in the
188	marketplace as compared with its private health care and medical
189	research competitors that are not required to disclose such
190	proprietary and confidential information. The Legislature finds
191	that disclosure of such proprietary and confidential information
192	would effectively prevent the not-for-profit corporation and its
193	subsidiaries from expeditiously fulfilling the institute's
194	mission of cancer treatment, research, and education.
195	Section 3. This act shall take effect upon becoming a law.
196