HB 0387, Engrossed 1 2003
1	A bill to be entitled
2	An act relating to public records and public meetings
3	exemptions; amending s. 1004.43, F.S.; expanding the
4	public records exemption for proprietary confidential
5	business information owned or controlled by the H. Lee
6	Moffitt Cancer Center and Research Institute to include
7	information relating to methods of manufacture or
8	production, potential trade secrets, potentially
9	patentable material, and proprietary information received,
10	generated, ascertained, or discovered during the course of
11	research, and business transactions resulting from such
12	research; expanding the public records exemption to
13	include information received from this or another state or
14	nation or the Federal Government which is otherwise exempt
15	or confidential pursuant to the laws of this or another
16	state or nation or pursuant to federal law; providing for
17	future review and repeal; providing a statement of public
18	necessity; amending s. 1004.445, F.S.; creating a public
19	records exemption for proprietary confidential business
20	information owned or controlled by the Florida Alzheimer's
21	Center and Research Institute; categorizing specified
22	types of information as proprietary confidential business
23	information; defining "managed care"; providing for access
24	to proprietary confidential business information by
25	specified agencies; creating a public meetings exemption
26	for specified meetings of the governing board of the
27	Florida Alzheimer’s Center and Research Institute;
28	providing for future review and repeal of the exemption;
29	providing a statement of public necessity; providing an
30	effective date.
31
32	Be It Enacted by the Legislature of the State of Florida:
33
34	Section 1. Paragraph (b) of subsection (8) of section
35	1004.43, Florida Statutes, is amended to read:
36	1004.43 H. Lee Moffitt Cancer Center and Research
37	Institute.--There is established the H. Lee Moffitt Cancer
38	Center and Research Institute at the University of South
39	Florida.
40	(8)
41	(b) Proprietary confidential business information is
42	confidential and exempt from the provisions of s. 119.07(1) and
43	s. 24(a), Art. I of the State Constitution. However, the Auditor
44	General, the Office of Program Policy Analysis and Government
45	Accountability, and the State Board of Education, pursuant to
46	their oversight and auditing functions, must be given access to
47	all proprietary confidential business information upon request
48	and without subpoena and must maintain the confidentiality of
49	information so received. As used in this paragraph, the term
50	"proprietary confidential business information" means
51	information, regardless of its form or characteristics, which is
52	owned or controlled by the not-for-profit corporation or its
53	subsidiaries; is intended to be and is treated by the not-for-
54	profit corporation or its subsidiaries as private and the
55	disclosure of which would harm the business operations of the
56	not-for-profit corporation or its subsidiaries; has not been
57	intentionally disclosed by the corporation or its subsidiaries
58	unless pursuant to law, an order of a court or administrative
59	body, a legislative proceeding pursuant to s. 5, Art. III of the
60	State Constitution, or a private agreement that provides that
61	the information may be released to the public; and which is
62	information concerning:
63	1. Internal auditing controls and reports of internal
64	auditors;
65	2. Matters reasonably encompassed in privileged attorney-
66	client communications;
67	3. Contracts for managed-care arrangements, including
68	preferred provider organization contracts, health maintenance
69	organization contracts, and exclusive provider organization
70	contracts, and any documents directly relating to the
71	negotiation, performance, and implementation of any such
72	contracts for managed-care arrangements;
73	4. Bids or other contractual data, banking records, and
74	credit agreements the disclosure of which would impair the
75	efforts of the not-for-profit corporation or its subsidiaries to
76	contract for goods or services on favorable terms;
77	5. Information relating to private contractual data, the
78	disclosure of which would impair the competitive interest of the
79	provider of the information;
80	6. Corporate officer and employee personnel information;
81	7. Information relating to the proceedings and records of
82	credentialing panels and committees and of the governing board
83	of the not-for-profit corporation or its subsidiaries relating
84	to credentialing;
85	8. Minutes of meetings of the governing board of the not-
86	for-profit corporation and its subsidiaries, except minutes of
87	meetings open to the public pursuant to subsection (9);
88	9. Information that reveals plans for marketing services
89	that the corporation or its subsidiaries reasonably expect to be
90	provided by competitors;
91	10. Trade secrets as defined in s. 688.002, including
92	reimbursement methodologies or rates; or
93	11. The identity of donors or prospective donors of
94	property who wish to remain anonymous or any information
95	identifying such donors or prospective donors. The anonymity of
96	these donors or prospective donors must be maintained in the
97	auditor's report;.
98	12. Information relating to methods of manufacture or
99	production, potential trade secrets, potentially patentable
100	material, or proprietary information received, generated,
101	ascertained, or discovered during the course of research
102	conducted by the not-for-profit corporation or its subsidiaries
103	and business transactions resulting from such research; or
104	13. Any information received by the not-for-profit
105	corporation or its subsidiaries from a person in this or another
106	state or nation or the Federal Government which is otherwise
107	exempt or confidential pursuant to the laws of this or another
108	state or nation or pursuant to federal law.
109
110	As used in this paragraph, the term “managed care” means systems
111	or techniques generally used by third-party payors or their
112	agents to affect access to and control payment for health care
113	services. Managed-care techniques most often include one or
114	more of the following: prior, concurrent, and retrospective
115	review of the medical necessity and appropriateness of services
116	or site of services; contracts with selected health care
117	providers; financial incentives or disincentives related to the
118	use of specific providers, services, or services sites;
119	controlled access to and coordination of services by a case
120	manager; and payor efforts to identify treatment alternatives
121	and modify benefit restrictions for high-cost patient care.
122	Section 2. Subparagraphs 12. and 13. of paragraph (b) of
123	subsection (8) of s. 1004.43, Florida Statutes, are subject to
124	the Open Government Sunset Review Act of 1995 in accordance with
125	s. 119.15, Florida Statutes, and shall stand repealed on October
126	2, 2008, unless reviewed and saved from repeal through
127	reenactment by the Legislature.
128	Section 3. The Legislature finds that it is a public
129	necessity that information relating to methods of manufacture or
130	production, potential trade secrets, potentially patentable
131	materials, or proprietary information received, generated,
132	ascertained, or discovered during the course of research
133	conducted by the H. Lee Moffitt Cancer Center and Research
134	Institute or any of its subsidiaries, and business transactions
135	resulting from such research, be made confidential and exempt
136	from public disclosure, because the disclosure of such
137	information would adversely impact the not-for-profit
138	corporation or its subsidiaries and would create an unfair
139	competitive advantage for the persons receiving such
140	information. If such confidential and exempt information
141	regarding research in progress were released pursuant to a
142	public records request, others would be allowed to take the
143	benefit of the research without compensation or reimbursement to
144	the research center. The Legislature further finds that
145	information received by the not-for-profit corporation or its
146	subsidiaries from a person in this or another state or nation or
147	the Federal Government which is otherwise exempt or confidential
148	pursuant to the laws of this or another state or nation or
149	pursuant to federal law should remain exempt or confidential
150	because the highly confidential nature of cancer-related
151	research necessitates that the not-for-profit corporation or its
152	subsidiaries be authorized to maintain the status of exempt or
153	confidential information it receives from the sponsors of
154	research. Without the exemptions provided for herein, the
155	disclosure of confidential and exempt information would place
156	the not-for-profit corporation on an unequal footing in the
157	marketplace as compared with its private health care and medical
158	research competitors that are not required to disclose such
159	confidential and exempt information. The Legislature finds that
160	the disclosure of such confidential and exempt information would
161	adversely impact the not-for-profit corporation or its
162	subsidiaries in fulfilling their mission of cancer treatment,
163	research, and education.
164	Section 4. Subsection (9) of section 1004.445, Florida
165	Statutes, is amended, and subsection (10) is added to said
166	section, to read:
167	1004.445 Florida Alzheimer's Center and Research
168	Institute.—
169	(9)(a)The following information is confidential and
170	exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
171	of the State Constitution:
172	1.(a)Personal identifying information relating to clients
173	of programs created or funded through the Florida Alzheimer's
174	Center and Research Institute which is held by the institute,
175	the University of South Florida, or theState Board of Education
176	or by persons who provide services to clients of programs
177	created or funded through contracts with the Florida Alzheimer's
178	Center and Research Institute;
179	2.(b) Any medical or health records relating to patients
180	heldwhich may be created or received by the institute; and
181	3.(c)Proprietary confidential business information. As
182	used in this subparagraph, the term “proprietary confidential
183	business information” means information, regardless of its form
184	or characteristics, which is owned or controlled by the
185	institute; is intended to be and is treated by the institute as
186	private and the disclosure of which would harm the business
187	operations of the institute; has not been intentionally
188	disclosed by the institute unless pursuant to law, an order of a
189	court or administrative body, a legislative proceeding pursuant
190	to s. 5, Art. III of the State Constitution, or a private
191	agreement that provides that the information may be released to
192	the public; and which is information concerning:
193	a.Materials that relate to methods of manufacture or
194	production, potential trade secrets, potentially patentable
195	material, actual trade secrets as defined in s. 688.002, or
196	proprietary information received, generated, ascertained, or
197	discovered during the course of research conducted by or through
198	the institute and business transactions resulting from such
199	research;
200	b.(d) The identity of a donor or prospective donor to the
201	instituteFlorida Alzheimer's Center and Research Institutewho
202	wishes to remain anonymous, and all information identifying such
203	donor or prospective donor;
204	c.(e)Any information received by the institute in the
205	performance of its duties and responsibilities which is
206	otherwise confidential and exempt by law; and
207	d.(f)Any information received by the institute from a
208	person from this oranother state or nation or the Federal
209	Government which is otherwise exempt or confidential or exempt
210	pursuant to this or anotherthatstate's or nation's laws or
211	pursuant to federal law;
212	e. Internal auditing controls and reports of internal
213	auditors;
214	f. Contracts for managed-care arrangements, including
215	preferred provider organization contracts, health maintenance
216	organization contracts, and exclusive provider organization
217	contracts, and any documents directly relating to the
218	negotiation, performance, and implementation of any such
219	contracts for managed-care arrangements;
220	g. Bids or other contractual data, banking records, and
221	credit agreements the disclosure of which would impair the
222	efforts of the institute to contract for goods or services on
223	favorable terms;
224	h. Information relating to private contractual data, the
225	disclosure of which would impair the competitive interest of the
226	provider of the information;
227	i. Corporate officer and employee personnel information;
228	j. Information relating to the proceedings and records of
229	the credentialing panels and committees and of the governing
230	board of the institute relating to credentialing;
231	k. Minutes of meetings of the governing board of the
232	institute, except minutes of meetings open to the public
233	pursuant to subsection (10); and
234	l. Information that reveals plans for marketing services
235	that the institute reasonably expects to be provided by
236	competitors.
237
238	As used in this subparagraph, the term “managed care” means
239	systems or techniques generally used by third-party payors or
240	their agents to affect access to and control payment for health
241	care services. Managed-care techniques most often include one or
242	more of the following: prior, concurrent, and retrospective
243	review of the medical necessity and appropriateness of services
244	or site of services; contracts with selected health care
245	providers; financial incentives or disincentives related to the
246	use of specific providers, services, or service sites;
247	controlled access to and coordination of services by a case
248	manager; and payor efforts to identify treatment alternatives
249	and modify benefit restrictions for high-cost patient care.
250	(b) The Auditor General, the Office of Program Policy
251	Analysis and Government Accountability, and the State Board of
252	Education, pursuant to their oversight and auditing functions,
253	must be given access to all proprietary confidential business
254	information upon request and without subpoena and must maintain
255	the confidentiality of information so received.
256	(c)Any governmental entity that demonstrates a need to
257	access such confidential and exempt information in order to
258	perform its duties and responsibilities shall have access to
259	such information and shall otherwise keep such information
260	confidential and exempt. This section is subject to the Open
261	Government Sunset Review Act of 1995 in accordance with s.
262	119.15 and shall stand repealed on October 2, 2006, unless
263	reviewed and saved from repeal through reenactment by the
264	Legislature.
265	(10) Meetings or portions of meetings of the governing
266	board of the Florida Alzheimer’s Center and Research Institute
267	at which information is discussed that is made confidential and
268	exempt pursuant to subsection (9) of this section are exempt
269	from s. 286.011 and s. 24(b), Art. I of the State Constitution.
270	Section 5. Subsections (9) and (10) of s. 1004.445,
271	Florida Statutes, are subject to the Open Government Sunset
272	Review Act of 1995 in accordance with s. 119.15, Florida
273	Statutes, and shall stand repealed on October 2, 2008, unless
274	reviewed and saved from repeal through reenactment by the
275	Legislature.
276	Section 6. The Legislature finds that it is a public
277	necessity that proprietary confidential business information
278	owned or controlled by the Florida Alzheimer's Center and
279	Research Institute; internal auditing controls and reports of
280	internal auditors; contracts for managed-care arrangements and
281	any documents directly relating to the negotiation, performance,
282	and implementation of any such contracts for managed-care
283	arrangements; bids or other contractual data, banking records,
284	and credit agreements; information relating to private
285	contractual data; corporate officer and employee personnel
286	information; information relating to the proceedings and records
287	of the credentialing panels and committees and of the governing
288	board of the Florida Alzheimer's Center and Research Institute
289	relating to credentialing; minutes of meetings of the governing
290	board of the institute; and information that reveals plans for
291	marketing services that the institute reasonably expects to be
292	provided by competitors be made confidential and exempt from
293	public disclosure. The institute must compete directly with its
294	private-sector counterparts. Its economic survival depends on
295	the institute’s ability to so compete. As such, these exemptions
296	are necessary because release of such information and records
297	would adversely impact the institute in the competitive health
298	care and medical research environment. Disclosure of such
299	information and records would place the institute on an unequal
300	footing in the marketplace as compared with private health care
301	providers that are not required to disclose such confidential
302	and exempt information and records. The highly confidential
303	nature of Alzheimer-related research discoveries necessitates
304	that the institute be authorized to maintain confidential
305	information it receives from, or generates for, the sponsors of
306	its research. Accordingly, disclosure of such information and
307	records would impede the effective and efficient administration
308	of the Florida Alzheimer’s Center and Research Institute and
309	would create an unfair competitive advantage for persons or
310	entities receiving such information. Also, such information and
311	records contain information of a sensitive, personal nature
312	regarding corporate officers and employees. Disclosure of such
313	information could be harmful to the officer or employee. It is
314	likewise a public necessity that the meetings of the governing
315	board of the institute be closed in order to protect the
316	competitive interest of the institute and to guarantee the
317	ability of the governing board to fulfill its Alzheimer’s
318	disease research and teaching mission for the benefit of the
319	public. Closing access to such board meetings enables the boards
320	to be more open and frank in the information so provided and
321	discussed without the attendant fear that honest and truthful
322	exchange of information will result in the public dissemination
323	of information discussed that could be used to harm the
324	institute and its members. Furthermore, disclosing information
325	and records made confidential and exempt pursuant to the
326	institute’s public records exemption via an open meeting defeats
327	the purpose of the public records exemption.
328	Section 7. This act shall take effect upon becoming a law.