HB 1813

1	A bill to be entitled
2	An act relating to a review under the Open Government
3	Sunset Review Act; amending s. 73.0155, F.S.; revising a
4	public records exemption for business records submitted in
5	eminent domain negotiations on business damages; providing
6	for confidentiality; prescribing the information that is
7	confidential and exempt from disclosure; prescribing
8	certain conditions for the confidentiality and exemption;
9	providing for limitations on the confidentiality and
10	exemption; providing for access by employees of an agency;
11	providing a penalty for disclosure; specifying that the
12	information may be offered in evidence; providing for
13	future legislative review and repeal; providing a
14	statement of public necessity; providing an effective
15	date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1.  Section 73.0155, Florida Statutes, is amended
20	to read:
21	73.0155  Confidentiality; business information records
22	provided to a governmental condemning authority.--
23	(1)  The following business information records provided by
24	the owner of a business to a governmental condemning authority
25	as part of an offer of business damages under pursuant to s.
26	73.015 is confidential and are exempt from the disclosure
27	provisions of s. 24(a), Art. I of the State Constitution and s.
28	119.07(1) if the disclosure of such records would be likely to
29	cause substantial harm to the competitive position of the person
30	providing such records and if the owner person providing such
31	records requests in writing that the information such records be
32	held exempt:.
33	(a)  Federal tax returns or tax information confidential
34	under 26 U.S.C. s. 6103.
35	(b)  State tax returns or tax information confidential
36	under s. 213.053.
37	(c)  Balance sheets, profit-and-loss statements, cash-flow
38	statements, inventory records, or customer lists or number of
39	customers for a business operating on the parcel to be acquired.
40	(d)  A franchise, distributorship, or lease agreement of
41	which the business operating on the parcel to be acquired is the
42	subject.
43	(e)  Materials that relate to methods of manufacture or
44	production, potential trade secrets, patentable material, or
45	actual trade secrets as defined in s. 688.002.
46	(f)  Other sensitive or proprietary information related to
47	the business operating on the parcel to be acquired, if the
48	owner attests in writing to the governmental condemning
49	authority that:
50	1.  The information is being relied upon to substantiate a
51	claim for business damages under s. 73.015;
52	2.  The information has not otherwise been publicly
53	disclosed;
54	3.  The information cannot be readily obtained by the
55	public using alternative means;
56	4.  The information is used by the business to protect or
57	further a business advantage over those who do not know or use
58	the information; and
59	5.  The disclosure of the information would injure the
60	business in the marketplace. Nothing in this section shall be
61	construed to prevent inspection of such records by the Attorney
62	General, members of the Legislature, and interested state
63	agencies; however, such records shall remain exempt from further
64	disclosure.
65	(2)  At the time that any information made confidential and
66	exempt from disclosure under subsection (1) is legally available
67	or subject to public disclosure for any reason, that information
68	is no longer confidential and exempt and shall be made available
69	for inspection and copying.
70	(3)  An agency as defined in s. 119.011 may inspect and
71	copy records or information made confidential and exempt from
72	disclosure under subsection (1) exclusively for the transaction
73	of official business by, or on behalf of, an agency. An agency
74	receiving this confidential and exempt information must maintain
75	the confidentiality of that information. Any employee or agent
76	of the agency receiving this confidential and exempt information
77	who willfully and knowingly violates this subsection commits a
78	misdemeanor of the first degree, punishable as provided by s.
79	775.082 or s. 775.083.
80	(4)  This section does not prevent an agency from offering
81	information made confidential and exempt from disclosure under
82	subsection (1) as evidence in a legal proceeding and does not
83	prevent a court from determining whether to close a portion of a
84	court record from subsequent public disclosure after trial in
85	order to maintain the confidentiality of that information.
86	(5)  Subsection (1) This exemption is subject to the Open
87	Government Sunset Review Act in accordance with s. 119.15 and
88	expires on October 2, 2009 2004, unless reviewed and reenacted
89	by the Legislature.
90	Section 2.  (1)  The Legislature finds that it is a public
91	necessity to make confidential and exempt from public disclosure
92	sensitive business information that is submitted to a
93	governmental condemning authority by a business owner to
94	substantiate an offer to settle a business-damage claim
95	resulting from the acquisition of a parcel for right-of-way
96	purposes through eminent domain. Specifically, the Legislature
97	finds that this confidentiality and exemption from public
98	disclosure are necessary for federal and state tax returns and
99	tax information; balance sheets, profit-and-loss statements,
100	cash-flow statements, inventory records, and customer lists or
101	number of customers for a business operating on the parcel;
102	franchise, distributorship, and lease agreements relating to a
103	business operating on the parcel; information in the nature of
104	trade secrets; and other sensitive or proprietary business
105	information, because the business uses this information to
106	protect or further an advantage over other businesses and
107	disclosure of the information would injure the business in the
108	marketplace, and because the governmental condemning authority
109	uses this information to evaluate the merits of a business-
110	damage claim and reluctance on the part of a business to provide
111	this information would significantly impair the ability of the
112	authority to conduct eminent domain activities.
113	(2)  Federal and state tax returns and tax information;
114	balance sheets, profit-and-loss statements, cash-flow
115	statements, inventory records, and customer lists or number of
116	customers for a business; franchise, distributorship, and lease
117	agreements relating to a business; information in the nature of
118	trade secrets; and other sensitive or proprietary business
119	information are typically kept confidential by a business and
120	are not readily obtainable by the public through alternative
121	means. This information relates directly to the operations of
122	the business and reflects upon, and provides insights into, the
123	financial status, operating techniques and activities, and
124	strategic plans of the business. Competitors of the business,
125	who would not ordinarily have access to this sensitive business
126	information, could use it to undermine the position that the
127	business maintains in the marketplace by adjusting their own
128	operating techniques and activities and strategic plans in
129	response to what they learn about the business. But for the
130	acquisition by a governmental condemning authority of property
131	on which the business operates and the requirement that the
132	business submit an offer to settle a business-damage claim, the
133	business would not ordinarily be in the position of having to
134	release this information into a public forum. The
135	confidentiality and exemption from public disclosure provided by
136	this act, therefore, protect information of a confidential
137	nature concerning an entity and are necessary to prevent the
138	business from being unfairly injured in the marketplace.
139	(3)  Federal and state tax returns and tax information;
140	balance sheets, profit-and-loss statements, cash-flow
141	statements, inventory records, and customer lists or number of
142	customers for a business; franchise, distributorship, and lease
143	agreements relating to a business; information in the nature of
144	trade secrets; and other sensitive or proprietary business
145	information are critical to the evaluation of a claim for
146	business damages resulting from the acquisition of a parcel by a
147	governmental condemning authority. The authority uses the
148	information to determine how the taking of a portion of the
149	property on which a business operates will affect the business
150	from a financial standpoint, to evaluate whether the amount that
151	the business is claiming is accurate in relation to the actual
152	business damages, and, ultimately, to determine how much to
153	compensate the business for its damages. Without the
154	information, a condemning authority would not be able to assess
155	the accuracy of the business-damage offer the business submits
156	and would have to approximate damages using nonspecific
157	information, such as industry trends or averages. An inability
158	to obtain accurate and specific information about the business
159	creates the potential for the authority to pay a greater amount
160	than the actual damages or for the authority to undervalue the
161	claim and reject the business's offer. The exchange of accurate
162	information promotes good-faith negotiations between the
163	business and the governmental condemning authority early in the
164	property-acquisition process and, thereby, promotes
165	opportunities for the parties to reach a settlement on the
166	amount of damages without having to proceed to a full trial,
167	which would likely entail greater costs associated with the
168	acquisition of property for public transportation projects.
169	Because, for the reasons cited in subsection (2), a business is
170	reluctant to share this sensitive business information, the
171	confidentiality and exemption from public disclosure provided by
172	this act encourage businesses to release the information,
173	promote settlements early in the condemnation process and before
174	trial, and allow governmental condemning authorities to
175	effectively and efficiently administer eminent domain programs.
176	Section 3.  This act shall take effect upon becoming a law.

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