HB 1469

CS

CHAMBER ACTION

1	The Governmental Operations Committee recommends the following:
2
3	Council/Committee Substitute
4	Remove the entire bill and insert:
5
6	A bill to be entitled
7	An act relating to public records; creating s. 288.9623,
8	F.S.; providing definitions; defining "proprietary
9	confidential business information" and specifying
10	information which does not constitute proprietary
11	confidential business information; creating an exemption
12	from public records requirements for proprietary
13	confidential business information held by the Florida
14	Opportunity Fund regarding alternative investments;
15	providing for limited duration of the exemption;
16	authorizing the inspection and copying of confidential and
17	exempt records if the proprietor of the information fails
18	to verify that a record contains certain information
19	within a specified period of time; authorizing a court to
20	order the release of confidential and exempt records upon
21	making certain findings; providing for future review and
22	repeal; providing a statement of public necessity;
23	providing a contingent effective date.
24
25	Be It Enacted by the Legislature of the State of Florida:
26
27	Section 1.  Section 288.9623, Florida Statutes, is created
28	to read:
29	288.9623  Florida Opportunity Fund; public records
30	exemption.--
31	(1)  As used in this paragraph, the term:
32	(a)  "Alternative investment" means an investment by the
33	Florida Opportunity Fund in a private equity fund, venture fund,
34	or angel fund or a direct investment in a portfolio company
35	through a distribution of securities to its partners or
36	shareholders by an alternative investment vehicle.
37	(b)  "Alternative investment vehicle" means the limited
38	partnership, limited liability company, or similar legal
39	structure through which the Florida Opportunity Fund invests in
40	a portfolio company.
41	(c)  "Florida Opportunity Fund" means the Florida
42	Opportunity Fund authorized in s. 288.9621.
43	(d)  "Portfolio company" means a corporation or other
44	issuer, any of whose securities are owned by an alternative
45	investment vehicle or the Florida Opportunity Fund and any
46	subsidiary of such corporation or other issuer.
47	(e)  "Portfolio positions" means individual investments in
48	portfolio companies which are made by the alternative investment
49	vehicles, including information or specific investment terms
50	associated with any portfolio company investment.
51	(f)  "Proprietor" means an alternative investment vehicle,
52	a portfolio company in which the alternative investment vehicle
53	is invested, or an outside consultant, including the respective
54	authorized officers, employees, agents, or successors in
55	interest, which controls or owns information provided to the
56	Florida Opportunity Fund.
57	(g)1.  "Proprietary confidential business information"
58	means information that has been designated by the proprietor
59	when provided to the Florida Opportunity Fund as information
60	that is owned or controlled by a proprietor; that is intended to
61	be and is treated by the proprietor as private, the disclosure
62	of which would harm the business operations of the proprietor
63	and has not been intentionally disclosed by the proprietor
64	unless pursuant to a private agreement that provides that the
65	information will not be released to the public except as
66	required by law or legal process, or pursuant to law or an order
67	of a court or administrative body; and that concerns:
68	a.  Trade secrets as defined in s. 688.002.
69	b.  Information provided to the Florida Opportunity Fund
70	regarding a prospective investment in a private equity fund,
71	venture fund, angel fund, or portfolio company which is
72	proprietary to the provider of the information.
73	c.  Financial statements and auditor reports of an
74	alternative investment vehicle.
75	d.  Meeting materials of an alternative investment vehicle
76	relating to financial, operating, or marketing information of
77	the alternative investment vehicle.
78	e.  Information regarding the portfolio positions in which
79	the alternative investment vehicles invest.
80	f.  Capital call and distribution notices to investors of
81	an alternative investment vehicle.
82	g.  Alternative investment agreements and related records.
83	h.  Information concerning investors, other than the
84	Florida Opportunity Fund, in an alternative investment vehicle.
85	2.  "Proprietary confidential business information" does
86	not include:
87	a.  The name, address, and vintage year of an alternative
88	investment vehicle and the identity of the principals involved
89	in the management of the alternative investment vehicle.
90	b.  The dollar amount of the commitment made by the Florida
91	Opportunity Fund to each alternative investment vehicle since
92	inception.
93	c.  The dollar amount and date of cash contributions made
94	by the Florida Opportunity Fund to each alternative investment
95	vehicle since inception.
96	d.  The dollar amount, on a fiscal-year-end basis, of cash
97	or other fungible distributions received by the Florida
98	Opportunity Fund from each alternative investment vehicle.
99	e.  The dollar amount, on a fiscal-year-end basis, of cash
100	or other fungible distributions received by the Florida
101	Opportunity Fund plus the remaining value of alternative-vehicle
102	assets that are attributable to the Florida Opportunity Fund's
103	investment in each alternative investment vehicle.
104	f.  The net internal rate of return of each alternative
105	investment vehicle since inception.
106	g.  The investment multiple of each alternative investment
107	vehicle since inception.
108	h.  The dollar amount of the total management fees and
109	costs paid on an annual fiscal-year-end basis by the Florida
110	Opportunity Fund to each alternative investment vehicle.
111	i.  The dollar amount of cash profit received by the
112	Florida Opportunity Fund from each alternative investment
113	vehicle on a fiscal-year-end basis.
114	(2)  Proprietary confidential business information held by
115	the Florida Opportunity Fund regarding alternative investments
116	is confidential and exempt from s. 119.07(1) and s. 24(a), Art.
117	I of the State Constitution for 10 years after the termination
118	of the alternative investment.
119	(3)  Notwithstanding the provisions of subsection (2), a
120	request to inspect or copy a public record which contains
121	proprietary confidential business information shall be granted
122	if the proprietor of the information fails, within a reasonable
123	period of time after the request is received by the Florida
124	Opportunity Fund, to verify the following to the Florida
125	Opportunity Fund through a written declaration in the manner
126	provided by s. 92.525:
127	(a)  That the requested record contains proprietary
128	confidential business information and the specific location of
129	such information within the record;
130	(b)  If the proprietary confidential business information
131	is a trade secret, a verification that it is a trade secret as
132	defined in s. 688.002;
133	(c)  That the proprietary confidential business information
134	is intended to be and is treated by the proprietor as private,
135	is the subject of efforts of the proprietor to maintain its
136	privacy, and is not readily ascertainable or publicly available
137	from any other source; and
138	(d)  That the disclosure of the proprietary confidential
139	business information to the public would harm the business
140	operations of the proprietor.
141	(4)(a)  Any person may petition a court of competent
142	jurisdiction for an order for the public release of those
143	portions of any record made confidential and exempt by
144	subsection (2).
145	(b)  Any action under this subsection must be brought in
146	Orange County, Florida, and the petition or other initial
147	pleading shall be served on the Florida Opportunity Fund and, if
148	determinable upon diligent inquiry, on the proprietor of the
149	information sought to be released.
150	(c)  In any order for the public release of a record under
151	this subsection, the court shall make a finding that:
152	1.  The record or portion thereof is not a trade secret as
153	defined in s. 688.002;
154	2.  A compelling public interest is served by the release
155	of the record or portions thereof which exceed the public
156	necessity for maintaining the confidentiality of such record;
157	and
158	3.  The release of the record will not cause damage to or
159	adversely affect the interests of the proprietor of the released
160	information, other private persons or business entities, the
161	Florida Opportunity Fund, or any trust fund, the assets of which
162	are invested by the Florida Opportunity Fund.
163	(5)  This section is subject to the Open Government Sunset
164	Review Act in accordance with s. 119.15 and shall stand repealed
165	on October 2, 2011, unless reviewed and saved from repeal
166	through reenactment by the Legislature.
167	Section 2.  The Legislature finds that it is a public
168	necessity that proprietary confidential business information
169	held by the Florida Opportunity Fund regarding alternative
170	investments be held confidential and exempt from s. 119.07(1),
171	Florida Statutes, and s. 24(a), Art. I of the State Constitution
172	for 10 years after the termination of the alternative
173	investment. Disclosing proprietary confidential business
174	information, including trade secrets as defined in s. 688.002,
175	Florida Statutes, used in determining how private equity
176	investments are made or managed by private partnerships
177	investing assets on behalf of the Florida Opportunity Fund would
178	negatively affect the business interests of private partnerships
179	that rely heavily on their information advantage to generate
180	investment returns, and competitor partnerships could gain an
181	unfair competitive advantage if provided access to such
182	information. The release of proprietary confidential business
183	information, including trade secrets, revealing how alternative
184	investments are made could result in inadequate returns and
185	ultimately frustrate attainment of the investment objective of
186	the Florida Opportunity Fund. It is the Legislature's intent to
187	allow the public access to sufficient information in order to be
188	informed regarding the alternative investments of the Florida
189	Opportunity Fund and to balance the public's right to
190	information against the right of private business entities to be
191	protected from harmful disclosure of confidential and exempt
192	proprietary confidential business information, the disclosure of
193	which would injure them in the marketplace. It is also the
194	Legislature's intent to establish consistency with regard to the
195	classification of information relating to alternative
196	investments by the Florida Opportunity Fund as either
197	confidential or suitable for public disclosure. In finding that
198	the public records exemption created by this act is a public
199	necessity, the Legislature finds that the public and private
200	harm in disclosing proprietary confidential business information
201	relating to alternative investments by the Florida Opportunity
202	Fund significantly outweighs any public benefit derived from
203	disclosure; that the exemption created by this act will enhance
204	the ability of the Florida Opportunity Fund to fulfill its
205	duties as an investment fiduciary by making it more effective
206	and competitive in the marketplace as an investor that is able
207	to gain access to the best alternative investment vehicles; and
208	that the public's ability to be informed regarding the
209	alternative investments made by the Florida Opportunity Fund is
210	preserved by the disclosure of information excepted from the
211	created exemption.
212	Section 3.  This act shall take effect July 1, 2006, if
213	House Bill 1467 or similar legislation is adopted in the same
214	legislative session or an extension thereof and becomes law.

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