HB 1469

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

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