Senate Bill sb2534

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    Florida Senate - 2006                                  SB 2534

    By Senator Posey





    24-1220-06

  1                      A bill to be entitled

  2         An act relating to confidentiality agreements;

  3         amending s. 69.081, F.S.; providing that it is

  4         the policy of the state that confidentiality

  5         agreements are unenforceable unless approved by

  6         the court; revising the definition of the term

  7         "public hazard"; prohibiting the court from

  8         recognizing a confidentiality agreement absent

  9         a showing of certain elements; providing that

10         an agreement to settle a civil cause of action

11         or potential cause of action which restricts

12         the right of a person to disclose a matter

13         relating to the action is void and

14         unenforceable; providing an effective date.

15  

16  Be It Enacted by the Legislature of the State of Florida:

17  

18         Section 1.  Section 69.081, Florida Statutes, is

19  amended to read:

20         69.081  Sunshine in litigation; concealment of public

21  hazards prohibited.--

22         (1)  This section may be cited as the "Sunshine in

23  Litigation Act."

24         (2)  It is the policy of the state that confidentiality

25  agreements are disfavored and unenforceable unless approved by

26  the court.

27         (3)(2)  As used in this section, "public hazard" means

28  an activity or instrumentality, including, but not limited to,

29  any device, instrument, person, general practice, procedure,

30  product, or a condition of a device, instrument, person,

31  

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    Florida Senate - 2006                                  SB 2534
    24-1220-06




 1  procedure or product, that has caused and is likely to cause

 2  injury or damage.

 3         (4)(3)  Except pursuant to this section, a no court may

 4  not shall enter an order or judgment that which has the

 5  purpose or effect of concealing a public hazard or any

 6  information concerning a public hazard, and a court may not

 7  nor shall the court enter an order or judgment that which has

 8  the purpose or effect of concealing any information that which

 9  may be useful to members of the public in protecting

10  themselves from injury that which may result from the public

11  hazard.

12         (5)(4)  Any portion of an agreement or contract which

13  has the purpose or effect of concealing a public hazard, any

14  information concerning a public hazard, or any information

15  that which may be useful to members of the public in

16  protecting themselves from injury that which may result from

17  the public hazard, is void, is contrary to public policy, and

18  may not be enforced.

19         (6)(5)  Trade secrets as defined in s. 688.002 which

20  are not pertinent to public hazards shall be protected

21  pursuant to chapter 688.

22         (7)(6)  Any substantially affected person, including,

23  but not limited to, representatives of news media, has

24  standing to contest an order, judgment, agreement, or contract

25  that violates this section.  A person may contest an order,

26  judgment, agreement, or contract that violates this section by

27  motion in the court that entered the order or judgment, or by

28  bringing a declaratory judgment action pursuant to chapter 86.

29         (8)(7)  Upon motion and good cause shown by a party

30  attempting to prevent disclosure of information or materials

31  that which have not previously been disclosed, including, but

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    Florida Senate - 2006                                  SB 2534
    24-1220-06




 1  not limited to, alleged trade secrets, the court shall examine

 2  the disputed information or materials in camera.  If the court

 3  finds that the information or materials or portions thereof

 4  consist of information concerning a public hazard or

 5  information that which may be useful to members of the public

 6  in protecting themselves from injury that which may result

 7  from a public hazard, the court shall allow disclosure of the

 8  information or materials. If allowing disclosure, the court

 9  shall allow disclosure of only that portion of the information

10  or materials necessary or useful to the public regarding the

11  public hazard.

12         (9)(a)  A court may not recognize or approve a

13  confidentiality agreement absent a particularized showing

14  that:

15         1.  Secrecy is in the public interest;

16         2.  The proponent has a cognizable interest in the

17  material, i.e., the material contains trade secrets as defined

18  in s. 688.002(4), contains privileged information, or is

19  otherwise protected by law from disclosure; and

20         3.  Disclosure would cause serious harm that outweighs

21  the public interest in disclosure of the information.

22         (b)  Any portion of an agreement or contract entered

23  into to settle or resolve a civil cause of action or potential

24  cause of action which purports to restrict the right of a

25  person to disclose a matter relating to the action or

26  potential action is void, is contrary to public policy, and

27  may not be enforced.

28  

29  This subsection does not prohibit confidentiality as to the

30  amount of a settlement and does not invalidate any other

31  provisions of a settlement.

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    Florida Senate - 2006                                  SB 2534
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 1         (10)(8)(a)  Any portion of an agreement or contract

 2  which has the purpose or effect of concealing information

 3  relating to the settlement or resolution of any claim or

 4  action against the state, its agencies, or subdivisions or

 5  against any municipality or constitutionally created body or

 6  commission is void, is contrary to public policy, and may not

 7  be enforced. Any person has standing to contest an order,

 8  judgment, agreement, or contract that violates this section.

 9  A person may contest an order, judgment, agreement, or

10  contract that violates this subsection by motion in the court

11  that entered such order or judgment, or by bringing a

12  declaratory judgment action pursuant to chapter 86.

13         (b)  Any person having custody of any document, record,

14  contract, or agreement relating to any settlement as set forth

15  in this section shall maintain said public records in

16  compliance with chapter 119.

17         (c)  Failure of any custodian to disclose and provide

18  any document, record, contract, or agreement as set forth in

19  this section shall be subject to the sanctions as set forth in

20  chapter 119.

21  

22  This subsection does not apply to trade secrets protected

23  pursuant to chapter 688, proprietary confidential business

24  information, or other information that is confidential under

25  state or federal law.

26         (11)(9)  A governmental entity, except a municipality

27  or county, that settles a claim in tort which requires the

28  expenditure of public funds in excess of $5,000, shall provide

29  notice, in accordance with the provisions of chapter 50, of

30  such settlement, in the county in which the claim arose,

31  within 60 days of entering into such settlement; provided that

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    Florida Senate - 2006                                  SB 2534
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 1  no notice shall be required if the settlement has been

 2  approved by a court of competent jurisdiction.

 3         Section 2.  This act shall take effect July 1, 2006,

 4  and applies to agreements or contracts entered into on or

 5  after that date.

 6  

 7            *****************************************

 8                          SENATE SUMMARY

 9    Provides that it is the policy of the state that
      confidentiality agreements are unenforceable unless
10    approved by the court. Revises the definition of the term
      "public hazard." Prohibits a court from recognizing a
11    confidentiality agreement absent a showing of certain
      elements. Provides that an agreement to settle a civil
12    cause of action or potential cause of action which
      restricts the right of a person to disclose a matter
13    relating to the action is void and unenforceable.

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