Florida Senate - 2006                      COMMITTEE AMENDMENT
    Bill No. CS for SB 2656
                        Barcode 214560
                            CHAMBER ACTION
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       04/19/2006 06:51 PM         .                    
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11  The Committee on Governmental Oversight and Productivity
12  (Margolis) recommended the following amendment:
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14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Section 288.9623, Florida Statutes, is
19  created to read:
20         288.9623  Florida Opportunity Fund; public-records
21  exemption.--
22         (1)  As used in this section, the term:
23         (a)  "Alternative investment" means an investment by
24  the Florida Opportunity Fund in a private equity fund, venture
25  fund, or angel fund or a direct investment in a portfolio
26  company through a distribution of securities to its partners
27  or shareholders by an alternative investment vehicle.
28         (b)  "Alternative investment vehicle" means the limited
29  partnership, limited liability company, or similar legal
30  structure through which the Florida Opportunity Fund invests
31  in a portfolio company.
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Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 (c) "Portfolio company" means a corporation or other 2 issuer, any of whose securities are owned by an alternative 3 investment vehicle or the Florida Opportunity Fund and any 4 subsidiary of such corporation or other issuer. 5 (d) "Portfolio positions" means individual investments 6 in portfolio companies which are made by the alternative 7 investment vehicles, including information or specific 8 investment terms associated with any portfolio company 9 investment. 10 (e) "Proprietor" means an alternative investment 11 vehicle, a portfolio company in which the alternative 12 investment vehicle is invested, or an outside consultant, 13 including the respective authorized officers, employees, 14 agents, or successors in interest, which controls or owns 15 information provided to the Florida Opportunity Fund. 16 (f)1. "Proprietary confidential business information" 17 means information that has been designated by the proprietor 18 when provided to the Florida Opportunity Fund as information 19 that is owned or controlled by a proprietor; that is intended 20 to be and is treated by the proprietor as private, the 21 disclosure of which would harm the business operations of the 22 proprietor and has not been intentionally disclosed by the 23 proprietor unless pursuant to a private agreement that 24 provides that the information will not be released to the 25 public except as required by law or legal process, or pursuant 26 to law or an order of a court or administrative body; and that 27 concerns: 28 a. Trade secrets as defined in s. 688.002. 29 b. Information provided to the Florida Opportunity 30 Fund regarding a prospective investment in a private equity 31 fund, venture fund, angel fund, or portfolio company which is 2 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 proprietary to the provider of the information. 2 c. Financial statements and auditor reports of an 3 alternative investment vehicle. 4 d. Meeting materials of an alternative investment 5 vehicle relating to financial, operating, or marketing 6 information of the alternative investment vehicle. 7 e. Information regarding the portfolio positions in 8 which the alternative investment vehicles invest. 9 f. Capital call and distribution notices to investors 10 of an alternative investment vehicle. 11 g. Alternative investment agreements and related 12 records. 13 h. Information concerning investors, other than the 14 Florida Opportunity Fund, in an alternative investment 15 vehicle. 16 2. The term "proprietary confidential business 17 information" does not include: 18 a. The name, address, and vintage year of an 19 alternative investment vehicle and the identity of the 20 principals involved in the management of the alternative 21 investment vehicle. 22 b. The dollar amount of the commitment made by the 23 Florida Opportunity Fund to each alternative investment 24 vehicle since inception. 25 c. The dollar amount and date of cash contributions 26 made by the Florida Opportunity Fund to each alternative 27 investment vehicle since inception. 28 d. The dollar amount, on a fiscal-year-end basis, of 29 cash or other fungible distributions received by the Florida 30 Opportunity Fund from each alternative investment vehicle. 31 e. The dollar amount, on a fiscal-year-end basis, of 3 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 cash or other fungible distributions received by the Florida 2 Opportunity Fund plus the remaining value of 3 alternative-vehicle assets that are attributable to the 4 Florida Opportunity Fund's investment in each alternative 5 investment vehicle. 6 f. The net internal rate of return of each alternative 7 investment vehicle since inception. 8 g. The investment multiple of each alternative 9 investment vehicle since inception. 10 h. The dollar amount of the total management fees and 11 costs paid on an annual fiscal-year-end basis by the Florida 12 Opportunity Fund to each alternative investment vehicle. 13 i. The dollar amount of cash profit received by the 14 Florida Opportunity Fund from each alternative investment 15 vehicle on a fiscal-year-end basis. 16 (g) "Florida Opportunity Fund" means the Florida 17 Opportunity Fund authorized in s. 288.9621. 18 (2) Proprietary confidential business information held 19 by the Florida Opportunity Fund regarding alternative 20 investments is confidential and exempt from s. 119.07(1) and 21 s. 24(a), Art. I of the State Constitution for 10 years after 22 the termination of the alternative investment. 23 (3) Notwithstanding subsection (2), a request to 24 inspect or copy a public record that contains proprietary 25 confidential business information shall be granted if the 26 proprietor of the information fails, within a reasonable 27 period after the request is received by the Florida 28 Opportunity Fund, to verify the following to the Florida 29 Opportunity Fund through a written declaration in the manner 30 provided by s. 92.525: 31 (a) That the requested record contains proprietary 4 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 confidential business information and the specific location of 2 such information within the record; 3 (b) If the proprietary confidential business 4 information is a trade secret, that it is a trade secret as 5 defined in s. 688.002; 6 (c) That the proprietary confidential business 7 information is intended to be and is treated by the proprietor 8 as private, is the subject of efforts of the proprietor to 9 maintain its privacy, and is not readily ascertainable or 10 publicly available from any other source; and 11 (d) That the disclosure of the proprietary 12 confidential business information to the public would harm the 13 business operations of the proprietor. 14 (4)(a) Any person may petition a court of competent 15 jurisdiction for an order for the public release of those 16 portions of any record made confidential and exempt by 17 subsection (2). 18 (b) Any action under this subsection must be brought 19 in Orange County, Florida, and the petition or other initial 20 pleading shall be served on the Florida Opportunity Fund and, 21 if determinable upon diligent inquiry, on the proprietor of 22 the information sought to be released. 23 (c) In any order for the public release of a record 24 under this subsection, the court shall make a finding that: 25 1. The record or portion thereof is not a trade secret 26 as defined in s. 688.002; 27 2. A compelling public interest is served by the 28 release of the record or portions thereof which exceeds the 29 public necessity for maintaining the confidentiality of such a 30 record; and 31 3. The release of the record will not cause damage to 5 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 or adversely affect the interests of the proprietor of the 2 released information, other private persons or business 3 entities, the Florida Opportunity Fund, or any trust fund, the 4 assets of which are invested by the Florida Opportunity Fund. 5 (5) This section is subject to the Open Government 6 Sunset Review Act in accordance with s. 119.15 and shall stand 7 repealed on October 2, 2011, unless reviewed and saved from 8 repeal through reenactment by the Legislature. 9 Section 2. The Legislature finds that it is a public 10 necessity that proprietary confidential business information 11 held by the Florida Opportunity Fund regarding alternative 12 investments be held confidential and exempt from s. 119.07(1), 13 Florida Statutes, and s. 24(a), Art. I of the State 14 Constitution for 10 years after the termination of the 15 alternative investment. Disclosing proprietary confidential 16 business information, including trade secrets as defined in s. 17 688.002, Florida Statutes, used in determining how private 18 equity investments are made or managed by private partnerships 19 investing assets on behalf of the Florida Opportunity Fund 20 would negatively affect the business interests of private 21 partnerships that rely heavily on their information advantage 22 to generate investment returns, and competitor partnerships 23 could gain an unfair competitive advantage if provided access 24 to such information. The release of proprietary confidential 25 business information, including trade secrets, revealing how 26 alternative investments are made could result in inadequate 27 returns and ultimately frustrate attainment of the investment 28 objective of the Florida Opportunity Fund. It is the 29 Legislature's intent to allow the public access to sufficient 30 information in order to be informed regarding the alternative 31 investments of the Florida Opportunity Fund and to balance the 6 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 public's right to information against the right of private 2 business entities to be protected from harmful disclosure of 3 confidential and exempt proprietary confidential business 4 information, the disclosure of which would injure them in the 5 marketplace. It is also the Legislature's intent to establish 6 consistency with regard to the classification of information 7 relating to alternative investments by the Florida Opportunity 8 Fund as either confidential or suitable for public disclosure. 9 In finding that the public-records exemption created by this 10 act is a public necessity, the Legislature finds that the 11 public and private harm in disclosing proprietary confidential 12 business information relating to alternative investments by 13 the Florida Opportunity Fund significantly outweighs any 14 public benefit derived from disclosure; that the exemption 15 created by this act will enhance the ability of the Florida 16 Opportunity Fund to fulfill its duties as an investment 17 fiduciary by making it more effective and competitive in the 18 marketplace as an investor that is able to gain access to the 19 best alternative investment vehicles; and that the public's 20 ability to be informed regarding the alternative investments 21 made by the Florida Opportunity Fund is preserved by the 22 disclosure of information excepted from the created exemption. 23 Section 3. This act shall take effect July 1, 2006, if 24 Senate Bill 2668 or similar legislation is adopted in the same 25 legislative session or an extension thereof and becomes law. 26 27 28 ================ T I T L E A M E N D M E N T =============== 29 And the title is amended as follows: 30 Delete everything before the enacting clause 31 7 5:41 PM 04/17/06 s2656c1c-go35-j02
Florida Senate - 2006 COMMITTEE AMENDMENT Bill No. CS for SB 2656 Barcode 214560 1 and insert: 2 A bill to be entitled 3 An act relating to public records; creating s. 4 288.9623, F.S.; providing definitions; defining 5 the term "proprietary confidential business 6 information" and specifying information that 7 does not constitute proprietary confidential 8 business information; creating an exemption 9 from public-records requirements for 10 proprietary confidential business information 11 held by the Florida Opportunity Fund regarding 12 alternative investments; providing for limited 13 duration of the exemption; authorizing the 14 inspection and copying of confidential and 15 exempt records if the proprietor of the 16 information fails to verify that a record 17 contains certain information within a specified 18 period; authorizing a court to order the 19 release of confidential and exempt records upon 20 making certain findings; providing for future 21 review and repeal; providing a statement of 22 public necessity; providing a contingent 23 effective date. 24 25 26 27 28 29 30 31 8 5:41 PM 04/17/06 s2656c1c-go35-j02