HB 131

1	A bill to be entitled
2	An act relating to public records; creating s. 288.96275,
3	F.S.; providing definitions; defining "proprietary
4	confidential business information" and specifying
5	information that 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 or the Florida Opportunity Fund
10	Management Corporation regarding alternative investments;
11	providing for limited duration of the exemption;
12	authorizing the inspection and copying of confidential and
13	exempt records if the proprietor of the information fails
14	to verify that a record contains certain information
15	within a specified period of time; authorizing a court to
16	order the release of confidential and exempt records upon
17	making certain findings; providing for future review and
18	repeal; providing a statement of public necessity;
19	providing a contingent effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1.  Section 288.96275, Florida Statutes, is created
24	to read:
25	288.96275  Trade secret information; identification and
26	performance information; public records exemption.--
27	(1)  As used in this section, the term:
28	(a)  "Alternative investment" means an investment by the
29	Florida Opportunity Fund in a private equity fund, venture
30	capital fund, or angel fund or a direct investment in a
31	portfolio company through a distribution of securities to its
32	partners or shareholders by an alternative investment vehicle.
33	(b)  "Alternative investment vehicle" means the limited
34	partnership, limited liability company, or similar legal
35	structure through which the Florida Opportunity Fund invests in
36	a portfolio company.
37	(c)  "Florida Opportunity Fund" means the Florida
38	Opportunity Fund authorized in s. 288.9627.
39	(d)  "Florida Opportunity Fund Management Corporation"
40	means the Florida Opportunity Fund Management Corporation
41	authorized in s. 288.9626.
42	(e)  "Portfolio company" means a corporation or other
43	issuer, any of whose securities are owned by an alternative
44	investment vehicle or the Florida Opportunity Fund and any
45	subsidiary of such corporation or other issuer.
46	(f)  "Portfolio positions" means individual investments in
47	portfolio companies that are made by the alternative investment
48	vehicles, including information or specific investment terms
49	associated with any portfolio company investment.
50	(g)  "Proprietor" means an alternative investment vehicle,
51	a portfolio company in which the alternative investment vehicle
52	is invested, or an outside consultant, including the respective
53	authorized officers, employees, agents, or successors in
54	interest, that controls or owns information provided to the
55	Florida Opportunity Fund.
56	(h)1.  "Proprietary confidential business information"
57	means information that has been designated by the proprietor
58	when provided to the Florida Opportunity Fund or the Florida
59	Opportunity Fund Management Corporation as information that is
60	owned or controlled by a proprietor; that is intended to be and
61	is treated by the proprietor as private, the disclosure of which
62	would harm the business operations of the proprietor and has not
63	been intentionally disclosed by the proprietor unless pursuant
64	to a private agreement that provides that the information will
65	not be released to the public except as required by law or legal
66	process, or pursuant to law or an order of a court or
67	administrative body; and that concerns:
68	a.  Trade secrets as defined in s. 688.002.
69	b.  Information provided to the Florida Opportunity Fund or
70	the Florida Opportunity Fund Management Corporation regarding a
71	prospective investment in a private equity fund, venture capital
72	fund, angel fund, or portfolio company that is proprietary to
73	the provider of the information.
74	c.  Financial statements and auditor reports of an
75	alternative investment vehicle.
76	d.  Meeting materials of an alternative investment vehicle
77	relating to financial, operating, or marketing information of
78	the alternative investment vehicle.
79	e.  Information regarding the portfolio positions in which
80	the alternative investment vehicles invest.
81	f.  Capital call and distribution notices to investors of
82	an alternative investment vehicle.
83	g.  Alternative investment agreements and related records.
84	h.  Information concerning investors, other than the
85	Florida Opportunity Fund, in an alternative investment vehicle.
86	2.  "Proprietary confidential business information" does
87	not include:
88	a.  The name, address, and vintage year of an alternative
89	investment vehicle and the identity of the principals involved
90	in the management of the alternative investment vehicle.
91	b.  The dollar amount of the commitment made by the Florida
92	Opportunity Fund to each alternative investment vehicle since
93	inception.
94	c.  The dollar amount and date of cash contributions made
95	by the Florida Opportunity Fund to each alternative investment
96	vehicle since inception.
97	d.  The dollar amount, on a fiscal-year-end basis, of cash
98	or other fungible distributions received by the Florida
99	Opportunity Fund from each alternative investment vehicle.
100	e.  The dollar amount, on a fiscal-year-end basis, of cash
101	or other fungible distributions received by the Florida
102	Opportunity Fund plus the remaining value of alternative-vehicle
103	assets that are attributable to the Florida Opportunity Fund's
104	investment in each alternative investment vehicle.
105	f.  The net internal rate of return of each alternative
106	investment vehicle since inception.
107	g.  The investment multiple of each alternative investment
108	vehicle since inception.
109	h.  The dollar amount of the total management fees and
110	costs paid on an annual fiscal-year-end basis by the Florida
111	Opportunity Fund to each alternative investment vehicle.
112	i.  The dollar amount of cash profit received by the
113	Florida Opportunity Fund from each alternative investment
114	vehicle on a fiscal-year-end basis.
115	(2)  Proprietary confidential business information held by
116	the Florida Opportunity Fund or the Florida Opportunity Fund
117	Management Corporation regarding alternative investments is
118	confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
119	of the State Constitution for 10 years after the termination of
120	the alternative investment.
121	(3)  Notwithstanding the provisions of subsection (2), a
122	request to inspect or copy a public record that contains
123	proprietary confidential business information shall be granted
124	if the proprietor of the information fails, within a reasonable
125	period of time after the request is received by the Florida
126	Opportunity Fund or the Florida Opportunity Fund Management
127	Corporation, to verify the following to the Florida Opportunity
128	Fund or the Florida Opportunity Fund Management Corporation
129	through a written declaration in the manner provided by s.
130	92.525:
131	(a)  That the requested record contains proprietary
132	confidential business information and the specific location of
133	such information within the record;
134	(b)  If the proprietary confidential business information
135	is a trade secret, a verification that it is a trade secret as
136	defined in s. 688.002;
137	(c)  That the proprietary confidential business information
138	is intended to be and is treated by the proprietor as private,
139	is the subject of efforts of the proprietor to maintain its
140	privacy, and is not readily ascertainable or publicly available
141	from any other source; and
142	(d)  That the disclosure of the proprietary confidential
143	business information to the public would harm the business
144	operations of the proprietor.
145	(4)(a)  Any person may petition a court of competent
146	jurisdiction for an order for the public release of those
147	portions of any record made confidential and exempt by
148	subsection (2).
149	(b)  Any action under this subsection must be brought in
150	Orange County, Florida, and the petition or other initial
151	pleading shall be served on the Florida Opportunity Fund or the
152	Florida Opportunity Fund Management Corporation, whichever is
153	applicable, and, if determinable upon diligent inquiry, on the
154	proprietor of the information sought to be released.
155	(c)  In any order for the public release of a record under
156	this subsection, the court shall make a finding that:
157	1.  The record or portion thereof is not a trade secret as
158	defined in s. 688.002;
159	2.  A compelling public interest is served by the release
160	of the record or portions thereof which exceed the public
161	necessity for maintaining the confidentiality of such record;
162	and
163	3.  The release of the record will not cause damage to or
164	adversely affect the interests of the proprietor of the released
165	information, other private persons or business entities, the
166	Florida Opportunity Fund Management Corporation, the Florida
167	Opportunity Fund, or any trust fund, the assets of which are
168	invested by the Florida Opportunity Fund.
169	(5)  This section is subject to the Open Government Sunset
170	Review Act in accordance with s. 119.15 and shall stand repealed
171	on October 2, 2012, unless reviewed and saved from repeal
172	through reenactment by the Legislature.
173	Section 2.  The Legislature finds that it is a public
174	necessity that proprietary confidential business information
175	held by the Florida Opportunity Fund and the Florida Opportunity
176	Fund Management Corporation regarding alternative investments be
177	held confidential and exempt from s. 119.07(1), Florida
178	Statutes, and s. 24(a), Art. I of the State Constitution for 10
179	years after the termination of the alternative investment.
180	Disclosing proprietary confidential business information,
181	including trade secrets as defined in s. 688.002, Florida
182	Statutes, used in determining how private equity investments are
183	made or managed by private partnerships investing assets on
184	behalf of the Florida Opportunity Fund would negatively affect
185	the business interests of private partnerships that rely heavily
186	on their information advantage to generate investment returns,
187	and competitor partnerships could gain an unfair competitive
188	advantage if provided access to such information. The release of
189	proprietary confidential business information, including trade
190	secrets, revealing how alternative investments are made could
191	result in inadequate returns and ultimately frustrate attainment
192	of the investment objective of the Florida Opportunity Fund and
193	the Florida Opportunity Fund Management Corporation. It is the
194	Legislature's intent to allow the public access to sufficient
195	information in order to be informed regarding the alternative
196	investments of the Florida Opportunity Fund and to balance the
197	public's right to information against the right of private
198	business entities to be protected from harmful disclosure of
199	confidential and exempt proprietary confidential business
200	information, the disclosure of which would injure them in the
201	marketplace. It is also the Legislature's intent to establish
202	consistency with regard to the classification of information
203	relating to alternative investments by the Florida Opportunity
204	Fund as either confidential or suitable for public disclosure.
205	In finding that the public records exemption created by this act
206	is a public necessity, the Legislature finds that the public and
207	private harm in disclosing proprietary confidential business
208	information relating to alternative investments by the Florida
209	Opportunity Fund significantly outweighs any public benefit
210	derived from disclosure; that the exemption created by this act
211	will enhance the ability of the Florida Opportunity Fund to
212	fulfill its duties as an investment fiduciary by making it more
213	effective and competitive in the marketplace as an investor that
214	is able to gain access to the best alternative investment
215	vehicles; and that the public's ability to be informed regarding
216	the alternative investments made by the Florida Opportunity Fund
217	is preserved by the disclosure of information excepted from the
218	created exemption.
219	Section 3.  This act shall take effect July 1, 2007, if
220	House Bill 83 or similar legislation is adopted in the same
221	legislative session or an extension thereof and becomes law.

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