CS/CS/HB 131

1
A bill to be entitled
2An act relating to public records and meetings; creating
3s. 288.9626, F.S.; providing definitions; providing an
4exemption from public records requirements for certain
5information held by the Florida Opportunity Fund and for
6certain information held by the Institute for the
7Commercialization of Public Research; providing exceptions
8to the exemption; creating an exemption from public
9meetings requirements for portions of meetings of the
10boards of directors of the Florida Opportunity Fund and
11the Institute for the Commercialization of Public Research
12at which confidential and exempt records are discussed;
13providing penalties; providing for future legislative
14review and repeal; providing a statement of public
15necessity; amending s. 1004.226, F.S.; creating an
16exemption from public records requirements for certain
17information held by the Florida Technology, Research, and
18Scholarship Board; creating an exemption from public
19meetings requirements for portions of meetings of the
20Florida Technology, Research, and Scholarship Board at
21which confidential and exempt records are discussed;
22providing exceptions to the exemption; providing
23penalties; providing for future legislative review and
24repeal; providing a statement of public necessity;
25providing a contingent effective date.
26
27Be It Enacted by the Legislature of the State of Florida:
28
29     Section 1.  Section 288.9626, Florida Statutes, is created
30to read:
31     288.9626  Exemptions from public records and public
32meetings requirements; Florida Opportunity Fund and the
33Institute for the Commercialization of Public Research.--
34     (1)  DEFINITIONS.--As used in this section, the term:
35     (a)  "Alternative investment" means an investment by the
36Florida Opportunity Fund in a private equity fund, venture
37capital fund, or angel fund or a direct investment in a
38portfolio company or investment through a distribution of
39securities to its partners or shareholders by an alternative
40investment vehicle.
41     (b)  "Alternative investment vehicle" means the limited
42partnership, limited liability company, or similar legal
43structure through which the Florida Opportunity Fund may elect
44to invest in a portfolio company.
45     (c)  "Florida Opportunity Fund" or "fund" means the Florida
46Opportunity Fund as defined in s. 288.9623.
47     (d)  "Institute for the Commercialization of Public
48Research" or "institute" means the institute established by s.
49288.9625.
50     (e)  "Portfolio company" means a corporation or other
51issuer, any of whose securities are owned by an alternative
52investment vehicle or the Florida Opportunity Fund and any
53subsidiary of such corporation or other issuer.
54     (f)  "Portfolio positions" means individual investments in
55portfolio companies that are made by the Florida Opportunity
56Fund, including information or specific investment terms
57associated with any portfolio company investment.
58     (g)1.  "Proprietary confidential business information"
59means information that has been designated by the proprietor
60when provided to the Florida Opportunity Fund or the Institute
61for the Commercialization of Public Research as information that
62is owned or controlled by a proprietor; that is intended to be
63and is treated by the proprietor as private, the disclosure of
64which would harm the business operations of the proprietor and
65has not been intentionally disclosed by the proprietor unless
66pursuant to a private agreement that provides that the
67information will not be released to the public except as
68required by law or legal process, or pursuant to law or an order
69of a court or administrative body; and that concerns:
70     a.  Trade secrets as defined in s. 688.002.
71     b.  Information provided to the Florida Opportunity Fund or
72the Institute for the Commercialization of Public Research
73regarding a prospective investment in a private equity fund,
74venture capital fund, angel fund, or portfolio company that is
75proprietary to the provider of the information.
76     c.  Financial statements and auditor reports of an
77alternative investment vehicle or portfolio company, unless
78publicly released by the alternative investment vehicle or
79portfolio company.
80     d.  Meeting materials of an alternative investment vehicle
81or portfolio company relating to financial, operating, or
82marketing information of the alternative investment vehicle or
83portfolio company.
84     e.  Information regarding the portfolio positions in which
85the alternative investment vehicles or Florida Opportunity Fund
86invest.
87     f.  Capital call and distribution notices to investors or
88the Florida Opportunity Fund of an alternative investment
89vehicle.
90     g.  Alternative investment agreements and related records.
91     h.  Information concerning investors, other than the
92Florida Opportunity Fund, in an alternative investment vehicle
93or portfolio company.
94     2.  "Proprietary confidential business information" does
95not include:
96     a.  The name, address, and vintage year of an alternative
97investment vehicle or Florida Opportunity Fund and the identity
98of the principals involved in the management of the alternative
99investment vehicle or Florida Opportunity Fund.
100     b.  The dollar amount of the commitment made by the Florida
101Opportunity Fund to each alternative investment vehicle since
102inception, if any.
103     c.  The dollar amount and date of cash contributions made
104by the Florida Opportunity Fund to each alternative investment
105vehicle since inception, if any.
106     d.  The dollar amount, on a fiscal-year-end basis, of cash
107or other fungible distributions received by the Florida
108Opportunity Fund from each alternative investment vehicle.
109     e.  The dollar amount, on a fiscal-year-end basis, of cash
110or other fungible distributions received by the Florida
111Opportunity Fund plus the remaining value of alternative-vehicle
112assets that are attributable to the Florida Opportunity Fund's
113investment in each alternative investment vehicle.
114     f.  The net internal rate of return of each alternative
115investment vehicle since inception.
116     g.  The investment multiple of each alternative investment
117vehicle since inception.
118     h.  The dollar amount of the total management fees and
119costs paid on an annual fiscal-year-end basis by the Florida
120Opportunity Fund to each alternative investment vehicle.
121     i.  The dollar amount of cash profit received by the
122Florida Opportunity Fund from each alternative investment
123vehicle on a fiscal-year-end basis.
124     (h)  "Proprietor" means an alternative investment vehicle,
125a portfolio company in which the alternative investment vehicle
126or Florida Opportunity Fund is invested, or an outside
127consultant, including the respective authorized officers,
128employees, agents, or successors in interest, that controls or
129owns information.
130     (2)  PUBLIC RECORDS EXEMPTION.--
131     (a)  The following records held by the Florida Opportunity
132Fund or the Institute for the Commercialization of Public
133Research are confidential and exempt from s. 119.07(1) and s.
13424(a), Art. I of the State Constitution:
135     1.  Materials that relate to methods of manufacture or
136production, potential trade secrets, or patentable material
137received, generated, ascertained, or discovered during the
138course of research or through research projects conducted by
139universities and other publicly supported organizations in this
140state.
141     2.  Information that would identify an investor or
142potential investor who desires to remain anonymous in projects
143reviewed by the fund or institute.
144     3.  Any information received from a person from another
145state or nation or the Federal Government which is otherwise
146confidential or exempt pursuant to the laws of that state or
147nation or pursuant to federal law.
148     4.  Proprietary confidential business information regarding
149alternative investments for 10 years after the termination of
150the alternative investment.
151     (b)  At the time any record made confidential and exempt by
152this subsection, or portion thereof, is legally available or
153subject to public disclosure for any other reason, that record,
154or portion thereof, shall no longer be confidential and exempt
155and shall be made available for inspection and copying.
156     (3)  PUBLIC MEETINGS EXEMPTION.--
157     (a)  That portion of a meeting of the board of directors of
158the Florida Opportunity Fund or the board of directors of the
159Institute for the Commercialization of Public Research at which
160information is discussed which is confidential and exempt under
161subsection (2) is exempt from s. 286.011 and s. 24(b), Art. I of
162the State Constitution.
163     (b)  Any exempt portion of a meeting shall be recorded and
164transcribed. The boards of directors shall record the times of
165commencement and termination of the meeting, all discussion and
166proceedings, the names of all persons present at any time, and
167the names of all persons speaking. An exempt portion of any
168meeting may not be off the record.
169     (c)  A transcript and minutes of exempt portions of
170meetings are confidential and exempt from s. 119.07(1) and s.
17124(a), Art. I of the State Constitution.
172     (4)  REQUEST TO INSPECT OR COPY A RECORD.--
173     (a)  Records made confidential and exempt by this section
174may be released, upon written request, to a governmental entity
175in the performance of its official duties and responsibilities.
176     (b)  Notwithstanding the provisions of paragraph (2)(a), a
177request to inspect or copy a public record that contains
178proprietary confidential business information shall be granted
179if the proprietor of the information fails, within a reasonable
180period of time after the request is received by the Florida
181Opportunity Fund or the Institute for the Commercialization of
182Public Research, to verify the following to the fund through a
183written declaration in the manner provided by s. 92.525:
184     1.  That the requested record contains proprietary
185confidential business information and the specific location of
186such information within the record;
187     2.  If the proprietary confidential business information is
188a trade secret, a verification that it is a trade secret as
189defined in s. 688.002;
190     3.  That the proprietary confidential business information
191is intended to be and is treated by the proprietor as private,
192is the subject of efforts of the proprietor to maintain its
193privacy, and is not readily ascertainable or publicly available
194from any other source; and
195     4.  That the disclosure of the proprietary confidential
196business information to the public would harm the business
197operations of the proprietor.
198     (c)1.  Any person may petition a court of competent
199jurisdiction for an order for the public release of those
200portions of any record made confidential and exempt by
201subsection (2).
202     2.  Any action under this subsection must be brought in
203Orange County and the petition or other initial pleading shall
204be served on the fund or the institute, whichever is applicable,
205and, if determinable upon diligent inquiry, on the proprietor of
206the information sought to be released.
207     3.  In any order for the public release of a record under
208this subsection, the court shall make a finding that:
209     a.  The record or portion thereof is not a trade secret as
210defined in s. 688.002;
211     b.  A compelling public interest is served by the release
212of the record or portions thereof which exceed the public
213necessity for maintaining the confidentiality of such record;
214and
215     c.  The release of the record will not cause damage to or
216adversely affect the interests of the proprietor of the released
217information, other private persons or business entities, the
218fund, or any trust fund the assets of which are invested by the
219Florida Opportunity Fund.
220     (5)  PENALTIES.--Any person who willfully and knowingly
221violates this section commits a misdemeanor of the first degree,
222punishable as provided in s. 775.082 or s. 775.083.
223     (6)  OPEN GOVERNMENT SUNSET REVIEW.--This section is
224subject to the Open Government Sunset Review Act in accordance
225with s. 119.15 and shall stand repealed on October 2, 2012,
226unless reviewed and saved from repeal through reenactment by the
227Legislature.
228     Section 2.  The Legislature finds that it is a public
229necessity that certain information held by the Florida
230Opportunity Fund or the Institute for the Commercialization of
231Public Research be made confidential and exempt from s.
232119.07(1), Florida Statutes, and s. 24(a), Art. I of the State
233Constitution. Materials that relate to methods of manufacture or
234production, potential trade secrets, or patentable materials
235received, generated, ascertained, or discovered during the
236course of research or through research projects by universities,
237colleges, community colleges, and publicly supported
238organizations in this state must be confidential and exempt
239because the disclosure of such information would create an
240unfair competitive advantage for persons receiving such
241information. Disclosure of proprietary confidential business
242information to the public would harm the business operations of
243the proprietor. The Legislature further finds that information
244received by the fund or the institute from a person from another
245state or nation or the Federal Government which is otherwise
246exempt or confidential pursuant to the laws of that state or
247nation or pursuant to federal law should remain exempt or
248confidential because the highly confidential nature of research
249necessitates that it be protected. Without the exemptions
250provided by this act, the disclosure of confidential and exempt
251information would jeopardize the effective and efficient
252administration of this program. In addition, the Legislature
253further finds that the identity of an investor or prospective
254investor who wishes to remain anonymous should be confidential
255and exempt from public disclosure. This exemption is necessary
256because the disclosure of investor identities may adversely
257impact the ability of the fund or the institute to attract
258investors who desire anonymity. The Legislature also finds that
259it is a public necessity that proprietary confidential business
260information held by the fund or the institute regarding
261alternative investments be held confidential and exempt for 10
262years after the termination of the alternative investment.
263Disclosing proprietary confidential business information used in
264determining how private equity investments are made or managed
265by private partnerships investing assets on behalf of the fund
266would negatively affect the business interests of private
267partnerships that rely heavily on their information advantage to
268generate investment returns, and competitor partnerships could
269gain an unfair competitive advantage if provided access to such
270information. The release of proprietary confidential business
271information revealing how alternative investments are made could
272result in inadequate returns and ultimately frustrate attainment
273of the investment objective of the fund. It is the Legislature's
274intent to allow the public access to sufficient information in
275order to be informed regarding the alternative investments of
276the fund and to balance the public's right to information
277against the right of business entities to be protected from
278harmful disclosure of proprietary confidential business
279information the disclosure of which would injure them in the
280marketplace. The Legislature further finds that it is a public
281necessity that portions of meetings of the board of directors of
282the fund or of the board of directors of the institute at which
283records made confidential and exempt by this act are discussed
284be made exempt from public meetings requirements in order to
285maintain the confidential and exempt status of this information.
286Public oversight is preserved by requiring a transcript of any
287portion of a closed meeting of these boards.
288     Section 3.  Subsection (8) of section 1004.226, Florida
289Statutes, as created by CS/CS/HB 83, 2007 Regular Session, is
290renumbered as subsection (9) and a new subsection (8) is added
291to that section, to read:
292     1004.226  The 21st Century Technology, Research, and
293Scholarship Enhancement Act.--
294     (8)  EXEMPTIONS FROM PUBLIC RECORDS AND PUBLIC MEETINGS
295REQUIREMENTS; STATE UNIVERSITY RESEARCH COMMERCIALIZATION
296ASSISTANCE GRANT PROGRAM.--
297     (a)  The following information held by the Florida
298Technology, Research, and Scholarship Board is confidential and
299exempt from s. 119.07(1) and s. 24(a), Art. I of the State
300Constitution:
301     1.  Materials that relate to methods of manufacture or
302production, potential trade secrets, patentable material, trade
303secrets as defined in s. 688.002, or proprietary information
304received, generated, ascertained, or discovered by or through
305state university research projects submitted for funding under
306the State University Research Commercialization Assistance Grant
307Program.
308     2.  Information that would identify an investor or
309potential investor, who desires to remain anonymous, in projects
310reviewed by the Florida Technology, Research, and Scholarship
311Board.
312     3.  Any information received from a person or another state
313or nation or the Federal Government which is otherwise
314confidential or exempt under the laws of that state or nation or
315under federal law.
316     (b)1.  That portion of a meeting of the Florida Technology,
317Research, and Scholarship Board at which information is
318discussed that is confidential and exempt under subsection (1)
319is exempt from s. 286.011 and s. 24(b), Art. I of the State
320Constitution.
321     2.  Any records generated during that portion of an exempt
322meeting are confidential and exempt from s. 119.07(1) and s.
32324(a), Art. I of the State Constitution.
324     (c)1.  Information made confidential and exempt pursuant to
325this section may be released to a governmental entity in the
326furtherance of its duties and responsibilities.
327     2.  Any public officer or employee who willfully and
328knowingly releases such confidential and exempt information, in
329violation of this subsection, commits a misdemeanor of the first
330degree, punishable as provided in s. 775.082 or s. 775.083.
331     (d)  This section is subject to the Open Government Sunset
332Review Act in accordance with s. 119.15 and shall stand repealed
333on October 2, 2012, unless reviewed and saved from repeal
334through reenactment by the Legislature.
335     Section 4.  The Legislature finds that it is a public
336necessity that certain records held by the Florida Technology,
337Research, and Scholarship Board be made confidential and exempt
338from s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the
339State Constitution. Materials that relate to methods of
340manufacture or production, actual or potential trade secrets,
341patentable materials, or proprietary information received,
342generated, ascertained, or discovered by or through state
343university research projects submitted for funding under the
344State University Research Commercialization Assistance Grant
345Program must be confidential and exempt because the disclosure
346of such information would create an unfair competitive advantage
347for persons receiving such information. Disclosing proprietary
348confidential business information derived from university
349research projects, including trade secrets as defined in s.
350688.002, Florida Statutes, would negatively affect the ability
351of state universities that rely heavily on the information
352gained from publicly funded research products to generate
353investment returns and competitor partnerships could gain an
354unfair competitive advantage if provided access to such
355information. The release of university-based proprietary
356confidential business information could result in inadequate
357returns and ultimately frustrate attainment of the investment
358objective of the State University Research Commercialization
359Assistance Grant Program. If such confidential and exempt
360information regarding research in progress were released
361pursuant to a public records request, others would be allowed to
362take the benefit of the research without compensation or
363reimbursement. The Legislature further finds that information
364received by the Florida Technology, Research, and Scholarship
365Board from a person from another state or nation or the Federal
366Government which is otherwise exempt or confidential pursuant to
367the laws of that state or nation or pursuant to federal law
368should remain exempt or confidential because the highly
369confidential nature of research necessitates that it be
370protected. Without the exemptions provided by this act, the
371disclosure of confidential and exempt information would
372jeopardize the effective and efficient administration of this
373program. In addition, the Legislature further finds that the
374identity of an investor or prospective investor who wishes to
375remain anonymous should be confidential and exempt from public
376disclosure. This exemption is necessary because the disclosure
377of investor identities may adversely impact the ability of state
378universities to attract investors who desire anonymity. The
379Legislature further finds that it is a public necessity that
380portions of meetings of the Florida Technology, Research, and
381Scholarship Board at which information made confidential and
382exempt by this act is discussed be made exempt from public
383meetings requirements in order to allow the Florida Technology,
384Research, and Scholarship Board to maintain the confidential and
385exempt status of this information.
386     Section 5.  This act shall take effect July 1, 2007, if
387CS/CS/HB 83 or similar legislation is adopted in the same
388legislative session or an extension thereof and becomes law.


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