CS/CS/HB 131

1	A bill to be entitled
2	An act relating to public records and meetings; creating
3	s. 288.9626, F.S.; providing definitions; providing an
4	exemption from public records requirements for certain
5	information held by the Florida Opportunity Fund and for
6	certain information held by the Institute for the
7	Commercialization of Public Research; providing exceptions
8	to the exemption; creating an exemption from public
9	meetings requirements for portions of meetings of the
10	boards of directors of the Florida Opportunity Fund and
11	the Institute for the Commercialization of Public Research
12	at which confidential and exempt records are discussed;
13	providing penalties; providing for future legislative
14	review and repeal; providing a statement of public
15	necessity; amending s. 1004.226, F.S.; creating an
16	exemption from public records requirements for certain
17	information held by the Florida Technology, Research, and
18	Scholarship Board; creating an exemption from public
19	meetings requirements for portions of meetings of the
20	Florida Technology, Research, and Scholarship Board at
21	which confidential and exempt records are discussed;
22	providing exceptions to the exemption; providing
23	penalties; providing for future legislative review and
24	repeal; providing a statement of public necessity;
25	providing a contingent effective date.
26
27	Be It Enacted by the Legislature of the State of Florida:
28
29	Section 1.  Section 288.9626, Florida Statutes, is created
30	to read:
31	288.9626  Exemptions from public records and public
32	meetings requirements; Florida Opportunity Fund and the
33	Institute 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
36	Florida Opportunity Fund in a private equity fund, venture
37	capital fund, or angel fund or a direct investment in a
38	portfolio company or investment through a distribution of
39	securities to its partners or shareholders by an alternative
40	investment vehicle.
41	(b)  "Alternative investment vehicle" means the limited
42	partnership, limited liability company, or similar legal
43	structure through which the Florida Opportunity Fund may elect
44	to invest in a portfolio company.
45	(c)  "Florida Opportunity Fund" or "fund" means the Florida
46	Opportunity Fund as defined in s. 288.9623.
47	(d)  "Institute for the Commercialization of Public
48	Research" or "institute" means the institute established by s.
49	288.9625.
50	(e)  "Portfolio company" means a corporation or other
51	issuer, any of whose securities are owned by an alternative
52	investment vehicle or the Florida Opportunity Fund and any
53	subsidiary of such corporation or other issuer.
54	(f)  "Portfolio positions" means individual investments in
55	portfolio companies that are made by the Florida Opportunity
56	Fund, including information or specific investment terms
57	associated with any portfolio company investment.
58	(g)1.  "Proprietary confidential business information"
59	means information that has been designated by the proprietor
60	when provided to the Florida Opportunity Fund or the Institute
61	for the Commercialization of Public Research as information that
62	is owned or controlled by a proprietor; that is intended to be
63	and is treated by the proprietor as private, the disclosure of
64	which would harm the business operations of the proprietor and
65	has not been intentionally disclosed by the proprietor unless
66	pursuant to a private agreement that provides that the
67	information will not be released to the public except as
68	required by law or legal process, or pursuant to law or an order
69	of 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
72	the Institute for the Commercialization of Public Research
73	regarding a prospective investment in a private equity fund,
74	venture capital fund, angel fund, or portfolio company that is
75	proprietary to the provider of the information.
76	c.  Financial statements and auditor reports of an
77	alternative investment vehicle or portfolio company, unless
78	publicly released by the alternative investment vehicle or
79	portfolio company.
80	d.  Meeting materials of an alternative investment vehicle
81	or portfolio company relating to financial, operating, or
82	marketing information of the alternative investment vehicle or
83	portfolio company.
84	e.  Information regarding the portfolio positions in which
85	the alternative investment vehicles or Florida Opportunity Fund
86	invest.
87	f.  Capital call and distribution notices to investors or
88	the Florida Opportunity Fund of an alternative investment
89	vehicle.
90	g.  Alternative investment agreements and related records.
91	h.  Information concerning investors, other than the
92	Florida Opportunity Fund, in an alternative investment vehicle
93	or portfolio company.
94	2.  "Proprietary confidential business information" does
95	not include:
96	a.  The name, address, and vintage year of an alternative
97	investment vehicle or Florida Opportunity Fund and the identity
98	of the principals involved in the management of the alternative
99	investment vehicle or Florida Opportunity Fund.
100	b.  The dollar amount of the commitment made by the Florida
101	Opportunity Fund to each alternative investment vehicle since
102	inception, if any.
103	c.  The dollar amount and date of cash contributions made
104	by the Florida Opportunity Fund to each alternative investment
105	vehicle since inception, if any.
106	d.  The dollar amount, on a fiscal-year-end basis, of cash
107	or other fungible distributions received by the Florida
108	Opportunity Fund from each alternative investment vehicle.
109	e.  The dollar amount, on a fiscal-year-end basis, of cash
110	or other fungible distributions received by the Florida
111	Opportunity Fund plus the remaining value of alternative-vehicle
112	assets that are attributable to the Florida Opportunity Fund's
113	investment in each alternative investment vehicle.
114	f.  The net internal rate of return of each alternative
115	investment vehicle since inception.
116	g.  The investment multiple of each alternative investment
117	vehicle since inception.
118	h.  The dollar amount of the total management fees and
119	costs paid on an annual fiscal-year-end basis by the Florida
120	Opportunity Fund to each alternative investment vehicle.
121	i.  The dollar amount of cash profit received by the
122	Florida Opportunity Fund from each alternative investment
123	vehicle on a fiscal-year-end basis.
124	(h)  "Proprietor" means an alternative investment vehicle,
125	a portfolio company in which the alternative investment vehicle
126	or Florida Opportunity Fund is invested, or an outside
127	consultant, including the respective authorized officers,
128	employees, agents, or successors in interest, that controls or
129	owns information.
130	(2)  PUBLIC RECORDS EXEMPTION.--
131	(a)  The following records held by the Florida Opportunity
132	Fund or the Institute for the Commercialization of Public
133	Research are confidential and exempt from s. 119.07(1) and s.
134	24(a), Art. I of the State Constitution:
135	1.  Materials that relate to methods of manufacture or
136	production, potential trade secrets, or patentable material
137	received, generated, ascertained, or discovered during the
138	course of research or through research projects conducted by
139	universities and other publicly supported organizations in this
140	state.
141	2.  Information that would identify an investor or
142	potential investor who desires to remain anonymous in projects
143	reviewed by the fund or institute.
144	3.  Any information received from a person from another
145	state or nation or the Federal Government which is otherwise
146	confidential or exempt pursuant to the laws of that state or
147	nation or pursuant to federal law.
148	4.  Proprietary confidential business information regarding
149	alternative investments for 10 years after the termination of
150	the alternative investment.
151	(b)  At the time any record made confidential and exempt by
152	this subsection, or portion thereof, is legally available or
153	subject to public disclosure for any other reason, that record,
154	or portion thereof, shall no longer be confidential and exempt
155	and 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
158	the Florida Opportunity Fund or the board of directors of the
159	Institute for the Commercialization of Public Research at which
160	information is discussed which is confidential and exempt under
161	subsection (2) is exempt from s. 286.011 and s. 24(b), Art. I of
162	the State Constitution.
163	(b)  Any exempt portion of a meeting shall be recorded and
164	transcribed. The boards of directors shall record the times of
165	commencement and termination of the meeting, all discussion and
166	proceedings, the names of all persons present at any time, and
167	the names of all persons speaking. An exempt portion of any
168	meeting may not be off the record.
169	(c)  A transcript and minutes of exempt portions of
170	meetings are confidential and exempt from s. 119.07(1) and s.
171	24(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
174	may be released, upon written request, to a governmental entity
175	in the performance of its official duties and responsibilities.
176	(b)  Notwithstanding the provisions of paragraph (2)(a), a
177	request to inspect or copy a public record that contains
178	proprietary confidential business information shall be granted
179	if the proprietor of the information fails, within a reasonable
180	period of time after the request is received by the Florida
181	Opportunity Fund or the Institute for the Commercialization of
182	Public Research, to verify the following to the fund through a
183	written declaration in the manner provided by s. 92.525:
184	1.  That the requested record contains proprietary
185	confidential business information and the specific location of
186	such information within the record;
187	2.  If the proprietary confidential business information is
188	a trade secret, a verification that it is a trade secret as
189	defined in s. 688.002;
190	3.  That the proprietary confidential business information
191	is intended to be and is treated by the proprietor as private,
192	is the subject of efforts of the proprietor to maintain its
193	privacy, and is not readily ascertainable or publicly available
194	from any other source; and
195	4.  That the disclosure of the proprietary confidential
196	business information to the public would harm the business
197	operations of the proprietor.
198	(c)1.  Any person may petition a court of competent
199	jurisdiction for an order for the public release of those
200	portions of any record made confidential and exempt by
201	subsection (2).
202	2.  Any action under this subsection must be brought in
203	Orange County and the petition or other initial pleading shall
204	be served on the fund or the institute, whichever is applicable,
205	and, if determinable upon diligent inquiry, on the proprietor of
206	the information sought to be released.
207	3.  In any order for the public release of a record under
208	this subsection, the court shall make a finding that:
209	a.  The record or portion thereof is not a trade secret as
210	defined in s. 688.002;
211	b.  A compelling public interest is served by the release
212	of the record or portions thereof which exceed the public
213	necessity for maintaining the confidentiality of such record;
214	and
215	c.  The release of the record will not cause damage to or
216	adversely affect the interests of the proprietor of the released
217	information, other private persons or business entities, the
218	fund, or any trust fund the assets of which are invested by the
219	Florida Opportunity Fund.
220	(5)  PENALTIES.--Any person who willfully and knowingly
221	violates this section commits a misdemeanor of the first degree,
222	punishable as provided in s. 775.082 or s. 775.083.
223	(6)  OPEN GOVERNMENT SUNSET REVIEW.--This section is
224	subject to the Open Government Sunset Review Act in accordance
225	with s. 119.15 and shall stand repealed on October 2, 2012,
226	unless reviewed and saved from repeal through reenactment by the
227	Legislature.
228	Section 2.  The Legislature finds that it is a public
229	necessity that certain information held by the Florida
230	Opportunity Fund or the Institute for the Commercialization of
231	Public Research be made confidential and exempt from s.
232	119.07(1), Florida Statutes, and s. 24(a), Art. I of the State
233	Constitution. Materials that relate to methods of manufacture or
234	production, potential trade secrets, or patentable materials
235	received, generated, ascertained, or discovered during the
236	course of research or through research projects by universities,
237	colleges, community colleges, and publicly supported
238	organizations in this state must be confidential and exempt
239	because the disclosure of such information would create an
240	unfair competitive advantage for persons receiving such
241	information. Disclosure of proprietary confidential business
242	information to the public would harm the business operations of
243	the proprietor. The Legislature further finds that information
244	received by the fund or the institute from a person from another
245	state or nation or the Federal Government which is otherwise
246	exempt or confidential pursuant to the laws of that state or
247	nation or pursuant to federal law should remain exempt or
248	confidential because the highly confidential nature of research
249	necessitates that it be protected. Without the exemptions
250	provided by this act, the disclosure of confidential and exempt
251	information would jeopardize the effective and efficient
252	administration of this program. In addition, the Legislature
253	further finds that the identity of an investor or prospective
254	investor who wishes to remain anonymous should be confidential
255	and exempt from public disclosure. This exemption is necessary
256	because the disclosure of investor identities may adversely
257	impact the ability of the fund or the institute to attract
258	investors who desire anonymity. The Legislature also finds that
259	it is a public necessity that proprietary confidential business
260	information held by the fund or the institute regarding
261	alternative investments be held confidential and exempt for 10
262	years after the termination of the alternative investment.
263	Disclosing proprietary confidential business information used in
264	determining how private equity investments are made or managed
265	by private partnerships investing assets on behalf of the fund
266	would negatively affect the business interests of private
267	partnerships that rely heavily on their information advantage to
268	generate investment returns, and competitor partnerships could
269	gain an unfair competitive advantage if provided access to such
270	information. The release of proprietary confidential business
271	information revealing how alternative investments are made could
272	result in inadequate returns and ultimately frustrate attainment
273	of the investment objective of the fund. It is the Legislature's
274	intent to allow the public access to sufficient information in
275	order to be informed regarding the alternative investments of
276	the fund and to balance the public's right to information
277	against the right of business entities to be protected from
278	harmful disclosure of proprietary confidential business
279	information the disclosure of which would injure them in the
280	marketplace. The Legislature further finds that it is a public
281	necessity that portions of meetings of the board of directors of
282	the fund or of the board of directors of the institute at which
283	records made confidential and exempt by this act are discussed
284	be made exempt from public meetings requirements in order to
285	maintain the confidential and exempt status of this information.
286	Public oversight is preserved by requiring a transcript of any
287	portion of a closed meeting of these boards.
288	Section 3.  Subsection (8) of section 1004.226, Florida
289	Statutes, as created by CS/CS/HB 83, 2007 Regular Session, is
290	renumbered as subsection (9) and a new subsection (8) is added
291	to that section, to read:
292	1004.226  The 21st Century Technology, Research, and
293	Scholarship Enhancement Act.--
294	(8)  EXEMPTIONS FROM PUBLIC RECORDS AND PUBLIC MEETINGS
295	REQUIREMENTS; STATE UNIVERSITY RESEARCH COMMERCIALIZATION
296	ASSISTANCE GRANT PROGRAM.--
297	(a)  The following information held by the Florida
298	Technology, Research, and Scholarship Board is confidential and
299	exempt from s. 119.07(1) and s. 24(a), Art. I of the State
300	Constitution:
301	1.  Materials that relate to methods of manufacture or
302	production, potential trade secrets, patentable material, trade
303	secrets as defined in s. 688.002, or proprietary information
304	received, generated, ascertained, or discovered by or through
305	state university research projects submitted for funding under
306	the State University Research Commercialization Assistance Grant
307	Program.
308	2.  Information that would identify an investor or
309	potential investor, who desires to remain anonymous, in projects
310	reviewed by the Florida Technology, Research, and Scholarship
311	Board.
312	3.  Any information received from a person or another state
313	or nation or the Federal Government which is otherwise
314	confidential or exempt under the laws of that state or nation or
315	under federal law.
316	(b)1.  That portion of a meeting of the Florida Technology,
317	Research, and Scholarship Board at which information is
318	discussed that is confidential and exempt under subsection (1)
319	is exempt from s. 286.011 and s. 24(b), Art. I of the State
320	Constitution.
321	2.  Any records generated during that portion of an exempt
322	meeting are confidential and exempt from s. 119.07(1) and s.
323	24(a), Art. I of the State Constitution.
324	(c)1.  Information made confidential and exempt pursuant to
325	this section may be released to a governmental entity in the
326	furtherance of its duties and responsibilities.
327	2.  Any public officer or employee who willfully and
328	knowingly releases such confidential and exempt information, in
329	violation of this subsection, commits a misdemeanor of the first
330	degree, punishable as provided in s. 775.082 or s. 775.083.
331	(d)  This section is subject to the Open Government Sunset
332	Review Act in accordance with s. 119.15 and shall stand repealed
333	on October 2, 2012, unless reviewed and saved from repeal
334	through reenactment by the Legislature.
335	Section 4.  The Legislature finds that it is a public
336	necessity that certain records held by the Florida Technology,
337	Research, and Scholarship Board be made confidential and exempt
338	from s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the
339	State Constitution. Materials that relate to methods of
340	manufacture or production, actual or potential trade secrets,
341	patentable materials, or proprietary information received,
342	generated, ascertained, or discovered by or through state
343	university research projects submitted for funding under the
344	State University Research Commercialization Assistance Grant
345	Program must be confidential and exempt because the disclosure
346	of such information would create an unfair competitive advantage
347	for persons receiving such information. Disclosing proprietary
348	confidential business information derived from university
349	research projects, including trade secrets as defined in s.
350	688.002, Florida Statutes, would negatively affect the ability
351	of state universities that rely heavily on the information
352	gained from publicly funded research products to generate
353	investment returns and competitor partnerships could gain an
354	unfair competitive advantage if provided access to such
355	information. The release of university-based proprietary
356	confidential business information could result in inadequate
357	returns and ultimately frustrate attainment of the investment
358	objective of the State University Research Commercialization
359	Assistance Grant Program. If such confidential and exempt
360	information regarding research in progress were released
361	pursuant to a public records request, others would be allowed to
362	take the benefit of the research without compensation or
363	reimbursement. The Legislature further finds that information
364	received by the Florida Technology, Research, and Scholarship
365	Board from a person from another state or nation or the Federal
366	Government which is otherwise exempt or confidential pursuant to
367	the laws of that state or nation or pursuant to federal law
368	should remain exempt or confidential because the highly
369	confidential nature of research necessitates that it be
370	protected. Without the exemptions provided by this act, the
371	disclosure of confidential and exempt information would
372	jeopardize the effective and efficient administration of this
373	program. In addition, the Legislature further finds that the
374	identity of an investor or prospective investor who wishes to
375	remain anonymous should be confidential and exempt from public
376	disclosure. This exemption is necessary because the disclosure
377	of investor identities may adversely impact the ability of state
378	universities to attract investors who desire anonymity. The
379	Legislature further finds that it is a public necessity that
380	portions of meetings of the Florida Technology, Research, and
381	Scholarship Board at which information made confidential and
382	exempt by this act is discussed be made exempt from public
383	meetings requirements in order to allow the Florida Technology,
384	Research, and Scholarship Board to maintain the confidential and
385	exempt status of this information.
386	Section 5.  This act shall take effect July 1, 2007, if
387	CS/CS/HB 83 or similar legislation is adopted in the same
388	legislative session or an extension thereof and becomes law.

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