Florida Senate - 2013                                     SB 834
       
       
       
       By Senator Simmons
       
       
       
       
       10-00918-13                                            2013834__
    1                        A bill to be entitled                      
    2         An act relating to public records; creating s.
    3         624.4212, F.S.; creating an exemption from public
    4         records requirements for proprietary business
    5         information submitted to the Office of Insurance
    6         Regulation; defining the term “proprietary business
    7         information”; providing exceptions; providing for
    8         future legislative review and repeal; providing a
    9         statement of public necessity; providing a contingent
   10         effective date.
   11  
   12  Be It Enacted by the Legislature of the State of Florida:
   13  
   14         Section 1. Section 624.4212, Florida Statutes, is created
   15  to read:
   16         624.4212Confidentiality of proprietary business
   17  information.—Proprietary business information held by the Office
   18  of Insurance Regulation in accordance with its statutory duties
   19  with respect to insurer solvency is confidential and exempt from
   20  s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
   21         (1) As used in this section, the term “proprietary business
   22  information” means information, regardless of form or
   23  characteristics, which is owned or controlled by an insurer, or
   24  a person or affiliated person who seeks acquisition of
   25  controlling stock in a domestic stock insurer or controlling
   26  company, and which:
   27         (a) Is intended to be and is treated by the insurer or the
   28  person as private in that the disclosure of the information
   29  would cause harm to the insurer, the person, or the company’s
   30  business operations and has not been disclosed unless disclosed
   31  pursuant to a statutory requirement, an order of a court or
   32  administrative body, or a private agreement that provides that
   33  the information will not be released to the public;
   34         (b) Is not otherwise readily ascertainable or publicly
   35  available by proper means by other persons from another source
   36  in the same configuration as requested by the office; and
   37         (c) Includes, but is not limited to:
   38         1.Trade secrets.
   39         2.Information relating to competitive interests, the
   40  disclosure of which would impair the competitive business of the
   41  provider of the information.
   42         3. The source, nature, and amount of the consideration used
   43  or to be used in carrying out a merger or other acquisition of
   44  control in the ordinary course of business, including the
   45  identity of the lender, if the person filing a statement
   46  regarding consideration so requests.
   47         4.Information relating to bids or other contractual data,
   48  the disclosure of which would impair the efforts of the insurer
   49  or its affiliates to contract for goods or services on favorable
   50  terms.
   51         5.Internal auditing controls and reports of internal
   52  auditors.
   53         (2) Proprietary business information may be found in:
   54         1. The actuarial opinion summary required under s.
   55  624.424(1)(b);
   56         2. Information filed by the person or affiliated person who
   57  seeks to divest or acquire controlling stock in an insurer
   58  pursuant to s. 628.461;
   59         3. The enterprise risk report required under s. 628.801;
   60         4. Information obtained by the office pursuant to
   61  participation in a supervisory college established under s.
   62  628.805; or
   63         5. Information received from another governmental entity or
   64  the National Association of Insurance Commissioners which is
   65  confidential or exempt if held by that entity, for use by the
   66  office in the performance of its duties.
   67         (3) The office may disclose confidential and exempt
   68  proprietary business information:
   69         (a) If the insurer to which it pertains gives prior written
   70  consent;
   71         (b) Pursuant to a court order;
   72         (c)To the American Academy of Actuaries upon a request
   73  stating that the information is for the purpose of professional
   74  disciplinary proceedings and specifying procedures satisfactory
   75  to the office for preserving the confidentiality of the
   76  information;
   77         (d) To other states, federal and international agencies,
   78  the National Association of Insurance Commissioners and its
   79  affiliates and subsidiaries, and state, federal, and
   80  international law enforcement authorities, including members of
   81  a supervisory college described in s. 628.805 if the recipient
   82  agrees in writing to maintain the confidential and exempt status
   83  of the document, material, or other information, and has
   84  verified in writing its legal authority to maintain such
   85  confidentiality; or
   86         (e)For the purpose of aggregating information on an
   87  industrywide basis and disclosing the information to the public
   88  only if the specific identities of the insurers, or persons or
   89  affiliated persons, are not revealed.
   90         (4) This section is subject to the Open Government Sunset
   91  Review Act of 1995 in accordance with s. 119.15 and shall stand
   92  repealed on October 2, 2018, unless reviewed and saved from
   93  repeal through reenactment by the Legislature.
   94         Section 2. The Legislature finds that it is a public
   95  necessity that proprietary business information that is provided
   96  to the Office of Insurance Regulation by an insurer or acquiring
   97  party pursuant to the requirements of the Florida Insurance Code
   98  or the Holding Company System Regulatory Act of the National
   99  Association of Insurance Commissioners in order for the office
  100  to conduct its regulatory duties with respect to insurer
  101  solvency, be made confidential and exempt from s. 119.07(1),
  102  Florida Statutes, and s. 24(a), Article I of the State
  103  Constitution. The disclosure of such information could injure an
  104  insurer in the marketplace by providing its competitors with
  105  detailed insight into the financial status and strategic plans
  106  of the insurer, thereby diminishing the advantage that the
  107  insurer maintains over competitors that do not possess such
  108  information. Without this exemption, an insurer or acquiring
  109  party might refrain from providing accurate and unbiased data,
  110  thus impairing the office’s ability to accurately evaluate the
  111  propriety of proposed acquisitions in the state, and the
  112  financial condition of insurers and their affiliates.
  113  Proprietary business information derives actual or potential
  114  independent economic value from not being generally known to,
  115  and not being readily ascertainable by proper means by, other
  116  persons who can derive economic value from its disclosure or
  117  use. The office, in performing its duties and responsibilities,
  118  may need to obtain proprietary business information from
  119  insurers and regulated entities. Without an exemption from
  120  public records requirements for proprietary business information
  121  provided to the office, such information becomes a public record
  122  when received and must be divulged upon request. Divulgence of
  123  proprietary business information under the public records law
  124  would destroy the value of that property to the proprietor,
  125  causing a financial loss not only to the proprietor but also to
  126  the residents of this state due to the loss of reliable
  127  financial data necessary for the accurate evaluation of proposed
  128  acquisitions. Release of proprietary business information would
  129  give business competitors an unfair advantage and weaken the
  130  position in the marketplace of the proprietor who owns or
  131  controls the business information. The harm to insurers in the
  132  marketplace and to the effective administration of acquisitions
  133  caused by the public disclosure of such information far
  134  outweighs the public benefits derived from its release.
  135         Section 3. This act shall take effect October 1, 2013, if
  136  SB ______ or similar legislation is adopted in the same
  137  legislative session or an extension thereof and becomes a law.