CS for CS for SB 1278                      First Engrossed (ntc)
       
       
       
       
       
       
       
       
       20141278e1
       
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         655.057, F.S.; providing an exemption from public
    4         records requirements for certain informal enforcement
    5         actions by the Office of Financial Regulation, to
    6         which penalties apply for willful disclosure of such
    7         confidential information; providing an exemption from
    8         public records requirements for certain trade secrets
    9         held by the office, to which penalties apply for
   10         willful disclosure of such confidential information;
   11         defining terms; providing for future legislative
   12         review and repeal of the section; providing a
   13         statement of public necessity; providing a contingent
   14         effective date.
   15          
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Section 655.057, Florida Statutes, is amended to
   19  read:
   20         655.057 Records; limited restrictions upon public access.—
   21         (1) Except as otherwise provided in this section and except
   22  for such portions thereof which are otherwise public record, all
   23  records and information relating to an investigation by the
   24  office are confidential and exempt from the provisions of s.
   25  119.07(1) until such investigation is completed or ceases to be
   26  active. For purposes of this subsection, an investigation is
   27  considered “active” while such investigation is being conducted
   28  by the office with a reasonable, good faith belief that it may
   29  lead to the filing of administrative, civil, or criminal
   30  proceedings. An investigation does not cease to be active if the
   31  office is proceeding with reasonable dispatch, and there is a
   32  good faith belief that action may be initiated by the office or
   33  other administrative or law enforcement agency. After an
   34  investigation is completed or ceases to be active, portions of
   35  the such records relating to the investigation are shall be
   36  confidential and exempt from the provisions of s. 119.07(1) to
   37  the extent that disclosure would:
   38         (a) Jeopardize the integrity of another active
   39  investigation;
   40         (b) Impair the safety and soundness of the financial
   41  institution;
   42         (c) Reveal personal financial information;
   43         (d) Reveal the identity of a confidential source;
   44         (e) Defame or cause unwarranted damage to the good name or
   45  reputation of an individual or jeopardize the safety of an
   46  individual; or
   47         (f) Reveal investigative techniques or procedures.
   48         (2) Except as otherwise provided in this section and except
   49  for such portions thereof which are public record, reports of
   50  examinations, operations, or condition, including working
   51  papers, or portions thereof, prepared by, or for the use of, the
   52  office or any state or federal agency responsible for the
   53  regulation or supervision of financial institutions in this
   54  state are confidential and exempt from the provisions of s.
   55  119.07(1). However, such reports or papers or portions thereof
   56  may be released to:
   57         (a) The financial institution under examination;
   58         (b) Any holding company of which the financial institution
   59  is a subsidiary;
   60         (c) Proposed purchasers if necessary to protect the
   61  continued financial viability of the financial institution, upon
   62  prior approval by the board of directors of such institution;
   63         (d) Persons proposing in good faith to acquire a
   64  controlling interest in or to merge with the financial
   65  institution, upon prior approval by the board of directors of
   66  such financial institution;
   67         (e) Any officer, director, committee member, employee,
   68  attorney, auditor, or independent auditor officially connected
   69  with the financial institution, holding company, proposed
   70  purchaser, or person seeking to acquire a controlling interest
   71  in or merge with the financial institution; or
   72         (f) A fidelity insurance company, upon approval of the
   73  financial institution’s board of directors. However, a fidelity
   74  insurance company may receive only that portion of an
   75  examination report relating to a claim or investigation being
   76  conducted by such fidelity insurance company.
   77         (g) Examination, operation, or condition reports of a
   78  financial institution shall be released by the office within 1
   79  year after the appointment of a liquidator, receiver, or
   80  conservator to the such financial institution. However, any
   81  portion of such reports which discloses the identities of
   82  depositors, bondholders, members, borrowers, or stockholders,
   83  other than directors, officers, or controlling stockholders of
   84  the institution, shall remain confidential and exempt from the
   85  provisions of s. 119.07(1).
   86  
   87  Any confidential information or records obtained from the office
   88  pursuant to this paragraph shall be maintained as confidential
   89  and exempt from the provisions of s. 119.07(1).
   90         (3) Except as otherwise provided in this section and except
   91  for those portions that are otherwise public record, after an
   92  investigation relating to an informal enforcement action is
   93  completed or ceases to be active, informal enforcement actions
   94  are confidential and exempt from s. 119.07(1) and s. 24(a), Art.
   95  I of the State Constitution to the extent that disclosure would:
   96         (a) Jeopardize the integrity of another active
   97  investigation.
   98         (b) Impair the safety and soundness of the financial
   99  institution.
  100         (c) Reveal personal financial information.
  101         (d) Reveal the identity of a confidential source.
  102         (e) Defame or cause unwarranted damage to the good name or
  103  reputation of an individual or jeopardize the safety of an
  104  individual.
  105         (f) Reveal investigative techniques or procedures.
  106         (4) Except as otherwise provided in this section and except
  107  for those portions that are otherwise public record, trade
  108  secrets as defined in s. 688.002 which comply with s. 655.0591
  109  and which are held by the office in accordance with its
  110  statutory duties with respect to the financial institutions
  111  codes are confidential and exempt from s. 119.07(1) and s.
  112  24(a), Art. I of the State Constitution.
  113         (5)(3)The provisions of This section does do not prevent
  114  or restrict:
  115         (a) Publishing reports required to be submitted to the
  116  office pursuant to s. 655.045(2)(a) or required by applicable
  117  federal statutes or regulations to be published.
  118         (b) Furnishing records or information to any other state,
  119  federal, or foreign agency responsible for the regulation or
  120  supervision of financial institutions, including Federal Home
  121  Loan Banks.
  122         (c) Disclosing or publishing summaries of the condition of
  123  financial institutions and general economic and similar
  124  statistics and data, provided that the identity of a particular
  125  financial institution is not disclosed.
  126         (d) Reporting any suspected criminal activity, with
  127  supporting documents and information, to appropriate law
  128  enforcement and prosecutorial agencies.
  129         (e) Furnishing information upon request to the Chief
  130  Financial Officer or the Division of Treasury of the Department
  131  of Financial Services regarding the financial condition of any
  132  financial institution that is, or has applied to be, designated
  133  as a qualified public depository pursuant to chapter 280.
  134  
  135  Any confidential information or records obtained from the office
  136  pursuant to this subsection shall be maintained as confidential
  137  and exempt from the provisions of s. 119.07(1).
  138         (6)(a)(4)(a) Orders of courts or of administrative law
  139  judges for the production of confidential records or information
  140  shall provide for inspection in camera by the court or the
  141  administrative law judge and, after the court or administrative
  142  law judge has made a determination that the documents requested
  143  are relevant or would likely lead to the discovery of admissible
  144  evidence, such said documents shall be subject to further orders
  145  by the court or the administrative law judge to protect the
  146  confidentiality thereof. An Any order directing the release of
  147  information is shall be immediately reviewable, and a petition
  148  by the office for review of such order shall automatically stays
  149  stay further proceedings in the trial court or the
  150  administrative hearing until the disposition of such petition by
  151  the reviewing court. If any other party files such a petition
  152  for review, it operates will operate as a stay of such
  153  proceedings only upon order of the reviewing court.
  154         (b) Confidential records and information furnished pursuant
  155  to a legislative subpoena shall be kept confidential by the
  156  legislative body or committee that which received the records or
  157  information, except in a case involving investigation of charges
  158  against a public official subject to impeachment or removal.,
  159  and then Disclosure of such information shall be only to the
  160  extent determined necessary by the legislative body or committee
  161  to be necessary.
  162         (7)(5) Every credit union and mutual association shall
  163  maintain, in the principal office where its business is
  164  transacted, full and correct records of the names and residences
  165  of all the members of the credit union or mutual association.
  166  Such records are shall be subject to the inspection of all the
  167  members of the credit union or mutual association, and the
  168  officers authorized to assess taxes under state authority,
  169  during business hours of each business day. A current list of
  170  members shall be made available to the office’s examiners for
  171  their inspection and, upon the request of the office, shall be
  172  submitted to the office. Except as otherwise provided in this
  173  subsection, the list of the members of the credit union or
  174  mutual association is confidential and exempt from the
  175  provisions of s. 119.07(1).
  176         (8)(6) Every bank, trust company, and stock association
  177  shall maintain, in the principal office where its business is
  178  transacted, full and complete records of the names and
  179  residences of all the shareholders of the bank, trust company,
  180  or stock association and the number of shares held by each. Such
  181  records are shall be subject to the inspection of all the
  182  shareholders of the bank, trust company, or stock association,
  183  and the officers authorized to assess taxes under state
  184  authority, during business hours of each banking day. A current
  185  list of shareholders shall be made available to the office’s
  186  examiners for their inspection and, upon the request of the
  187  office, shall be submitted to the office. Except as otherwise
  188  provided in this subsection, any portion of this list which
  189  reveals the identities of the shareholders is confidential and
  190  exempt from the provisions of s. 119.07(1).
  191         (9)(7)  Materials supplied to the office or to employees of
  192  any financial institution by other state or federal governmental
  193  agencies, federal or state, shall remain the property of the
  194  submitting agency or the corporation, and any document request
  195  must be made to the appropriate agency. Any confidential
  196  documents supplied to the office or to employees of any
  197  financial institution by other state or federal governmental
  198  agencies are, federal or state, shall be confidential and exempt
  199  from the provisions of s. 119.07(1). Such information shall be
  200  made public only with the consent of such agency or the
  201  corporation.
  202         (10)(8) Examination reports, investigatory records,
  203  applications, and related information compiled by the office, or
  204  photographic copies thereof, shall be retained by the office for
  205  a period of at least 10 years.
  206         (11)(9) A copy of any document on file with the office
  207  which is certified by the office as being a true copy may be
  208  introduced in evidence as if it were the original. The
  209  commission shall establish a schedule of fees for preparing true
  210  copies of documents.
  211         (12) For purposes of this section, the term:
  212         (a) “Examination report” means records submitted to or
  213  prepared by the office as part of the office’s duties performed
  214  pursuant to s. 655.012 or s. 655.045(1).
  215         (b) “Informal enforcement action” means a board resolution,
  216  a document of resolution, or an agreement in writing between the
  217  office and a financial institution which:
  218         1. The office imposes on an institution when the office
  219  considers the administrative enforcement guidelines in s.
  220  655.031 and determines that a formal enforcement action is not
  221  an appropriate administrative remedy;
  222         2. Sets forth a program of corrective action to address one
  223  or more safety and soundness deficiencies and violations of law
  224  or rule at the institution; and
  225         3. Is not subject to enforcement by imposition of an
  226  administrative fine pursuant to s. 655.041.
  227         (c) “Personal financial information” means:
  228         1. Information relating to the existence, nature, source,
  229  or amount of a person’s personal income, expenses, or debt.
  230         2. Information relating to a person’s financial
  231  transactions of any kind.
  232         3. Information relating to the existence, identification,
  233  nature, or value of a person’s assets, liabilities, or net
  234  worth.
  235         (d) “Working papers” means the records of the procedures
  236  followed, the tests performed, the information obtained, and the
  237  conclusions reached in an examination or investigation performed
  238  under s. 655.032 or s. 655.045. Working papers include planning
  239  documentation, work programs, analyses, memoranda, letters of
  240  confirmation and representation, abstracts of the books and
  241  records of a financial institution as defined in s. 655.005(1),
  242  and schedules or commentaries prepared or obtained in the course
  243  of such examination or investigation.
  244         (13)(10)A Any person who willfully discloses information
  245  made confidential by this section commits is guilty of a felony
  246  of the third degree, punishable as provided in s. 775.082, s.
  247  775.083, or s. 775.084.
  248         (14) Subsections (3) and (4) are subject to the Open
  249  Government Sunset Review Act in accordance with s. 119.15 and
  250  are repealed on October 2, 2019, unless reviewed and saved from
  251  repeal through reenactment by the Legislature.
  252         Section 2. (1) The Legislature finds that it is a public
  253  necessity that informal enforcement actions and trade secrets,
  254  as defined in s. 688.002, Florida Statutes, be kept confidential
  255  and exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
  256  Article I of the State Constitution.
  257         (2) Public disclosure of an informal enforcement action
  258  could further impair the safety and soundness of a financial
  259  institution that is subject to the action. Furthermore, the
  260  public disclosure of this information could erode public
  261  confidence in financial institutions and the financial
  262  institution system in this state and may lead to a reduced level
  263  of protection of the interests of the depositors and creditors
  264  of financial institutions. Maintaining informal enforcement
  265  actions as confidential and exempt from s. 119.07(1), Florida
  266  Statutes, and s. 24(a), Article I of the State Constitution will
  267  provide to the financial institutions that are chartered by this
  268  state the same protections as those already available to
  269  financial institutions chartered under federal law and by other
  270  states, maintain public confidence in financial institutions
  271  subject to the financial institutions codes, protect the safety
  272  and soundness of the financial institution system in this state,
  273  protect the interests of the depositors and creditors of
  274  financial institutions, promote the opportunity for state
  275  chartered financial institutions to be and remain competitive
  276  with financial institutions chartered by other states or the
  277  United States, and otherwise provide for and promote the
  278  purposes of the financial institutions codes as set forth in s.
  279  655.001, Florida Statutes.
  280         (3) A trade secret derives independent economic value,
  281  actual or potential, from not being generally known to, and not
  282  readily ascertainable by, other persons who can obtain economic
  283  value from the disclosure or use of the trade secret. Without an
  284  exemption for a trade secret held by the office, that trade
  285  secret becomes a public record when received and must be
  286  divulged upon request. Divulging a trade secret under the public
  287  records law would give business competitors an unfair advantage
  288  and destroy the value of that property, causing a financial loss
  289  to the person or entity submitting the trade secret and
  290  weakening the position of that person or entity in the
  291  marketplace.
  292         Section 3. This act shall take effect on the same date that
  293  SB 1012 or similar legislation takes effect, if such legislation
  294  is adopted in the same legislative session or an extension
  295  thereof and becomes a law.