Florida Senate - 2014 CS for SB 1526 By the Committee on Judiciary; and Senator Thrasher 590-03545-14 20141526c1 1 A bill to be entitled 2 An act relating to public records; amending s. 3 501.171, F.S.; creating an exemption from public 4 records requirements for information received by the 5 Department of Legal Affairs pursuant to a notice of a 6 data breach or pursuant to certain investigations; 7 authorizing disclosure under certain circumstances; 8 defining the term “proprietary information”; providing 9 for future review and repeal of the exemption under 10 the Open Government Sunset Review Act; providing a 11 statement of public necessity; providing a contingent 12 effective date. 13 14 Be It Enacted by the Legislature of the State of Florida: 15 16 Section 1. Subsection (11) is added to section 501.171, 17 Florida Statutes, as created by SB 1524, 2014 Regular Session, 18 to read: 19 501.171 Security of confidential personal information.— 20 (11) PUBLIC RECORDS EXEMPTION.— 21 (a) All information received by the department pursuant to 22 a notification required by this section, or received by the 23 department pursuant to an investigation by the department or a 24 law enforcement agency, is confidential and exempt from s. 25 119.07(1) and s. 24(a), Art. I of the State Constitution, until 26 such time as the investigation is completed or ceases to be 27 active. This exemption shall be construed in conformity with s. 28 119.071(2)(c). 29 (b) During an active investigation, information made 30 confidential and exempt pursuant to paragraph (a) may be 31 disclosed by the department: 32 1. In the furtherance of its official duties and 33 responsibilities; 34 2. For print, publication, or broadcast if the department 35 determines that such release would assist in notifying the 36 public or locating or identifying a person that the department 37 believes to be a victim of a data breach or improper disposal of 38 customer records; or 39 3. To another governmental entity in the furtherance of its 40 official duties and responsibilities. 41 (c) Upon completion of an investigation or once an 42 investigation ceases to be active, the following information 43 received by the department shall remain confidential and exempt 44 from s. 119.07(1) and s. 24(a), Art. I of the State 45 Constitution: 46 1. All information to which another public records 47 exemption applies. 48 2. Personal information. 49 3. A computer forensic report. 50 4. Information that would otherwise reveal weaknesses in a 51 covered entity’s data security. 52 5. Information that would disclose a covered entity’s 53 proprietary information. 54 (d) For purposes of this subsection, the term “proprietary 55 information” means information that: 56 1. Is owned or controlled by the covered entity. 57 2. Is intended to be private and is treated by the covered 58 entity as private because disclosure would harm the covered 59 entity or its business operations. 60 3. Has not been disclosed except as required by law or a 61 private agreement that provides that the information will not be 62 released to the public. 63 4. Is not publicly available or otherwise readily 64 ascertainable through proper means from another source in the 65 same configuration as received by the department. 66 5. Includes: 67 a. Trade secrets as defined in s. 688.002. 68 b. Competitive interests, the disclosure of which would 69 impair the competitive business of the covered entity who is the 70 subject of the information. 71 (e) This subsection is subject to the Open Government 72 Sunset Review Act in accordance with s. 119.15 and shall stand 73 repealed on October 2, 2019, unless reviewed and saved from 74 repeal through reenactment by the Legislature. 75 Section 2. The Legislature finds that it is a public 76 necessity that all information received by the Department of 77 Legal Affairs pursuant to a notification of a violation of s. 78 501.171, Florida Statutes, or received by the department 79 pursuant to an investigation by the department or a law 80 enforcement agency, be made confidential and exempt from s. 81 119.07(1), Florida Statutes, and s. 24(a), Article I of the 82 State Constitution for the following reasons: 83 (1) A notification of a violation of s. 501.171, Florida 84 Statutes, is likely to result in an investigation of such 85 violation because a data breach is likely the result of criminal 86 activity that may lead to further criminal activity. The 87 premature release of such information could frustrate or thwart 88 the investigation and impair the ability of the Department of 89 Legal Affairs to effectively and efficiently administer s. 90 501.171, Florida Statutes. In addition, release of such 91 information before completion of an active investigation could 92 jeopardize the ongoing investigation. 93 (2) The Legislature finds that it is a public necessity to 94 continue to protect from public disclosure all information to 95 which another public record exemption applies once an 96 investigation is completed or ceases to be active. Release of 97 such information by the Department of Legal Affairs would undo 98 the specific statutory exemption protecting that information. 99 (3) An investigation of a data breach or improper disposal 100 of customer records is likely to result in the gathering of 101 sensitive personal information, including social security 102 numbers, identification numbers, and personal financial and 103 health information. Such information could be used for the 104 purpose of identity theft. In addition, release of such 105 information could subject possible victims of the data breach or 106 improper disposal of customer records to further financial harm. 107 Furthermore, matters of personal health are traditionally 108 private and confidential concerns between the patient and the 109 health care provider. The private and confidential nature of 110 personal health matters pervades both the public and private 111 health care sectors. 112 (4) Release of a computer forensic report or other 113 information that would otherwise reveal weaknesses in a covered 114 entity’s data security could compromise the future security of 115 that entity, or other entities, if such information were 116 available upon conclusion of an investigation or once an 117 investigation ceased to be active. The release of such report or 118 information could compromise the security of current entities 119 and make those entities susceptible to future data breaches. 120 Release of such report or information could result in the 121 identification of vulnerabilities and further breaches of that 122 system. 123 (5) Notices received by the Department of Legal Affairs and 124 information received during an investigation of a data breach 125 are likely to contain proprietary information, including trade 126 secrets, about the security of the breached system. The release 127 of the proprietary information could result in the 128 identification of vulnerabilities and further breaches of that 129 system. In addition, a trade secret derives independent, 130 economic value, actual or potential, from being generally 131 unknown to, and not readily ascertainable by, other persons who 132 might obtain economic value from its disclosure or use. Allowing 133 public access to proprietary information, including a trade 134 secret, through a public records request could destroy the value 135 of the proprietary information and cause a financial loss to the 136 covered entity submitting the information. Release of such 137 information could give business competitors an unfair advantage 138 and weaken the position of the entity supplying the proprietary 139 information in the marketplace. 140 Section 3. 141