Florida Senate - 2017 SB 1504 By Senator Rouson 19-01991-17 20171504__ 1 A bill to be entitled 2 An act relating to public records; amending s. 3 119.071, F.S.; defining terms; providing that 4 proprietary confidential business information held by 5 an agency is confidential and exempt from public 6 records requirements; authorizing the custodial agency 7 to grant a request to inspect or copy a record that 8 contains proprietary confidential business information 9 under certain circumstances; authorizing any person to 10 petition a court for the public release of those 11 portions of a record made confidential and exempt by 12 the act; providing requirements for the petition and 13 the court order; providing that the act does not 14 supersede any other applicable public records 15 exemptions that existed before a certain date; 16 providing for future legislative review and repeal of 17 the exemption under the Open Government Sunset Review 18 Act; providing a finding of public necessity; 19 repealing s. 815.045, F.S., relating to trade secret 20 information; providing an effective date. 21 22 Be It Enacted by the Legislature of the State of Florida: 23 24 Section 1. Paragraph (g) is added to subsection (1) of 25 section 119.071, Florida Statutes, to read: 26 119.071 General exemptions from inspection or copying of 27 public records.— 28 (1) AGENCY ADMINISTRATION.— 29 (g)1. As used in this paragraph, the term: 30 a. “Proprietary confidential business information” means 31 information that has been designated by the proprietor when 32 provided to an agency as information that is owned or controlled 33 by the proprietor requesting confidentiality under this section; 34 that is intended to be, and is, treated by that proprietor as 35 private, is not readily ascertainable or publicly available from 36 any other source, and, if disclosed, would cause harm to the 37 business operations of the proprietor; that has not been 38 intentionally disclosed by the proprietor other than under a 39 private agreement that prohibits the release of the information 40 to the public except as required by law or legal process or 41 pursuant to an order of a court or administrative hearing 42 officer; and that concerns: 43 (I) Business plans; 44 (II) Internal auditing controls and reports of internal 45 auditors; 46 (III) Reports of external auditors for privately held 47 companies; or 48 (IV) Trade secrets as defined in s. 688.002. 49 b. “Proprietor” means any self-employed individual, 50 proprietorship, corporation, partnership, limited partnership, 51 firm, enterprise, franchise, association, trust, or business 52 entity, whether fictitiously named or not, authorized to do or 53 doing business in this state, including its respective 54 authorized officer, employee, agent, or successor in interest, 55 which controls or owns the proprietary confidential business 56 information provided to an agency. 57 2. Proprietary confidential business information held by an 58 agency is confidential and exempt from s. 119.07(1) and s. 59 24(a), Art. I of the State Constitution. This exemption applies 60 to proprietary confidential business information held by an 61 agency before, on, or after July 1, 2017. 62 3. Notwithstanding subparagraph 2., if a person requests to 63 inspect or copy a record under s. 119.07(1) which contains 64 proprietary confidential business information, the custodial 65 agency shall notify the proprietor of the information of the 66 request. The request shall be granted unless, within a 67 reasonable period of time, the proprietor verifies the following 68 conditions to that agency through a written declaration in the 69 manner provided by s. 92.525: 70 a. That the requested record contains proprietary 71 confidential business information and the specific location of 72 such information within the record; 73 b. If the proprietary confidential business information is 74 a trade secret, a verification that it is a trade secret as 75 defined in s. 688.002; 76 c. That the proprietary confidential business information 77 is intended to be, and is, treated by the proprietor as private, 78 is the subject of efforts of the proprietor to maintain its 79 privacy, and is not readily ascertainable or publicly available 80 from any other source; and 81 d. That the disclosure of the proprietary confidential 82 business information to the public would harm the business 83 operations of the proprietor. 84 4. Any person may petition a court of competent 85 jurisdiction for an order for the public release of those 86 portions of any record made confidential and exempt by 87 subparagraph 2. Any action under this subparagraph for 88 information held by a state agency must be brought in Leon 89 County, and the petition or other initial pleading shall be 90 served on the custodial agency and, if determinable upon 91 diligent inquiry, on the proprietor of the information. In any 92 order for the public release of a record under this 93 subparagraph, the court shall make a finding that the record or 94 portion thereof is not a trade secret as defined in s. 688.002, 95 that a compelling public interest is served by the release of 96 the record or portions thereof which exceed the public necessity 97 for maintaining the confidentiality of such record or portions 98 thereof, and that the release of the record or portion thereof 99 will not cause damage to or adversely affect the interests of 100 the proprietor of the released information, other private 101 persons or business entities, or the agency. 102 5. This paragraph does not supersede any other applicable 103 public records exemption existing before July 1, 2017, or 104 created thereafter. 105 6. This paragraph is subject to the Open Government Sunset 106 Review Act in accordance with s. 119.15 and shall stand repealed 107 on October 2, 2022, unless reviewed and saved from repeal 108 through reenactment by the Legislature. 109 Section 2. The Legislature finds that it is a public 110 necessity that proprietary confidential business information, 111 including trade secrets, be made confidential and exempt from s. 112 119.07(1), Florida Statutes and s. 24(a), Art. I of the State 113 Constitution. Proprietary confidential business information 114 derives actual or potential independent economic value from not 115 being generally known to, and not being readily ascertainable by 116 proper means by, other persons who can obtain economic value 117 from its disclosure or use. An agency, in performing its lawful 118 duties and responsibilities, may need to obtain from the 119 proprietor confidential business information. Without an 120 exemption from public records requirements for proprietary 121 confidential business information held by an agency, such 122 information becomes a public record when received by the agency 123 and must be divulged upon request. Divulgence of any proprietary 124 confidential business information under public records laws 125 would destroy the value of that property to the proprietor, 126 causing a financial loss not only to the proprietor but also to 127 the state or local governments due to loss of tax revenue and 128 employment opportunities for residents. Release of that 129 information would give business competitors an unfair advantage 130 and weaken the position of the proprietor of the confidential 131 business information in the marketplace. Thus, the Legislature 132 finds that it is a public necessity that proprietary 133 confidential business information held by an agency be made 134 confidential and exempt from public records requirements. 135 Section 3. Section 815.045, Florida Statutes, is repealed. 136 Section 4. This act shall take effect July 1, 2017.