Florida Senate - 2017                CS for CS for CS for SB 738
       
       
        
       By the Committees on Appropriations; Governmental Oversight and
       Accountability; and Banking and Insurance; and Senators Mayfield
       and Steube
       
       
       
       576-03770-17                                           2017738c3
    1                        A bill to be entitled                      
    2         An act relating to public records; creating ss.
    3         663.416 and 663.540, F.S.; defining terms; providing
    4         exemptions from public records requirements for
    5         certain information held by the Office of Financial
    6         Regulation relating to international trust company
    7         representative offices or qualified limited service
    8         affiliates, respectively, and relating to affiliated
    9         international trust entities; authorizing the
   10         disclosure of the information by the office to
   11         specified persons; providing construction; providing
   12         criminal penalties; providing future legislative
   13         review and repeal of the exemptions; providing
   14         statements of public necessity; amending s. 655.057,
   15         F.S.; providing that certain exemptions from public
   16         records requirements for information relating to
   17         investigations, reports of examinations, operations,
   18         or condition, including working papers, and certain
   19         materials supplied by governmental agencies are exempt
   20         from Section 24(a) of Article I of the State
   21         Constitution, as a result of the expansion of such
   22         exemptions to include the records of international
   23         trust entities and qualified limited service
   24         affiliates, as made by CS/CS/SB 736, 2017 Regular
   25         Session; providing a statement of public necessity;
   26         providing a contingent effective date.
   27          
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 663.416, Florida Statutes, is created
   31  and incorporated into part III of chapter 663, Florida Statutes,
   32  as created by CS/CS/SB 736, 2017 Regular Session, to read:
   33         663.416Public records exemption.—
   34         (1)DEFINITIONS.—As used in this section, the term:
   35         (a)“Reports of examinations, operations, or condition”
   36  means records submitted to or prepared by the office as part of
   37  the office’s duties performed pursuant to s. 655.012 or s.
   38  655.045.
   39         (b)“Working papers” means the records of the procedure
   40  followed, the tests performed, the information obtained, and the
   41  conclusions reached in an investigation or examination performed
   42  under s. 655.032 or s. 655.045. The term includes planning
   43  documentation, work programs, analyses, memoranda, letters of
   44  confirmation and representation, abstracts of the books and
   45  records of a financial institution, as defined in s. 655.005,
   46  and schedules or commentaries prepared or obtained in the course
   47  of such investigation or examination.
   48         (2)PUBLIC RECORDS EXEMPTION.—The following information
   49  held by the office is confidential and exempt from s. 119.07(1)
   50  and s. 24(a), Art. I of the State Constitution:
   51         (a)Any personal identifying information of the customers
   52  or prospective customers of an affiliated international trust
   53  entity which appears in the books and records of an
   54  international trust company representative office or in records
   55  relating to reports of examinations, operations, or condition of
   56  an international trust company representative office, including
   57  working papers.
   58         (b)Any portion of a list of names of the shareholders or
   59  members of an affiliated international trust entity.
   60         (c)Information received by the office from a person from
   61  another state or country or the Federal Government which is
   62  otherwise confidential or exempt pursuant to the laws of that
   63  state or country or pursuant to federal law.
   64         (3)AUTHORIZED RELEASE OF CONFIDENTIAL AND EXEMPT
   65  INFORMATION.—Information made confidential and exempt under
   66  subsection (2) may be disclosed by the office:
   67         (a)To the authorized representative or representatives of
   68  the international trust company representative office under
   69  examination. The authorized representative or representatives
   70  must be identified in a resolution or by written consent of the
   71  board of directors, or the equivalent, of the international
   72  trust entity.
   73         (b)To a fidelity insurance company, upon written consent
   74  of the board of directors, or the equivalent, of the
   75  international trust entity.
   76         (c)To an independent auditor, upon written consent of the
   77  board of directors, or the equivalent, of the international
   78  trust entity.
   79         (d)To the liquidator, receiver, or conservator for the
   80  international trust entity, if a liquidator, receiver, or
   81  conservator is appointed. However, any portion of the
   82  information which discloses the identity of a customer or
   83  prospective customer of the international trust entity, or a
   84  shareholder or member of the international trust entity, must be
   85  redacted by the office before releasing such portion to the
   86  liquidator, receiver, or conservator.
   87         (e)To a law enforcement agency in furtherance of the
   88  agency’s official duties and responsibilities.
   89         (f)To the appropriate law enforcement or prosecutorial
   90  agency for the purpose of reporting any suspected criminal
   91  activity.
   92         (g)Pursuant to a legislative subpoena. A legislative body
   93  or committee that receives records or information pursuant to
   94  such a subpoena must maintain the confidential status of the
   95  records or information, except in a case involving the
   96  investigation of charges against a public official subject to
   97  impeachment or removal, in which case the records or information
   98  may be disclosed only to the extent necessary as determined by
   99  such legislative body or committee.
  100         (4)PUBLICATION OF INFORMATION.—This section does not
  101  prevent or restrict the publication of a report required by
  102  federal law.
  103         (5)PENALTY.—A person who willfully, in violation of this
  104  section, discloses information made confidential and exempt by
  105  this section commits a felony of the third degree, punishable as
  106  provided in s. 775.082, s. 775.083, or s. 775.084.
  107         (6)OPEN GOVERNMENT SUNSET REVIEW.—This section is subject
  108  to the Open Government Sunset Review Act in accordance with s.
  109  119.15 and is repealed on October 2, 2022, unless reviewed and
  110  saved from repeal through reenactment by the Legislature.
  111         Section 2. The Legislature finds that it is a public
  112  necessity to make confidential and exempt from s. 119.07(1),
  113  Florida Statutes, and s. 24(a), Article I of the State
  114  Constitution personal identifying information of the customers
  115  or prospective customers of an affiliated international trust
  116  entity which appears in the books and records of an
  117  international trust company representative office or in records
  118  relating to reports of examinations, operations, or condition of
  119  an international trust company representative office, including
  120  working papers; any portion of a list of names of the
  121  shareholders or members of an affiliated international trust
  122  entity which is held by the office; and information received by
  123  the Office of Financial Regulation from a person from another
  124  state or country or the Federal Government which is otherwise
  125  confidential or exempt pursuant to the laws of that state or
  126  country or pursuant to federal law.
  127         (1)An exemption from public records requirements is
  128  necessary for such records and information because the Office of
  129  Financial Regulation may receive sensitive personal and
  130  financial information, including personal identifying
  131  information relating to such entities, in the course of its
  132  investigation and examination duties. Public disclosure of the
  133  personal identifying information of existing customers,
  134  prospective customers, shareholders, or members of the
  135  affiliated international trust entity could defame or jeopardize
  136  the personal and financial safety of those individuals and their
  137  family members. The individuals served by the affiliated
  138  international trust entity are often individuals of high net
  139  worth. Individuals of high net worth and shareholders or members
  140  of financial institutions are frequently the targets of criminal
  141  predators seeking access to their assets. It is important that
  142  the exposure of such individuals and their family members to
  143  threats of extortion, kidnapping, and other crimes not be
  144  increased. Placing the personal identifying information of these
  145  individuals within the public domain would increase the security
  146  risk that those individuals or their families could become the
  147  target of criminal activity.
  148         (2)Public disclosure of information received by the Office
  149  of Financial Regulation from a person from another state or
  150  country or the Federal Government which is otherwise
  151  confidential or exempt pursuant to the laws of that state or
  152  country or pursuant to federal law may deteriorate the office’s
  153  relationships with other regulatory bodies. The office
  154  frequently engages in joint examinations with federal
  155  regulators. If such information were subject to disclosure to
  156  the public, not only would such disclosure deter other
  157  regulatory bodies from communicating vital information to the
  158  office, but the office would violate existing information
  159  sharing agreements governing the sharing of confidential
  160  supervisory information.
  161         Section 3. Section 663.540, Florida Statutes, is created
  162  and incorporated into part IV of chapter 663, Florida Statutes,
  163  as created by CS/CS/SB 736, 2017 Regular Session, to read:
  164         663.540Public records exemption.—
  165         (1)DEFINITIONS.—As used in this section, the term:
  166         (a)“Reports of examinations, operations, or condition”
  167  means records submitted to or prepared by the office as part of
  168  the office’s duties performed pursuant to s. 655.012 or s.
  169  663.537.
  170         (b)“Working papers” means the records of the procedure
  171  followed, the tests performed, the information obtained, and the
  172  conclusions reached in an investigation or examination performed
  173  under s. 655.032 or s. 663.537. The term includes planning
  174  documentation, work programs, analyses, memoranda, letters of
  175  confirmation and representation, abstracts of the books and
  176  records of a financial institution, as defined in s. 655.005,
  177  and schedules or commentaries prepared or obtained in the course
  178  of such investigation or examination.
  179         (2)PUBLIC RECORDS EXEMPTION.—The following information
  180  held by the office is confidential and exempt from s. 119.07(1)
  181  and s. 24(a), Art. I of the State Constitution:
  182         (a)Any personal identifying information of the customers
  183  or prospective customers of an affiliated international trust
  184  entity which appears in the books and records of a qualified
  185  limited service affiliate or in records relating to reports of
  186  examinations, operations, or condition of a qualified limited
  187  service affiliate, including working papers.
  188         (b)Any portion of a list of names of the shareholders or
  189  members of a qualified limited service affiliate.
  190         (c)Information received by the office from a person from
  191  another state or country or the Federal Government which is
  192  otherwise confidential or exempt pursuant to the laws of that
  193  state or country or pursuant to federal law.
  194         (3)AUTHORIZED RELEASE OF CONFIDENTIAL AND EXEMPT
  195  INFORMATION.—Information made confidential and exempt under
  196  subsection (2) may be disclosed by the office:
  197         (a)To the authorized representative or representatives of
  198  the qualified limited service affiliate under examination. The
  199  authorized representative or representatives must be identified
  200  in a resolution or by written consent of the board of directors,
  201  if the qualified limited service affiliate is a corporation, or
  202  of the managers, if the qualified limited service affiliate is a
  203  limited liability company.
  204         (b)To a fidelity insurance company, upon written consent
  205  of the qualified limited service affiliate’s board of directors,
  206  if the qualified limited service affiliate is a corporation, or
  207  of the managers, if the qualified limited service affiliate is a
  208  limited liability company.
  209         (c)To an independent auditor, upon written consent of the
  210  qualified limited service affiliate’s board of directors, if the
  211  qualified limited service affiliate is a corporation, or of the
  212  managers, if the qualified limited service affiliate is a
  213  limited liability company.
  214         (d)To the liquidator, receiver, or conservator for a
  215  qualified limited service affiliate, if a liquidator, receiver,
  216  or conservator is appointed. However, any portion of the
  217  information which discloses the identity of a customer of the
  218  affiliated international trust entity, or a shareholder or
  219  member of the qualified limited service affiliate, must be
  220  redacted by the office before releasing such portion to the
  221  liquidator, receiver, or conservator.
  222         (e)To a law enforcement agency in furtherance of the
  223  agency’s official duties and responsibilities.
  224         (f)To the appropriate law enforcement or prosecutorial
  225  agency for the purpose of reporting any suspected criminal
  226  activity.
  227         (g)Pursuant to a legislative subpoena. A legislative body
  228  or committee that receives records or information pursuant to
  229  such a subpoena must maintain the confidential status of the
  230  records or information, except in a case involving the
  231  investigation of charges against a public official subject to
  232  impeachment or removal, in which case the records or information
  233  may be disclosed only to the extent necessary as determined by
  234  such legislative body or committee.
  235         (4)PUBLICATION OF INFORMATION.—This section does not
  236  prevent or restrict the publication of a report required by
  237  federal law.
  238         (5)PENALTY.—A person who willfully, in violation of this
  239  section, discloses information made confidential and exempt by
  240  this section commits a felony of the third degree, punishable as
  241  provided in s. 775.082, s. 775.083, or s. 775.084.
  242         (6)OPEN GOVERNMENT SUNSET REVIEW.—This section is subject
  243  to the Open Government Sunset Review Act in accordance with s.
  244  119.15 and is repealed on October 2, 2022, unless reviewed and
  245  saved from repeal through reenactment by the Legislature.
  246         Section 4. The Legislature finds that it is a public
  247  necessity to make confidential and exempt from s. 119.07(1),
  248  Florida Statutes, and s. 24(a), Article I of the State
  249  Constitution personal identifying information of the customers
  250  or prospective customers of an affiliated international trust
  251  entity which appears in the books and records of a qualified
  252  limited service affiliate or in records relating to reports of
  253  examinations, operations, or condition of a qualified limited
  254  service affiliate, including working papers; any portion of a
  255  list of names of the shareholders or members of a qualified
  256  limited service affiliate which is held by the Office of
  257  Financial Regulation; and information received by the office
  258  from a person from another state or country or the Federal
  259  Government which is otherwise confidential or exempt pursuant to
  260  the laws of that state or country or pursuant to federal law.
  261         (1)An exemption from public records requirements is
  262  necessary for personal identifying information of existing and
  263  prospective customers of an affiliated international trust
  264  entity or shareholders or members of a qualified limited service
  265  affiliate, because if such information is available for public
  266  access, such access could defame or jeopardize the personal and
  267  financial safety of those individuals. The individuals served by
  268  the affiliated international trust entity are often individuals
  269  of high net worth. Individuals of high net worth and
  270  shareholders or members of financial institutions are frequently
  271  the targets of criminal predators seeking access to their
  272  assets. It is important that the exposure of such individuals
  273  and their family members to threats of extortion, kidnapping,
  274  and other crimes not be increased. Placing the personal
  275  identifying information of these individuals within the public
  276  domain would increase the security risk that those individuals
  277  or their families could become the target of criminal activity.
  278         (2)An exemption from public records requirements is
  279  necessary for information received by the Office of Financial
  280  Regulation from a person from another state or country or the
  281  Federal Government which is otherwise confidential or exempt
  282  pursuant to the laws of that state or country or pursuant to
  283  federal law, as public disclosure may deteriorate the office’s
  284  relationships with other regulatory bodies. The office
  285  frequently engages in joint examinations with federal
  286  regulators. If such information were subject to disclosure to
  287  the public, not only would this disclosure deter other
  288  regulatory bodies from communicating vital information to the
  289  office, but the office would violate existing information
  290  sharing agreements governing the sharing of confidential
  291  supervisory information.
  292         Section 5. Subsections (1), (2), (5), and (9) of section
  293  655.057, Florida Statutes, are amended, and subsection (15) is
  294  added to that section, to read:
  295         655.057 Records; limited restrictions upon public access.—
  296         (1) Except as otherwise provided in this section and except
  297  for such portions thereof which are otherwise public record, all
  298  records and information relating to an investigation by the
  299  office are confidential and exempt from s. 119.07(1) and s.
  300  24(a), Art. I of the State Constitution until such investigation
  301  is completed or ceases to be active. For purposes of this
  302  subsection, an investigation is considered “active” while such
  303  investigation is being conducted by the office with a
  304  reasonable, good faith belief that it may lead to the filing of
  305  administrative, civil, or criminal proceedings. An investigation
  306  does not cease to be active if the office is proceeding with
  307  reasonable dispatch, and there is a good faith belief that
  308  action may be initiated by the office or other administrative or
  309  law enforcement agency. After an investigation is completed or
  310  ceases to be active, portions of the records relating to the
  311  investigation are confidential and exempt from s. 119.07(1) and
  312  s. 24(a), Art. I of the State Constitution to the extent that
  313  disclosure would:
  314         (a) Jeopardize the integrity of another active
  315  investigation;
  316         (b) Impair the safety and soundness of the financial
  317  institution;
  318         (c) Reveal personal financial information;
  319         (d) Reveal the identity of a confidential source;
  320         (e) Defame or cause unwarranted damage to the good name or
  321  reputation of an individual or jeopardize the safety of an
  322  individual; or
  323         (f) Reveal investigative techniques or procedures.
  324         (2) Except as otherwise provided in this section and except
  325  for such portions thereof which are public record, reports of
  326  examinations, operations, or condition, including working
  327  papers, or portions thereof, prepared by, or for the use of, the
  328  office or any state or federal agency responsible for the
  329  regulation or supervision of financial institutions in this
  330  state are confidential and exempt from s. 119.07(1) and s.
  331  24(a), Art. I of the State Constitution. However, such reports
  332  or papers or portions thereof may be released to:
  333         (a) The financial institution under examination;
  334         (b) Any holding company of which the financial institution
  335  is a subsidiary;
  336         (c) Proposed purchasers if necessary to protect the
  337  continued financial viability of the financial institution, upon
  338  prior approval by the board of directors of such institution;
  339         (d) Persons proposing in good faith to acquire a
  340  controlling interest in or to merge with the financial
  341  institution, upon prior approval by the board of directors of
  342  such financial institution;
  343         (e) Any officer, director, committee member, employee,
  344  attorney, auditor, or independent auditor officially connected
  345  with the financial institution, holding company, proposed
  346  purchaser, or person seeking to acquire a controlling interest
  347  in or merge with the financial institution; or
  348         (f) A fidelity insurance company, upon approval of the
  349  financial institution’s board of directors. However, a fidelity
  350  insurance company may receive only that portion of an
  351  examination report relating to a claim or investigation being
  352  conducted by such fidelity insurance company.
  353         (g) Examination, operation, or condition reports of a
  354  financial institution shall be released by the office within 1
  355  year after the appointment of a liquidator, receiver, or
  356  conservator to the financial institution. However, any portion
  357  of such reports which discloses the identities of depositors,
  358  bondholders, members, borrowers, or stockholders, other than
  359  directors, officers, or controlling stockholders of the
  360  institution, shall remain confidential and exempt from s.
  361  119.07(1) and s. 24(a), Art. I of the State Constitution.
  362  
  363  Any confidential information or records obtained from the office
  364  pursuant to this paragraph shall be maintained as confidential
  365  and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  366  Constitution.
  367         (5) This section does not prevent or restrict:
  368         (a) Publishing reports that are required to be submitted to
  369  the office pursuant to s. 655.045(2) or required by applicable
  370  federal statutes or regulations to be published.
  371         (b) Furnishing records or information to any other state,
  372  federal, or foreign agency responsible for the regulation or
  373  supervision of financial institutions.
  374         (c) Disclosing or publishing summaries of the condition of
  375  financial institutions and general economic and similar
  376  statistics and data, provided that the identity of a particular
  377  financial institution is not disclosed.
  378         (d) Reporting any suspected criminal activity, with
  379  supporting documents and information, to appropriate law
  380  enforcement and prosecutorial agencies.
  381         (e) Furnishing information upon request to the Chief
  382  Financial Officer or the Division of Treasury of the Department
  383  of Financial Services regarding the financial condition of any
  384  financial institution that is, or has applied to be, designated
  385  as a qualified public depository pursuant to chapter 280.
  386         (f) Furnishing information to Federal Home Loan Banks
  387  regarding its member institutions pursuant to an information
  388  sharing agreement between the Federal Home Loan Banks and the
  389  office.
  390  
  391  Any confidential information or records obtained from the office
  392  pursuant to this subsection shall be maintained as confidential
  393  and exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  394  Constitution.
  395         (9) Materials supplied to the office or to employees of any
  396  financial institution by other state or federal governmental
  397  agencies remain the property of the submitting agency or the
  398  corporation, and any document request must be made to the
  399  appropriate agency. Any confidential documents supplied to the
  400  office or to employees of any financial institution by other
  401  state or federal governmental agencies are confidential and
  402  exempt from s. 119.07(1) and s. 24(a), Art. I of the State
  403  Constitution. Such information shall be made public only with
  404  the consent of such agency or the corporation.
  405         (15)Subsections (1), (2), (5), and (9) are subject to the
  406  Open Government Sunset Review Act in accordance with s. 119.15
  407  and are repealed on October 2, 2022, unless reviewed and saved
  408  from repeal through reenactment by the Legislature.
  409         Section 6. The Legislature finds that it is a public
  410  necessity to make confidential and exempt from s. 119.07(1),
  411  Florida Statutes, and s. 24(a), Article I of the State
  412  Constitution records and information relating to an
  413  investigation by the Office of Financial Regulation; portions of
  414  records relating to a completed or inactive investigation by the
  415  office which would jeopardize the integrity of another active
  416  investigation, impair the safety and soundness of the financial
  417  institution, reveal personal financial information, reveal the
  418  identity of a confidential source, defame or cause unwarranted
  419  damage to the good name or reputation of an individual or
  420  jeopardize the safety of an individual, or reveal investigative
  421  techniques or procedures; reports of examinations, operations,
  422  or condition, including working papers, or portions thereof,
  423  prepared by, or for the use of, the office or any state or
  424  federal agency responsible for the regulation or supervision of
  425  financial institutions in this state; any portion of such
  426  reports which discloses the identities of depositors,
  427  bondholders, members, borrowers, or stockholders, other than
  428  directors, officers, or controlling stockholders of the
  429  institution; and materials supplied to the office or to
  430  employees of any financial institution by other state or federal
  431  governmental agencies.
  432         (1)The terms “international trust entity” and “qualified
  433  limited service affiliate” referenced in newly created parts III
  434  and IV of chapter 663, Florida Statutes, are added to the
  435  definition of the term “financial institution” in s.
  436  655.005(1)(i), Florida Statutes, in CS/CS/SB 736. The
  437  international trust company representative offices and qualified
  438  limited service affiliates servicing international trust
  439  entities are thus subject to examination by the Office of
  440  Financial Regulation. As a result, the office may receive
  441  sensitive personal and financial information relating to such
  442  entities in conjunction with its duties under chapters 655 and
  443  663, Florida Statutes. An exemption from public records
  444  requirements prevents gaps in the law by providing the same
  445  protections to international trust entities and qualified
  446  limited service affiliates which are afforded to other financial
  447  institutions, thereby preventing any disadvantage to these
  448  similarly regulated entities in comparison to other entities
  449  currently defined as “financial institutions.” An exemption from
  450  public records requirements for reports of examinations,
  451  operations, or condition, including working papers, is necessary
  452  to ensure the office’s ability to effectively and efficiently
  453  administer its examination and investigation duties. Examination
  454  and investigation are essential components of financial
  455  institutions regulation. They deter fraud and ensure the safety
  456  and soundness of the financial system. Examinations also provide
  457  a means of early detection of violations, allowing for
  458  corrective action to be taken before any harm can be done.
  459         (2)The Legislature finds that it is a public necessity
  460  that information and records relating to an examination or
  461  investigation by the office be held confidential and exempt from
  462  s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the
  463  State Constitution. Public disclosure of records and information
  464  relating to an examination or investigation by the office could
  465  expose the subject financial institution to unwarranted damage
  466  to its good name or reputation and impair its safety and
  467  soundness, as well as the safety and soundness of the financial
  468  system in the state. Public disclosure of records and
  469  information relating to an investigation by the office which
  470  could jeopardize the integrity of another active investigation
  471  or reveal investigative techniques or procedures of the office
  472  would impair the office’s ability to effectively and efficiently
  473  administer its duties under ss. 655.032 and 655.045, Florida
  474  Statutes. Any portion of a record or information relating to an
  475  investigation or examination which reveals personal financial
  476  information or the identity of a confidential source may defame,
  477  or cause unwarranted damage to the good name or reputation of,
  478  those individuals, or jeopardize their safety.
  479         Section 7. This act shall take effect on the same date that
  480  CS/CS/SB 736 or similar legislation takes effect, if such
  481  legislation is adopted in the same legislative session or an
  482  extension thereof and becomes a law.