Florida Senate - 2021 SB 1914 By Senator Burgess 20-01981-21 20211914__ 1 A bill to be entitled 2 An act relating to public records; amending s. 3 287.137, F.S; providing a public records exemption for 4 certain information received in investigations by the 5 Attorney General or a law enforcement agency into 6 social media platform activities; providing that 7 confidential and exempt information may be disclosed 8 under specified conditions; requiring certain 9 information to remain confidential and exempt after an 10 investigation is complete or ceases to be active; 11 defining the term “proprietary information”; providing 12 for future legislative review and repeal of the 13 exemptions; amending s. 501.2041, F.S; providing a 14 public records exemption for certain information 15 received in investigations by the Department of Legal 16 Affairs or a law enforcement agency into violations by 17 certain social media platforms; providing that 18 confidential and exempt information may be disclosed 19 under specified conditions; requiring certain 20 information to remain confidential and exempt after an 21 investigation is complete or ceases to be active; 22 defining the term “proprietary information”; providing 23 for future legislative review and repeal of the 24 exemptions; providing a statement of public necessity; 25 providing a contingent effective date. 26 27 Be It Enacted by the Legislature of the State of Florida: 28 29 Section 1. Subsection (8) is added to section 287.137, 30 Florida Statutes, as created by SB 520, 2021 Regular Session, to 31 read: 32 287.137 Antitrust violations; denial or revocation of the 33 right to transact business with public entities; denial of 34 economic benefits.— 35 (8)(a) All information received by the Attorney General 36 pursuant to an investigation by the Attorney General or a law 37 enforcement agency is confidential and exempt from s. 119.07(1) 38 and s. 24(a), Art. I of the State Constitution until such time 39 as the investigation is completed or ceases to be active. This 40 exemption shall be construed in conformity with s. 41 119.071(2)(c). 42 (b) During an active investigation, information made 43 confidential and exempt pursuant to paragraph (a) may be 44 disclosed by the Attorney General: 45 1. In the performance his or her official duties and 46 responsibilities; 47 2. For print, publication, or broadcast, if the Attorney 48 General determines that the release would assist in notifying 49 the public or locating or identifying a person who the 50 department believes to be a victim of a data breach or an 51 improper disposal of customer records, except that information 52 made confidential and exempt pursuant to paragraph (c) may not 53 be released as authorized under this subparagraph; or 54 3. To another governmental entity in performance of its 55 official duties and responsibilities. 56 (c) Once an investigation is completed or once an 57 investigation ceases to be active, all of the following 58 information received by the Attorney General shall remain 59 confidential and exempt from s. 119.07(1) and s. 24(a), Art. I 60 of the State Constitution: 61 1. All information to which another public records 62 exemption applies. 63 2. Personal information. 64 3. A computer forensic report. 65 4. Information that would otherwise reveal weaknesses in a 66 business’ data security. 67 5. Information that would otherwise disclose a business’ 68 proprietary information. 69 (d) For purposes of this subsection, the term “proprietary 70 information” means information that: 71 1. Is owned or controlled by the business; 72 2. Is intended to be private and is treated by the business 73 as private because disclosure would harm the business or its 74 business operations; 75 3. Has not been disclosed except as required by law or a 76 private agreement that provides that the information will not be 77 released to the public; 78 4. Is not publicly available or otherwise readily 79 ascertainable through proper means from another source in the 80 same configuration as received by the department; and 81 5. Includes: 82 a. Trade secrets as defined in s. 688.002. 83 b. Competitive interests, the disclosure of which would 84 impair the competitive advantage of the business that is the 85 subject of the information. 86 (e) This subsection is subject to the Open Government 87 Sunset Review Act in accordance with s. 119.15 and shall stand 88 repealed on October 1, 2026, unless reviewed and saved from 89 repeal through reenactment by the Legislature. 90 Section 2. Subsection (8) is added to section 501.2041, 91 Florida Statutes, as created by SB 520, 2021 Regular Session, to 92 read: 93 501.2041 Unlawful acts and practices by social media 94 platforms.— 95 (8)(a) All information received by the department pursuant 96 to an investigation by the department or a law enforcement 97 agency is confidential and exempt from s. 119.07(1) and s. 98 24(a), Art. I of the State Constitution until such time as the 99 investigation is completed or ceases to be active. This 100 exemption shall be construed in conformity with s. 101 119.071(2)(c). 102 (b) During an active investigation, information made 103 confidential and exempt pursuant to paragraph (a) may be 104 disclosed by the department: 105 1. In the performance of its official duties and 106 responsibilities; 107 2. For print, publication, or broadcast if the department 108 determines that the release would assist in notifying the public 109 or locating or identifying a person who the department believes 110 to be a victim of a data breach or an improper disposal of 111 customer records, except that information made confidential and 112 exempt pursuant to paragraph (c) may not be released as 113 authorized under this subparagraph; or 114 3. To another governmental entity in performance of its 115 official duties and responsibilities. 116 (c) Upon completion of an investigation or once an 117 investigation ceases to be active, all of the following 118 information received by the department shall remain confidential 119 and exempt from s. 119.07(1) and s. 24(a), Art. I of the State 120 Constitution: 121 1. All information to which another public records 122 exemption applies. 123 2. Personal information. 124 3. A computer forensic report. 125 4. Information that would otherwise reveal weaknesses in a 126 business’ data security. 127 5. Information that would otherwise disclose a business’ 128 proprietary information. 129 (d) For purposes of this subsection, the term “proprietary 130 information” means information that: 131 1. Is owned or controlled by the business; 132 2. Is intended to be private and is treated by the business 133 as private because disclosure would harm the business or its 134 business operations; 135 3. Has not been disclosed except as required by law or a 136 private agreement that provides that the information will not be 137 released to the public; 138 4. Is not publicly available or otherwise readily 139 ascertainable through proper means from another source in the 140 same configuration as received by the department; and 141 5. Includes: 142 a. Trade secrets as defined in s. 688.002. 143 b. Competitive interests, the disclosure of which would 144 impair the competitive advantage of the business that is the 145 subject of the information. 146 (e) This subsection is subject to the Open Government 147 Sunset Review Act in accordance with s. 119.15 and shall stand 148 repealed on October 1, 2026, unless reviewed and saved from 149 repeal through reenactment by the Legislature. 150 Section 3. The Legislature finds that it is a public 151 necessity that all information received by the Department of 152 Legal Affairs and the Attorney General pursuant to a 153 notification of a violation of ss. 287.137 and 501.2041, Florida 154 Statutes, or received by the Department of Legal Affairs and the 155 Attorney General pursuant to an investigation by the department 156 or a law enforcement agency be made confidential and exempt from 157 s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the 158 State Constitution for the following reasons: 159 (1) A notification of a violation of s. 501.2041, Florida 160 Statutes, may result in an investigation of such violation. The 161 premature release of such information could frustrate or thwart 162 the investigation and impair the ability of the Department of 163 Legal Affairs and the Attorney General to effectively and 164 efficiently administer ss. 287.137 and 501.2041, Florida 165 Statutes. In addition, release of such information before 166 completion of an active investigation could jeopardize the 167 ongoing investigation. 168 (2) The Legislature finds that it is a public necessity to 169 continue to protect from public disclosure all information to 170 which another public record exemption applies once an 171 investigation is completed or ceases to be active. Release of 172 such information by the Department of Legal Affairs and the 173 Attorney General would undo the specific statutory exemption 174 protecting that information. 175 (3) An investigation of social media platform activities is 176 likely to result in the gathering of sensitive personal 177 information, including social security numbers, identification 178 numbers, and personal financial information. Such information 179 could be used for the purpose of identity theft. 180 (4) Information received by the Department of Legal Affairs 181 and the Attorney General and information received pursuant to an 182 investigation by the department or a law enforcement agency may 183 contain proprietary information, including trade secrets, about 184 the security of the breached system. The release of the 185 proprietary information could result in the identification of 186 vulnerabilities. In addition, a trade secret generates 187 independent, economic value, actual or potential, from being 188 generally unknown to, and not readily ascertainable by, other 189 persons who might obtain economic value from its disclosure or 190 use. Allowing public access to proprietary information, 191 including trade secrets, through a public records request could 192 destroy the value of the proprietary information and cause a 193 financial loss to the business submitting the information. 194 Release of such information could give business competitors an 195 unfair advantage and weaken the position in the marketplace of 196 the entity supplying the proprietary information. 197 Section 4. This act shall take effect July 1, 2021, if SB 198 520 or similar legislation takes effect, if such legislation is 199 adopted in the same legislative session or an extension thereof 200 and becomes a law.