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.