Florida Senate - 2022                      CS for CS for SB 1694
       
       
        
       By the Committees on Appropriations; and Military and Veterans
       Affairs, Space, and Domestic Security; and Senator Hutson
       
       
       
       
       576-03524-22                                          20221694c2
    1                        A bill to be entitled                      
    2         An act relating to public records and public meetings;
    3         creating s. 119.0725, F.S.; providing definitions;
    4         providing an exemption from public records
    5         requirements for certain cybersecurity insurance
    6         information, critical infrastructure information, and
    7         certain cybersecurity-related information held by an
    8         agency; providing an exemption from public meetings
    9         requirements for portions of a meeting that would
   10         reveal certain cybersecurity-related information held
   11         by an agency; requiring the recording and
   12         transcription of exempt portions of such meetings;
   13         providing an exemption from public records
   14         requirements for such recordings and transcripts;
   15         providing retroactive application; authorizing the
   16         disclosure of confidential and exempt information
   17         under certain circumstances; authorizing agencies to
   18         report certain cybersecurity information in the
   19         aggregate; providing for future legislative review and
   20         repeal of the exemptions; amending ss. 98.015 and
   21         282.318, F.S.; conforming provisions to changes made
   22         by the act; providing a statement of public necessity;
   23         providing a contingent effective date.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Section 119.0725, Florida Statutes, is created
   28  to read:
   29         119.0725Agency cybersecurity information; public records
   30  exemption; public meetings exemption.—
   31         (1)As used in this section, the term:
   32         (a)“Breach” means unauthorized access of data in
   33  electronic form containing personal information. Good faith
   34  access of personal information by an employee or agent of an
   35  agency does not constitute a breach, provided that the
   36  information is not used for a purpose unrelated to the business
   37  or subject to further unauthorized use.
   38         (b)“Critical infrastructure” means existing and proposed
   39  information technology and operational technology systems and
   40  assets, whether physical or virtual, the incapacity or
   41  destruction of which would negatively affect security, economic
   42  security, public health, or public safety.
   43         (c)“Cybersecurity” has the same meaning as in s. 282.0041.
   44         (d)“Data” has the same meaning as in s. 282.0041.
   45         (e)“Incident” means a violation or imminent threat of
   46  violation, whether such violation is accidental or deliberate,
   47  of information technology resources, security, policies, or
   48  practices. As used in this paragraph, the term “imminent threat
   49  of violation” means a situation in which the agency has a
   50  factual basis for believing that a specific incident is about to
   51  occur.
   52         (f)“Information technology” has the same meaning as in s.
   53  282.0041.
   54         (g)“Operational technology” means the hardware and
   55  software that cause or detect a change through the direct
   56  monitoring or control of physical devices, systems, processes,
   57  or events.
   58         (2)The following information held by an agency is
   59  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   60  of the State Constitution:
   61         (a)Coverage limits and deductible or self-insurance
   62  amounts of insurance or other risk mitigation coverages acquired
   63  for the protection of information technology systems,
   64  operational technology systems, or data of an agency.
   65         (b)Information relating to critical infrastructure.
   66         (c)Network schematics, hardware and software
   67  configurations, or encryption information or information that
   68  identifies detection, investigation, or response practices for
   69  suspected or confirmed cybersecurity incidents, including
   70  suspected or confirmed breaches, if the disclosure of such
   71  information would facilitate unauthorized access to or
   72  unauthorized modification, disclosure, or destruction of:
   73         1.Data or information, whether physical or virtual; or
   74         2.Information technology resources, which include an
   75  agency’s existing or proposed information technology systems.
   76         (3)Any portion of a meeting that would reveal information
   77  made confidential and exempt under subsection (2) is exempt from
   78  s. 286.011 and s. 24(b), Art. I of the State Constitution. An
   79  exempt portion of a meeting may not be off the record and must
   80  be recorded and transcribed. The recording and transcript are
   81  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
   82  of the State Constitution.
   83         (4)The public records exemptions contained in this section
   84  apply to information held by an agency before, on, or after July
   85  1, 2022.
   86         (5)(a)Information made confidential and exempt pursuant to
   87  this section shall be made available to a law enforcement
   88  agency, the Auditor General, the Cybercrime Office of the
   89  Department of Law Enforcement, the Florida Digital Service
   90  within the Department of Management Services, and, for agencies
   91  under the jurisdiction of the Governor, the Chief Inspector
   92  General.
   93         (b)Such confidential and exempt information may be
   94  disclosed by an agency in the furtherance of its official duties
   95  and responsibilities or to another agency or governmental entity
   96  in the furtherance of its statutory duties and responsibilities.
   97         (6)Agencies may report information about cybersecurity
   98  incidents in the aggregate.
   99         (7)This section is subject to the Open Government Sunset
  100  Review Act in accordance with s. 119.15 and shall stand repealed
  101  on October 2, 2027, unless reviewed and saved from repeal
  102  through reenactment by the Legislature.
  103         Section 2. Subsection (13) of section 98.015, Florida
  104  Statutes, is amended to read:
  105         98.015 Supervisor of elections; election, tenure of office,
  106  compensation, custody of registration-related documents, office
  107  hours, successor, seal; appointment of deputy supervisors;
  108  duties; public records exemption.—
  109         (13)(a)Portions of records held by a supervisor of
  110  elections which contain network schematics, hardware and
  111  software configurations, or encryption, or which identify
  112  detection, investigation, or response practices for suspected or
  113  confirmed information technology security incidents, including
  114  suspected or confirmed breaches, are confidential and exempt
  115  from s. 119.07(1) and s. 24(a), Art. I of the State
  116  Constitution, if the disclosure of such records would facilitate
  117  unauthorized access to or the unauthorized modification,
  118  disclosure, or destruction of:
  119         1.Data or information, whether physical or virtual; or
  120         2.Information technology resources as defined in s.
  121  119.011(9), which includes:
  122         a.Information relating to the security of a supervisor of
  123  elections’ technology, processes, and practices designed to
  124  protect networks, computers, data processing software, and data
  125  from attack, damage, or unauthorized access; or
  126         b.Security information, whether physical or virtual, which
  127  relates to a supervisor of elections’ existing or proposed
  128  information technology systems.
  129         (b)The portions of records made confidential and exempt in
  130  paragraph (a) shall be available to the Auditor General and may
  131  be made available to another governmental entity for information
  132  technology security purposes or in the furtherance of the
  133  entity’s official duties.
  134         (c)The public record exemption in paragraph (a) applies to
  135  records held by a supervisor of elections before, on, or after
  136  the effective date of the exemption.
  137         (d)This subsection is subject to the Open Government
  138  Sunset Review Act in accordance with s. 119.15 and shall stand
  139  repealed on October 2, 2026, unless reviewed and saved from
  140  repeal through reenactment by the Legislature.
  141         Section 3. Subsections (6) and (11) of section 282.318,
  142  Florida Statutes, are renumbered as subsections (5) and (10),
  143  respectively, and present subsections (5), (7), (8), (9), and
  144  (10) of that section are amended to read:
  145         282.318 Cybersecurity.—
  146         (5)Portions of records held by a state agency which
  147  contain network schematics, hardware and software
  148  configurations, or encryption, or which identify detection,
  149  investigation, or response practices for suspected or confirmed
  150  cybersecurity incidents, including suspected or confirmed
  151  breaches, are confidential and exempt from s. 119.07(1) and s.
  152  24(a), Art. I of the State Constitution, if the disclosure of
  153  such records would facilitate unauthorized access to or the
  154  unauthorized modification, disclosure, or destruction of:
  155         (a)Data or information, whether physical or virtual; or
  156         (b)Information technology resources, which includes:
  157         1.Information relating to the security of the agency’s
  158  technologies, processes, and practices designed to protect
  159  networks, computers, data processing software, and data from
  160  attack, damage, or unauthorized access; or
  161         2.Security information, whether physical or virtual, which
  162  relates to the agency’s existing or proposed information
  163  technology systems.
  164         (6)(7) Those portions of a public meeting as specified in
  165  s. 286.011 which would reveal records which are confidential and
  166  exempt under subsection (5) or subsection (6) are exempt from s.
  167  286.011 and s. 24(b), Art. I of the State Constitution. No
  168  exempt portion of an exempt meeting may be off the record. All
  169  exempt portions of such meeting shall be recorded and
  170  transcribed. Such recordings and transcripts are confidential
  171  and exempt from disclosure under s. 119.07(1) and s. 24(a), Art.
  172  I of the State Constitution unless a court of competent
  173  jurisdiction, after an in camera review, determines that the
  174  meeting was not restricted to the discussion of data and
  175  information made confidential and exempt by this section. In the
  176  event of such a judicial determination, only that portion of the
  177  recording and transcript which reveals nonexempt data and
  178  information may be disclosed to a third party.
  179         (7)(8) The portions of records made confidential and exempt
  180  in subsections (5) and, (6), and (7) shall be available to the
  181  Auditor General, the Cybercrime Office of the Department of Law
  182  Enforcement, the Florida Digital Service within the department,
  183  and, for agencies under the jurisdiction of the Governor, the
  184  Chief Inspector General. Such portions of records may be made
  185  available to a local government, another state agency, or a
  186  federal agency for cybersecurity purposes or in furtherance of
  187  the state agency’s official duties.
  188         (8)(9) The exemptions contained in subsections (5) and,
  189  (6), and (7) apply to records held by a state agency before, on,
  190  or after the effective date of this exemption.
  191         (9)(10) Subsections (5) and, (6), and (7) are subject to
  192  the Open Government Sunset Review Act in accordance with s.
  193  119.15 and shall stand repealed on October 2, 2025, unless
  194  reviewed and saved from repeal through reenactment by the
  195  Legislature.
  196         Section 4. (1)The Legislature finds that it is a public
  197  necessity that the following information held by an agency be
  198  made confidential and exempt from s. 119.07(1), Florida
  199  Statutes, and s. 24(a), Article I of the State Constitution:
  200         (a)Coverage limits and deductible or self-insurance
  201  amounts of insurance or other risk mitigation coverages acquired
  202  for the protection of information technology systems,
  203  operational technology systems, or data of an agency.
  204         (b)Information relating to critical infrastructure.
  205         (c)Network schematics, hardware and software
  206  configurations, or encryption information or information that
  207  identifies detection, investigation, or response practices for
  208  suspected or confirmed cybersecurity incidents, including
  209  suspected or confirmed breaches, if the disclosure of such
  210  information would facilitate unauthorized access to or
  211  unauthorized modification, disclosure, or destruction of:
  212         1.Data or information, whether physical or virtual; or
  213         2.Information technology resources, which include an
  214  agency’s existing or proposed information technology systems.
  215  
  216  Release of such information could place an agency at greater
  217  risk of breaches, cybersecurity incidents, and ransomware
  218  attacks. Such information could be used by criminals to identify
  219  any vulnerabilities that may exist in an agency’s security
  220  system, thereby compromising the integrity of the agency’s
  221  information technology, operational technology, and data. If
  222  information related to the coverage limits and deductible or
  223  self-insurance amounts of cybersecurity insurance were
  224  disclosed, it could give cybercriminals an understanding of the
  225  monetary sum an agency can afford or may be willing to pay as a
  226  result of a ransomware attack at the expense of the taxpayer. In
  227  addition, critical infrastructure information is a vital
  228  component of public safety and, if made publicly available,
  229  could aid in the planning of, training for, and execution of
  230  cyberattacks, thereby increasing the ability of persons to harm
  231  individuals in this state. The recent cybersecurity hacking and
  232  shutdown of the Colonial Pipeline by the criminal enterprise
  233  DarkSide in 2021 and the infiltration of the Bowman Avenue Dam
  234  in Rye Brook, New York, by Iranian hackers in 2013 provide
  235  evidence that such criminal capabilities exist. These events
  236  also show the crippling effect that cyberattacks on critical
  237  infrastructure may have. Further, the release of network
  238  schematics, hardware and software configurations, or encryption
  239  information or information that identifies detection,
  240  investigation, or response practices for suspected or confirmed
  241  cybersecurity incidents, including suspected or confirmed
  242  breaches, would facilitate unauthorized access to or the
  243  unauthorized modification, disclosure, or destruction of data or
  244  information, whether physical or virtual, or information
  245  technology resources. Such information also includes proprietary
  246  information about the security of an agency’s system. The
  247  disclosure of such information could compromise the integrity of
  248  an agency’s data, information, or information technology
  249  resources, which would significantly impair the administration
  250  of vital governmental programs. Therefore, this information
  251  should be made confidential and exempt in order to protect the
  252  agency’s data, information, and information technology
  253  resources.
  254         (2)The Legislature also finds that it is a public
  255  necessity that any portion of a meeting that would reveal the
  256  confidential and exempt information be made exempt from s.
  257  286.011, Florida Statutes, and s. 24(b), Article I of the State
  258  Constitution, and that any recordings and transcripts of the
  259  closed portion of a meeting be made confidential and exempt from
  260  s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the
  261  State Constitution. The failure to close that portion of a
  262  meeting at which confidential and exempt information would be
  263  revealed, and prevent the disclosure of the recordings and
  264  transcripts of those portions of a meeting, would defeat the
  265  purpose of the underlying public records exemption and could
  266  result in the release of highly sensitive information related to
  267  the cybersecurity of an agency system.
  268         (3)For these reasons, the Legislature finds that these
  269  public records and public meetings exemptions are of the utmost
  270  importance and are a public necessity.
  271         Section 5. This act shall take effect on the same date that
  272  SB 1670 or similar legislation takes effect, if such legislation
  273  is adopted in the same legislative session or an extension
  274  thereof and becomes law.