August 04, 2020
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Senate Bill 0712

Senate Bill sb0712

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004                                   SB 712

    By the Committee on Commerce, Economic Opportunities, and
    Consumer Services




    310-781A-04

  1                      A bill to be entitled

  2         An act relating to a review under the Open

  3         Government Sunset Review Act; amending s.

  4         73.0155, F.S.; revising a public-records

  5         exemption for business records submitted in

  6         eminent domain negotiations on business

  7         damages; providing for confidentiality;

  8         prescribing the information that is

  9         confidential and exempt from disclosure;

10         prescribing certain conditions for the

11         confidentiality and exemption; providing for

12         limitations on the confidentiality and

13         exemption; providing for access by public

14         employees; providing a penalty for disclosure;

15         providing for future legislative review and

16         repeal; providing a statement of public

17         necessity; providing an effective date.

18  

19  Be It Enacted by the Legislature of the State of Florida:

20  

21         Section 1.  Section 73.0155, Florida Statutes, is

22  amended to read:

23         73.0155  Confidentiality; business information records

24  provided to a governmental condemning authority.--

25         (1)  The following business information records

26  provided by the owner of a business to a governmental

27  condemning authority as part of an offer of business damages

28  under pursuant to s. 73.015 is confidential and are exempt

29  from the disclosure provisions of s. 24(a), Art. I of the

30  State Constitution and s. 119.07(1) if the disclosure of such

31  records would be likely to cause substantial harm to the

                                  1

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    Florida Senate - 2004                                   SB 712
    310-781A-04




 1  competitive position of the person providing such records and

 2  if the owner person providing such records requests in writing

 3  that the information such records be held exempt:.

 4         (a)  Federal tax returns or tax information

 5  confidential under 26 U.S.C. s. 6103.

 6         (b)  State tax returns or tax information confidential

 7  under s. 213.053.

 8         (c)  Balance sheets, profit-and-loss statements,

 9  cash-flow statements, inventory records, or customer lists or

10  number of customers for a business operating on the parcel to

11  be acquired.

12         (d)  A franchise, distributorship, or lease agreement

13  of which the business operating on the parcel to be acquired

14  is the subject.

15         (e)  Materials that relate to methods of manufacture or

16  production, potential trade secrets, patentable material, or

17  actual trade secrets as defined in s. 688.002.

18         (f)  Other sensitive or proprietary information related

19  to the business operating on the parcel to be acquired, if the

20  owner attests in writing to the governmental condemning

21  authority that:

22         1.  The information is being relied upon to

23  substantiate a claim for business damages under s. 73.015;

24         2.  The information has not otherwise been publicly

25  disclosed;

26         3.  The information cannot be readily obtained by the

27  public using alternative means;

28         4.  The information is used by the business to protect

29  or further a business advantage over those who do not know or

30  use the information; and

31  

                                  2

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    Florida Senate - 2004                                   SB 712
    310-781A-04




 1         5.  The disclosure of the information would injure the

 2  business in the marketplace. Nothing in this section shall be

 3  construed to prevent inspection of such records by the

 4  Attorney General, members of the Legislature, and interested

 5  state agencies; however, such records shall remain exempt from

 6  further disclosure.

 7         (2)  At the time that any information made confidential

 8  and exempt from disclosure under subsection (1) is legally

 9  available or subject to public disclosure for any reason, that

10  information is no longer confidential and exempt and shall be

11  made available for inspection and copying.

12         (3)  Public employees shall be permitted to inspect and

13  copy records or information made confidential and exempt from

14  disclosure under subsection (1) exclusively for the

15  performance of their public duties. Public employees receiving

16  this confidential and exempt information must maintain the

17  confidentiality of the information. Any such public employee

18  receiving confidential information who violates this

19  subsection commits a misdemeanor of the first degree,

20  punishable as provided by s. 775.082 or s. 775.083.

21         (4)  Subsection (1) This exemption is subject to the

22  Open Government Sunset Review Act in accordance with s. 119.15

23  and expires on October 2, 2009 2004, unless reviewed and

24  reenacted by the Legislature.

25         Section 2.  (1)  The Legislature finds that it is a

26  public necessity to make confidential and exempt from public

27  disclosure sensitive business information that is submitted to

28  a governmental condemning authority by a business owner to

29  substantiate an offer to settle a business-damage claim

30  resulting from the acquisition of a parcel for right-of-way

31  purposes through eminent domain. Specifically, the Legislature

                                  3

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    Florida Senate - 2004                                   SB 712
    310-781A-04




 1  finds that this confidentiality and exemption from public

 2  disclosure are necessary for federal and state tax returns and

 3  tax information; balance sheets, profit-and-loss statements,

 4  cash-flow statements, inventory records, and customer lists or

 5  number of customers for a business operating on the parcel;

 6  franchise, distributorship, and lease agreements relating to a

 7  business operating on the parcel; information in the nature of

 8  trade secrets; and other sensitive or proprietary business

 9  information, because the business uses this information to

10  protect or further an advantage over other businesses and

11  disclosure of the information would injure the business in the

12  marketplace, and because the governmental condemning authority

13  uses this information to evaluate the merits of a

14  business-damage claim and reluctance on the part of a business

15  to provide this information would significantly impair the

16  ability of the authority to conduct eminent domain activities.

17         (2)  Federal and state tax returns and tax information;

18  balance sheets, profit-and-loss statements, cash-flow

19  statements, inventory records, and customer lists or number of

20  customers for a business; franchise, distributorship, and

21  lease agreements relating to a business; information in the

22  nature of trade secrets; and other sensitive or proprietary

23  business information are typically kept confidential by a

24  business and are not readily obtainable by the public through

25  alternative means. This information relates directly to the

26  operations of the business and reflects upon, and provides

27  insights into, the financial status, operating techniques and

28  activities, and strategic plans of the business. Competitors

29  of the business, who would not ordinarily have access to this

30  sensitive business information, could use it to undermine the

31  position that the business maintains in the marketplace by

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    Florida Senate - 2004                                   SB 712
    310-781A-04




 1  adjusting their own operating techniques and activities and

 2  strategic plans in response to what they learn about the

 3  business. But for the acquisition by a governmental condemning

 4  authority of property on which the business operates and the

 5  requirement that the business submit an offer to settle a

 6  business-damage claim, the business would not ordinarily be in

 7  the position of having to release this information into a

 8  public forum. The confidentiality and exemption from public

 9  disclosure provided by this act, therefore, protect

10  information of a confidential nature concerning an entity and

11  are necessary to prevent the business from being unfairly

12  injured in the marketplace.

13         (3)  Federal and state tax returns and tax information;

14  balance sheets, profit-and-loss statements, cash-flow

15  statements, inventory records, and customer lists or number of

16  customers for a business; franchise, distributorship, and

17  lease agreements relating to a business; information in the

18  nature of trade secrets; and other sensitive or proprietary

19  business information are critical to the evaluation of a claim

20  for business damages resulting from the acquisition of a

21  parcel by a governmental condemning authority. The authority

22  uses the information to determine how the taking of a portion

23  of the property on which a business operates will affect the

24  business from a financial standpoint, to evaluate whether the

25  amount that the business is claiming is accurate in relation

26  to the actual business damages, and, ultimately, to determine

27  how much to compensate the business for its damages. Without

28  the information, a condemning authority would not be able to

29  assess the accuracy of the business-damage offer the business

30  submits and would have to approximate damages using

31  nonspecific information, such as industry trends or averages.

                                  5

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    Florida Senate - 2004                                   SB 712
    310-781A-04




 1  An inability to obtain accurate and specific information about

 2  the business creates the potential for the authority to pay a

 3  greater amount than the actual damages or for the authority to

 4  undervalue the claim and reject the business's offer. The

 5  exchange of accurate information promotes good-faith

 6  negotiations between the business and the governmental

 7  condemning authority early in the property-acquisition process

 8  and, thereby, promotes opportunities for the parties to reach

 9  a settlement on the amount of damages without having to

10  proceed to a full trial, which would likely entail greater

11  costs associated with the acquisition of property for public

12  transportation projects. Because, for the reasons cited in

13  subsection (2), a business is reluctant to share this

14  sensitive business information, the confidentiality and

15  exemption from public disclosure provided by this act

16  encourage businesses to release the information, promote

17  settlements early in the condemnation process and before

18  trial, and allow governmental condemning authorities to

19  effectively and efficiently administer eminent domain

20  programs.

21         Section 3.  This act shall take effect July 1, 2004.

22  

23            *****************************************

24                          SENATE SUMMARY

25    Revises an exemption from the public-records law provided
      for business information submitted to a governmental
26    condemning authority as part of negotiations concerning
      business damages. Requires that the business owner make
27    the request for the exemption in writing. Authorizes a
      public employee to use the confidential information in
28    performing his or her public duties. Provides that the
      disclosure of confidential information by a public
29    employee is a first-degree misdemeanor. Provides for
      future legislative review and repeal of the exemption
30    under the Open Government Sunset Review Act. Provides a
      statement of public necessity. (See bill for details.)
31  

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