August 04, 2020
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Senate Bill 0712

Senate Bill sb0712c1

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    Florida Senate - 2004                            CS for SB 712

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




    310-901-04

  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 employees of

14         an agency; 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                            CS for SB 712
    310-901-04




 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                            CS for SB 712
    310-901-04




 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)  Employees of an agency as defined in s. 119.011

13  shall be permitted to inspect and copy records or information

14  made confidential and exempt from disclosure under subsection

15  (1) exclusively for the transaction of official business by,

16  or on behalf of, a public agency. Employees receiving this

17  confidential and exempt information must maintain the

18  confidentiality of the information. Any such employee

19  receiving confidential information who violates this

20  subsection commits a misdemeanor of the first degree,

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

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

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

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

25  reenacted by the Legislature.

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

27  public necessity to make confidential and exempt from public

28  disclosure sensitive business information that is submitted to

29  a governmental condemning authority by a business owner to

30  substantiate an offer to settle a business-damage claim

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

                                  3

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    Florida Senate - 2004                            CS for SB 712
    310-901-04




 1  purposes through eminent domain. Specifically, the Legislature

 2  finds that this confidentiality and exemption from public

 3  disclosure are necessary for federal and state tax returns and

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

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

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

 7  franchise, distributorship, and lease agreements relating to a

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

 9  trade secrets; and other sensitive or proprietary business

10  information, because the business uses this information to

11  protect or further an advantage over other businesses and

12  disclosure of the information would injure the business in the

13  marketplace, and because the governmental condemning authority

14  uses this information to evaluate the merits of a

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

16  to provide this information would significantly impair the

17  ability of the authority to conduct eminent domain activities.

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

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

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

21  customers for a business; franchise, distributorship, and

22  lease agreements relating to a business; information in the

23  nature of trade secrets; and other sensitive or proprietary

24  business information are typically kept confidential by a

25  business and are not readily obtainable by the public through

26  alternative means. This information relates directly to the

27  operations of the business and reflects upon, and provides

28  insights into, the financial status, operating techniques and

29  activities, and strategic plans of the business. Competitors

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

31  sensitive business information, could use it to undermine the

                                  4

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    Florida Senate - 2004                            CS for SB 712
    310-901-04




 1  position that the business maintains in the marketplace by

 2  adjusting their own operating techniques and activities and

 3  strategic plans in response to what they learn about the

 4  business. But for the acquisition by a governmental condemning

 5  authority of property on which the business operates and the

 6  requirement that the business submit an offer to settle a

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

 8  the position of having to release this information into a

 9  public forum. The confidentiality and exemption from public

10  disclosure provided by this act, therefore, protect

11  information of a confidential nature concerning an entity and

12  are necessary to prevent the business from being unfairly

13  injured in the marketplace.

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

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

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

17  customers for a business; franchise, distributorship, and

18  lease agreements relating to a business; information in the

19  nature of trade secrets; and other sensitive or proprietary

20  business information are critical to the evaluation of a claim

21  for business damages resulting from the acquisition of a

22  parcel by a governmental condemning authority. The authority

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

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

25  business from a financial standpoint, to evaluate whether the

26  amount that the business is claiming is accurate in relation

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

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

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

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

31  submits and would have to approximate damages using

                                  5

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    Florida Senate - 2004                            CS for SB 712
    310-901-04




 1  nonspecific information, such as industry trends or averages.

 2  An inability to obtain accurate and specific information about

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

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

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

 6  exchange of accurate information promotes good-faith

 7  negotiations between the business and the governmental

 8  condemning authority early in the property-acquisition process

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

10  a settlement on the amount of damages without having to

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

12  costs associated with the acquisition of property for public

13  transportation projects. Because, for the reasons cited in

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

15  sensitive business information, the confidentiality and

16  exemption from public disclosure provided by this act

17  encourage businesses to release the information, promote

18  settlements early in the condemnation process and before

19  trial, and allow governmental condemning authorities to

20  effectively and efficiently administer eminent domain

21  programs.

22         Section 3.  This act shall take effect October 1, 2004.

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    Florida Senate - 2004                            CS for SB 712
    310-901-04




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 712

 3                                 

 4  The committee substitute:

 5  -- revises the provision in the bill allowing confidential and
    exempt information to be shared with "public employees," to
 6  instead provide that the information may be shared with
    employees of an "agency," as that term is defined in the
 7  public records law, for the transaction of official business;
    and
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    -- changes the effective date of the legislation from July 1,
 9  2004, to October 1, 2004.

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