August 04, 2020
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Senate Bill 0712

Senate Bill sb0712er

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    2004 Legislature                          CS for CS for SB 712



  1                                 

  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         specifying that the information may be offered

16         in evidence; providing for future legislative

17         review and repeal; providing a statement of

18         public necessity; providing an effective date.

19  

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

21  

22         Section 1.  Section 73.0155, Florida Statutes, is

23  amended to read:

24         73.0155  Confidentiality; business information records

25  provided to a governmental condemning authority.--

26         (1)  The following business information records

27  provided by the owner of a business to a governmental

28  condemning authority as part of an offer of business damages

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

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

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


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 1  records would be likely to cause substantial harm to the

 2  competitive position of the person providing such records and

 3  if the owner person providing such records requests in writing

 4  that the information such records be held exempt:.

 5         (a)  Federal tax returns or tax information

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

 7         (b)  State tax returns or tax information confidential

 8  under s. 213.053.

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

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

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

12  be acquired.

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

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

15  is the subject.

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

17  production, potential trade secrets, patentable material, or

18  actual trade secrets as defined in s. 688.002.

19         (f)  Other sensitive or proprietary information related

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

21  owner attests in writing to the governmental condemning

22  authority that:

23         1.  The information is being relied upon to

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

25         2.  The information has not otherwise been publicly

26  disclosed;

27         3.  The information cannot be readily obtained by the

28  public using alternative means;

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

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

31  use the information; and


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 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)  An agency as defined in s. 119.011 may inspect and

13  copy records or information made confidential and exempt from

14  disclosure under subsection (1) exclusively for the

15  transaction of official business by, or on behalf of, an

16  agency. An agency receiving this confidential and exempt

17  information must maintain the confidentiality of that

18  information. Any employee or agent of the agency receiving

19  this confidential and exempt information who willfully and

20  knowingly violates this subsection commits a misdemeanor of

21  the first degree, punishable as provided by s. 775.082 or s.

22  775.083.

23         (4)  This section does not prevent an agency from

24  offering information made confidential and exempt from

25  disclosure under subsection (1) as evidence in a legal

26  proceeding and does not prevent a court from determining

27  whether to close a portion of a court record from subsequent

28  public disclosure after trial in order to maintain the

29  confidentiality of that information.

30         (5)  Subsection (1) This exemption is subject to the

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


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

 2  reenacted by the Legislature.

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

 4  public necessity to make confidential and exempt from public

 5  disclosure sensitive business information that is submitted to

 6  a governmental condemning authority by a business owner to

 7  substantiate an offer to settle a business-damage claim

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

 9  purposes through eminent domain. Specifically, the Legislature

10  finds that this confidentiality and exemption from public

11  disclosure are necessary for federal and state tax returns and

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

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

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

15  franchise, distributorship, and lease agreements relating to a

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

17  trade secrets; and other sensitive or proprietary business

18  information, because the business uses this information to

19  protect or further an advantage over other businesses and

20  disclosure of the information would injure the business in the

21  marketplace, and because the governmental condemning authority

22  uses this information to evaluate the merits of a

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

24  to provide this information would significantly impair the

25  ability of the authority to conduct eminent domain activities.

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

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

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

29  customers for a business; franchise, distributorship, and

30  lease agreements relating to a business; information in the

31  nature of trade secrets; and other sensitive or proprietary


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    2004 Legislature                          CS for CS for SB 712



 1  business information are typically kept confidential by a

 2  business and are not readily obtainable by the public through

 3  alternative means. This information relates directly to the

 4  operations of the business and reflects upon, and provides

 5  insights into, the financial status, operating techniques and

 6  activities, and strategic plans of the business. Competitors

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

 8  sensitive business information, could use it to undermine the

 9  position that the business maintains in the marketplace by

10  adjusting their own operating techniques and activities and

11  strategic plans in response to what they learn about the

12  business. But for the acquisition by a governmental condemning

13  authority of property on which the business operates and the

14  requirement that the business submit an offer to settle a

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

16  the position of having to release this information into a

17  public forum. The confidentiality and exemption from public

18  disclosure provided by this act, therefore, protect

19  information of a confidential nature concerning an entity and

20  are necessary to prevent the business from being unfairly

21  injured in the marketplace.

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

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

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

25  customers for a business; franchise, distributorship, and

26  lease agreements relating to a business; information in the

27  nature of trade secrets; and other sensitive or proprietary

28  business information are critical to the evaluation of a claim

29  for business damages resulting from the acquisition of a

30  parcel by a governmental condemning authority. The authority

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


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    2004 Legislature                          CS for CS for SB 712



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

 2  business from a financial standpoint, to evaluate whether the

 3  amount that the business is claiming is accurate in relation

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

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

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

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

 8  submits and would have to approximate damages using

 9  nonspecific information, such as industry trends or averages.

10  An inability to obtain accurate and specific information about

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

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

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

14  exchange of accurate information promotes good-faith

15  negotiations between the business and the governmental

16  condemning authority early in the property-acquisition process

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

18  a settlement on the amount of damages without having to

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

20  costs associated with the acquisition of property for public

21  transportation projects. Because, for the reasons cited in

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

23  sensitive business information, the confidentiality and

24  exemption from public disclosure provided by this act

25  encourage businesses to release the information, promote

26  settlements early in the condemnation process and before

27  trial, and allow governmental condemning authorities to

28  effectively and efficiently administer eminent domain

29  programs.

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

31  


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