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Senate Bill 3030

Senate Bill sb3030

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    Florida Senate - 2004                                  SB 3030

    By Senator Crist





    12-1755C-04                                  See CS for HB 147

  1                      A bill to be entitled

  2         An act relating to public records and public

  3         meetings exemptions; amending s. 1004.43, F.S.;

  4         expanding the public records exemption for

  5         proprietary confidential business information

  6         owned or controlled by the H. Lee Moffitt

  7         Cancer Center and Research Institute to include

  8         information relating to methods of manufacture

  9         or production, potential trade secrets,

10         potentially patentable material, and

11         proprietary information received, generated,

12         ascertained, or discovered during the course of

13         research; expanding the public records

14         exemption to include information received from

15         another state or nation or the Federal

16         Government which is otherwise exempt or

17         confidential pursuant to the laws of that state

18         or nation or pursuant to federal law; providing

19         for future review and repeal; providing a

20         statement of public necessity; amending s.

21         1004.445, F.S.; creating a public records

22         exemption for proprietary confidential business

23         information owned or controlled by the Florida

24         Alzheimer's Center and Research Institute;

25         specifying types of information that are deemed

26         proprietary confidential business information;

27         creating a public meetings exemption for

28         specified meetings or portions of meetings of

29         the governing board of the Florida Alzheimer's

30         Center and Research Institute; providing for

31         future review and repeal; providing a statement

                                  1

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1         of public necessity; providing severability;

 2         providing an effective date.

 3  

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

 5  

 6         Section 1.  Paragraph (b) of subsection (8) of section

 7  1004.43, Florida Statutes, is amended to read:

 8         1004.43  H. Lee Moffitt Cancer Center and Research

 9  Institute.--There is established the H. Lee Moffitt Cancer

10  Center and Research Institute at the University of South

11  Florida.

12         (8)

13         (b)1.  Proprietary confidential business information is

14  confidential and exempt from the provisions of s. 119.07(1)

15  and s. 24(a), Art. I of the State Constitution. However, the

16  Auditor General, the Office of Program Policy Analysis and

17  Government Accountability, and the State Board of Education,

18  pursuant to their oversight and auditing functions, must be

19  given access to all proprietary confidential business

20  information upon request and without subpoena and must

21  maintain the confidentiality of information so received. As

22  used in this subparagraph paragraph, the term "proprietary

23  confidential business information" means information,

24  regardless of its form or characteristics, which is owned or

25  controlled by the not-for-profit corporation or its

26  subsidiaries; is intended to be and is treated by the

27  not-for-profit corporation or its subsidiaries as private and

28  the disclosure of which would harm the business operations of

29  the not-for-profit corporation or its subsidiaries; has not

30  been intentionally disclosed by the corporation or its

31  subsidiaries unless pursuant to law, an order of a court or

                                  2

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  administrative body, a legislative proceeding pursuant to s.

 2  5, Art. III of the State Constitution, or a private agreement

 3  that provides that the information may be released to the

 4  public; and is information concerning:

 5         a.1.  Internal auditing controls and reports of

 6  internal auditors;

 7         b.2.  Matters reasonably encompassed in privileged

 8  attorney-client communications;

 9         c.3.  Contracts for managed-care arrangements,

10  including preferred provider organization contracts, health

11  maintenance organization contracts, and exclusive provider

12  organization contracts, and any documents directly relating to

13  the negotiation, performance, and implementation of any such

14  contracts for managed-care arrangements;

15         d.4.  Bids or other contractual data, banking records,

16  and credit agreements the disclosure of which would impair the

17  efforts of the not-for-profit corporation or its subsidiaries

18  to contract for goods or services on favorable terms;

19         e.5.  Information relating to private contractual data,

20  the disclosure of which would impair the competitive interest

21  of the provider of the information;

22         f.6.  Corporate officer and employee personnel

23  information;

24         g.7.  Information relating to the proceedings and

25  records of credentialing panels and committees and of the

26  governing board of the not-for-profit corporation or its

27  subsidiaries relating to credentialing;

28         h.8.  Minutes of meetings of the governing board of the

29  not-for-profit corporation and its subsidiaries, except

30  minutes of meetings open to the public pursuant to subsection

31  (9);

                                  3

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1         i.9.  Information that reveals plans for marketing

 2  services that the corporation or its subsidiaries reasonably

 3  expect to be provided by competitors;

 4         j.10.  Trade secrets as defined in s. 688.002,

 5  including information relating to methods of manufacture or

 6  production, potential trade secrets, potentially patentable

 7  material, or proprietary information received, generated,

 8  ascertained, or discovered during the course of research

 9  conducted by the not-for-profit corporation or its

10  subsidiaries and reimbursement methodologies or rates; or

11         k.11.  The identity of donors or prospective donors of

12  property who wish to remain anonymous or any information

13  identifying such donors or prospective donors. The anonymity

14  of these donors or prospective donors must be maintained in

15  the auditor's report; or.

16         l.  Any information received by the not-for-profit

17  corporation or its subsidiaries from a person in this or

18  another state or nation or the Federal Government which is

19  otherwise exempt or confidential pursuant to the laws of this

20  or another state or nation or pursuant to federal law.

21  

22  As used in this subparagraph paragraph, the term "managed

23  care" means systems or techniques generally used by

24  third-party payors or their agents to affect access to and

25  control payment for health care services. Managed-care

26  techniques most often include one or more of the following:

27  prior, concurrent, and retrospective review of the medical

28  necessity and appropriateness of services or site of services;

29  contracts with selected health care providers; financial

30  incentives or disincentives related to the use of specific

31  providers, services, or service sites; controlled access to

                                  4

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  and coordination of services by a case manager; and payor

 2  efforts to identify treatment alternatives and modify benefit

 3  restrictions for high-cost patient care.

 4         2.  Sub-subparagraphs j. and l. of subparagraph 1. are

 5  subject to the Open Government Sunset Review Act of 1995 in

 6  accordance with s. 119.15 and shall stand repealed on October

 7  2, 2009, unless reviewed and saved from repeal through

 8  reenactment by the Legislature.

 9         Section 2.  The Legislature finds that it is a public

10  necessity that information relating to methods of manufacture

11  or production, potential trade secrets, potentially patentable

12  materials, or proprietary information received, generated,

13  ascertained, or discovered during the course of research

14  conducted by the not-for-profit corporation organized solely

15  for the purpose of governing and operating the H. Lee Moffitt

16  Cancer Center and Research Institute or its subsidiaries be

17  held confidential and exempt from public disclosure because

18  the disclosure of such information would adversely impact the

19  not-for-profit corporation or its subsidiaries and would

20  create an unfair competitive advantage for persons receiving

21  such information. If such confidential and exempt information

22  regarding research in progress were released pursuant to a

23  public records request, others would be allowed to take the

24  benefit of the research without compensation or reimbursement

25  to the research center. The Legislature further finds that

26  information received by the not-for-profit corporation or its

27  subsidiaries from a person in this or another state or nation

28  or the Federal Government which is otherwise exempt or

29  confidential pursuant to the laws of this or another state or

30  nation or pursuant to federal law should remain exempt or

31  confidential because the highly confidential nature of

                                  5

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  cancer-related research necessitates that the not-for-profit

 2  corporation or its subsidiaries be authorized to maintain the

 3  status of exempt or confidential information it receives from

 4  the sponsors of research.  Without the exemptions provided for

 5  herein, the disclosure of confidential and exempt information

 6  would place the not-for-profit corporation on an unequal

 7  footing in the marketplace as compared with its private health

 8  care and medical research competitors who are not required to

 9  disclose such confidential and exempt information.  The

10  Legislature finds that the disclosure of such confidential and

11  exempt information would adversely impact the not-for-profit

12  corporation or its subsidiaries in fulfilling their mission of

13  cancer treatment, research, and education.

14         Section 3.  Subsection (9) of section 1004.445, Florida

15  Statutes, is amended, and subsection (10) is added to that

16  section, to read:

17         1004.445  Florida Alzheimer's Center and Research

18  Institute.--

19         (9)(a)  The following information is confidential and

20  exempt from the provisions of s. 119.07(1) and s. 24, Art. I

21  of the State Constitution:

22         1.(a)  Personal identifying information relating to

23  clients of programs created or funded through the Florida

24  Alzheimer's Center and Research Institute which is held by the

25  institute, the University of South Florida, or the State Board

26  of Education or by persons who provide services to clients of

27  programs created or funded through contracts with the Florida

28  Alzheimer's Center and Research Institute;

29         2.(b)  Any medical or health records relating to

30  patients which may be created or received by the institute;

31  

                                  6

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1         3.  Proprietary confidential business information.  As

 2  used in this subparagraph, the term "proprietary confidential

 3  business information" means information, regardless of its

 4  form or characteristics, which is owned or controlled by the

 5  institute; is intended to be and is treated by the institute

 6  as private and the disclosure of which would harm the business

 7  operations of the institute; has not been intentionally

 8  disclosed by the institute unless pursuant to law, an order of

 9  a court or administrative body, a legislative proceeding

10  pursuant to s. 5, Art. III of the State Constitution, or a

11  private agreement that provides that the information may be

12  released to the public; and which is information concerning:

13         a.  Trade secrets as defined in s. 688.002, including

14  information relating

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

16  production, potential trade secrets, potentially patentable

17  material, actual trade secrets as defined in s. 688.002, or

18  proprietary information received, generated, ascertained, or

19  discovered during the course of research conducted by or

20  through the institute, and reimbursement methodologies or

21  rates. and business transactions resulting from such research;

22         b.(d)  The identity of a donor or prospective donor to

23  the Florida Alzheimer's Center and Research institute who

24  wishes to remain anonymous, and all information identifying

25  such donor or prospective donor.;

26         c.(e)  Any information received by the institute in the

27  performance of its duties and responsibilities which is

28  otherwise confidential and exempt by law.; and

29         d.(f)  Any information received by the institute from a

30  person from another state or nation or the Federal Government

31  

                                  7

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  which is otherwise confidential or exempt pursuant to that

 2  state's or nation's laws or pursuant to federal law.

 3         e.  Systems or techniques used by third-party payors or

 4  their agents to access and control health care service

 5  payments.

 6         f.  Financial incentives or disincentives related to

 7  the use of specific providers, services, or service sites.

 8         g.  Methods of access to and coordination of services

 9  by a case manager.

10         h.  Information relating to private contractual data,

11  upon a determination by the board of directors that the

12  disclosure of that information would impair the competitive

13  interest of the provider of the information. Such

14  determination by the board must be reflected in the minutes of

15  the meeting at which the determination was made.

16         i.  That portion of the salary or benefits paid to an

17  employee of the institute who performs scientific research,

18  which salary or benefits are not paid from public funds.

19  Personnel records of such employee shall provide notice that

20  such employee receives a portion of salary or benefits payment

21  from private sources.

22         j.  Minutes of those portions of a meeting of the

23  governing board of the institute which are closed pursuant to

24  paragraph (11)(a).

25         (b)  Any governmental entity that demonstrates a need

26  to access such confidential and exempt information in order to

27  perform its duties and responsibilities shall have access to

28  such information and shall otherwise keep such information

29  confidential and exempt.

30         (10)  Subsection (9) This section is subject to the

31  Open Government Sunset Review Act of 1995 in accordance with

                                  8

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  s. 119.15 and shall stand repealed on October 2, 2009 2006,

 2  unless reviewed and saved from repeal through reenactment by

 3  the Legislature.

 4         (11)(a)  That portion of a meeting of the governing

 5  board of the Florida Alzheimer's Center and Research Institute

 6  at which information is discussed which is made confidential

 7  and exempt pursuant to subsection (9) is exempt from s.

 8  286.011 and s. 24(b), Art. I of the State Constitution.

 9         (b)  This subsection is subject to the Open Government

10  Sunset Review Act of 1995 in accordance with s. 119.15 and

11  shall stand repealed on October 2, 2009, unless reviewed and

12  saved from repeal through reenactment by the Legislature.

13         Section 4.  The Legislature finds that it is a public

14  necessity that personal identifying information relating to

15  clients of programs created or funded through the Florida

16  Alzheimer's Center and Research Institute, any medical or

17  health records relating to patients, and proprietary

18  confidential business information owned or controlled by the

19  Florida Alzheimer's Center and Research Institute be made

20  confidential and exempt. If information identifying clients of

21  programs created or funded through the institute were made

22  available, the personal privacy of those clients would be

23  invaded. Those clients could be subjected to public

24  embarrassment if their participation in these programs were

25  made known. Without protection for the identity of clients,

26  the ability of the institute to attract clients and perform

27  the duties for which it was created would be adversely

28  affected. Further, the Legislature finds that medical or

29  health records relating to patients of the institute must be

30  confidential and exempt. Medical and health records contain

31  sensitive, highly personal information and, without protection

                                  9

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  for such information, patients might refuse the services of

 2  the institute. Further, access to proprietary confidential

 3  business information owned or controlled by the institute

 4  could be used to create an unfair competitive advantage for

 5  persons receiving such information, which would adversely

 6  impact the institute, as well as entities whose proprietary

 7  confidential business information is controlled by the

 8  institute. If trade secrets owned or controlled by the

 9  institute could be inspected and copied, other persons could

10  take the benefit of the research performed by the institute,

11  or of its business partners or agents, without compensation or

12  reimbursement to the institute or its business partners or

13  agents. Further, if such information were not protected, other

14  entities would likely decline to enter into partnership or

15  other business arrangements with the institute knowing that

16  their proprietary confidential business information could be

17  publicly available. The Legislature further finds that systems

18  or techniques used by third-party payors or their agents to

19  access and control health care service payments must also be

20  confidential and exempt because these methods or techniques

21  are developed by these third-party payors and if such

22  information were made available when in the possession of the

23  institute, competitors of the third-party payors could obtain

24  an economic advantage over the third-party payors. If that

25  were to occur, third-party payors would refuse to contract

26  with the institute, which would adversely affect the

27  institute. Further, the Legislature finds that financial

28  incentives or disincentives related to the use of specific

29  providers, services, or service sites and methods of access

30  and coordination of services must also be confidential and

31  exempt. If this information were obtained by competitors, it

                                  10

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  could be used to the disadvantage of entities that contract

 2  with the institute and these entities might refrain from

 3  entering into such contracts on that basis. Further, the

 4  Legislature finds that if the identity of a donor or

 5  prospective donor who wishes to remain anonymous were not

 6  protected, income from donations would be adversely affected,

 7  which would cause a negative impact on the institute. The

 8  Legislature also finds that information received by the

 9  institute from a person in another state or nation or the

10  Federal Government which is otherwise exempt or confidential

11  pursuant to the laws of that state or nation or pursuant to

12  federal law should remain exempt or confidential because the

13  highly confidential nature of research necessitates that the

14  institute be authorized to maintain the status of exempt or

15  confidential information it receives from sponsors of research

16  and other persons. The Legislature finds that the disclosure

17  of such information would adversely impact the institute's

18  ability to fulfill the mission of research for which the

19  institute was created. It is a public necessity that the

20  institute have the same confidential protections for

21  information received in the performance of its duties and

22  obligations which is confidential and exempt by law in order

23  to put it on an equal footing with other public research

24  institutes and to ensure that it has similar opportunities for

25  success as other private research entities. Further, the

26  Legislature finds that it is a public necessity that portions

27  of such meetings of the governing board of the institute at

28  which personal identifying information of clients, medical or

29  health records relating to patients, and proprietary

30  confidential business information that is discussed be made

31  confidential and exempt. Further, the Legislature finds that

                                  11

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1  exempting that portion of the salary or benefit of a

 2  scientific researcher that is not paid from public funds is a

 3  public necessity to enable the institute to attract the most

 4  highly competent and qualified researchers as employees, while

 5  still maintaining oversight over the expenditure of public

 6  funds. If those portions of meetings of the governing board of

 7  the institute at which confidential and exempt information is

 8  discussed were not exempt, the exemption for that information

 9  would be defeated. Further, for the same reason, the

10  Legislature finds that minutes of those portions of meetings

11  at which information made confidential and exempt by this act

12  are discussed must also be made confidential and exempt.

13  Further, the Legislature finds that protecting private

14  contractual data of entities that are in the possession of the

15  institute is a public necessity because those entities might

16  refuse to provide necessary information to the institute if it

17  were to be available to the public. Thus, for the foregoing

18  reasons, the Legislature finds that it is a public necessity

19  that personal identifying information relating to clients of

20  programs created or funded through the Florida Alzheimer's

21  Center and Research Institute, any medical or health records

22  relating to patients, and proprietary confidential business

23  information owned or controlled by the institute must be made

24  confidential and exempt from public disclosure.

25         Section 5.  If any provision of this act or its

26  application to any person or circumstance is held invalid, the

27  invalidity does not affect other provisions or applications of

28  the act which can be given effect without the invalid

29  provision or application, and to this end the provisions of

30  this act are declared severable.

31  

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    Florida Senate - 2004                                  SB 3030
    12-1755C-04                                  See CS for HB 147




 1         Section 6.  This act shall take effect upon becoming a

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