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       Florida Senate - 2010                              CS for SB 310
       By the Committee on Governmental Oversight and Accountability;
       and Senator Dockery
       585-02786-10                                           2010310c1
    1                        A bill to be entitled                      
    2         An act relating to public records; amending s.
    3         119.071, F.S.; providing definitions; providing that
    4         proprietary confidential business information held by
    5         an agency is confidential and exempt from public
    6         records requirements; authorizing a request to inspect
    7         or copy a record that contains proprietary
    8         confidential business information to be granted under
    9         certain circumstances; authorizing any person to
   10         petition a court for the public release of those
   11         portions of a record made confidential and exempt by
   12         the act; providing requirements for the petition and
   13         the court order; providing that the act does not
   14         supersede any other applicable public-records
   15         exemptions that existed before a certain date;
   16         providing for future legislative review and repeal of
   17         the exemption under the Open Government Sunset Review
   18         Act; providing a finding of public necessity;
   19         repealing s. 815.045, F.S., relating to trade secret
   20         information; providing an effective date.
   22  Be It Enacted by the Legislature of the State of Florida:
   24         Section 1. Paragraph (h) is added to subsection (1) of
   25  section 119.071, Florida Statutes, to read:
   26         119.071 General exemptions from inspection or copying of
   27  public records.—
   28         (1) AGENCY ADMINISTRATION.—
   29         (h)1.As used in this paragraph, the term:
   30         a.“Proprietor” means any self-employed individual,
   31  proprietorship, corporation, partnership, limited partnership,
   32  firm, enterprise, franchise, association, trust, or business
   33  entity, whether fictitiously named or not, authorized to do or
   34  doing business in this state, including its respective
   35  authorized officer, employee, agent, or successor in interest,
   36  which controls or owns the proprietary confidential business
   37  information provided to an agency.
   38         b.“Proprietary confidential business information” means
   39  information that has been designated by the proprietor when
   40  provided to an agency as information that is owned or controlled
   41  by the proprietor requesting confidentiality under this section;
   42  is intended to be and is treated by that proprietor as private,
   43  is not readily ascertainable or publicly available from any
   44  other source, and the disclosure of which would cause harm to
   45  the business operations of the proprietor; has not been
   46  intentionally disclosed by the proprietor unless pursuant to a
   47  private agreement that provides that the information will not be
   48  released to the public except as required by law or legal
   49  process or pursuant to an order of a court or administrative
   50  hearing officer; and that is information concerning:
   51         (I)Business plans;
   52         (II)Internal auditing controls and reports of internal
   53  auditors;
   54         (III)Reports of external auditors for privately held
   55  companies; or
   56         (IV)Trade secrets as defined in s. 688.002.
   57         2.Proprietary confidential business information held by an
   58  agency is confidential and exempt from s. 119.07(1) and s.
   59  24(a), Art. I of the State Constitution. This exemption applies
   60  to proprietary confidential business information held by an
   61  agency before, on, or after July 1, 2010.
   62         3. Notwithstanding subparagraph 2., if a person requests to
   63  inspect or copy a record under s. 119.07(1) which contains
   64  proprietary confidential business information, the custodial
   65  agency shall notify the proprietor of the information of the
   66  request. The request shall be granted unless, within a
   67  reasonable period of time, the proprietor verifies the following
   68  conditions to that agency through a written declaration in the
   69  manner provided by s. 92.525:
   70         a.That the requested record contains proprietary
   71  confidential business information and the specific location of
   72  such information within the record;
   73         b.If the proprietary confidential business information is
   74  a trade secret, a verification that it is a trade secret as
   75  defined in s. 688.002;
   76         c.That the proprietary confidential business information
   77  is intended to be and is treated by the proprietor as private,
   78  is the subject of efforts of the proprietor to maintain its
   79  privacy, and is not readily ascertainable or publicly available
   80  from any other source; and
   81         d.That the disclosure of the proprietary confidential
   82  business information to the public would harm the business
   83  operations of the proprietor.
   84         4.Any person may petition a court of competent
   85  jurisdiction for an order for the public release of those
   86  portions of any record made confidential and exempt by
   87  subparagraph 2. Any action under this subparagraph for
   88  information held by a state agency must be brought in Leon
   89  County, Florida, and the petition or other initial pleading
   90  shall be served on the custodial agency and, if determinable
   91  upon diligent inquiry, on the proprietor of the information
   92  sought to be released. In any order for the public release of a
   93  record under this subparagraph, the court shall make a finding
   94  that the record or portion thereof is not a trade secret as
   95  defined in s. 688.002, that a compelling public interest is
   96  served by the release of the record or portions thereof which
   97  exceed the public necessity for maintaining the confidentiality
   98  of such record, and that the release of the record will not
   99  cause damage to or adversely affect the interests of the
  100  proprietor of the released information, other private persons or
  101  business entities, or the agency.
  102         5.This paragraph does not supersede any other applicable
  103  public-records exemption existing before July 1, 2010, or
  104  created thereafter.
  105         6.This paragraph is subject to the Open Government Sunset
  106  Review Act in accordance with s. 119.15, and shall stand
  107  repealed on October 2, 2015, unless reviewed and saved from
  108  repeal through reenactment by the Legislature.
  109         Section 2. The Legislature finds that it is a public
  110  necessity that proprietary confidential business information,
  111  including trade secrets, be made confidential and exempt from s.
  112  24(a), Art. I of the State Constitution and s. 119.07(1),
  113  Florida Statutes. Proprietary confidential business information
  114  derives independent economic value, actual or potential, from
  115  not being generally known to, and not being readily
  116  ascertainable by proper means by, other persons who can obtain
  117  economic value from its disclosure or use. An agency, in
  118  performing its lawful duties and responsibilities, may need to
  119  obtain from the proprietor confidential business information.
  120  Without an exemption from public-records requirements for
  121  proprietary confidential business information held by an agency,
  122  such information becomes a public record when received by the
  123  agency and must be divulged upon request. Divulgence of any
  124  proprietary confidential business information under public
  125  records laws would destroy the value of that property to the
  126  proprietor, causing a financial loss not only to the proprietor
  127  but also to the state or local governments due to loss of tax
  128  revenue and employment opportunities for residents. Release of
  129  that information would give business competitors an unfair
  130  advantage and weaken the position of the proprietor of the
  131  confidential business information in the marketplace. Thus, the
  132  Legislature finds that it is a public necessity that proprietary
  133  confidential business information held by an agency be made
  134  confidential and exempt from public-records requirements.
  135         Section 3. Section 815.045, Florida Statutes, is repealed.
  136         Section 4. This act shall take effect July 1, 2010.

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