2012 Open Government Review

The Open Government Sunset Review Act, s. 119.015, Florida Statutes, requires the Legislature to review and reenact all exemptions to the public records and open meetings law five years after enactment or substantial amendment of an existing exemption. If an exemption is not reenacted, the exemption automatically “sunsets” on October 2 of the fifth year.

In its review, the Legislature must consider the following:

  1. What specific records or meetings are affected by the exemption?
  2. Whom does the exemption uniquely affect, as opposed to the general public?
  3. What is the identifiable public purpose or goal of the exemption?
  4. Can the information contained in the records or discussed in the meeting be readily obtained by alternative means? If so, how?
  5. Is the record or meeting protected by another exemption?
  6. Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?

http://www.flsenate.gov/laws/statutes/2010/119.15

In addition, Article I, section 24(c) of the Florida Constitution provides a standard for the creation of new exemptions which must also be considered when reviewing exemptions to our open government laws. Under this standard:

  1. All exemptions to the public records law or open meetings law must be in single subject bills.
  2. Each bill must contain a specific statement of public necessity justifying the exemption.
  3. The exemption can be no broader than its stated purpose.
  4. Every exemption bill must receive a two-thirds vote of both the House and Senate for passage.

http://www.flsenate.gov/Laws/Constitution#A1S24

Exemptions to be Subject to Review, 2012

During the 2012 legislative session which begins January 10, 2012, the Florida Legislature will be reviewing the 15 exemptions created or expanded during the 2007 session. As a new feature on the FAF website, the First Amendment Foundation will review each exemption subject to the OGSR Act, providing a short synopsis of the exemption, the exact statutory language with a link to the statute on-line, a reprint of the public necessity statement, and a statement of our position and concerns regarding the exemptions. We will review one or possibly two exemptions each week. You will be able to post a comment or question to the FAF staff on each of the exemptions subject to review.
Do you have a question or would you care to comment about any of the exemptions under review? Please email your question or comment to info@floridafaf.org.


Section 119.071(1)(g), F.S., Census Bureau Address Information

This statute exempts United States Census Bureau address information, including maps showing structure location points, agency records verifying addresses, and agency records identifying address errors or omissions, held by an agency pursuant to the Local Update of Census Addresses Program under Federal law. [Ch. No. 2007-250; HB 7193]

Statutory Language

  1. (g) United States Census Bureau address information, which includes maps showing structure location points, agency records verifying addresses, and agency records identifying address errors or omissions, held by an agency pursuant to the Local Update of Census Addresses Program, Title 13, United States Code, Pub. L. No. 103-430, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
  2. Such information may be released to another agency or governmental entity in the furtherance of its duties and responsibilities under the Local Update of Census Addresses Program.
  3. An agency performing duties and responsibilities under the Local Update of Census Addresses Program shall have access to any other confidential or exempt information held by another agency if such access is necessary in order to perform its duties and responsibilities under the program. http://www.flsenate.gov/laws/statutes/2010/119.071

Statement of Public Necessity
The Legislature finds that it is a public necessity that United States Census Bureau address information, which includes maps showing structure location points, agency records verifying addresses, and agency records identifying address errors or omissions, held by an agency be made confidential and exempt from public records requirements. Pursuant to the Local Update Census Addresses Program, Title 13, United States Code, Pub. L. No. 103-430, United States Census Bureau address information must be kept confidential. Further, all individuals directly involved in reviewing such information and any individuals with access to such information are required to sign a confidentiality agreement to preserve the confidentiality of the address information. Without this exemption, agencies would be prevented from participating in the program. As such, the effective and efficient administration of the Local Update of Census Addresses Program would be hindered at the federal level. Further, it could result in a negative fiscal impact on the state. http://laws.flrules.org/files/Ch_2007-250.pdf

FAF Position
Protection of census information is required by federal law and the exemption conforms with federal requirements.

UPDATE: This exemption is under review by the Senate Committee on Governmental Oversight and Accountability which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-308go.pdf


Section 267.076, F.S., Donors/House Museums

This statute makes confidential and exempt information that would identify a donor or prospective donor to a publicly owned house museum designated by the United State Department of Interior as a National Historic Landmark if the donor desires to remain anonymous. The Foundation is not opposed to reenactment of the exemption in its current form. [Ch. No. 2007-213; CS/HB 1405]

Statutory Language
Confidentiality of certain donor information related to publicly owned house museums designated as National Historic Landmarks.—Information that would identify a donor or prospective donor to a publicly owned house museum designated by the United States Department of the Interior as a National Historic Landmark who desires to remain anonymous is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution. http://www.flsenate.gov/laws/statutes/2010/267.076

Statement of Public Necessity
The Legislature finds that it is a public necessity that information that would identify a donor or prospective donor to a publicly owned house museum designated by the United States Department of the Interior as a National Historic Landmark who desires to remain anonymous be made confidential and exempt from public records requirements. In order to protect Florida’s historic resources, it is a public necessity to promote the giving of gifts to, and the raising of private funds for, the acquisition, renovation, rehabilitation, and operation of publicly owned house museums designated by the United States Department of the Interior as National Historic Landmarks. An essential element of a robust plan of promoting the giving of private gifts and the raising of private funds is the need to protect the identity of prospective and actual donors who desire to remain anonymous. If the identity of prospective and actual donors who desire to remain anonymous is subject to disclosure, there is a chilling effect on donations because donors are concerned about disclosure of personal information leading to theft and, in particular, identity theft, including personal safety and security. Therefore, the Legislature finds that it is a public necessity to make confidential and exempt from public records requirements information that would identify a donor or prospective donor to a publicly owned house museum designated by the United States Department of the Interior as a National Historic Landmark who wishes to remain anonymous. http://laws.flrules.org/2007/213

FAF Position
While the Foundation is not opposed to the exemption in its current form, we question why the information is made confidential and exempt, providing a higher level of protection than information that is merely exempt from public disclosure.
In addition, the OGSR Act requires the Legislature to determine whether there are “multiple exemptions for the same type of record or meeting that it would be appropriate to merge.” Over the past few years, the Legislature has been working to simplify and create uniform exemptions to public records and meetings requirements where it is possible to do so. There are numerous exemptions for donors or prospective donors throughout the Florida statutes and it would be more effective and efficient if there was one exemption for donors or prospective donors who wish to remain anonymous.
By creating one uniform public record exemption for donors or prospective donors who wish to remain anonymous, the Legislature could reduce the number of public record exemptions while still protecting donors who wish to remain anonymous. Reducing the number of redundant exemptions was recommend by the Commission on Open Government in its Final Report (January 2009, page 149). http://floridafaf.org/resources/open-government-reports/
The Foundation encourages the Legislature to continue to look for opportunities to reduce the number of exemptions and to provide more uniformity among exemptions.

UPDATE: This exemption has been reviewed by the Senate Environmental Preservation and Conservation Committee which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-305ep.pdf

The committee has approved filing SB 810, which simply deletes the provision requiring review of the exemption under the Open Government Sunset Review Act: http://www.flsenate.gov/Session/Bill/2012/810


Section 267.1736(9), F.S., Donors/Historic St. Augustine:

This statute makes confidential and exempt information that would identify a donor or prospective donor to the direct support organization for Historic St. Augustine, housed at the University of Florida, if the donor desires to remain anonymous. [Ch. No. 2007-77; HB 853]

Statutory Language
The identity of a donor or prospective donor to the direct-support organization who desires to remain anonymous, and all information identifying such donor or prospective donor, is confidential and exempt from the provisions of s. 119.07 (1) and s. 24(a), Art. I of the State Constitution; and that anonymity must be maintained in the auditor’s report. The university and the Auditor General shall have access to all records of the direct-support organization upon request. http://www.flsenate.gov/laws/statutes/2011/267.1736

Statement of Public Necessity
The Legislature finds a public necessity in protecting the identity of donors and prospective donors to the direct-support organization authorized to assist the University of Florida in carrying out its dual historic preservation and historic preservation education purposes and responsibilities for the various state-owned properties within the historic district currently subleased by the Department of State to the City of St. Augustine for management. This protection will enable the direct-support organization to effectively and efficiently administer the promotion, preservation, and public education efforts related to these state-owned properties. The purpose of the exemption is to honor the request for anonymity of donors or prospective donors to the not-for-profit corporation and thereby encourage donations from individuals and entities that might otherwise decline to contribute. Without the exemption, potential donors may be dissuaded from contributing to the direct-support organization because such donors fear being harmed by the release of sensitive financial information. Difficulty in soliciting donations would hamper the ability of the direct-support organization to carry out its marketing, promotion, education, and preservation activities and would hinder fulfillment of the goal of the state in maintaining these state-owned properties and in preserving, promoting, and advancing historic preservation of these properties through funding by both the public sector and the private sector. The Legislature finds that it is a public necessity that information that would identify a donor or prospective donor to a publicly owned house museum designated by the United States Department of the Interior as a National Historic Landmark who desires to remain anonymous be made confidential and exempt from public records requirements. In order to protect Florida’s historic resources, it is a public necessity to promote the giving of gifts to, and the raising of private funds for, the acquisition, renovation, rehabilitation, and operation of publicly owned house museums designated by the United States Department of the Interior as National Historic Landmarks. An essential element of a robust plan of promoting the giving of private gifts and the raising of private funds is the need to protect the identity of prospective and actual donors who desire to remain anonymous. If the identity of prospective and actual donors who desire to remain anonymous is subject to disclosure, there is a chilling effect on donations because donors are concerned about disclosure of personal information leading to theft and, in particular, identity theft, including personal safety and security. Therefore, the Legislature finds that it is a public necessity to make confidential and exempt from public records requirements information that would identify a donor or prospective donor to a publicly owned house museum designated by the United States Department of the Interior as a National Historic Landmark who wishes to remain anonymous. http://laws.flrules.org/2007/77

FAF Position
The Foundation’s position on the exemption for donors to Historic St. Augustine is the same as the exemption for donors of historic house museums – we aren’t opposed to the exemption in its current form, although again, we have to question why donor information is made confidential and exempt, providing a higher level of protection than information that is merely exempt from public disclosure. Also, the Foundation has continually encouraged the Legislature to create one exemption for donors as there seems to be universal support for such exemptions.

UPDATE: This exemption has been reviewed by the Senate Committee on Higher Education which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-311he.pdf

The committee has approved filing SB 832, which simply deletes the provision requiring review of the exemption under the Open Government Sunset Review Act and makes no other changes to the exemption: http://www.flsenate.gov/Session/Bill/2012/0832


Section 288.075, F.S., Economic Development and Incentive Records

This is a complicated exemption and we’ve broken it down to make it easier to understand the two separate economic development programs protected under the exemption – general economic development programs and economic incentive programs.

1. Economic Development Program Records: Economic development programs are offered by state and local economic development agencies to private companies interested in moving to Florida or expanding current business operations in the state. The incentives can include an assortment of public assets – public land at little or no cost, tax breaks or outright grants, etc. – that the private company receives in return for locating, relocating, or expanding its business in Florida.

The exemption for economic development program records is broad and protects a wide variety of information obtained by an economic development agency from private companies or corporations interested in locating, relocating, or expanding their business operations in Florida. Here’s a breakdown of the exemptions:

a) A private corporation’s plan to locate, relocate, or expand business operations is exempt for up to 24 months after an economic development agency receives a request for confidentiality.
b) Trade secrets held by an economic development agency are confidential and exempt and are not subject to public disclosure.
c) Proprietary confidential business information held by an economic development agency, including business plans, internal auditing controls and reports, reports of external auditors for privately-held companies, etc., is confidential and exempt and is not subject to public disclosure except under court order.
d) Identification, account and registration numbers, such as a federal employer identification number, an unemployment compensation number, or a Florida sales tax registration number, held by an economic development agency are confidential and exempt and are not subject to public disclosure.

2. Economic Incentive Program Records: A tax incentive program allows tax refunds or credits to qualified businesses in return for their pledge to create a certain number of jobs in Florida.

The economic incentive program records exemption is very broad, protecting the following information for the duration of the incentive agreement, including agreements authorizing tax refunds or credits, or until an incentive agreement is terminated:

a) Anticipated wages for the project jobs that the business plans to create;
b) The average wage actually paid by the business for those jobs created by the project which is held as evidence that the company complied with the program requirements; and
c) The amount of various taxes paid by the qualified business.

The exemption allows an economic development agency to release the names of qualified business, the total number of jobs each business expects to create; the total number of jobs actually created; and the amount of tax refunds, tax credits, or incentives awarded to and claimed by each business. [Ch. 2007-203; HB 7201]

Statutory Language 

(1) DEFINITIONS.—As used in this section, the term:

(a) “Economic development agency” means:

  1. The Office of Tourism, Trade, and Economic Development;
  2. Any industrial development authority created in accordance with part III of chapter 159 or by special law;
  3. Space Florida created in part II of chapter 331;
  4. The public economic development agency of a county or municipality or, if the county or municipality does not have a public economic development agency, the county or municipal officers or employees assigned the duty to promote the general business interests or industrial interests of that county or municipality or the responsibilities related thereto;
  5. Any research and development authority created in accordance with part V of chapter 159;
  6. Any private agency, person, partnership, corporation, or business entity when authorized by the state, a municipality, or a county to promote the general business interests or industrial interests of the state or that municipality or county.

(b) “Proprietary confidential business information” means information that is owned or controlled by the corporation, partnership, or person requesting confidentiality under this section; that is intended to be and is treated by the corporation, partnership, or person as private in that the disclosure of the information would cause harm to the business operations of the corporation, partnership, or person; that has not been disclosed unless disclosed pursuant to a statutory provision, an order of a court or administrative body, or a private agreement providing that the information may be released to the public; and that is information concerning:

  1. Business plans.
  2. Internal auditing controls and reports of internal auditors.
  3. Reports of external auditors for privately held companies.

(c) “Trade secret” has the same meaning as in s. 688.002.

(2) PLANS, INTENTIONS, AND INTERESTS.—

(a) Upon written request from a private corporation, partnership, or person, information held by an economic development agency concerning plans, intentions, or interests of such private corporation, partnership, or person to locate, relocate, or expand any of its business activities in this state is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for 12 months after the date an economic development agency receives a request for confidentiality or until the information is otherwise disclosed, whichever occurs first.
(b) An economic development agency may extend the period of confidentiality specified in paragraph (a) for up to an additional 12 months upon written request from the private corporation, partnership, or person who originally requested confidentiality under this section and upon a finding by the economic development agency that such private corporation, partnership, or person is still actively considering locating, relocating, or expanding its business activities in this state. Such a request for an extension in the period of confidentiality must be received prior to the expiration of any confidentiality originally provided under this section.
(c) A public officer or employee may not enter into a binding agreement with any corporation, partnership, or person who has requested confidentiality of information under this subsection until 90 days after the information is made public unless:

  1. The public officer or employee is acting in an official capacity;
  2. The agreement does not accrue to the personal benefit of such public officer or employee; and
  3. In the professional judgment of the officer or employee, the agreement is necessary to effectuate an economic development project.

(3) TRADE SECRETS.—Trade secrets held by an economic development agency are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(4)PROPRIETARY CONFIDENTIAL BUSINESS INFORMATION.—Proprietary confidential business information held by an economic development agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution, until such information is otherwise publicly available or is no longer treated by the proprietor as proprietary confidential business information.

(5) IDENTIFICATION, ACCOUNT, AND REGISTRATION NUMBERS.—A federal employer identification number, unemployment compensation account number, or Florida sales tax registration number held by an economic development agency is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(6) ECONOMIC INCENTIVE PROGRAMS.—

(a) The following information held by an economic development agency pursuant to the administration of an economic incentive program for qualified businesses is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution for a period not to exceed the duration of the incentive agreement, including an agreement authorizing a tax refund or tax credit, or upon termination of the incentive agreement:

  1. The percentage of the business’s sales occurring outside this state and, for businesses applying under s. 288.1045, the percentage of the business’s gross receipts derived from Department of Defense contracts during the 5 years immediately preceding the date the business’s application is submitted.
  2. The anticipated wages for the project jobs that the business plans to create, as reported on the application for certification.
  3. The average wage actually paid by the business for those jobs created by the project or an employee’s personal identifying information which is held as evidence of the achievement or nonachievement of the wage requirements of the tax refund, tax credit, or incentive agreement programs or of the job creation requirements of such programs.
  4. The amount of:

a. Taxes on sales, use, and other transactions paid pursuant to chapter 212;
b. Corporate income taxes paid pursuant to chapter 220;
c. Intangible personal property taxes paid pursuant to chapter 199;
d. Emergency excise taxes paid pursuant to chapter 221;
e. Insurance premium taxes paid pursuant to chapter 624;
f. Excise taxes paid on documents pursuant to chapter 201;
g. Ad valorem taxes paid, as defined in s. 220.03(1) ; or
h. State communications services taxes paid pursuant to chapter 202.

(b)1. An economic development agency may release:

a. Names of qualified businesses.
b. The total number of jobs each business expects to create.
c. The total number of jobs created by each business.
d. The amount of tax refunds, tax credits, or incentives awarded to and claimed by each business.

(b)2. For a business applying for certification under s. 288.1045 which is based on obtaining a new Department of Defense contract, the total number of jobs expected and the amount of tax refunds claimed may not be released until the new Department of Defense contract is awarded.

(c) An economic development agency may publish statistics in the aggregate and classified so as to prevent the identification of a single qualified applicant.

(7) PENALTIES.—Any person who is an employee of an economic development agency who violates the provisions of this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 .

(8) LEGISLATIVE REVIEW OF EXEMPTIONS.—This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/288.075

Statement of Public Necessity
The Legislature finds that it is a public necessity to provide confidentiality for certain information concerning businesses participating in a state incentive program held by an economic development agency. The disclosure of information such as trade secrets, proprietary confidential business information, or other business information could injure a business in the marketplace by providing its competitors with detailed insights into the strategic plans of the business or with confidential personnel information, thereby diminishing the advantage that the business maintains over those that do not possess such information. Without these exemptions, private-sector businesses, whose records generally are not required to be open to the public, might refrain from participating in economic development programs or tax credit or tax refund programs and thus would not be able to use the incentives available under the programs. If a business were unable to use the incentives, the business might choose to locate its business and other investment activities outside the state, which would deprive the state and the public of the potential economic benefits associated with such business activities in this state. The harm to businesses in the marketplace and to the effective administration of economic development and incentive programs caused by the public disclosure of such information far outweighs the public benefits derived from the release of the information. http://laws.flrules.org/2007/203

FAF Position
Both of these exemptions – economic development program records and economic incentive program records – have been extremely problematic and are based on the assumption that all economic development is good and in the public’s interest. The two exemptions prevent the public from determining for themselves whether these various programs are for the benefit of the public or whether they benefit the self interests of the private business and corporations who benefit. In addition, there is a fair amount of confusion about the application of the economic development program record exemption and a great deal of public frustration with the secrecy surrounding many economic development projects. The Commission on Open Government Reform researched the issues related to economic development programs and you can find a full discussion of the issue in the report starting on page 78. http://floridafaf.org/resources/open-government-reports/

At a minimum, the economic development program record exemption should be amended to require public disclosure of program information at a much earlier point in time than two years, and the Foundation encourages the Legislature to continue to amend this exemption to provide for greater opportunity for public oversight and accountability.

Notably, the economic incentive program exemption allows – but doesn’t require – an economic development agency to release of the names of the qualified businesses receiving economic incentives as well as the total jobs each business expects to create and the total jobs actually created. Furthermore, an EDA is allowed to publish such information in the aggregate “so as to prevent the identification of a single qualified applicant.” The First Amendment Foundation suggests that the Legislature amend this exemption to require each economic development agency to report the names of the qualified businesses receiving incentives as well as the specific number of jobs promised and actually created. In addition, the authority to provide such information in the aggregate should be struck.

Here are links to current news reports highlighting the problems with economic development in Florida:

Economic Development Programs

http://www.tampabay.com/news/business/realestate/pricewaterhouse-coopers-says-tampa-positions-were-not-at-risk/1182309

http://www.tampabay.com/news/business/economicdevelopment/in-sudden-reversal-pricewaterhousecoopers-drops-bid-for-tax-incentives/1184030

Economic Incentive Programs

http://www.orlandosentinel.com/news/politics/os-agency-fails-to-list-deadbeat-companies-20111013,0,1450805.story

http://www.orlandosentinel.com/news/politics/os-failed-job-creation-promises-20111021,0,369214.story

UPDATE: The Senate Committee on Commerce and Tourism reviewed this exemption and issued the following interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-302cm1.pdf

However, at its meeting on November 1, 2011, the Committee temporarily postponed consideration of reenactment after concerns were raised which echoed those of the First Amendment Foundation.


Section 288.9626, F.S., Florida Opportunity Fund Records and Meetings:

Although really long and somewhat complicated, in essence, this exemption protects:

  1. proprietary confidential business information, which is defined in the exemption, concerning alternative investments (also defined), for 10 years after the termination of the investment;
  2. the identity of investors or potential investors in projects reviewed by the fund who wish to remain anonymous; and
  3. materials that relate to methods of manufacture or production, potential trade secrets, or patentable material that is received or discovered during research by universities which is held by the Florida Opportunity Fund or the Institute for the Commercialization of Public Research.

There is also an exemption for portions of meetings of the boards of the Fund or Institute during which exempt information is presented or discussed. However, the closed portions of such meetings must be recorded and transcribed, and the transcribed minutes are subject to disclosure under some specified conditions. [Ch. 2007-190; HB 131]

Statutory Language

(1) DEFINITIONS.—As used in this section, the term:

(a) “Alternative investment” means an investment by the Florida Opportunity Fund in a private equity fund, venture capital fund, or angel fund or a direct investment in a portfolio company or investment through a distribution of securities to its partners or shareholders by an alternative investment vehicle.
(b) “Alternative investment vehicle” means the limited partnership, limited liability company, or similar legal structure through which the Florida Opportunity Fund may elect to invest in a portfolio company.
(c) “Florida Opportunity Fund” or “fund” means the Florida Opportunity Fund as defined in s. 288.9623.
(d) “Institute for the Commercialization of Public Research” or “institute” means the institute established by s. 288.9625.
(e) “Portfolio company” means a corporation or other issuer, any of whose securities are owned by an alternative investment vehicle or the Florida Opportunity Fund and any subsidiary of such corporation or other issuer.
(f) “Portfolio positions” means individual investments in portfolio companies that are made by the Florida Opportunity Fund, including information or specific investment terms associated with any portfolio company investment.
(g)1. “Proprietary confidential business information” means information that has been designated by the proprietor when provided to the Florida Opportunity Fund or the Institute for the Commercialization of Public Research as information that is owned or controlled by a proprietor; that is intended to be and is treated by the proprietor as private, the disclosure of which would harm the business operations of the proprietor and has not been intentionally disclosed by the proprietor unless pursuant to a private agreement that provides that the information will not be released to the public except as required by law or legal process, or pursuant to law or an order of a court or administrative body; and that concerns:

a. Trade secrets as defined in s. 688.002.
b. Information provided to the Florida Opportunity Fund or the Institute for the Commercialization of Public Research regarding a prospective investment in a private equity fund, venture capital fund, angel fund, or portfolio company that is proprietary to the provider of the information.
c. Financial statements and auditor reports of an alternative investment vehicle or portfolio company, unless publicly released by the alternative investment vehicle or portfolio company.
d. Meeting materials of an alternative investment vehicle or portfolio company relating to financial, operating, or marketing information of the alternative investment vehicle or portfolio company.
e. Information regarding the portfolio positions in which the alternative investment vehicles or Florida Opportunity Fund invest.
f. Capital call and distribution notices to investors or the Florida Opportunity Fund of an alternative investment vehicle.
g. Alternative investment agreements and related records.
h. Information concerning investors, other than the Florida Opportunity Fund, in an alternative investment vehicle or portfolio company

(g)2. “Proprietary confidential business information” does not include:

a. The name, address, and vintage year of an alternative investment vehicle or Florida Opportunity Fund and the identity of the principals involved in the management of the alternative investment vehicle or Florida Opportunity Fund.
b. The dollar amount of the commitment made by the Florida Opportunity Fund to each alternative investment vehicle since inception, if any.
c. The dollar amount and date of cash contributions made by the Florida Opportunity Fund to each alternative investment vehicle since inception, if any.
d. The dollar amount, on a fiscal-year-end basis, of cash or other fungible distributions received by the Florida Opportunity Fund from each alternative investment vehicle.
e. The dollar amount, on a fiscal-year-end basis, of cash or other fungible distributions received by the Florida Opportunity Fund plus the remaining value of alternative-vehicle assets that are attributable to the Florida Opportunity Fund’s investment in each alternative investment vehicle.
f. The net internal rate of return of each alternative investment vehicle since inception.
g. The investment multiple of each alternative investment vehicle since inception.
h. The dollar amount of the total management fees and costs paid on an annual fiscal-year-end basis by the Florida Opportunity Fund to each alternative investment vehicle.
i. The dollar amount of cash profit received by the Florida Opportunity Fund from each alternative investment vehicle on a fiscal-year-end basis.

(h) “Proprietor” means an alternative investment vehicle, a portfolio company in which the alternative investment vehicle or Florida Opportunity Fund is invested, or an outside consultant, including the respective authorized officers, employees, agents, or successors in interest, that controls or owns information.

(2) PUBLIC RECORDS EXEMPTION.—

(a) The following records held by the Florida Opportunity Fund or the Institute for the Commercialization of Public Research are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution:

  1. Materials that relate to methods of manufacture or production, potential trade secrets, or patentable material received, generated, ascertained, or discovered during the course of research or through research projects conducted by universities and other publicly supported organizations in this state.
  2. Information that would identify an investor or potential investor who desires to remain anonymous in projects reviewed by the fund or institute.
  3. Any information received from a person from another state or nation or the Federal Government which is otherwise confidential or exempt pursuant to the laws of that state or nation or pursuant to federal law.
  4. Proprietary confidential business information regarding alternative investments for 10 years after the termination of the alternative investment.

(b) At the time any record made confidential and exempt by this subsection, or portion thereof, is legally available or subject to public disclosure for any other reason, that record, or portion thereof, shall no longer be confidential and exempt and shall be made available for inspection and copying.

(3) PUBLIC MEETINGS EXEMPTION.—

(a) That portion of a meeting of the board of directors of the Florida Opportunity Fund or the board of directors of the Institute for the Commercialization of Public Research at which information is discussed which is confidential and exempt under subsection (2) is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution.
(b) Any exempt portion of a meeting shall be recorded and transcribed. The boards of directors shall record the times of commencement and termination of the meeting, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. An exempt portion of any meeting may not be off the record.
(c) A transcript and minutes of exempt portions of meetings are confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution.

(4) REQUEST TO INSPECT OR COPY A RECORD.—

(a) Records made confidential and exempt by this section may be released, upon written request, to a governmental entity in the performance of its official duties and responsibilities.
(b) Notwithstanding the provisions of paragraph (2)(a), a request to inspect or copy a public record that contains proprietary confidential business information shall be granted if the proprietor of the information fails, within a reasonable period of time after the request is received by the Florida Opportunity Fund or the Institute for the Commercialization of Public Research, to verify the following to the fund through a written declaration in the manner provided by s. 92.525:

  1. That the requested record contains proprietary confidential business information and the specific location of such information within the record;
  2. If the proprietary confidential business information is a trade secret, a verification that it is a trade secret as defined in s. 688.002;
  3. That the proprietary confidential business information is intended to be and is treated by the proprietor as private, is the subject of efforts of the proprietor to maintain its privacy, and is not readily ascertainable or publicly available from any other source; and
  4. That the disclosure of the proprietary confidential business information to the public would harm the business operations of the proprietor.

(c)1. Any person may petition a court of competent jurisdiction for an order for the public release of those portions of any record made confidential and exempt by subsection (2).
(c)2. Any action under this subsection must be brought in Orange County, and the petition or other initial pleading shall be served on the fund or the institute, whichever is applicable, and, if determinable upon diligent inquiry, on the proprietor of the information sought to be released.
(c)3. In any order for the public release of a record under this subsection, the court shall make a finding that:

a. The record or portion thereof is not a trade secret as defined in s. 688.002;
b. A compelling public interest is served by the release of the record or portions thereof which exceed the public necessity for maintaining the confidentiality of such record; and
c. The release of the record will not cause damage to or adversely affect the interests of the proprietor of the released information, other private persons or business entities, the fund, or any trust fund the assets of which are invested by the Florida Opportunity Fund.

(5) PENALTIES.—Any person who willfully and knowingly violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(6) OPEN GOVERNMENT SUNSET REVIEW.—This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/288.9626

Statement of Public Necessity
The Legislature finds that it is a public necessity that certain information held by the Florida Opportunity Fund or the Institute for the Commercialization of Public Research be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the State Constitution. Materials that relate to methods of manufacture or production, potential trade secrets, or patentable materials received, generated, ascertained, or discovered during the course of research or through research projects by universities, colleges, community colleges, and publicly supported organizations in this state must be confidential and exempt because the disclosure of such information would create an unfair competitive advantage for persons receiving such information. Disclosure of proprietary confidential business information to the public would harm the business operations of the proprietor. The Legislature further finds that information received by the fund or the institute from a person from another state or nation or the Federal Government which is otherwise exempt or confidential pursuant to the laws of that state or nation or pursuant to federal law should remain exempt or confidential because the highly confidential nature of research necessitates that it be protected. Without the exemptions provided by this act, the disclosure of confidential and exempt information would jeopardize the effective and efficient administration of this program. In addition, the Legislature further finds that the identity of an investor or prospective investor who wishes to remain anonymous should be confidential and exempt from public disclosure. This exemption is necessary because the disclosure of investor identities may adversely impact the ability of the fund or the institute to attract investors who desire anonymity. The Legislature also finds that it is a public necessity that proprietary confidential business information held by the fund or the institute regarding alternative investments be held confidential and exempt for 10 years after the termination of the alternative investment. Disclosing proprietary confidential business information used in determining how private equity investments are made or managed by private partnerships investing assets on behalf of the fund would negatively affect the business interests of private partnerships that rely heavily on their information advantage to generate investment returns, and competitor partnerships could gain an unfair competitive advantage if provided access to such information. The release of proprietary confidential business information revealing how alternative investments are made could result in inadequate returns and ultimately frustrate attainment of the investment objective of the fund. It is the Legislature’s intent to allow the public access to sufficient information in order to be informed regarding the alternative investments of the fund and to balance the public’s right to information against the right of business entities to be protected from harmful disclosure of proprietary confidential business information the disclosure of which would injure them in the marketplace. The Legislature further finds that it is a public necessity that portions of meetings of the board of directors of the fund or of the board of directors of the institute at which records made confidential and exempt by this act are discussed be made exempt from public meetings requirements in order to maintain the confidential and exempt status of this information. Public oversight is preserved by requiring a transcript of any portion of a closed meeting of these boards. http://laws.flrules.org/2007/190

FAF Position
Exemptions of this type – those that protect proprietary business information and other types of intellectual property – are fairly common in Florida, and the Foundation wasn’t opposed to the creation of this exemption when first approached during the 2007 session. However, the recent problems with the level of secrecy surrounding the state’s investment programs raises new concerns, and, at the very least, we would suggest that the Legislature give the exemption a thorough review with an eye toward shortening the period of protection.

UPDATE: The Senate Commerce and Tourism Committee has reviewed this exemption and filed the following interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-303cm.pdf
The committee has approved filing SB 798, which shortens the time of protection from 10 years to 7, separates the exemption for the Florida Opportunity Fund from that of the Institute for the Commercialization of Public Research and creates identical exemptions for the Institute. http://www.flsenate.gov/Session/Bill/2012/0798


Section 324.242, F.S., DHSMV/Personal Identifying Information:

This narrow exemption protects personal identifying information, and the policy numbers, of anyone insured or formerly insured under personal injury protection and property damage liability insurance policies held by the Florida Department of Highway Safety and Motor Vehicles. [Ch. 2007-325; HB 15-C]

Statutory Language
324.242 Personal injury protection and property damage liability insurance policies; public records exemption.—

(1) The following information regarding personal injury protection and property damage liability insurance policies held by the department is confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution:

(a) Personal identifying information of an insured or former insured; and
(b) An insurance policy number.

(2) Upon receipt of a written request and a copy of a crash report as required under s. 316.065, s. 316.066, or s. 316.068, the department shall release the policy number for a policy covering a vehicle involved in a motor vehicle accident to:

(a) Any person involved in such accident;
(b) The attorney of any person involved in such accident; or
(c) A representative of the insurer of any person involved in such accident.

(3) This exemption applies to personal identifying information of an insured or former insured and insurance policy numbers held by the department before, on, or after the effective date of this section.
(4) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/324.242

Statement of Public Necessity
The Legislature finds that it is a public necessity to make confidential and exempt from public records requirements certain information regarding personal injury protection and property damage liability insurance policies held by the Department of Highway Safety and Motor Vehicles. In order to effectively and efficiently administer and enforce personal injury protection and property damage liability insurance coverage requirements, the Legislature finds that it is a public necessity to protect the release of personal identifying information of an insured or former insured and the insurance policy number of an insured. In order to ensure public safety on the roads and highways of this state, it is imperative that automobile drivers be properly insured for damage to personal and real property, as well as personal injury. As such, insurers are required to report to the Department of Highway Safety and Motor Vehicles and verify the issuance of a new policy to a driver, as well as the renewal, nonrenewal, or cancellation of that policy. When this information is compiled it could result in a customer list of every insurer in the state. Customer lists contain detailed client and policy information that is traditionally considered proprietary business information because such lists could be used by competitors to solicit customers. Consequently, the release of that information could injure the insurer in the marketplace by diminishing the advantage the insurer maintains over those who do not possess such information. Therefore, the Legislature finds that it is a public necessity to prevent the release of such information held by the Department of Highway Safety and Motor Vehicles and thereby makes such information confidential and exempt from the requirements of s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the State Constitution. http://laws.flrules.org/files/Ch_2007-325.pdf

FAF Position
The First Amendment Foundation isn’t opposed to reenactment of this exemption in its current form.

UPDATE: The Senate Committee on Banking and Insurance has reviewed the exemption and issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-312bi.pdf


Section 364.107, F.S., Identifying Information/Lifeline Assistance Plan Participants:

The Lifeline Assistance Plan is part of a federal program which helps low-income households pay for basic local telephone service through monthly credits. Those who participate in the plan must provide certain personal information to the Public Service Commission. This exemption protects the personal identifying information of plan participants. [Ch. 2007-247; HB 7159]

Statutory Language
364.107 Public records exemption; Lifeline Assistance Plan participants.—
(1) Personal identifying information of a participant in a telecommunications carrier’s Lifeline Assistance Plan under s. 364.10 held by the Public Service Commission is confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution.
(2) Information made confidential and exempt under subsection (1) may be released to the applicable telecommunications carrier for purposes directly connected with eligibility for, verification related to, or auditing of a Lifeline Assistance Plan.
(3)(a) An officer or employee of a telecommunications carrier shall not intentionally disclose information made confidential and exempt under subsection (1), except as:

1. Authorized by the customer;
2. Necessary for billing purposes;
3. Required by subpoena, court order, or other process of court;
4. Necessary to disclose to an agency as defined in s. 119.011 or a governmental entity for purposes directly connected with implementing service for, or verifying eligibility of, a participant in a Lifeline Assistance Plan or auditing a Lifeline Assistance Plan; or
5. Otherwise authorized by law.

(b) Nothing in this section precludes a telecommunications carrier from disclosing information made confidential and exempt under subsection (1) to the extent such information is otherwise publicly available or from disclosing to a customer his or her own account record through telephonic means.
(c) Any officer or employee of a telecommunications carrier who intentionally discloses information in violation of paragraph (a) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/364.107

Statement of Public Necessity
The Legislature finds that it is a public necessity that personal identifying information of a participant in a telecommunications carrier’s Lifeline Assistance Plan under s. 364.10, Florida Statutes, held by the Public Service Commission be made confidential and exempt from s. 119.07(1), Florida Statutes, and s. 24(a), Art. I of the State Constitution. The Lifeline Assistance Plan provides assistance to qualified low-income households by providing a credit on their local telephone bill. Allowing qualified low-income households to receive this credit permits them to maintain local telephone service. Participation in Lifeline Assistance Plans has remained at approximately 12 percent of eligible Florida households despite extensive efforts to make eligible citizens aware of the plan. Protecting the personal identifying information of participants in a Lifeline Assistance Plan will encourage qualified citizens to apply for the credit offered under the plan. The Public Service Commission must be able to maintain the confidentiality of that information because disclosure could create a chilling effect on participation. There is a strong likelihood that participants might choose not to avail themselves of the plan because the information submitted would identify them as qualified recipients of low-income program benefits. Finally, without the exemption, the effective and efficient administration of a government program would be hindered. http://floridafaf.org/files/2013/02/2012-307go.pdf

FAF Position
The Foundation isn’t opposed to reenactment of this exemption in its current form.

UPDATE: This exemption is under review by the Senate Committee on Governmental Oversight and Accountability which has issued an interim report: http://floridafaf.org/files/2013/02/2012-307go2.pdf


Section 409.25661, F.S., Insurance Claim Exchange Data:

Under this program, insurers voluntarily provide insurance claim data, including the name, address and social security numbers, to the Department of Revenue. The DOR takes such information and checks it against a database of non-custodial parents who owe past-due child support. Section 409.25661, F.S., makes confidential and exempt the personal information obtained by the Department of Revenue until such time as the department determines whether a match exists. If a match exists, the information becomes available for public disclosure. If a match does not exist, the information is destroyed. This exemption was originally created in 2004 and was up for sunset review in 2009; however, the program was not fully functioning at that point, and the review date was reset. [Ch. 2004-339; SB 2826; Ch. 2009-119; HB 7039 and Ch. 2010; HB 7091]

Statutory Language
409.25661 Public records exemption for insurance claim data exchange information.—

  1. Information obtained by the Department of Revenue pursuant to s. 409.25659 is confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution until such time as the department determines whether a match exists. If a match exists, such information becomes available for public disclosure. If a match does not exist, the nonmatch information shall be destroyed as provided in s. 409.25659.
  2. This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature.
    http://www.flsenate.gov/laws/statutes/2011/409.25661

Statement of Public Necessity
The Legislature finds it is a public necessity that insurance claims information obtained by the Department of Revenue pursuant to section 409.25659, Florida Statutes, be made confidential and exempt until such time as the department determines whether a match is made with regards to a person who owes child support. Such information regarding those persons who do not receive a match is personal and of a private nature. Gathering and maintaining personal information on persons for purposes of child support enforcement, when such persons do not owe child support, could be considered an intrusion into the right of one’s privacy, especially since those persons are unaware that government has collected such information. If such information is not made confidential and exempt until the time specified, the effective and efficient administration of the insurance claim data exchange program could be jeopardized. Insurers might be less likely to provide the department with information regarding insurance claims if the insurer believes such information will be made available for public disclosure. Finally, public oversight of such program is not hindered in that the public has access to all information regarding persons receiving a match. http://laws.flrules.org/2004/339

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this narrow exemption in its current form.

UPDATE: This exemption has been reviewed by the Senate Committee on Children, Families and Elder Affairs which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-301CF.pdf

The committee has approved filing SB 446, which makes no changes other than the deletion of the sunset review requirement. http://www.flsenate.gov/Session/Bill/2012/0446


Sections 458.3193 , F.S., Physician Workforce Surveys:

Physician workforce surveys are required for physicians who are renewing their professional licenses. This statute makes confidential and exempt all personal identifying information contained in those surveys. [Ch. 2007-96; CS/SB 1034]

Statutory Language
458.3193 Confidentiality of certain information contained in physician workforce surveys.—
(1) All personal identifying information contained in records provided by physicians licensed under this chapter or chapter 459 in response to physician workforce surveys required as a condition of license renewal and held by the Department of Health is confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution, except as otherwise provided in this subsection. Information made confidential and exempt by this subsection shall be disclosed:

(a) With the express written consent of the individual to whom the information pertains or the individual’s legally authorized representative.
(b) By court order upon a showing of good cause.
(c) To a research entity, if the entity seeks the records or data pursuant to a research protocol approved by the Department of Health, maintains the records or data in accordance with the approved protocol, and enters into a purchase and data-use agreement with the department, the fee provisions of which are consistent with s. 119.07 (4). The department may deny a request for records or data if the protocol provides for intrusive follow-back contacts, does not plan for the destruction of confidential records after the research is concluded, is administratively burdensome, or does not have scientific merit. The agreement must restrict the release of information that would identify individuals, must limit the use of records or data to the approved research protocol, and must prohibit any other use of the records or data. Copies of records or data issued pursuant to this paragraph remain the property of the department.

(2) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/458.3193

Statement of Public Necessity
The Legislature finds that it is a public necessity that personal identifying information concerning a physician licensed under chapter 458 or chapter 459, Florida Statutes, who responds to a physician workforce survey as a condition of licensure renewal be made confidential and exempt from disclosure. Candid and honest responses by licensed physicians to the workforce survey will ensure that timely and accurate information is available for the Department of Health to review and use in making important policy decisions regarding the use of resources to facilitate the needs of current or projected medically underserved areas in the state. Long-term planning is essential for improving health care access for Florida residents and enabling the use of strategies for a well-trained supply of physicians based on the information provided by physicians in the surveys. Accurate and honest information from the physician surveys will assist state policymakers in their decisions to ensure the availability of quality medical schools and graduate medical education and the development of strategies that might provide for physicians to practice in needed specialties and in underserved areas in a manner that addresses projected needs for physician manpower. Thus, the Legislature finds that the failure to maintain the confidentiality of such personal identifying information would frustrate and prevent the resolution of important state interests to implement and maintain effective strategies to ensure the availability of physicians in the State of Florida. http://laws.flrules.org/2007/96

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this narrow exemption in its current form.

UPDATE: This exemption has been reviewed by the Senate Health Regulation Committee which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-309hr.pdf

The committee has approved filing SB 830, which combines the exemptions under s. 458.3193 and s. 459.0083, F.S., and makes no changes other than the deletion of the sunset review requirement. http://www.flsenate.gov/Session/Bill/2012/0830


Section 459.0083, F.S., Osteopathic Physician Workforce Surveys:

Physician workforce surveys are required for osteopathic physicians who are renewing their professional licenses. This statute makes confidential and exempt all personal identifying information contained in those surveys. [Ch. 2007-96; CS/SB 1034]

Statutory Language
459.0083 Confidentiality of certain information contained in physician workforce surveys.—
(1) All personal identifying information contained in records provided by physicians licensed under chapter 458 or this chapter in response to physician workforce surveys required as a condition of license renewal and held by the Department of Health is confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution, except as otherwise provided in this subsection. Information made confidential and exempt by this subsection shall be disclosed:

(a) With the express written consent of the individual to whom the information pertains or the individual’s legally authorized representative.
(b) By court order upon a showing of good cause.
(c) To a research entity, if the entity seeks the records or data pursuant to a research protocol approved by the Department of Health, maintains the records or data in accordance with the approved protocol, and enters into a purchase and data-use agreement with the department, the fee provisions of which are consistent with s. 119.07 (4). The department may deny a request for records or data if the protocol provides for intrusive follow-back contacts, does not plan for the destruction of confidential records after the research is concluded, is administratively burdensome, or does not have scientific merit. The agreement must restrict the release of information that would identify individuals, must limit the use of records or data to the approved research protocol, and must prohibit any other use of the records or data. Copies of records or data issued pursuant to this paragraph remain the property of the department.

(2) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/459.0083

Statement of Public Necessity
The Legislature finds that it is a public necessity that personal identifying information concerning a physician licensed under chapter 458 or chapter 459, Florida Statutes, who responds to a physician workforce survey as a condition of licensure renewal be made confidential and exempt from disclosure. Candid and honest responses by licensed physicians to the workforce survey will ensure that timely and accurate information is available for the Department of Health to review and use in making important policy decisions regarding the use of resources to facilitate the needs of current or projected medically underserved areas in the state. Long-term planning is essential for improving health care access for Florida residents and enabling the use of strategies for a well-trained supply of physicians based on the information provided by physicians in the surveys. Accurate and honest information from the physician surveys will assist state policymakers in their decisions to ensure the availability of quality medical schools and graduate medical education and the development of strategies that might provide for physicians to practice in needed specialties and in underserved areas in a manner that addresses projected needs for physician manpower. Thus, the Legislature finds that the failure to maintain the confidentiality of such personal identifying information would frustrate and prevent the resolution of important state interests to implement and maintain effective strategies to ensure the availability of physicians in the State of Florida. http://laws.flrules.org/2007/96

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this narrow exemption in its current form.

UPDATE: This exemption has been reviewed by the Senate Health Regulation Committee which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-310hr.pdf
The committee has approved filing SB 830, which combines the exemptions under s. 458.3193 and s. 459.0083, F.S., and makes no changes other than the deletion of the sunset review requirement. http://www.flsenate.gov/Session/Bill/2012/0830


Section 556.113, F.S., Sunshine State One- Call:

Sunshine State One-Call of Florida, Inc., is as a not-for-profit corporation, and state law requires that anyone who furnishes or transports materials or services by means of an underground facility must be a member of the corporation and must use and participate in the free-access notification system. The purpose of the system is to receive notification of planned excavation or demolition activities and to notify member operators so they may mark underground facilities to avoid damage to those underground facilities. Section 556.113, F.S., makes exempt “proprietary confidential business information” held by Sunshine State One-Call of Florida, Inc., for the purpose of describing the extent and root cause of damage to an underground facility or using the member ticket management software system. [Ch. 2007-101; SB 1510]

Statutory Language
556.113 Sunshine State One-Call of Florida, Inc.; public records exemption.—
(1) As used in this section, the term “proprietary confidential business information” means information provided by:

(a) A member operator which is a map, plan, facility location diagram, internal damage investigation report or analysis, dispatch methodology, or trade secret as defined in s. 688.002, or which describes the exact location of a utility underground facility or the protection, repair, or restoration thereof, and:

  1. Is intended to be and is treated by the member operator as confidential;
  2. The disclosure of which would likely be used by a competitor to harm the business interests of the member operator or could be used for the purpose of inflicting damage on underground facilities; and
  3. Is not otherwise readily ascertainable or publicly available by proper means by other persons from another source in the same configuration as provided to Sunshine State One-Call of Florida, Inc.

(b) An excavator in an internal damage investigation report or analysis relating to damage to underground utility facilities, and:

  1. Is intended to be and is treated by the excavator as confidential;
  2. The disclosure of which would be reasonably likely to be used by a competitor to harm the business interests of the excavator or could be used for the purpose of inflicting damage on underground facilities; and
  3. Is not otherwise readily ascertainable or publicly available by proper means by other persons from another source in the same configuration as provided to Sunshine State One-Call of Florida, Inc.

(2) Proprietary confidential business information held by Sunshine State One-Call of Florida, Inc., for the purpose of describing the extent and root cause of damage to an underground facility or using the member ticket management software system is exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution.
(3) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/556.113

Statement of Public Necessity
The Legislature finds that it is a public necessity that proprietary confidential business information held by Sunshine State One-Call of Florida, Inc., for the purpose of describing the extent and root cause of damage to an underground facility or using the member ticket management software system be made exempt from public-records requirements. Sunshine State One-Call of Florida, Inc., can effectively promote safe excavation practices, permit targeted educational efforts, prevent future damage to underground facilities, further public safety awareness in order to help prevent personal injury and death to excavators and the public generally, measure compliance related to effective enforcement of one-call laws, and provide the basis for standardized measurement of the effectiveness of underground facility damage-prevention efforts used by Sunshine State One-Call of Florida, Inc., only if Sunshine State One-Call of Florida, Inc., obtains damage information. Without an exemption from public-records requirements, the Legislature finds that the proprietary and confidential nature of the information needed by Sunshine State One-Call of Florida, Inc., will continue to interfere with the release of such damage information to Sunshine State One-Call of Florida, Inc., by both member operators and excavators. Under the ticket management system provided by Sunshine State One-Call of Florida, Inc., to member operators, large member operators can save considerable expense that currently is experienced when the same ticket management system is purchased on an individual basis, and small member operators can obtain access to such a system that was heretofore too expensive to be employed. The ticket management system that is available to all member operators of Sunshine State One-Call of Florida, Inc., at no cost, promotes efficiency and greatly improves safety. The lack of an exemption from public-records requirements for proprietary confidential information held by Sunshine State One-Call of Florida, Inc., would stifle use of the system by both large and small member operators. http://laws.flrules.org/2007/101

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this exemption in its current form.

UPDATE: This exemption has been reviewed by the Senate Communications, Energy, and Public Utilities Committee which has issued an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-304cu.pdf
The committee has approved filing SB 844, which makes no changes to the exemption other than the deletion of the sunset review requirement. http://www.flsenate.gov/Session/Bill/2012/0844


Section 624.23, F.S., Consumer Complaints/FL Insurance Code:

This statute makes confidential and exempt personal financial and health information held by the Department of Financial Services relating to a consumer complaint or inquiry filed under the Florida Insurance Code. [Ch. 2007-70; SB 1852]

Statutory Language
624.23 Public records exemption.—
(1) As used in this section, the term:

(a) “Consumer” means:

  1. A prospective purchaser, purchaser, or beneficiary of, or applicant for, any product or service regulated under the Florida Insurance Code, and a family member or dependent of a consumer.
  2. An employee seeking assistance from the Employee Assistance and Ombudsman Office under s. 440.191.

(b) “Personal financial and health information” means:

  1. A consumer’s personal health condition, disease, or injury;
  2. The existence, nature, source, or amount of a consumer’s personal income or expenses;
  3. Records of or relating to a consumer’s personal financial transactions of any kind;
  4. The existence, identification, nature, or value of a consumer’s assets, liabilities, or net worth;
  5. A history of a consumer’s personal medical diagnosis or treatment;
  6. The existence or content or any individual coverage or status under a consumer’s beneficial interest in any insurance policy or annuity contract; or
  7. The existence, identification, nature, or value of a consumer’s interest in any insurance policy, annuity contract, or trust.

(2) Personal financial and health information held by the department or office relating to a consumer’s complaint or inquiry regarding a matter or activity regulated under the Florida Insurance Code or s. 440.191 are confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution. This exemption applies to personal financial and health information held by the department or office before, on, or after the effective date of this exemption.
(3) Such confidential and exempt information may be disclosed to:

(a) Another governmental entity, if disclosure is necessary for the receiving entity to perform its duties and responsibilities; and
(b) The National Association of Insurance Commissioners.

(4) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/624.23

Statement of Public Necessity
The Legislature finds that it is a public necessity to protect a person’s sensitive financial and health information. Disclosure of financial information would create the opportunity for theft or fraud thereby jeopardizing the financial security of a person. Limiting disclosure of personal financial information held by the Department of Financial Services or the Office of Insurance Regulation is also necessary in order to protect the financial interests of the persons to whom that information pertains. Such information could be used for fraudulent or other illegal purposes, including identity theft, and could result in substantial financial harm. Furthermore, every person has an expectation of and a right to privacy in all matters concerning his or her financial interests. The Legislature further finds that it is a public necessity that health information held by the department or office and information provided by employees seeking assistance from the Employee Assistance and Ombudsman Office be made confidential and exempt because matters of personal health are traditionally private and confidential concerns between the patient and health care provider. The private and confidential nature of personal health matters pervades both the public and private health care sectors. Moreover, public disclosure of health information could have a negative effect upon a person’s business and personal relationships, and could also have detrimental financial consequences. http://laws.flrules.org/2007/70

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this exemption in its current form.

UPDATE: This exemption is under review by the Senate Banking and Insurance Committee which has filed an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-313bi.pdf


Section 627.3121, F.S., Florida Worker’s Compensation Joint Underwriting Association:

Although this statute is quite long and seems rather complicated, it’s virtually identical to exemptions for other joint underwriting associations. Section 627.3121 makes confidential and exempt underwriting files and claims files relating to worker’s compensation claims until termination of all litigation and settlement of claims arising out of the same accident. It also protects auditing records, medical records, and various types of proprietary business information relating to worker’s compensation, and provides an exemption for association board meetings at which exempt information is discussed. [Ch. 2007-202; HB 7169]

Statutory Language
627.3121 Public records and public meetings exemptions.—
(1) The following records held by the Florida Workers’ Compensation Joint Underwriting Association, Inc., are confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution:

(a) Underwriting files, except that a policyholder or an applicant shall be provided access to his or her own underwriting files.
(b) Claims files until termination of all litigation and the settlement of all claims arising out of the same accident, except that portions of the claims files may remain confidential or exempt if otherwise provided by law.
(c) Records obtained or generated by an auditor pursuant to a routine audit until the audit is completed or, if the audit is conducted as part of an investigation, until the investigation is closed or ceases to be active. An investigation is considered “active” while the investigation is being conducted with a reasonable, good faith belief that it could lead to the filing of administrative, civil, or criminal proceedings.
(d) Proprietary information licensed to the association under contract if the contract requires the association to maintain the confidentiality of such information.
(e) Medical records, which include information relating to the medical condition or medical status of an individual.
(f) All records relative to an employee’s participation in an employee assistance program upon the entrance of the employee into the program, except as otherwise provided in s. 440.102 (8).
(g) Information relating to negotiations for financing, reinsurance, reinsurance commutation agreements, depopulation, or contractual services until the conclusion of the negotiations.
(h) Reports provided to or submitted by the association regarding suspected fraud or other criminal activity and producer appeals and related reporting regarding suspected misconduct until such investigation is closed or ceases to be active.
(i) Information received from the Department of Revenue regarding payroll information and client lists of employee leasing companies obtained pursuant to ss. 440.381 and 468.529.
(j) A public record prepared by an attorney retained by the association to protect or represent the interests of the association, or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the association. This protection is not waived by the release of such public record to another employee or officer of the same association or any person consulted by the association attorney.

(2)(a) The association may release confidential and exempt underwriting files and claims files to:

  1. A carrier that is considering underwriting a risk insured by the association;
  2. A producer seeking to place such a risk with such a carrier; or
  3. Another entity seeking to arrange voluntary market coverage for association risks.

(b) Prior to the release authorized in paragraph (a), the carrier, producer, or other entity must agree in writing, notarized and under oath, to maintain the confidential and exempt status of such file until that carrier, producer, or other entity agrees to underwrite the risk or provide voluntary market coverage.

(3) Records made confidential and exempt by this section may be released, upon written request, to another agency in the performance of that agency’s official duties and responsibilities.
(4)(a) That portion of a meeting of the association’s board of governors, or any subcommittee of the association’s board, at which records made confidential and exempt by this section are discussed is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution.

(b) All exempt portions of meetings shall be recorded and transcribed. The board shall record the times of commencement and termination of the meeting, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. An exempt portion of any meeting may not be off the record.
(c) Subject to this section and s. 119.021 (2), the court reporter’s notes of any exempt portion of a meeting shall be retained by the association for a minimum of 5 years.
(d)1. A transcript and minutes of exempt portions of meetings are confidential and exempt from s. 119.07 (1) and s. 24(a), Art. I of the State Constitution.

2. Those portions of the transcript or the minutes pertaining to a confidential and exempt claims file are no longer confidential and exempt upon termination of all litigation with regard to that claim.

(5) This section is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/627.3121

Statement of Public Necessity
(1) The Legislature finds that it is a public necessity to make certain records of the Florida Workers’ Compensation Joint Underwriting Association, Inc., confidential and exempt from public records requirements. The association was authorized by the Legislature to provide workers’ compensation and employer’s liability insurance to applicants who are required by law to maintain workers’ compensation and employer’s liability insurance, and who are entitled to but are unable to procure such insurance through the voluntary market. The Legislature finds that the exemption from public records requirements for open claims files of the association is necessary for the effective and efficient administration of an entity created to provide workers’ compensation and employer’s liability insurance as described in s. 627.311(5), Florida Statutes. Claims files contain detailed information concerning the claim, medical information, and other sensitive personal information concerning the claimant, and also contain information detailing the evaluation of the legitimacy of the claim, the extent of incapacity, and a valuation of the award. Information in a claims file that is held by the association includes the medical records and other information related to the medical condition or medical status of a claimant. The Legislature finds that the claimants’ medical records and other medical-related information are personal and sensitive. Matters of personal health are traditionally a private and confidential concern. The release of the medical records would violate the privacy of an individual or could cause unwarranted damage to the name or reputation of that individual. The Legislature finds that information relating to the medical, mental, or behavioral condition of an employee of the association is private and that matters of personal health are traditionally a private and confidential concern. The Legislature finds that the association must conduct ongoing negotiations for financing, reinsurance, contractual services, or related matters to perform the duties assigned to the association. If such information were made public prior to the conclusion of the negotiations, the association’s bargaining position would be severely damaged, resulting in additional cost to the association and the public. The Legislature also finds that, because the association will investigate insurance fraud, criminal investigations of insurance fraud would be harmed if reports of suspected fraudulent activity were made public. The Legislature has also recognized a need for the Department of Revenue to provide payroll information and client lists of employee leasing companies to the association in the furtherance of its duties and responsibilities. Such information is proprietary business information and traditionally is private. The Legislature finds that the internal audit process, and therefore accountability to the public, will be damaged if records relating to an incomplete internal audit or investigation are made public. The Legislature finds that although the association is an agency within the meaning of the public records and open meetings laws, the association essentially operates as a private business. Its core function is to engage in the business of providing workers’ compensation insurance coverage, as distinguished from an agency whose core functions are governmental in nature. The association does not exercise the authority or perform the functions of a department or political subdivision, and lacks the power to enforce laws. The Legislature further finds that the general exemptions in chapters 119 and 286 relating to records created by attorneys and communications with attorneys are designed to address the needs of agencies providing governmental functions and are generally limited to matters relating to litigation and adversarial administrative matters. As distinguished from agencies providing governmental functions, the association receives the advice of counsel on the entire range of matters on which a similarly situated private business would receive advice of counsel, including matters that do not involve litigation or adversarial administrative matters. These include, but are not limited to, legal advice relating to business negotiations with private entities which provide the association with reinsurance, policy issuance, policy administration, underwriting, and payroll audit services, with insurance agents who may act as producers of insurance business to the association, and with other entities which provide services to private market insurers. Accordingly, the Legislature finds that the association would not be able to carry out its core business functions effectively without the free and confidential exchange of attorneys’ mental impressions, conclusions, litigation strategies, and legal theories, both as to business matters and as to litigation and adversarial administrative matters.
(2) The Legislature further finds that it is a public necessity to exempt certain meetings of the Florida Workers’ Compensation Joint Underwriting Association, Inc., from public meetings requirements. Closing access to meetings of the board of directors of the association, or a subcommittee of the board, wherein confidential and exempt records are discussed is essential to preserving the confidentiality of those records. Further, it enables the association to carry out its statutory duty of providing workers’ compensation coverage. Furthermore, the Legislature finds that minutes and transcripts of exempt portions of meetings should be made confidential and exempt from public records requirements. Release of those records would defeat the purpose of holding a closed meeting. http://laws.flrules.org/files/Ch_2007-202.pdf

FAF Position
The First Amendment Foundation isn’t opposed to the reenactment of this exemption but would oppose any expansion of the exemption from its current form.

UPDATE: This exemption is under review by the Senate Committee on Governmental Oversight and Accountability which has filed an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-306go.pdf


Section 717.117(8), F.S., Reports of Unclaimed Property:

Section 717.117(8) exempts social security numbers and property identifiers contained in unclaimed property reports held by the Department of Financial Services. Attorneys and certified public accounts registered with the department as well as licensed private investigators can get access to the exempt social security numbers for the sole purpose of locating owners of abandoned or unclaimed property. [Ch. 2007-69; SB 1848]

Statutory Language
717.117 Report of unclaimed property.—
(8)(a) As used in this subsection, the term “property identifier” means the descriptor used by the holder to identify the unclaimed property.

(b) Social security numbers and property identifiers contained in reports required under this section, held by the department, are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(c) Social security numbers shall be released, for the limited purpose of locating owners of abandoned or unclaimed property, to a person registered with the department under this chapter who is an attorney, Florida-certified public accountant, private investigator who is duly licensed in this state, or a private investigative agency licensed under chapter 493.
(d) This exemption applies to social security numbers and property identifiers held by the department before, on, or after the effective date of this exemption.
(e) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15, and shall stand repealed October 2, 2012, unless reviewed and saved from repeal through reenactment by the Legislature. http://www.flsenate.gov/laws/statutes/2011/717.117

Statement of Public Necessity
The Legislature finds that it is a public necessity that property identifiers contained in reports of unclaimed property be made confidential and exempt from public-records requirements. Property identifiers, which are descriptors used by a holder to identify unclaimed property, could be used to obtain fraudulently unclaimed funds or property. Protection of property identifiers is a public necessity in order to prevent the fraudulent use of such information for purposes of creating falsified or forged documents that appear to demonstrate entitlement to unclaimed property. Such use defrauds the rightful property owner or the State School Fund. Furthermore, the release of property identifiers contained in reports of unclaimed property hinders the effective and efficient administration of the unclaimed property program. http://laws.flrules.org/2007/69

FAF Position
While FAF isn’t opposed to the reenactment of this exemption, the Legislature has attempted a number of times to limit the ability of licensed private investigators to get access to the exempt social security numbers for the purpose of finding the owners of lost or abandoned property, which means that only the Department of Financial Services would have the ability to find such persons – and collect any fees allowed. We are watching this exemption carefully for any attempts to limit access currently allowed.

UPDATE: This exemption is under review by the Senate Committee on Banking and Insurance which has filed an interim report: http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-314bi.pdf


If you have a comment or question about an exemption subject to review during the 2012 legislative session, please email info@floridafaf.org.

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