Economic Incentive Applications and Florida’s Public Records and Sunshine Law

Carlton Fields

If you are considering locating—or relocating—your business to Florida, and are interested in applying for an economic incentive, you should be aware of Florida’s Public Records and Sunshine Law, which provides that certain records must be made available to the public. The law has two aspects: 1) the Public Records Act (ch. 119, Fla. Stat); and 2) the Sunshine/Open Meetings Law (§ 286.011, Fla. Stat.). Although specific statutory exemptions apply to economic incentive applications, none of those exemptions apply to the Sunshine/Open Meetings Law.

1. Public Records

Florida’s public records law applies to all documents and other materials, regardless of form, that are made or received by a government agency either pursuant to a law or ordinance, or in connection with official business. For purposes of the Public Records Law, a government agency includes not only government itself but also any public or private entity or person acting on government’s behalf. Florida courts have interpreted the term “public records” to include documents used by or relied on by the government agency while transacting official business even when the agency neither made nor received the records. Unless a specific statutory exemption applies, any person is entitled to inspect or obtain copies of any public record without regard to the purpose of or motives for the request.

Section 288.075, establishes four exemptions relating to economic incentive applications: 1) a broad, but temporary, exemption for virtually all information concerning possible location or relocation to Florida; 2) an exemption for trade secrets; 3) an exemption for proprietary confidential information; and 4) an exemption for federal and state tax identification numbers.

All information as to a business’s plans to locate or relocate to, or expand in, Florida will be temporarily exempt from disclosure under the Public Records Law, but only if the business first submits a written request for confidentiality to each government agency involved. The exemption is for a period of 12 months after the written request for confidentiality is filed or until the information is otherwise disclosed, whichever occurs first. The exemption can be extended for a second 12-month period by filing a second written request before the initial exemption expires, but the second request must include confirmation that the business is still actively considering location, relocation, or expansion in Florida.

If a local government issues a final signed economic development order granting incentives, information relating to the planned location, relocation, or expansion remains confidential for an additional 180 days, until such date specified in the project order, until the information is otherwise disclosed by the applicant, or until the expiration of the 12-month exemption period discussed in the paragraph above, whichever occurs first.

In addition to this temporary exemption, certain information held by an economic development agency enjoys a permanent public records exemption if it falls within the definition of either “trade secret” or proprietary confidential business information. A “trade secret” is any information that satisfies the following criteria:

  • it derives independent economic value by not being known to others who could obtain economic value if the information became known or available for their use; and
  • reasonable efforts have been made to maintain the information’s secrecy.

A trade secret exemption is lost if the owner of the information fails to clearly label the information as a trade secret before submitting it to a government agency. The exemption is also lost if the owner subsequently publicly discloses the information or fails to continue to take reasonable efforts to maintain its secrecy.

“Proprietary confidential business information” is information that:

  • is intended by its owner to be private;
  • is treated by its owner as private;
  • would cause harm to business operations if disclosed;
  • has not been disclosed; and
  • deals with business plans, internal auditing controls, internal auditors’ reports; or, for privately held companies, external auditors’ reports.

As with the trade secret exemption, proprietary confidential business information loses its public records exemption when it becomes publicly available or when the information’s owner no longer treats it as confidential. In addition, the owner’s intent that the information be kept confidential must be stated clearly at the time it is transmitted to any government agency.

2. Sunshine/Open Meetings

Florida’s Sunshine/Open Meetings Law requires that all meetings of any board or commission of a government agency at which official actions are taken or discussed must be noticed and held in a forum that is open to the public. This includes not only county or city commissions, but also other boards, committees, or groups that have been delegated some decision-making authority. If a sub-committee or other group of individuals have been delegated the authority to make decisions regarding economic incentive applications, meetings of that group are subject to the open meetings law.

Because there is no exemption from the Sunshine/Open Meetings Law for meetings at which economic incentive applications are considered and discussed, most local government agencies assign a “code name” or number to an applicant. Discussions during public meetings must be limited to avoid premature disclosure of the applicant’s identity, the nature of the proposed business venture, and any other information that the applicant regards as confidential. Even inadvertent disclosure of trade secret or confidential business information during a public meeting may result in loss of the public records exemption for that information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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