Florida Legislature Tackles Public Record and Meeting Laws

by Bilzin Sumberg
Contact

Bilzin Sumberg

As the 2018 legislative session approaches, Florida legislators have been busy introducing and considering new legislation regarding public records and public meetings. Some of this legislation is expansive, and its adoption would have a significant impact on what governmental entities must disclose to the public.

Florida has always offered strong protection for the right to access public records. Florida’s Declaration of Rights provides the right to access "any public record made or received in connection with the official business of any public body, officer, or employee of the state." This right is given vitality in the Florida Public Records Law, which provides detailed requirements as to what must be made public record. These provisions fundamentally affect the way business is done with any governmental entity, from discussions about potential local projects to the final negotiation of a contract for the provision of goods or services.

Bills currently in the legislative pipeline will, if adopted, affect both the Public Records Law, and how we do business with our local and state government.

House Bill 459:

House Bill 459 seeks to remove the trade secret exemption from the Public Records Law for all agencies where a trade secret exemption is currently in effect, resulting in an expansion in the scope of records that must be made public. These entities include local agencies like certain condemning governmental agencies, local governments, electrical utilities, telecommunications companies, economic development agencies, and county tourism agencies. The bill also impacts the treatment of trade secrets by state entities such as the Florida Public Service Commission, Department of Environmental Protection, Department of the Lottery, Florida Development Finance Corporation, Department of Health, and the Office of the Attorney General. Among other things, the bill proposes to repeal Section 815.045 of the Florida Statutes, which recognizes that there is a public necessity in keeping trade secret information confidential and exempt from public records law and that the disclosure of trade secrets in an agency’s possession would “negatively impact the business interests of those providing an agency such trade secrets by damaging them in the marketplace, and those entities and individuals disclosing such trade secrets would hesitate to cooperate with that agency, which would impair the effective and efficient administration of governmental functions.”

The impetus for this bill was a 2016 controversy over rapper Pitbull's contract with Visit Florida, a public agency, to be the spokesman for Florida's beaches. In a lawsuit filed by the House Speaker to make the contract terms public, Pitbull argued the existing trade secret exemption protects the pricing terms of the contract. As a result, Governor Scott and state legislators passed new legislation that expanded the trade secret exemption to expressly include financial information. That legislation became effective on October 1, 2016. Now, with House Bill 459, legislators who felt that the Pitbull controversy resulted in less transparency in local and state government are seeking to repeal that new legislation.

If this bill were to become a law, the potential impact could be significant. For example, in the context of a competitive procurement, trade secret protection has allowed a bidder to propose alternative technical concepts or other ideas that the bidder views as a competitive advantage with a granting authority. Without a codified exemption from the public records laws for trade secrets, potential bidders will withhold information that could be in the government's best interest, and thus in the best interest of the public. It could impede the government's ability to accurately and effectively evaluate proposals and dissuade potential bidders from submitting proposals in the first place, thus narrowing the marketplace and diminishing competition. Notably, in the Freedom of Information Act, the federal government offers broad protection to trade secrets and privileged commercial or financial information in the context of procurement, for exactly these reasons.

House Bill 461:

On the other hand, House Bill 461 seeks to solidify the exemption from the public records requirements for trade secrets, and provide a process by which the exemption can be enforced. It defines "trade secret" as information that derives potential or actual economic value from not being generally known or readily ascertainable, and that is the result of efforts that are reasonable under the circumstances to maintain its secrecy. However, a trade secret does not include any contract to which the public agency is a party or financial information related to such a contract. If a person is submitting a trade secret to the agency, he must provide notice by clearly marking each portion of a record containing it with the words "trade secret," as well as an affidavit with words provided by the statute. The bill also requires that an agency receiving a public records request for records containing a trade secret must notify the person who verified the trade secret, and that person must file an action in circuit court seeking a declaratory judgment that the record in fact does contain a trade secret in order to avoid disclosure. The bill allows an agency officer to disclose the trade secret to an officer in another agency or governmental entity if the use of the trade secret is within the scope of his agency duties. This bill puts the onus on the firm holding the trade secret to defend it and keep it confidential, rather than the government.

Senate Bill 192: 

Finally, Senate Bill 192 provides a narrow exemption from the Florida Public Records Law for fact-finding exercises by a board or commission, which is consistent with existing Florida caselaw. This bill includes a provision allowing members of a board or commission to engage in "fact-finding exercises or excursions to research public business" and have meetings with members of the legislature if reasonable notice is provided, an official act or agreement regarding an official act does not occur, there is no discussion of public business, and appropriate records or recordings are maintained as public record. The bill codifies judicial interpretation of the term "public business," defining it as any topic that is before, or expected to be before a board or commission, and the term and "de facto meeting” defining it as meetings with people other than the public officers acting as intermediaries for the public officer in which public business is discussed, to the type of meeting that must be open to the public. Further, the bill defines "discussion" to be any kind of communication between board and commission members, and "meeting" to be any gathering of two officials on the same board or office, even if they have not yet taken office.

These bills are just a few among others that are being introduced into the Florida House and Senate. Each bill raises unique issues with respect to the ways in which we interact and negotiate with government entities and officials. We are closely monitoring each bill to make sure that your business is ready for any change in the already complex government approval and procurement process.


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.

© Bilzin Sumberg | Attorney Advertising

Written by:

Bilzin Sumberg
Contact
more
less

Bilzin Sumberg on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.