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.