Introduction
On Wednesday, February 24, 2016, Florida’s Governor
Rick Scott signed two bills which exempt #trade_secret financial information
from the state’s Sunshine Laws. The change is significant in a state known for
expansive open records and meetings laws, and should provide comfort to private
sector participants pursuing P3 projects and otherwise doing business in
Florida. Both acts take effect on October 1, 2016.
SBs 180
and 182
SB 180 amends Section 812.081 of the Florida Statutes
by expanding the definition of trade secret to include “financial information.”
Financial information is not defined, and has led some to criticize the bill as
overly broad.
Among other things, SB 182 exempts financial
information comprising a trade secret, as defined under Section 812.081 of the
Florida Statutes, from public records inspection and copying laws. It also
exempts any portion of a meeting in which a trade secret is discussed from the
public meetings and records laws.
In SB 182, the Legislature recognizes that businesses
are often required to provide financial information to public entities, and
finds that “the need to protect trade secret financial information is
sufficiently compelling to override [the State’s] public policy of open
government and that the protection of such information cannot be accomplished
without these exemptions.”
What
Financial Information is Protected?
While SB 180 does not define financial information, it
appears that the intent of the Legislature is to protect trade secret
information in a broad sense. SB 182 expressly provides that the Legislature’s
intent is to protect “trade secret information of a confidential nature which
includes, but is not limited to, a formula, a pattern, a device a combination
of devices, or a compilation of information used to protect or further a
business advantage over those who do not know or use the information, the disclosure
of which would injure the affected business in the marketplace.”
Impact
on P3 Procurements
These amendments are directly relevant to proposers in
the context of P3 procurements. Proposers are typically required to submit
detailed financial information to the procuring agency regarding their team
members as part of the qualifications phase, as well as detailed financial
proposals as part of the proposals phase. Based on the scope of trade secret
information described above, it appears likely that financial models submitted
with proposals on P3 procurements will be exempt from disclosure. To date,
there have been serious concerns over whether the financial models are
protected from disclosure, so SB 182 should provide much needed clarity.
If proposers are confident that financial information
can be submitted confidentially and be exempt from public disclosure, it may
attract qualified players to the Florida market who may otherwise have been
wary of participating due to the breadth of Florida’s Sunshine Laws. The extent
of the impact of these changes will depend in part on how broadly the meaning
of financial information is interpreted going forward.
Summary
The exemption of trade secret financial information
from open records and meetings laws is a significant development in a state
known for prioritizing open government, and will likely increase the private
sector’s enthusiasm for pursuing opportunities in Florida.
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