The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 7020
INTRODUCER: Commerce and Tourism Committee
SUBJECT: OGSR/County Tourism Promotion Agencies/Florida Tourism Industry Marketing
Corporation
DATE: April 19, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
Reeve McKay CM Submitted as Comm. Bill/Fav
1. McVaney McVaney GO Favorable
2. Reeve Phelps RC Favorable
I. Summary:
SB 7020 saves from repeal the public records exemption relating to trade secrets held by a
county tourism promotion agency. The bill also saves from repeal the public records exemption
for the identity of any person who responds to a marketing or advertising research project
conducted by the Florida Tourism Industry Marketing Corporation, doing business as VISIT
FLORIDA, or trade secrets obtained pursuant to such activities.
Unless saved from repeal by the Legislature, both exemptions are scheduled to sunset on
October 2, 2021. This bill removes the scheduled repeals to continue the exempt status of the
information.
The bill is not expected to impact state and local revenues and expenditures.
The bill takes effect October 1, 2021.
II. Present Situation:
Access to Public Records - Generally
The Florida Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.1 The right to inspect or copy applies
to the official business of any public body, officer, or employee of the state, including all three
branches of state government, local governmental entities, and any person acting on behalf of the
government.2
1
FLA. CONST. art. I, s. 24(a).
2
Id.
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Additional requirements and exemptions related to public records are found in various statutes
and rules, depending on the branch of government involved. For instance, section 11.0431,
Florida Statutes (F.S.), provides public access requirements for legislative records. Relevant
exemptions are codified in s. 11.0431(2)-(3), F.S., and the statutory provisions are adopted in the
rules of each house of the legislature.3 Florida Rule of Judicial Administration 2.420 governs
public access to judicial branch records.4 Lastly, chapter 119, F.S., provides requirements for
public records held by executive agencies.
Executive Agency Records – The Public Records Act
Chapter 119, F.S., known as the Public Records Act, provides that all state, county and
municipal records are open for personal inspection and copying by any person, and that
providing access to public records is a duty of each agency.5
A public record includes virtually any document or recording, regardless of its physical form or
how it may be transmitted.6 The Florida Supreme Court has interpreted the statutory definition of
“public record” to include “material prepared in connection with official agency business which
is intended to perpetuate, communicate, or formalize knowledge of some type.7
The Florida Statutes specify conditions under which public access to public records must be
provided. The Public Records Act guarantees every person’s right to inspect and copy any public
record at any reasonable time, under reasonable conditions, and under supervision by the
custodian of the public record.8 A violation of the Public Records Act may result in civil or
criminal liability.9
The Legislature may exempt public records from public access requirements by passing a
general law by a two-thirds vote of both the House and the Senate.10 The exemption must state
with specificity the public necessity justifying the exemption and must be no broader than
necessary to accomplish the stated purpose of the exemption.11
3
See Rule 1.48, Rules and Manual of the Florida Senate, (2018-2020) and Rule 14.1, Rules of the Florida House of
Representatives, Edition 2, (2018-2020)
4
State v. Wooten, 260 So. 3d 1060 (Fla. 4th DCA 2018).
5
Section 119.01(1), F.S. Section 119.011(2), F.S., defines “agency” as “any state, county, district, authority, or municipal
officer, department, division, board, bureau, commission, or other separate unit of government created or established by law
including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of
Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf
of any public agency.”
6
Section 119.011(12), F.S., defines “public record” to mean “all documents, papers, letters, maps, books, tapes, photographs,
films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means
of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by
any agency.”
7
Shevin v. Byron, Harless, Schaffer, Reid and Assoc., Inc., 379 So. 2d 633, 640 (Fla. 1980).
8
Section 119.07(1)(a), F.S.
9
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
10
FLA. CONST. art. I, s. 24(c).
11
Id. See, e.g., Halifax Hosp. Medical Center v. News-Journal Corp., 724 So. 2d 567 (Fla. 1999) (holding that a public
meetings exemption was unconstitutional because the statement of public necessity did not define important terms and did
not justify the breadth of the exemption); Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189
BILL: SB 7020 Page 3
General exemptions from the public records requirements are contained in the Public Records
Act.12 Specific exemptions often are placed in the substantive statutes relating to a particular
agency or program.13
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” Custodians of records designated as “exempt” are not prohibited
from disclosing the record; rather, the exemption means that the custodian cannot be compelled
to disclose the record.14 Custodians of records designated as “confidential and exempt” may not
disclose the record except under circumstances specifically defined by the Legislature.15
Open Government Sunset Review Act
The Open Government Sunset Review Act16 (the Act) prescribes a legislative review process for
newly created or substantially amended17 public records or open meetings exemptions, with
specified exceptions.18 It requires the automatic repeal of such exemption on October 2nd of the
fifth year after creation or substantial amendment, unless the Legislature reenacts the
exemption.19
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.20
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
 It allows the state or its political subdivisions to effectively and efficiently administer a
governmental program, and administration would be significantly impaired without the
exemption;21
 It protects sensitive, personal information, the release of which would be defamatory, cause
unwarranted damage to the good name or reputation of the individual, or would jeopardize
the individual’s safety. If this public purpose is cited as the basis of an exemption, however,
only personal identifying information is exempt;22 or
(Fla. 1st DCA 2004) (holding that a statutory provision written to bring another party within an existing public records
exemption is unconstitutional without a public necessity statement).
12
See, e.g., s. 119.071(1)(a), F.S. (exempting from public disclosure examination questions and answer sheets of
examinations administered by a governmental agency for the purpose of licensure).
13
See, e.g., s. 213.053(2)(a), F.S. (exempting from public disclosure information contained in tax returns received by the
Department of Revenue).
14
See Williams v. City of Minneola, 575 So. 2d 683, 687 (Fla. 5th DCA 1991).
15
WFTV, Inc. v. The School Board of Seminole, 874 So. 2d 48 (Fla. 5th DCA 2004).
16
Section 119.15, F.S.
17
An exemption is considered to be substantially amended if it is expanded to include more records or information or to
include meetings as well as records. Section 119.15(4)(b), F.S.
18
Section 119.15(2)(a) and (b), F.S., provide that exemptions that are required by federal law or are applicable solely to the
Legislature or the State Court System are not subject to the Open Government Sunset Review Act.
19
Section 119.15(3), F.S.
20
Section 119.15(6)(b), F.S.
21
Section 119.15(6)(b)1., F.S.
22
Section 119.15(6)(b)2., F.S.
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 It protects information of a confidential nature concerning entities, such as trade or business
secrets.23
The Act also requires specified questions to be considered during the review process.24 In
examining an exemption, the Act directs the Legislature to carefully question the purpose and
necessity of reenacting the exemption.
If the exemption is continued and expanded, then a public necessity statement and a two-thirds
vote for passage are required.25 If the exemption is continued without substantive changes or if
the exemption is continued and narrowed, then a public necessity statement and a two-thirds vote
for passage are not required. If the Legislature allows an exemption to sunset, the previously
exempt records will remain exempt unless provided for by law.26
Trade Secrets
Section 812.081, F.S., defines a “trade secret” as information used in the operation of a business
which provides the business an advantage or an opportunity to obtain an advantage over those
who do not know it. The term includes scientific, technical, commercial, and financial
information. 27 Irrespective of the field to which the trade secret pertains, a trade secret is
considered to be secret; of value; for use or in use by the business; and of advantage to the
business, or providing an opportunity to obtain an advantage, over those who do not know it or
use it.28
Florida law contains a variety of provisions that make trade secret information exempt or
confidential and exempt from public records requirements. Some exemptions only protect trade
secrets, while others protect “proprietary business information” and define that term to
specifically include trade secrets.
Public Records Exemption for Trade Secrets Held by a County Tourism Promotion Agency
Section 125.0104(9)(d)3., F.S., provides a public records exemption for trade secrets, as defined
in s. 812.081, F.S., held by a county tourism promotion agency. In 2016, the Legislature
expanded the definition of a trade secret in s. 812.081, F.S., to include financial information.29
23
Section 119.15(6)(b)3., F.S.
24
Section 119.15(6)(a), F.S. The specified questions are:
 What specific records or meetings are affected by the exemption?
 Whom does the exemption uniquely affect, as opposed to the general public?
 What is the identifiable public purpose or goal of the exemption?
 Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
 Is the record or meeting protected by another exemption?
 Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
25
See generally s. 119.15, F.S.
26
Section 119.15(7), F.S.
27
Section 812.081(1)(c), F.S.
28
Id.
29
Chapter 2016-6, s. 21, Laws of Fla., provides a public necessity statement with a rationale for expanding the public records
exemption for trade secrets. The statement recognized that businesses are often required to provide financial information to
BILL: SB 7020 Page 5
Thus, all public records exemptions for trade secrets were considered to have been substantially
amended and subject to the Open Government Sunset Review Act. The public records exemption
for trade secrets in s. 125.0104(9)(d)3., F.S., is scheduled to be repealed on October 2, 2021,
unless it is reviewed and saved from repeal by the Legislature.
Open Government Sunset Review of s. 125.0104, F.S.
In September 2020, the Senate Committee on Commerce and Tourism and the House Oversight,
Transparency, & Public Management Subcommittee sent an Open Government Sunset Review
questionnaire to the county tourism promotion agencies operating within the state regarding the
scheduled repeal of the public records exemption and the need to maintain said exemption.
Agencies were asked about the types of records held, how records that contain trade secrets are
reviewed, public records requests, and various other questions related to how agencies work with
public records that contain trade secrets. The surveyed agencies reported holding public records
containing trade secrets that include contracts, financial and budget information, consumer trend
data, marketing initiatives and research, visitor center and convention center data, business leads,
industry partner contacts, consumer databases, administrative records, funding requests,
purchased data, and paid research. Agencies cited the need to remain competitive and effectively
market their counties as the general purposes of using trade secret information. Of the agencies
that responded to the questionnaire, 13 reported receiving a public records request for a records
containing trade secrets within the last 4 years. The questionnaire also asked agencies whether
they recommend that the Legislature repeal or reenact the public record exemption, the majority
of which recommended reenacting the exemption as it is written.
Public Records Exemption for VISIT FLORIDA
Section 288.1226(9), F.S., provides a public records exemption for the identity of any person
who responds to a marketing or advertising research project conducted by VISIT FLORIDA, or
trade secrets as defined by s. 812.081, F.S., obtained through such activities. In 2016, the
Legislature expanded the definition of a trade secret in s. 812.081, F.S., to include financial
information.30 Thus, all public records exemptions for trade secrets were considered to have been
substantially amended and subject to the Open Government Sunset Review Act. The public
records exemption for information and trade secrets in s. 288.1226(9), F.S., is scheduled to be
repealed on October 2, 2021, unless it is reviewed and saved from repeal by the Legislature.
Open Government Sunset Review of s. 288.1226, F.S.
In August 2020, the Senate Committee on Commerce and Tourism and the House Oversight,
Transparency, & Public Management Subcommittee held a meeting with a representative from
VISIT FLORIDA to discuss marketing projects or advertising research projects and how records
associated with those projects are handled, the types of records that include trade secret
information, and how VISIT FLORIDA addresses public record requests for such records.
Representatives from VISIT FLORIDA stated that they rely on the ability to protect trade secrets
gathered from marketing projects in order to remain competitive. Specifically, VISIT FLORIDA
public entities for regulatory or other purposes and that the disclosure of such information to competitors would be
detrimental to businesses.
30
Id.
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tends to apply the exemption to data gathered from marketing projects and research that will be
used to further develop other marketing strategies. Because VISIT FLORIDA is subject to
several reporting and transparency requirements necessitating making contracts and other
documents available to the public, VISIT FLORIDA relies on the exemption found in
s. 288.1226(9), F.S., to protect information found in the publicly available contracts and
documents, such as the timing and distributi