HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 7037 PCB GOS 21-05 OGSR/State-funded Infrastructure Bank
SPONSOR(S): State Affairs Committee, Government Operations Subcommittee, McClure
TIED BILLS: IDEN./SIM. BILLS: CS/SB 7004
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Government Operations 15 Y, 0 N Roth Smith
Subcommittee
1) Insurance & Banking Subcommittee 18 Y, 0 N Hinshelwood Luczynski
2) State Affairs Committee 21 Y, 0 N, As CS Roth Williamson
SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record and each
public meeting exemption five years after enactment. If the Legislature does not reenact the exemption, it
automatically repeals on October 2nd of the fifth year after enactment.
The State-funded Infrastructure Bank (SIB) administered by the Department of Transportation is a revolving
loan and credit enhancement program to help fund transportation projects that otherwise might be delayed or
not built.
Current law provides a public record exemption for financial information submitted by a private entity as part of
the SIB application process. However, the public record exemption does not apply to records of an applicant
who is in default of a loan issued by the SIB.
The bill saves from repeal the public record exemption, which will repeal on October 2, 2021, if this bill does
not become law.
The bill does not appear to have a fiscal impact on state or local governments.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 4/7/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government Sunset Review Act
The Open Government Sunset Review Act1 sets forth a legislative review process for newly created or
substantially amended public record or public meeting exemptions. It requires an automatic repeal of
the exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
Legislature reenacts the exemption.2
The Act provides that a public record or public meeting exemption may be created or maintained only if
it serves an identifiable public purpose. In addition, it may be no broader than is necessary to meet one
of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
Protect trade or business secrets.3
If, and only if, in reenacting an exemption that will repeal, the exemption is expanded (essentially
creating a new exemption), then a public necessity statement and a two-thirds vote for passage are
required.4 If the exemption is reenacted with grammatical or stylistic changes that do not expand the
exemption, if the exemption is narrowed, or if an exception to the exemption is created then a public
necessity statement and a two-thirds vote for passage are not required.
State-funded Infrastructure Bank
The State-funded Infrastructure Bank (SIB) administered by the Department of Transportation (DOT) is
a revolving loan and credit enhancement program to help fund transportation projects that otherwise
might be delayed or not built.5 The SIB is composed of two separate accounts, a federally funded
account that is capitalized by federal money and matching state money, and a state-funded account
that is capitalized by state money and bond proceeds. Projects eligible for assistance from the former
account include those that meet all federal requirements under the Transportation Equity Act for the
21st Century and that are eligible for assistance under Title 23, U.S.C.,6 or capital projects as defined in
s. 5302 of Title 49, U.S.C.7 and other applicable federal guidelines.8 Public and private entities that are
carrying out, or propose to carry out, eligible projects can apply to the SIB for a loan or other
assistance.
The federally funded account is limited to projects that meet federal requirements. The state-funded
account is authorized to lend capital costs or provide credit enhancements for:
A transportation facility project that is on the State Highway System;
A project that provides for increased mobility on the state's transportation system;
A project that provides for intermodal connectivity with airports, seaports, rail facilities, and other
transportation terminals for the movement of people, cargo, and freight;
1
Section 119.15, F.S.
2
Section 119.15(3), F.S.
3
Section 119.15(6)(b), F.S.
4
Section 24(c), Art. I, FLA. CONST.
5
Section 339.55, F.S.
6
See 23 U.S.C. s. 119. Generally, projects on the National Highway System.
7
Generally, public transportation projects.
8
23 U.S.C. s. 610.
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Transportation Regional Incentive Program projects, provided the project receives at least a 25
percent match9 from non-SIB loan funds;10 and
Emergency loans for damages incurred to public-use commercial deepwater seaports, public-
use airports, and other public-use transit and intermodal facilities that are within an area that is
part of an official state declaration of emergency.11
A public or private entity seeking financial assistance from the SIB is required to submit an
application,12 based on published advertisement periods via DOT’s on-line advertised process, which
DOT reviews to ensure any potential project meets eligibility, financial, and production criteria.13 If the
criteria are met, DOT will determine an indicative interest rate for the application based on current
market conditions, financial strength of the borrower, term, and risk of the loan.14
Examples of financial information items required in an SIB loan application include, but are not limited
to, providing details of the proposed finance plan, funding sources, information regarding any
anticipated bond issue or other debt instrument, loan term and amount, and primary and secondary
repayment sources.15
Loans from the SIB may bear interest at or below market interest rates, as determined by DOT.
Repayment of any SIB loan must begin no later than five years after the project has been completed or,
in the case of a highway project, the facility has opened to traffic, whichever is later, and must be repaid
in 30 years.16
Public Record Exemption under Review
In 2016, the Legislature created a public record exemption for certain information submitted by a
private entity as part of the SIB application.17 Specifically, financial information of a private entity
applicant that DOT requires as part of the application process for loans or credit enhancements from
the SIB is exempt from public record requirements.18 However, the public record exemption does not
apply to records of an applicant who is in default of a loan issued by the SIB. The 2016 public necessity
statement19 for the exemption provides that the Legislature finds that:
The disclosure of such information could harm a private entity in the marketplace
by giving the private entity's competitors insights into its financial status and
9
See s. 339.55(6), F.S.
10
See s. 339.2819, F.S. Projects identified under the Transportation Regional Incentive Program are eligible for assistance from the
state-funded account. DOT is authorized to match up to 50 percent of the cost for projects that, at a minimum:
Serve national, statewide, or regional functions and function as part of an integrated regional transportation system;
Are identified in the capital improvements element of a comprehensive plan and are in compliance with local government
plan policies relative to corridor management;
Are consistent with the Strategic Intermodal System Plan developed under s. 339.64, F.S.; and
Have a commitment for local, regional, or private financial matching funds as a percentage of the overall project cost.
11
Section 339.55(2), F.S.
12
To review an application form, see DOT, SIB Application and Awards, available at https://www.fdot.gov/comptroller/pfo/sib-
application-and-awards.shtm (last visited March 30, 2021).
13
See DOT’s SIB Guidelines for Federal/State, available at https://fdotwww.blob.core.windows.net/sitefinity/docs/default-
source/comptroller/pfo/sib/sib---guidelines-federal-state_07-12-18_final.pdf?sfvrsn=56f7082f_2 (last visited March 30, 2021).
14
DOT, State Infrastructure Bank, available at https://www.fdot.gov/comptroller/pfo/sib.shtm (last visited March 30, 2021).
15
DOT, SIB Application and Awards, supra at FN 12.
16
Section 339.55(4), F.S.
17
Chapter 2016-38, L.O.F., codified as s. 339.55(10), F.S.
18
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
(See WFTV, Inc. v. The School Board of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004);
City of Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 687 (Fla. 5th DCA
1991). If the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released, by
the custodian of public records, to anyone other than the persons or entities specifically designated in statute. (See Attorney General
Opinion 85-62, Aug. 1, 1985).
19
Article I, s. 24(c), FLA. CONST., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
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business plan, thereby putting the private entity at a competitive disadvantage.
Additionally, the disclosure of sensitive financial information regarding a private
entity could create the opportunity for theft, fraud, and other illegal activity,
thereby jeopardizing the financial security of the private entity and placing it at
risk for substantial financial harm. If an individual is required to provide his or her
personal financial information to the department as part of the application
process for his or her business, the individual could be subject to identity theft
and other criminal activity. Without an exemption from public records
requirements under s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the
State Constitution, some private entities might be unwilling to submit an
application to the state-funded infrastructure bank. This unwillingness to submit
applications could, in turn, limit opportunities the department might otherwise
have for providing loans or credit enhancements to private entities who could
propose cost-effective or strategic solutions for constructing and improving
transportation facilities. The Legislature finds that the benefit to the public of
more private entities applying for loans or credit enhancements outweighs any
public benefit that may be derived from the disclosure of the financial information
of a private entity.20
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2021,
unless reenacted by the Legislature.21
During the 2020 interim, subcommittee staff sent a questionnaire to DOT regarding the public records
exemption.22 As of the date of the questionnaire, the SIB had approved 107 transportation facility
projects, 36 regional incentive program projects, and seven emergency loan projects.23 DOT
recommends that the public record exemption be reenacted to protect the financial information
submitted by private entities as part of the SIB application process.
Effect of the Bill
The bill removes the scheduled repeal date of the public record exemption, thereby maintaining the
exemption for financial information submitted by a private entity as part of the SIB application process.
B. SECTION DIRECTORY:
Section 1: Amends s. 339.55, F.S., relating to the public records exemption for SIB applicants.
Section 2: Provides an effective date of October 1, 2021.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
20
Section 2, ch. 2016-38, L.O.F.
21
Section 119.071(5)(k)4., F.S.
22
Open Government Sunset Review Questionnaire, DOT Response, September 10, 2020, on file with the House Government
Operations Subcommittee.
23
Id. at p. 2.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking authority, nor does it require rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On April 6, 2021, the State Affairs Committee adopted a proposed committee substitute (PCS) and reported
the bill favorably as a committee substitute. The PCS removed the expanded exemption for financial
information of the applicant’s guarantor, the repeal date of October 2, 2026, and the public necessity
statement.
This analysis is drafted to the committee substitute as approved by the State Affairs Committee.
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Statutes affected: H 7037 Filed: 339.55
H 7037 c1: 339.55
H 7037 er: 339.55