§ 288.9626 — Exemptions from public records and public meetings requirements for the Florida Opportunity Fund

Florida § 288.9626

• Jurisdiction: Florida
• Title: XIX
• Ch. 288: COMMERCIAL DEVELOPMENT AND CAPITAL IMPROVEMENTS

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(1) DEFINITIONS. — As used in this section, the term: (a) “Alternative investment” means an investment or prospective investment through a loan, acquisition of an equity interest, or other investment method by the Florida Opportunity Fund in a private equity fund, venture capital fund, or angel fund; an investment by the Florida Opportunity Fund or an alternative investment in a portfolio company; or an investment through a distribution of securities to its partners or shareholders by an alternative investment vehicle. (b) “Alternative investment vehicle” means the limited partnership, limited liability company, or similar legal fund structure through which funds of, or funds managed by, the Florida Opportunity Fund are invested in a portfolio company. (c) “Florida Opportunity Fund” means the Florida Opportunity Fund as defined in s. 288.9623. (d) “Portfolio company” means a corporation or other issuer, any of whose securities or debt obligations are owned, or are being considered for ownership, by an alternative investment vehicle or the Florida Opportunity Fund and any subsidiary of such corporation or other issuer. (e) “Portfolio positions” means individual investments in portfolio companies that are made by an alternative investment vehicle or the Florida Opportunity Fund, including information or specific investment terms associated with any portfolio company investment. (f)1. “Proprietary confidential business information” means information that has been designated by the proprietor when provided to the Florida Opportunity Fund as information that is owned or controlled by a proprietor; that is intended to be and is treated by the proprietor as private, the disclosure of which would harm the business operations of the proprietor and has not been intentionally disclosed by the proprietor unless pursuant to a private agreement that provides that the information will not be released to the public except as required by law or legal process, or pursuant to law or an order of a court or administrative body; and that concerns: a. Trade secrets as defined in s. 688.002. b. Information provided to the Florida Opportunity Fund regarding an existing or prospective alternative investment in a private equity fund, venture capital fund, angel fund, or portfolio company that is proprietary to the provider of the information. c. Financial statements and auditor reports of an alternative investment vehicle or portfolio company, unless publicly released by the alternative investment vehicle or portfolio company. d. Meeting materials of an alternative investment vehicle or portfolio company relating to financial, operating, or marketing information of the alternative investment vehicle or portfolio company. e. Information regarding the portfolio positions in which the alternative investment vehicles or Florida Opportunity Fund invest. f. Capital call and distribution notices to investors or the Florida Opportunity Fund of an alternative investment vehicle. g. Alternative investment agreements and related records. h. Information concerning investors, other than the Florida Opportunity Fund, in an alternative investment vehicle or portfolio company. 2. “Proprietary confidential business information” does not include: a. The name, address, and vintage year of an alternative investment vehicle or Florida Opportunity Fund and the identity of the principals involved in the management of the alternative investment vehicle or Florida Opportunity Fund. b. The dollar amount of the commitment made by the Florida Opportunity Fund to each alternative investment vehicle since inception, if any. c. The dollar amount and date of cash contributions made by the Florida Opportunity Fund to each alternative investment vehicle since inception, if any. d. The dollar amount, on a fiscal-year-end basis, of cash or other fungible distributions received by the Florida Opportunity Fund from each alternative investment vehicle. e. The dollar amount, on a fiscal-year-end basis, of cash or other fungible distributions received by the Florida Opportunity Fund plus the remaining value of alternative-vehicle assets that are attributable to the Florida Opportunity Fund’s investment in each alternative investment vehicle. f. The net internal rate of return of each alternative investment vehicle since inception. g. The investment multiple of each alternative investment vehicle since inception. h. The dollar amount of the total management fees and costs paid on an annual fiscal-year-end basis by the Florida Opportunity Fund to each alternative investment vehicle. i. The dollar amount of cash profit received by the Florida Opportunity Fund from each alternative investment vehicle on a fiscal-year-end basis. (g) “Proprietor” means an alternative investment vehicle or portfolio company in which an alternative investment vehicle or Florida Opportunity Fund invests or which is being considered for investment, or an outside consultant, including the respective authorized officers, employees, agents, or successors in interest, that controls or owns information.

(2) PUBLIC RECORDS EXEMPTION. — (a) The following records held by the Florida Opportunity Fund are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution: 1. Materials that relate to methods of manufacture or production, potential trade secrets, or patentable material received, generated, ascertained, or discovered during the course of research or through research projects and that are provided by a proprietor. 2. Information that would identify an investor or potential investor who desires to remain anonymous in projects reviewed by the Florida Opportunity Fund. 3. Proprietary confidential business information regarding alternative investments for 7 years after the termination of the alternative investment. (b) At the time any record made confidential and exempt by this subsection, or portion thereof, is legally available or subject to public disclosure for any other reason, that record, or portion thereof, shall no longer be confidential and exempt and shall be made available for inspection and copying.

(3) PUBLIC MEETINGS EXEMPTION. — (a) That portion of a meeting of the board of directors of the Florida Opportunity Fund at which information is discussed which is confidential and exempt under subsection (2) is exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution. (b) Any exempt portion of a meeting shall be recorded and transcribed. The board of directors shall record the times of commencement and termination of the meeting, all discussion and proceedings, the names of all persons present at any time, and the names of all persons speaking. An exempt portion of any meeting may not be off the record. (c) A transcript and minutes of exempt portions of meetings are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(4) REQUEST TO INSPECT OR COPY A RECORD. — (a) Records made confidential and exempt by this section may be released, upon written request, to a governmental entity in the performance of its official duties and responsibilities. (b) Notwithstanding the provisions of paragraph (2)(a), a request to inspect or copy a public record that contains proprietary confidential business information shall be granted if the proprietor of the information fails, within a reasonable period of time after the request is received by the Florida Opportunity Fund, to verify the following to the Florida Opportunity Fund through a written declaration in the manner provided by s. 92.525: 1. That the requested record contains proprietary confidential business information and the specific location of such information within the record; 2. If the proprietary confidential business information is a trade secret, a verification that it is a trade secret as defined in s. 688.002; 3. That the proprietary confidential business information is intended to be and is treated by the proprietor as private, is the subject of efforts of the proprietor to maintain its privacy, and is not readily ascertainable or publicly available from any other source; and 4. That the disclosure of the proprietary confidential business information to the public would harm the business operations of the proprietor. (c)1. Any person may petition a court of competent jurisdiction for an order for the public release of those portions of any record made confidential and exempt by subsection (2). 2. Any action under this subsection must be brought in Orange County, and the petition or other initial pleading shall be served on the Florida Opportunity Fund and, if determinable upon diligent inquiry, on the proprietor of the information sought to be released. 3. In any order for the public release of a record under this subsection, the court shall make a finding that: a. The record or portion thereof is not a trade secret as defined in s. 688.002; b. A compelling public interest is served by the release of the record or portions thereof which exceed the public necessity for maintaining the confidentiality of such record; and c. The release of the record will not cause damage to or adversely affect the interests of the proprietor of the released information, other private persons or business entities, or the Florida Opportunity Fund.

(5) PENALTIES. — Any person who willfully and knowingly violates this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Legislative History

s. 1, ch. 2007-190; s. 1, ch. 2012-223.