The Connecticut Supreme Court ruled Tuesday in University of Connecticut v. Freedom of Information Commission that a public entity could invoke the trade secret exemption in the state freedom of information act to shield its own records from being released.
Typically, such trade secret exemptions are invoked to protect against the disclosure of private sector trade secret information in the possession of the government.
Former state Rep. Jonathan Pelto said that this has set a precedent that all a public agency has to do is label a customer list as a trade secret for it to be exempt. Pelto, an independent communications consultant, had filed a Freedom of Information request originally seeking material from various university databases, including the databases of the athletic department, Jorgensen Auditorium, Center for Continuing Studies and the library.
The case began when Pelto sought records in 2008 for information that the state representative said he received when he was was building the database for the University of Connecticut Advocacy Network (UCAN), an independent advocacy organization controlled by the university.
However, when he filed the request on behalf of Friends of the University of Connecticut, an advocacy and watchdog organization that Pelto, alumni and staff were trying to create, the request was denied, he said. The organization was never established.
"I never would have brought the case if I knew there would have been so much damage to FOIA," said Pelto.
According to Connecticut's state FOIA, trade secrets include customer lists.
In order to be a customer list exempt under the act, the information must meet two criteria: “it must derive independent economic value . . . and not be readily ascertainable by proper means by . . . other persons” and there must be reasonable efforts to maintain secrecy, according to a brief filed by the University of Connecticut.
The Connecticut Freedom of Information Commission argued that "the trade secrets exemption must be construed to apply to public agencies only when they are engaged in a trade.”
The court disagreed. It ruled that a public entity’s primary purpose does not need to be a “trade” in order to shield information from being disclosed under the act if the definition of a trade secret under the law contained no limiting requirement that an entity must be engaged in trade. The court continued, “the state’s ability to recoup costs or reap the financial benefits for such efforts would be seriously undermined if any member of the public could obtain such information simply by filing a request under the act.”
Accordingly, the court affirmed the lower court's ruling that only three of the four databases at issue met the customer list criteria. For the remaining library database, the court ruled that there was not enough in the factual record as to whether it was accessible to others thereby negating its confidential status, said Colleen Murphy, general counsel for the Freedom of Information Commission. The court remanded the issue back to the commission on that issue.
The University of Connecticut is gratified that the high court agreed with its position and allowed universities to “continue to safeguard data that falls under the definition [of trade secret] safely,” said university spokesman Mike Kirk.
However, the court did not give a thorough analysis of what constitutes a customer list for the future, Murphy said.