E. Business records, financial data, trade secrets
The records and financial data of private businesses are, like other documents and information maintained by private entities, not covered by the Public Records Act, with rare exceptions. However, when documents and information are submitted by private entities and individuals to government agencies, or for use in official proceedings, they are presumptively public to the extent they form part of the records of that agency. In a number of instances, the law provides for confidentiality of such documents and information submitted by private entities, particularly where such filings are required by law for purposes of regulatory oversight. Similarly, court rules provide for information and documents submitted for use in litigation to be exchanged confidentially, and at times used in court proceedings subject to protective orders to permit their use under seal, where the court finds disclosure under the circumstances would be unnecessarily burdensome, disclose trade secrets, or otherwise meet the criteria specified by law. See e.g., Alaska Civil Rule of Procedure 26(c)(7); Federal Civil Rule of Procedure 26(c)(7).
Virtually all information maintained by the Department of Revenue concerning charitable gaming operations is open to the public, given the public's strong interest in this subject, and the need to keep watch over an industry historically the target of criminal elements. March 4, 1966 Op. Att'y Gen. No. 663-95-0496. The records of certain businesses are generally public because of the quasi- public or other unique status of the companies. For example, the books and records of electric and telephone utility cooperatives are generally open to members, but may be withheld when they concern specific matters that were prepared for or during an executive session and not subsequently made public by the cooperative. AS 10.25.235. Also, the definition of "public records" under Alaska law includes books, papers, files, accounts, writings, including drafts and memorializations of conversations, and other items, that are developed or received by a private contractor for a public agency.
There are a number of specific statutory provisions authorizing confidentiality of data and documents submitted by businesses to regulators or other government agencies. Some of the more significant of these include information supplied to the Commissioner of Commerce, Community, and Economic Development by companies suspected of violating corporation laws, AS 10.06.818-.820 (for-profit corporations); and AS 10.20.655-.660 (non-profit corporations); information acquired by the Department of Community and Economic Development in the course of regulating Bidcos, AS 10.13.930 (and see generally AS 37.17.200-.390) (except where the Department determines that disclosure of non-examination information is "necessary to promote the public interest," AS 10.13.930(a); various documents and information acquired by the state insurance director in connection with the examinations of insurance companies and agents, managers and promoters, AS 21.06.150(g); insurance holding companies, AS 21.22.020; various records of insurance contracts, commissions, investigations and adjustments, and other records required to be kept concerning licensees of the Division of Insurance, AS 21.27.350(e); reports concerning surplus lines insurance, AS 21.34.080; or concerning insurance fraud, AS 21.36.400; information submitted for examination by ratings organizations, AS 21.39.060(f); and examination reports and certain related information provided to the Alaska Insurance Guarantee Association, AS 21.80.110. A variety of documents and information concerning mining operations, as well as loans for mining operations, are confidential pursuant to AS 27.05.090, 27.09.030, 27.20.041, and 27.21.100. The availability or confidentiality of various information required to be filed concerning oil and gas wells, and related production and safety issues, is addressed in AS 31.05.035. Procurement information in connection with public contracting is generally public, AS 36.30.530, except as provided by law, such as allowances for confidentiality of technical data, proprietary data and trade secrets submitted by actual or prospective bidders or offerors, AS 36.30.040(b)(6), AS 36.30.140, and AS 36.30.230. Information in the possession of the Alaska Permanent Fund Corporation is public except that information which discloses the particulars of the business or affairs of a private enterprise or investor. AS 37.13.200. Confidentiality is provided for information obtained by the Department of Revenue in the course of performing audits relating to royalty and net profits under oil and gas contracts, agreements or leases, AS 38.05.036, and certain other information relating to exploration for development of oil and gas and other public resources, AS 38.05.180(x), AS 38.05.035(a)(9), AS 38.06.060. While information in the possession of the Alaska Railroad Corporation is presumptively public and open to inspection and copying at reasonable times, AS 42.40.220, matters of a privileged or proprietary nature may be withheld from public disclosure, including proprietary information associated with specific shippers, divisions and contract rate agreements. Certain documents and information submitted by regulated utilities through the Regulatory Commission of Alaska or the Alaska Pipeline Commission, in connection with tariff filings or otherwise, may be privileged or confidential under certain circumstances, although the public generally has a presumptive right of access to records in the possession of these regulatory agencies. AS 42.05.671, AS 42.06.445. Tax returns and reports of businesses required to pay state taxes are generally confidential, but may be disclosed in connection with delinquencies. AS 43.05.230. Information submitted by tourism-related businesses to the State Department of Commerce, Community, and Economic Development that discloses the particulars of an individual business is confidential. AS 44.33.020(a)(36). Records of the Commercial Fishing and Agricultural Bank that are identified with, or identifiable as being derived from the records from a specific borrower, member of the Bank, or applicant for a loan are confidential and may not be disclosed except under certain circumstances specified in the statute, as are other specified CFAB bank records. AS 44.81.260. Information in the possession of the Department of Revenue that discloses the particulars of the business or affairs of a taxpayer is not a public record. AS 40.25.100. Information relating to secret processes or methods of manufacture discovered during investigations of actual or suspected pollution or contamination conducted by the State Department of Environmental Conservation are confidential. AS 46.03.020(6). Also, records of the DEC concerning air quality control, hazardous wastes, air pollution control and underground storage tanks, to the extent that they reveal trade secrets, production figures, sales figures, processes, production techniques and financial data that are entitled to protection under the Alaska Uniform Trade Secrets Act, or financial records submitted for purposes of regulation, are generally confidential. Alaska's Trade Secrets Act requires courts in actions brought under that statute to preserve the secrecy of alleged trade secrets by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval. AS 45.50.920.
Certain information submitted in connection with an application to the Department of Commerce, Division of Community and Business Development, for a loan from the Bulk Fuel Bridge Loan Revolving Fund is not confidential, and is available for public inspection upon request, including (1) a document that is already a public record, including deeds of trust, financing statements, warranty deeds, bills of sale, mortgages, liens, and vehicle titles; (2) general information regarding loans, including the original loan amount, loan terms, personal guarantees, and disbursement and repayment schedules; (3) insurance matters, including title insurance policies and correspondence with insurance companies or borrowers regarding losses, accident reports, and nonpayment of premiums; and (4) foreclosure and default proceedings. 3 AAC 161.090(a). Other information submitted is confidential and not subject to public disclosure: (1) personal and financial information, including income tax returns, financial statements, business income statements, pro forma profit and loss statements, credit information obtained directly from banks and other creditors, and reports obtained from consumer reporting agencies; (2) loan review staff notes containing information relating to creditworthiness of an applicant; (3) the payment history on a loan, unless the loan is in default. 3 AAC 161.090(b). Information not described in (a) or (b) may be subject to public disclosure. A request for disclosure must be made, and disclosure will be determined in accordance with 2 AAC 96. Upon receipt of a request for disclosure, the department will notify the loan applicant and other persons with a privacy interest in the request, to permit them to present reasons why the requested information should not be disclosed. In 2013, statutory changes were made with respect to the bulk fuel revolving loan program and bulk fuel bridge loan program, transferring authority over them from the Alaska Energy Authority to the division in the Department of Commerce, Community, and Economic Development responsible for community and regional affairs. 3 AAC 161.090, addressing documents that were public or confidential in connection with these, was repealed.
Certain information submitted to the Department of Commerce, Division of Investments in connection with an application for a Capstone Avionics Loan is not confidential, and is available for public inspection upon request, including (1) a document that is already a public record, including a financing statement, aircraft title or aircraft documentation; (2) general information regarding loans, including the original loan amount, loan terms, personal guarantees, and disbursement and repayment schedules; (3) insurance matters, including title insurance policies and correspondence with insurance companies or borrowers regarding losses, accident reports, and nonpayment of premiums; and (4) foreclosure and default proceedings. 3 AAC 161.090(a). Other information submitted is confidential and not subject to public disclosure: (1) personal and financial information, including income tax returns, financial statements, business income statements, pro forma profit and loss statements, credit information obtained directly from banks and other creditors, and reports obtained from consumer reporting agencies; (2) loan review staff notes containing information relating to creditworthiness of an applicant; (3) the payment history on a loan, unless the loan is in default. 3 AAC 161.090(b). Information not described in (a) or (b) may be subject to public disclosure. A request for disclosure must be made, and disclosure will be determined in accordance with 2 AAC 96. Upon receipt of a request for disclosure, the department will notify the loan applicant and other persons with a privacy interest in the request, to permit them to present reasons why the requested information should not be disclosed. 3 AAC 75.075(a), (b), (c).
Nearly identical regulations governing addressing what documents were public or confidential in connection with the Bulk Fuel Bridge Loan Revolving Fund and Bulk Fuel Bridge Loans, in 3 AAC 161.090, were repealed. In 2013, statutory changes were made with respect to the bulk fuel revolving loan program and bulk fuel bridge loan program, transferring authority over them from the Alaska Energy Authority to the division in the Department of Commerce, Community, and Economic Development responsible for community and regional affairs. It is not clear whether the former regulations have been re-stated elsewhere.
A renewable energy grant application and other materials submitted to the Alaska Energy Authority under AS 42.45.045 and 3 AAC 107.600—3 AAC 107.695 are subject to disclosure under AS 40.25.100 -- 40.25.295, the Alaska Public Records Act, and 2 AAC 96, unless the Authority determines that the material is protected from disclosure under AS 40.25.120. 3 AAC 107.630(a). A person submitting a grant application may request that the Authority keep certain information confidential. The request must (1) clearly designate the specific information to be kept confidential; and (2) specifically describe the basis for asserting that the information is protected from disclosure under AS 40.25.120; if the person believes the information is protected as a trade secret or business proprietary information, the description must include analysis of whether the person's commercial privacy interest in protecting the information from disclosure outweighs the public interest in obtaining the information. 3 AAC 107.630(b). If the Authority receives a public records request and determines the information requested is protected from disclosure under AS 40.25.120, the authority will not release the information except to Energy Authority personnel and contractors for purposes of evaluating the person's application. If the Authority determines the information may not be protected from disclosure under AS 40.25.120, the Authority will notify the person submitting the information, who is responsible at the person's own expense for seeking judicial relief or taking other action necessary to protect the material from disclosure under AS 40.25.100 - 40.25.295.
No specific statute generally exempts business records, financial data or trade secrets from the rule favoring disclosure of public records in Arizona. In several areas, however, records, trade secrets and proprietary data have been protected by individual statutes. See, e.g., A.R.S. § 3-374(A)(1) (pesticide control); A.R.S. § 27-110(A) (geologic, engineering and feasibility studies); A.R.S. § 27-234(H) (lease of state lands for mineral claims); A.R.S. § 27-571 (well records); A.R.S. § 28-7707(A) (public-private partnerships in transportation); A.R.S. § 30-808 (electric retail competition information); A.R.S. § 49-487(C)(1) (air pollution); A.R.S. § 49-928(A)(1) (hazardous waste); A.R.S. § 49-967(A)(1) (pollution prevention); A.R.S. § 49-1012(A) (underground storage tanks).
In Ariz. Portland Cement Co. v. Ariz. State Tax Court, 185 Ariz. 354, 357, 916 P.2d 1070, 1073 (Ct. App. 1995), the court held that a taxpayer’s private business records, which were disclosed to the county assessor to protest the assessed valuation of its business property, remained confidential and were not subject to A.R.S. § 39-121. Furthermore, to the extent that the court turned to the Freedom of Information Act for guidance in Church of Scientology, 122 Ariz. at 340, 594 P.2d at 1036, certain records containing trade secrets or commercial or financial information might be exempted from disclosure. See 5 U.S.C. § 552b(d)(4).
This information is potentially exempt by virtue of the FOIA exemption for records which, if disclosed, “would give advantage to competitors or bidders.” Ark. Code Ann. § 25-19-105(b)(9)(A). Insofar as individual financial records are concerned, the constitutional right to privacy may prohibit disclosure. See Ark. Op. Att’y Gen. Nos. 96-363, 90-324, 87-415. Other statutes exempt information of this type in the hands of various state agencies. E.g., Ark. Code Ann. § 2-16-418 (trade secrets and financial information submitted to State Plant Board); § 4-88-111 (trade secrets obtained by consumer protection division of Attorney General’s office); §§ 8-4-207, 8-4-308, 8-7-811 & 8-7-909 (trade secrets obtained by Commission on Pollution Control & Ecology and Department of Environmental Quality); § 8-7-1012 (records submitted to Department of Labor to substantiate a trade secret claim under Public Employees’ Chemical Right to Know Act); § 12-10-318 (proprietary information submitted to CMRS Emergency Telephone Services Board); § 15-4-606 (applications and related documents submitted to Arkansas Economic Development Commission under Industrial Revenue Bond Law); § 15-4-1226 (records obtained by State Bank Department concerning county and regional industrial development companies); § 15-5-409 (loan guarantee applications filed with Arkansas Development Finance Authority); § 17-25-304 (financial records provided to Contractors Licensing Board); § 23-2-316 (proprietary information or trade secrets of utilities regulated by Public Service Commission); § 23-42-207 (financial records of broker-dealers and investment advisers regulated by Securities Commissioner, and trade secrets of any person); §§ 23-67-212, 23-67-219 (trade secrets and proprietary information filed with Insurance Commissioner). In judicial proceedings, courts may seal records to protect trade secrets. Ark. Code Ann. § 4-75-605.
Business and financial records are open to public access when used as the basis for a public agency's decision-making. San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983). However, information that constitutes a trade secret is generally exempt from disclosure. Gov't Code §§ 6254(k)(engrafting into CPRA exemptions under federal and state law, including provisions of California Evidence Code relating to privileges). Trade secret protection, however, is not absolute. See, e.g., Coalition of Univ. Employees v. Regents of Univ. of Cal., 32 Med. L. Rptr. 1212 (Cal. Sup. Ct. 2003)(even assuming internal rates of return of private equity investments made by university were trade secrets, disclosure turns on balancing of interests and public interest in disclosure outweighed interest in nondisclosure).
Several provisions govern disclosure of various financial records. For example, statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with such licensing agency to establish personal qualification for the license, certificate or permit applied for, are exempt from disclosure. Cal. Gov't Code § 6254(n). Financial data contained in applications for financing from the California Pollution Control Financing Authority is not subject to disclosure where an authorized officer of the Authority determines that disclosure of such financial data would be competitively injurious to the applicant and such data is required in order to obtain guarantees from the U.S. Small Business Administration. Cal. Gov't Code § 6254(o). Corporate financial data and corporate proprietary information furnished to a government agency by a private company for the purpose of permitting the agency to work with the company in retaining, locating or expanding a facility in California are exempt from disclosure. Cal. Gov't Code § 6254.15.
If a business record is in the custody of a state agency and involves the receipt or expenditure of public funds, it is a public record under Colo. Rev. Stat. § 24-72-202(6) and subject to the Open Records Act. Freedom Newspapers Inc. v. Denver & Rio Grande Western R.R., 731 P.2d 740 (Colo. App. 1986).
Some business records in state custody may be specifically exempt from inspection. These include:
Information furnished by employers to the Division of Labor. Colo. Rev. Stat. §§ 8-1-115 and 8-47-202.
Information furnished by securities brokers-dealers to the securities commissioner. Colo. Rev. Stat. § 11-51-703(2). See Griffin v. S.W. Devanney & Co., 775 P.2d 555 (Colo. 1989).
Tax records. Colo. Rev. Stat. § 39-21-113.
Trade secrets. Colo. Rev. Stat. § 8-1-115; Colo. Rev. Stat. § 25-8-405.
Exempt if obtained from a person and are of a privileged or confidential nature under open records exemption two. 29 Del. C. § 10002(g)(2). For example, financial data supplied to the Division of Alcoholic Beverage Control by applicants for liquor licenses is exempt from disclosure, Del. Op. Att'y Gen., No. 87-I031 (Nov. 4, 1987), but disclosure of financial data may be required where a protest is filed. Pusey v. Delaware Alcoholic Beverage Control Comm'n, 596 A.2d 1367 (Del. 1991). Information turned over to the state by a company will not be protected as a trade secret when there is no apparent threat of competitive harm. Del. Op. Att’y Gen., No. 14-ib04 (July 18, 2014).
District of Columbia
Trade secrets and commercial or financial information are specifically exempted under D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989). In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." § 2-534(a)(1).
The Act does not exempt business records or financial data and public agencies are not entitled to withhold records that they consider their “trade secrets.” Ga. Op. Att’y Gen. 94-15 (1994); see, e.g., Hardaway Co. v. Rives, 262 Ga. 631 (1992) (refusing to protect Department of Transportation bid evaluation methodologies and formulae). "Trade secrets" are exempt from disclosure under the Act only if obtained by an agency from a person or entity required by law, regulation, bid, or request for proposal to submit them and then only if accompanied at the time of submission by an affidavit affirmatively declaring and identifying the specific information claimed to constitute trade secrets. O.C.G.A. § 50-18-72(a)(34). If the agency makes a determination that the specifically identified information does not in fact constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor with a copy of its court filing. If the agency makes a determination that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure. Id. See, e.g., Ga. Dept. of Natural Resources v. Theragenics Corp., 273 Ga. 724, 725, 545 S.E.2d 904 (2001) (a corporation had the right to enjoin a state agency from allowing a third-party competitor to review the agency's file on the corporation, which included some of the corporation's trade secrets, after the third party filed a request with the agency under the Open Records Act).
Conclusory assertions of trade secret status are insufficient to permit a trial court to enjoin public disclosure of an otherwise public record. State Rd. & Tollway Auth. v. Elec. Transaction Consultants Corp., 306 Ga. App. 487, 490, 702 S.E.2d 486, 489 (2010).
Unlike the FOIA, 5 U.S.C.A. § 552(b)(4), and Hawaii's earlier Privacy Act, Haw. Rev. Stat. ch. 92E (repealed by Chapter 92F), Chapter 92F does not expressly exclude from its disclosure requirement trade secrets and confidential or financial information obtained, upon request, from an individual. Cf. Honolulu Corp. Counsel Op. No. M-84-15 (Apr. 12, 1984) (holding that bid proposals containing trade secrets could be withheld). However, Section 92F-14(6) states that information describing an individual's financial history or activities, or credit worthiness may be information in which the individual has a significant privacy interest, which must be weighed against the public interest in disclosure. Furthermore, in the case of corporations, disclosure of "confidential commercial or financial information" obtained by an agency may frustrate the agency's ability to perform a legitimate government function. Demurrage Fee Report Forms and Invoices, OIP Op. Ltr. No. 92-9 (July 17, 1992) (refusing to shield agency reports filed by private companies to self-report demurrage fees owed for their use of government-owned harbor facilities).
Depends; such records are exempt if release would cause competitive harm to a person or entity from which the records were obtained. See 5 ILCS 140/7(1)(g); see also BlueStar Energy Services, Inc. v. Illinois Commerce Comm'n, 374 Ill. App. 3d 990, 871 N.E.2d 880 (1st Dist. 2007) (holding that documents furnished to state agency that regulates public utilities by a regulated utility company were exempt from disclosure for containing confidential information). Financial information pertaining to a public body’s regulation of financial institutions is closed. See 5 ILCS 140/7(1)(t).
Records containing trade secrets are confidential. Ind. Code § 5-14-3-4(a)(4). Trade secrets are defined as: “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure and use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Ind. Code § 24-2-3-2; see also id. § 5-14-3-2(t). Whether information constitutes “trade secrets” is an issue subject to judicial interpretation. See Indiana Bell Tel. Co. v. Indiana Util. Regulatory Comm’n, 810 N.E.2d 1179, 1187 (Ind. App. 2004) (telephone service providers’ responses to an Indiana agency’s survey were public records, not protected by trade secret exemption, where not all providers requested response confidentiality and where most of the information was very general); ESPN Prods., Inc. v. Indiana Dep’t of State Revenue, 28 N.E.3d 378, 381–82 (Ind. Tax Ct. 2015) (holding that a Production Services Agreement was exempt from disclosure under the trade secrets exemption).
Confidential financial information is exempt from disclosure, although financial information filed with a public agency pursuant to state statute is subject to disclosure. Ind. Code § 5-14-3-4(a)(5). Administrative or technical information that would jeopardize a record-keeping or security system may not be disclosed by public agency unless specifically required by law or court order. Ind. Code § 5-14-3-4(b)(10). See City of Elkhart v. Agenda: Open Gov’t, Inc., 683 N.E.2d 622, 626–27 (Ind. Ct. App. 1997) (holding that telephone numbers in and of themselves are neither technical nor administrative information).
“Trade secrets which are recognized and protected as such by law.” Iowa Code § 22.7(3). "The custodian of such a record (computer program and data base), however, is required to keep it confidential if the record is a trade secret recognized and protected by law." Brown v. Iowa Legislative Council, 490 N.W.2d 551, 552 (Iowa 1992).
"Business information may also fall within the definition of a trade secret, including such matters as maintenance of data on customer lists and needs, source of supplies, confidential costs, price data and figures." US West Commc’ns Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714 (Iowa 1993). However, in order to get trade secret protection, the company must prove independent economic value. See Iowa Film Prod. Svcs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 222 (Iowa 2012) (citing US West Commc’ns Inc. v. Office of Consumer Advocate, 498 N.W.2d 711, 714-15 (Iowa 1993) (“We held [in US West] that the lease/sale information did not qualify for a trade secret exemption under section 22.7(3) because the ‘independent economic value’ element had not been met.”).
"A trade secret is a process or device for continuous use in the operation of a business." Basic Chemicals Inc. v. Benson, 251 N.W.2d 220, 226 (Iowa 1977).
(Information concerning pre-arranged funeral plans which must be filed with the county attorney in the county where the plan is located pursuant to Iowa Code Chapter 523A is not protected as a trade secret. 83 Op. Att'y Gen. 70, 71 (July 18, 1983).
Budget summaries for a film do not qualify as protectable trade secrets. Iowa Film Prod. Svcs. v. Iowa Dep’t of Econ. Dev., 818 N.W.2d 207, 210 (Iowa 2012).
Trade secret protection cannot be used to shield trade secrets from the regular discovery process in litigation. Mediacom Iowa, L.L.C. v. Inc. City of Spencer, 682 N.W.2d 62, 69 (Iowa 2004).
Public records pertaining to prospective location of a business or industry are exempt from disclosure under K.S.A. 45-221(a)(31). Well samples, logs or surveys which the state corporation commission requires to be filed are exempt from disclosure under K.S.A. 45-221(a)(19). Market research and plans, business plans and the terms and conditions of managed care or other third party contracts, developed or entered into by the University of Kansas Medical Center are also exempt under K.S.A. 45-221(a)(43).
Disclosure of financial records of public grain elevators applying for licenses is mandated under KORA, Kan. Att’y Gen. Op. 1983-49. A settlement agreement entered into by a city is a public record under KORA and therefore must be disclosed. 1993-55. Tax audit records are public records under KORA, but some information contained in such records may be confidential and disclosure is prohibited by K.S.A. 79-3234. Kan. Att’y Gen. Op. 1995-06.
May be exempt under Ky. Rev. Stat. 61.878(1)(c).
Records, which constitute the “inner workings” of the business, are generally exempt from disclosure under Ky. Rev. Stat. 61.878(1)(c). 99-ORD-220; see also Marina Management Servs. v. Cabinet for Tourism, Dep't of Parks, 906 S.W.2d 318 (Ky. 1995); Hoy v. Kentucky Indus. Revitalization Auth., 907 S.W.2d 766 (Ky. 1995).
Business or financial records of a quasi-public corporation receiving public funds are public records from the time the public funds are received, Lewis v. Spurney, 456 So. 2d 206 (La. App. 4th Cir.), writ denied, 457 So. 2d 1183 (La. 1984), writ denied, 458 So. 2d 488 (La. 1984). But proprietary or trade secret information provided to public bodies by the developer, owner, or manufacturer of a code, pattern, formula, design, device, method or process in order to obtain approval for sale or use in the state is specifically exempted from the Public Records Act. La. Rev. Stat. Ann. § 44:3.2. Business records and financial records provided to state agencies as a consequence of regulatory laws may be protected by the constitutional right of privacy or pursuant to section 4(3). La. Rev. Stat. Ann. § 44:4(3). See Op. Att'y Gen. 95-254A (it is an open question best left to courts whether constitutional right of privacy applies to third-party financial information notwithstanding Public Records Act). Several opinions of the Attorney General conclude that this exemption extends to proprietary and financial information of nonprofit organizations, private persons, and companies if the information is confidential in nature. Op. Att'y Gen. 00-36 (confidential business information provided to La. State Dept. of Agriculture and Forestry by regulated entities); Op. Att'y Gen. 94-508 (personally identifiable financial information contained within public utility records should not be released to protect privacy of individual customers); Op. Att'y Gen. 92-698; Op. Att'y Gen. 89-550; Op. Att'y Gen. 89-598; Op. Att'y Gen. 87-320; Op. Att'y Gen. 83-493; and Op. Att'y Gen. 82-860. But see Times-Picayune Publishing Corp. v. New Orleans Aviation Board, 742 So. 2d 979 (La. App. 5th Cir.), writ denied, 751 So. 2d 257 (La. 1999) (applicants for Disadvantaged Business Enterprise eligibility have no expectation of privacy regarding certain general financial information submitted in applications but more specific information marked "confidential" is except from disclosure).
There is also a narrow statutory exclusion for financial or trade secrets relating to automated broker interface systems or automated manifest systems conducted by deep water or shallow draft port commissions of the State. La. Rev. Stat. Ann. § 44:4(13)(b); Op. Att'y Gen. 95-254(A).
The FOAA contains an exception to the definition of “public records” for trade secrets. “Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding” fall outside the definition of the term “public records.” 1 M.R.S.A. § 402(3)(B). Maine recognizes a privilege protecting disclosure of trade secrets. M.R.Evid. 507 and M.R.Civ.P. 26(c). The Law Court has interpreted the trade secrets privilege as an exception to the FOAA. Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶¶ 20-22, 769 A.2d at 864-65 (citing M.R.Evid. 507); see also Medical Mut. Ins. Co. of Maine v. Bureau of Ins., 2005 ME 12, ¶¶ 11-14, 866 A.2d 117, 121 (citing M.R.Civ.P. 26(c)).
To determine whether information in a record qualifies as a “trade secret” exempt from disclosure under the FOAA, the Law Court applies the definition of “trade secret” found in the Uniform Trade Secrets Act. “For purposes of the section 40(3)(B) exception, we have used the definition of ‘trade secret’ in the Uniform Trade Secrets Act: information that [d]erives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure.” Medical Mut. Ins. Co., 2005 ME 12, ¶ 13 (internal quotation marks omitted). To qualify as a “trade secret” information must also be “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” 10 M.R.S.A. § 1542(4)(B). Information that is not subject to such reasonable efforts must be disclosed. See Hosp. Admin. Dist. No. 1, 2001 ME 59, ¶ 22 (“Because the compensation records at issue have not been the subject of efforts to maintain their secrecy, they are not trade secrets . . . .”).
In addition to the generally applicable exemption for trade secrets, some Maine statutes identify various records or information as confidential because they constitute trade secrets or similar types of business or competitive information.
These records are closed pursuant to § 4-335. This exemption does not cover commercial or financial information generated by the agency itself; however, such information may be covered by other law. See Stromberg Metal Works, Inc. v. University of Maryland, 382 Md. 151, 167-70 (2004).
Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy" are exempt from disclosure when under certain conditions. Mich. Comp. Laws Ann. § 15.243(1)(f). See also Booth Newspapers Inc. v. University of Michigan Board of Regents, 444 Mich. 211, 507 N.W.2d 422 (1993); see City of Novi for interpretation and application of 15.243(1)(f).
Open, unless protected by statute, because the privacy exception to the public's right to know does not extend to non-human entities such as corporations, and cannot serve as a basis for protecting trade secrets and other confidential proprietary information of non-human entities. See Great Falls Tribune v. Montana Public Service Comn., 2003 MT 359, 19 Mont. 38, 82 P.3d 876.
Trade Secrets may be withheld.
Proprietary or commercial information in the hands of government is excepted from public record access if release "would give advantage to business competitors and serve no public purpose." Neb. Rev. Stat. §84-712.05(3). In Aksamit Resource Management, LLC v. Nebraska Public Power District, 299 Neb. 114, 907 N.W.2d 301 (2018), the Supreme Court made it clear that the “no public purpose” language does not permit balancing competitive advantage with possible public purposes, and if a public purpose is identified, proprietary information may not be withheld. Business records and financial data relating to government operations are ordinarily open for public inspection:
"Sections 84-712 to 84-712.03 shall be liberally construed whenever any state, county or political subdivision fiscal records, audit, warrant, voucher, invoice, purchase order, requisition, payroll, check, receipt or other record of receipt, cash or expenditure involving public funds is involved in order that the citizens of this state shall have full rights to know of, and have full access to information on the public finances of the government and the public bodies and entities created to serve them." Neb. Rev. Stat. §84-712.01(2).
N.J.S.A. 47:1A-1.1 exempts from access trade secrets and proprietary commercial or financial information. Bills to public entities from providers of goods and services, including attorneys and other professionals, are public records under OPRA Courier Post v. Lenape, see also Keddie v. Rutgers, 286 N.J. Super. 285, 669 A.2d 247 (App. Div. 1996); Hunterdon County Policemen's Benevolent Ass'n v. Township of Franklin, 286 N.J. Super. 389, 669 A.2d 299 (App. Div. 1996). However, detailed telephone and car phone toll billing records of public officials which reveal the telephone numbers called are not public records. North Jersey Newspapers Co. v. Passaic County Bd. of Chosen Freeholders, 127 N.J. 9, 601 A.2d 693 (1992).
Trade secrets are exempt from disclosure. NMSA 1978 § 14-2-1(A)(6) (2011). The exact nature of the information is important. See, e.g., NMSA 1978 §58-1-48 (1995) (records of financial institutions are secret); certain corporate records filed with the Public Regulation Commission limit publicly available information to the name of corporation, names and addresses of the officers, and certain financial information is not disclosed. But see 1951 N.M. Op. Att'y Gen. 5342 which suggests that most business and financial records are public records. Presumably, a significant burden of establishing that the records are not public would rest on the public body arguing secrecy. See NMSA 1978 § 14-2-5 (1993). See also City of Las Cruces v. Public Employees Labor Relations Board, 1996-NMSC-24, ¶ 8, 917 P.2d 451 (balancing test criteria); but see Edenburn v. New Mexico Dep't of Health, 2013-NMCA-045, ¶ 26, 299 P.3d 424, 432 (a regulation may prohibit release of records under IPRA only when it has the force of law).
Business records, financial data and trade secrets of private businesses are closed, unless disclosed in a submission to a government entity. However, G.S. §§ 133-33, 143-52 and 143-53, which govern the competitive bid procedures to be followed in awarding state contracts, provides that while all bids shall be open to public inspection following the award of a contract, “trade secrets, test data and similar proprietary information” submitted in connection with a bid may remain confidential.
Please see the discussion of statutory exemptions, outlined in Section II(A)(2) above.
Additionally, the open records statute provides:
1. Trade secret, proprietary, commercial, and financial information is confidential if it is of a privileged nature and it has not been previously publicly disclosed.
2. Under this section, unless the context otherwise requires:
a. “Commercial information” means information pertaining to buying or selling of goods and services that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
b. “Financial information” means information pertaining to monetary resources of a person that has not been previously publicly disclosed and that if the information were to be disclosed would impair the public entity’s future ability to obtain necessary information or would cause substantial competitive injury to the person from which the information was obtained.
c. “Proprietary information” includes:
(1) Information shared between a sponsor of research or a potential sponsor of research and a public entity conducting or negotiating an agreement for the research.
(2) Information received from a private business that has entered or is negotiating an agreement with a public entity to conduct research or manufacture or create a product for potential commercialization.
(3) A discovery or innovation generated by the research information, technical information, financial information, or marketing information acquired under activities described under paragraph 1 or 2.
(4) A document specifically and directly related to the licensing or commercialization resulting from activities described under paragraph 1, 2, or 6.
(5) Technical, financial, or marketing records that are received by a public entity, which are owned or controlled by the submitting person, are intended to be and are treated by the submitting person as private, and the disclosure of which would cause harm to the submitting person’s business.
(6) A discovery or innovation produced by the public entity that an employee or the entity intends to commercialize.
(7) A computer software program and components of a computer software program that are subject to a copyright or a patent and any formula, pattern, compilation, program, device, method, technique, or process supplied to a public entity that is the subject of efforts by the supplying person to maintain its secrecy and that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that might obtain economic value from its disclosure or use.
(8) A discovery or innovation that is subject to a patent or a copyright, and any formula, pattern, compilation, program, device, combination of devices, method, technique, technical know-how or process that is for use, or is used, in the operation of a business and is supplied to or prepared by a public entity that is the subject of efforts by the supplying or preparing person to maintain its secrecy and provides the preparing person an advantage or an opportunity to obtain an advantage over those who do not know or use it or that may derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, a person that might obtain economic value from its disclosure or use.
d. “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, technical know-how, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons that can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain the secrecy of the information.
3. This section does not limit or otherwise affect a record pertaining to any rule of the state department of health or to any record pertaining to the application for a permit or license necessary to do business or to expand business operations within this state, except as otherwise provided by law.
4. This section does not limit the release or use of records obtained in an investigation by the attorney general or other law enforcement official.
5. Unless made confidential under subsection 1, the following economic development records and information are exempt:
a. Records and information pertaining to a prospective location of a business or industry, including the identity, nature, and location of the business or industry, when no previous public disclosure has been made by the business or industry of the interest or intent of the business or industry to locate in, relocate within, expand within this state, or partner with a public entity to conduct research or to license a discovery or innovation. This exemption does not include records pertaining to the application for permits or licenses necessary to do business or to expand business operations within this state, except as otherwise provided by law.
b. Trade secrets and proprietary, commercial, or financial information received from a person that is interested in applying for or receiving financing, technical assistance, or other forms of business assistance.
N.D.C.C. § 44-04-18.4.
Certain financial records and contracts of entities which have entered into agreements with public agencies are public records, subject to exceptions that identify patients, or contain confidential professional services. Ohio Revised Code § 149.431.
The Ohio Supreme Court has applied Ohio's general law prohibiting disclosure of trade secrets to the financial records of a private business submitted to a public office under assurance that confidentiality would be maintained. State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992)(although application for approval of tax-abatement project was a public record, materials related to and submitted with the applications should have been reviewed in camera to determine if they were subject to an exemption); see also Brookville Equip. Corp. v. Cincinnati, Ohio App. 1st Dist. No. C-120434, 2012-Ohio-3648, ¶¶ 12-22 (same). The court has also held that governmental entities can create their own trade secrets that are excepted from disclosure. State ex rel. Besser v. Ohio State University, 87 Ohio St. 3d 535, 721 N.E.2d 1044 (2000) (state university hospitals financial data constituted trade secrets exempt from disclosure).
The costs to acquire investment property are not trade secrets, even if their disclosure adversely affects the government's ability to recoup its investment. State ex rel. Toledo Blade Co. v. Ohio Bureau of Workers' Comp., 106 Ohio St. 3d 113 (2005).
Trade secrets in books and papers held by a person who collects premiums for insurance companies for a trust, including the identities and addresses of policyholders and certificate holders, are confidential. 36 O.S. § 1443.E. Any public body may keep confidential research information if the disclosure of the information could affect the ability to patent or copyright the research or have any other effect on a proprietary right an entity might have in the research. 51 O.S. § 24A.19. Any information submitted or compiled by the Oklahoma Development and Finance Authority concerning marketing plans, trade secrets, financial statements or any other commercially sensitive information is confidential. 74 O.S. § 5062.6. Any information submitted to or compiled by the Oklahoma Center for the Advancement of Science and Technology concerning marketing plans, trade secrets, research concepts, financial statements, or any other proprietary information is confidential. 74 O.S. § 5060.7. The Corporation Commission may keep confidential information concerning public utility trade secrets. 51 O.S. § 24A.22. In finding that a “draft” audit report of a city was a record to be produced under the Open Records Act, the Oklahoma Court of Civil Appeals held that whether a document is a record depends upon “‘the totality of the circumstances surrounding the creation, maintenance, and use of the document,’ regardless of the ‘status’ of a document as ‘preliminary’ or ‘final’”. Int'l. Union of Police Assoc'ns v. City of Lawton, 2009 OK CIV APP 85.
See specific exemptions for: trade secrets (ORS 192.345(2) (formerly ORS 192.501(2))); production data (ORS 192.345(5) (formerly 192.501(5))); production, sales, and cost data or customer lists submitted to agencies (ORS 192.355(17) (formerly ORS 192.502(17))); and personal information (ORS 192.355(2) (formerly ORS 192.502(2))).
In addition, income tax reports under ORS 314.835 and 314.840 are not subject to disclosure, and export trading corporation financial records and trade secrets are exempt from disclosure as well under ORS 777.795. Industrial plant valuation information is considered confidential under ORS 308.413.
“Trade secrets and financial or commercial information obtained from a person, firm, or corporation, which is of a privileged or confidential nature” are exempt from disclosure. R.I. Gen. Laws § 38-2-2(4)(i)(B).
Records reflecting financial settlements by public bodies of legal claims against a governmental body are expressly public. R.I. Gen. Laws § 38-2-14.
Business records and financial data submitted to the government in most instances will be closed. S.C. Code Ann. §§ 30-4-40(a)(2) and 30-2-50 (precludes use of personal information for commercial solicitation). Property tax returns are open and even though trade secrets are exempt from mandatory disclosure under section 30-4-40(a)(1) if the information is related to the assessment of an ad valorem tax, the information will be available for public inspection and copying. S.C. Tax Comm'n. v. Gaston Copper Recycling Corp., 447 S.E.2d 843, 22 Media L. Rep. 2211 (S.C. 1994).
Some such records are closed. See T.C.A. §§ 4-3-712 et seq. (proprietary information acquired by the Department of Economic and Community Development is confidential; T.C.A § 13-27-113 (information submitted to or compiled by the Tennessee Competitive Export Corporation pertaining to commercially sensitive information is confidential); T.C.A. § 45-7-216 (information contained in examinations, reports, applications, credit, investments, financial statements, and balance sheets is confidential); T.C.A. § 49-7-120 (trade secrets, patentable information, proprietary information, and commercial or financial information used in research done at state colleges and universities are closed); T.C.A. § 50-3-504, 914 (trade secrets or other privileged information disclosed to or obtained by the Department of Labor pursuant to enforcement of occupational safety and health laws are closed); T.C.A. § 50-3-2013 (information containing or revealing trade secrets obtained by the Commissioner of Labor while enforcing the Hazardous Chemical Right to Know Law is closed). However, the name and address of an owner of a business tax license on deposit with the county clerk is public record. T.C.A. § 67-1-1707(f).
A request for the identities of all licensed tobacco wholesale distributors in the state was denied because it would have resulted in disclosure of tax return information, as defined by T.C.A. § 67-1-1702. McLane v. State, 115 S.W.3d 925 (Tenn. Ct. App. 2002).
Commercial or financial information for which it is demonstrated through specific factual evidence that disclosure would cause substantial competitive harm to the person from whom the information was obtained is not subject to disclosure. See Tex. Gov’t Code 552.110.
In addition to budgets, a governmental bank account records, and canceled checks are public. Tex. Att’y Gen. ORD-52 (1974); Tex. Att’y Gen. ORD-7 (1973). Tax records can provide additional public information about businesses. For example, a taxpayer’s name, place of business, and name of the city to which local sales taxes and use taxes are credited are not exempt from public disclosure. Tex. Gov’t Code § 552.022(a)(6). However, the amount of gross sales taxes is confidential under a specific taxation provision. Tex. Att’y Gen. ORD-17 (1974). A school district tax assessor’s rendition book is public. Tex. Att’y Gen. ORD-76 (1975). Although some Tax Code provisions make certain types of tax information confidential, “[t]ax information is not, per se, confidential.” Tex. Att’y Gen. ORD-568 (1990). The Texas Attorney General at least once rejected an argument that a constitutional right of privacy exists concerning financial affairs. Tex. Att’y Gen. Op. No. H-258 (1974). In A & T Consultants Inc. v. Sharp, the Texas Supreme Court granted mandamus relief compelling disclosure of certain information regarding the state’s franchise taxpayers in the possession of the state comptroller. 904 S.W.2d at 668 (holding that information revealing why certain entities were selected for auditing and methods of auditors was exempt from disclosure while other data from completed audits was subject to disclosure). This information included corporate charters, certificates and degrees of dissolution, and facts from completed audits. However, the Court did not compel the comptroller to disclose the reasons for which audits were conducted, the choice of an audit method, taxpayers’ responses to an audit, codes assigned to each audit, or the amounts of deficiencies or refunds. Id. at 679-81.
While trade secrets themselves are specifically excepted, information concerning whether a required public filing of trade secret information has been made is public information. Tex. Gov’t Code.§ 552.110; Tex. Att’y Gen. ORD-89 (1975). Determination of whether particular information is a trade secret is a fact question. Tex. Att’y Gen. ORD-609 (1992). Following the holding in Hyde Corp., v. Huffines, 314 S.W.2d 763 (Tex. 1958), cert. denied, 358 U.S. 898 (1958), the Attorney General has relied on the trade secrets definition in the Restatement of Torts, Section 757, comment b (1939).Tex. Att’y Gen. ORD-609 (1992). This definition considers six factors: (1) the extent to which the information is known outside the company; (2) the extent to which it is known by employees and others in the company; (3) the extent of company measures to guard the information’s secrecy; (4) the information’s value to the company and its competitors; (5) the effort and money spent developing the information; and (6) the ease or difficulty to properly acquire or duplicate the information. Id. For example, the volume and location of chemicals used by semiconductor manufacturers may be trade secrets protected from public disclosure, but the identity of chemicals commonly used in the business is not. Tex. Att’y Gen. ORD-554 (1990). Even if records are not protected as trade secrets, copying of some records may be protected under federal copyright law. Tex. Att’y Gen. ORD-550 (1990).
1. Department of Commerce records concerning “incorporations, mergers, name changes, and uniform commercial code fillings” are generally public. Utah Code § 63G-2-301(2)(h).
2. If properly classified by the government, commercial or nonindividual financial information is protected if disclosure of such information could reasonably result in unfair competitive injury to the person or entity submitting the information or would result in the government’s impaired ability to obtain necessary information in the future; “the person submitting the information has a greater interest in prohibiting access than the public in obtaining access;” and the person submitting the information has provided the government with certain requisite information. Id. § 63G-2-305(2).
3. Trade secrets are generally protected. See id. § 63G-2-305(1). In DataLister Inc. v. Utah Labor Comm’n, No. 00-01 (Utah State Rec. Comm. Jan. 14, 2000), the State Records Committee determined that records regarding employers’ insurance coverage are protected as trade secrets under Utah Code sections 63-2-304(1) (renumbered as section 63G-2-305), 13-24-2(4), and 63-2-308(1) (renumbered as section 63G-2-309).
4. Materials to which access must be limited to secure or maintain the government entity’s proprietary interest in patents, copyrights, and trade secrets are classified as protected. Utah Code § 63G-2-305(36).
5. Civil antitrust investigations by the attorney general will be kept confidential unless waived; such information, however, may be disclosed to a grand jury and to officers of federal and state law enforcement agencies. See id. § 76-10-3107(9).
6. The identity of a person being investigated under the Consumer Sales Practices Act may not be disclosed publicly unless the person’s name has become a matter of public record or he or she has consented. See id. § 13-11-7(2). Final judgments rendered under the Act are public records. See id. § 13-11-7(1).
7. Credit reports and financial statements submitted by a person wanting to be licensed in the construction trades are confidential, and are therefore not subject to GRAMA. See id. § 58-55-307(1)(a).
8. Shareholders of business corporations have the right to examine the corporation’s books and records at a reasonable time for a proper purpose. See id. § 16-10a-1602.
9. A director or a member of a nonprofit corporation is entitled to inspect and copy certain records of the corporation including its articles and bylaws, resolutions adopted by the board of directors, minutes of all members’ meetings for a period of three years, records of all action taken by members without a meeting for a period of three years, a list of the names and addresses of the nonprofit’s members and directors, financial statements for the preceding three years, and a copy of the nonprofit’s most recent annual report. See id. §§ 16-6a-1601, -1602.
10. The Department of Financial Institutions may not disclose the names or identities of persons or the facts it investigates under the Utah Consumer Credit Code. See id. § 70C-8-103(5). This restriction does not apply to disclosures made during an enforcement proceeding. See id. § 70C-8-103(6).
11. Unless waived by the entity, books and records of an agricultural cooperative association may be inspected only by a member or by a member’s agent or attorney. See id. § 3-1-43(1). The information contained in the records may not be disclosed to third parties without the association’s prior consent. See id. § 3-1-43(3).
12. All registrations and bonds filed with the Division of Corporations and Commercial Code by collection agencies are open to public inspection. See id. § 12-1-5.
13. Records relating to the ownership of security interests in registered public obligations are not subject to public inspection or copying. See id. § 15-7-11(1).
14. The Securities Division’s register of all applications for registration and registration statements is open for public inspection. See id. § 61-1-25(2).
15. Records of all trademarks or service marks registered with the Division of Corporations and Commercial Code are open for public examination. See id. § 70-3a-202.
Trade secrets, financial data, tax returns and other confidential commercial information are generally closed.
“Trade secrets, meaning confidential business records or information, including any formulae, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which a commercial concern makes efforts that are reasonable under the circumstances to keep secret, and which gives its user or owner an opportunity to obtain business advantage over competitors who do not know it or use it” are exempt from disclosure. 1 V.S.A. § 317(c)(9). The Vermont Supreme Court has read the exemption regarding trade secrets broadly enough to include records submitted by bidders to state agencies when competing for government contracts. See Springfield Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 349, 816 A.2d 448, 455 (Vt. 2002) (refusing to “interpret § 317(c)(9) in a manner that causes potential contractors and service providers to withhold information essential to the state in its selection process of competitive bids”); see also Long v. City of Burlington, 2018 VT 103, ¶ 27 (Vt. 2018) (affirming denial of public records request seeking an unredacted financial feasibility study provided by a private developer to a contractor hired by the City of Burlington to assess the viability of the developer’s plans).
“[T]ax return[s] and related documents, correspondence, and certain types of substantiating forms which include the same type of information as in the tax return itself filed with or maintained by the Vermont Department of Taxes or submitted by a person to any public agency in connection with agency business” are exempt from disclosure. 1 V.S.A. § 317(c)(6).
The Act gathers exclusions that relate to confidential business information in Va. Code Ann. § 2.2-3705.6. The language in these exclusions is inconsistent, conflating concepts of confidentiality, proprietorship, trade secret status and economic value. The concurring opinion in American Tradition Inst. v. Rector of the Univ. of Virginia, 287 Va. 330, 346, 756 S.E.2d 435, 444 (2014) pointed out the potential for interpretive problems caused by the inexact use of language. During the 2018 legislative session, the General Assembly added a generic trade secrets provision that to some degree addresses the problem, but made no comprehensive effort amend or delete existing provisions to eliminate redundancy and imprecision. See Va. Code Ann. § 2.2-3705.6.31.
An agency can withhold valuable formulae, designs, drawings, computer source code or object code and research data obtained within five years of the disclosure request if disclosure would produce private gain and public loss. RCW 42.56.270(1). The state Supreme Court has held that “the public records act may not be used to acquire knowledge of a trade secret.” Confederated Tribes of Chehalis Reservation v. Johnson, 135 Wn.2d 734, 748, 958 P.2d 260 (1998).
RCW 42.56.270 exempts a wide variety of financial and commercial information supplied to state agencies by requirement of law, including (among others) submissions in connection with ferry construction or road construction bids, RCW 42.56.270(2), export services, RCW 42.56.270(3), applications for loans in connection with state-sponsored programs, RCW 42.56.270(4), industrial development corporations, RCW 42.56.270(5), public sector retirement funds, RCW 42.56.270(6), workers’ compensation contractors, RCW 42.56.270(7), the Investment Opportunities Office, RCW 42.56.270(12), applications for a liquor, gambling or lottery retail license, RCW 42.56.270(10), submissions to the Department of Social and Health Services in connection with state purchased health care, RCW 42.56.270(11), and submissions to the Department of Ecology in connection with electronic product recycling, RCW 42.56.270(13). Other exemptions include account numbers supplied to an agency, RCW 42.56.230(4), financial and commercial information submitted to the state in connection with certain railroad contracts, RCW 42.56.480(1), private vocational schools, RCW 42.56.320(1), timeshare condominiums, RCW 42.56.340, drug manufacturers’ samples, RCW 42.56.360, organic food products, RCW 42.56.380(1), and commercial fertilizer, RCW 42.56.380(2).
In addition, lists of individuals sought merely for commercial purposes may be withheld. RCW 42.56.070(9).
Trade secrets are the first FOIA exemption, but there is no provision under the FOIA providing for confidentiality of business records or financial data. In Queen v. WVU Hospitals, the Supreme Court refused to create a general exemption for "business confidentiality." 179 W. Va. 95, 365 S.E.2d 375 (1987). In Keegan v. Bailey, 191 W. Va. 145, 443 S.E.2d 826 (1994), the Supreme Court ruled that the state's uncashed checks were subject to disclosure under the Freedom of Information Act, even though the records of abandoned property are specifically exempt under W. Va. Code § 36-8-12a (1983). (Under W. Va. Code § 36-8-8b(a), property is not abandoned until it has remained unclaimed for seven years, and the records requested related to checks issued within the past six years.)
There are, however, a number of state statutes that specifically exempt certain types of business records, financial data, and trade secrets from disclosure. Exemption five of FOIA, § 29B-1-4(5), ("Information specifically exempted from disclosure by statute") recognizes that some categories of information may be specifically exempt from disclosure, although not explicitly listed among the twenty-one exemptions set forth in W. Va. Code § 29B-1-4.
Underwriting standards of automobile liability and physical damage insurers that are filed with the West Virginia Insurance commissioner are considered confidential by law and are exempt from disclosure pursuant to FOIA, W. Va. Code § 33-6A-4.
West Virginia Department of Health and Human Services records relating to its Medicaid program preferred drug list and drug utilization review are exempt from disclosure pursuant to W. Va. Code § 9-5-15. Such records include “trade secrets, rebate amounts, percentage of rebate, manufacturer's pricing and supplemental rebates which are contained in the department's records and those of its agents with respect to supplemental rebate negotiations and which are prepared pursuant to a supplemental rebate agreement.”
West Virginia Code § 12-7-11 exempts documentary material and data made or received by the jobs investment trust board for the purpose of furnishing assistance to businesses and persons, including trade secrets, commercial, financial or personal information regarding the financial position or activities of such businesses and persons.
Proprietary business information provided to the Broadband Enhancement Council, or its consultants and other agents is exempt from disclosure under West Virginia Code section 31G-1-13. Such information includes, but not limited to, physical plant locations, subscriber levels, and market penetration data, and any other information that constitutes trade secrets. That information is exempt if identified as confidential information when submitted to the council.
Information obtained by the Division of Motor Vehicles or its agent, law enforcement and the judiciary relating to an electronic insurance system verification program used to electronically verify evidence of insurance coverage with insurance companies is exempt from disclosure under
- Va. Code § 17D-2A-6a (g).
The division of transportation, and any other agency that is part of the department of highways, may exempt from disclosure any sensitive business, commercial or financial information submitted to the division for final review and approval of a transportation facility if that information is not customarily provided to business competitors. Included within this discretionary exemption are documents, communications including, but not limited to, a highway project’s design, management, financing and other details. W. Va. Code §§ 17-27-4(4) and 17-27-4(5).
The insurance underwriting standards filed by licensed insurers with the West Virginia Insurance Commissioner are considered confidential, privileged and are exempt from disclosure under FOIA. W. Va. Code § 33-17A-4a (f).
The state tax commissioner is required to deliver to the commissioner of the bureau of employment programs certain information including the names, addresses and other identifying information of all business receiving a business franchise registration certificate. Such information acquired by the bureau of employment programs commissioner is exempt from disclosure pursuant to section 21A-2-6b (e).
Any documentary material or data made or received by the West Virginia Housing Development Fund for the purpose of furnishing assistance, that constitutes trade secrets, commercial, financial or personal information regarding the financial position or business operation of a business or person is exempt from disclosure. W. Va. Code § 31-18-27. However, the Fund is required to disclose the following information regarding executed loans: (1) The name of the debtor; (2) location(s) of the project; (3) amount of the loan or financial assistance provided by the fund; (4) the purpose of the loan or financial assistance; (5) the term, rate, and interest of the loan; and (6) the fixed assets which serve as security for the loan. Id.
- Va. Code § 5B-2C-7 exempts from FOIA disclosure requirements:
Any documentary material, data or other writing made or received by the West Virginia academy of science and technology for the purpose of developing state summaries or policy options concerning the capabilities, performance or plans of individual businesses or organizations is deemed to be confidential trade secrets which are exempt from disclosure.
The West Virginia Insurance Commissioner is empowered by statute to access books and records maintained by an administrator for the purposes of examination, audit and inspection. An “administrator” is a person who directly or indirectly underwrites or collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with life, annuity or accident and sickness coverage offered or provided by an insurer. W. Va. Code § 33-46-2(a).
West Virginia Code section 33-46-5(b) exempts from disclosure:
any documents, materials or other information in the possession or control of the commissioner that is furnished by an administrator, insurer, insurance producer or an employee or agent thereof acting on behalf of the administrator, insurer or insurance producer, or obtained by the commissioner in an investigation[.]
However, the commissioner may release “final, adjudicated actions, including for cause terminations, that are open to public inspection pursuant to [FOIA] to a database or other clearinghouse service maintained by the national association of insurance commissioners, its affiliates or subsidiaries. . . . ” W. Va. Code § 33-46-5(f).
By statute, West Virginia has created a college prepaid tuition and savings program that is administered by a “board of trustees of the college prepaid tuition and savings program.” Any information in the possession of the board of trustees or its agents that would tend to disclose the identity of a beneficiary, account owner or donor is exempt from disclosure under the FOIA. However, the board may disclose or publish information “in a statistical or other form which does not identify the individuals involved or provide personal information.” Account owners may access their own personal information. W. Va. Code § 18-30-12.
The West Virginia Children with Autism Trust Board is empowered to supervise the creation of trusts for children afflicted by autism. Any information in the possession of the Autism Trust Board that would tend to disclose the identity of a beneficiary, account owner or donor is exempt from disclosure under FOIA. W. Va. Code § 44-16-5. The Board may disclose or publish information in a statistical or other form that does not identify the individuals involved or provide personal information. Trust account owners may access their personal information. Id.
The West Virginia Tax Commissioner may subject an insurer to administrative supervision if, in the commissioner's discretion, it appears that:
(1) The insurer's condition renders the continuance of its business hazardous to the public, to its insureds or to its creditors; (2) The insurer has or appears to have exceeded its powers granted under its certificate of authority and applicable law; (3) The insurer has failed to comply with the applicable provisions of this chapter or chapter twenty-three of this code; (4) The business of the insurer is being conducted fraudulently; or (5) The insurer gives its consent.
W. Va. Code § 33-34-3(a).
Information relating to the commissioner’s supervision of an insurer including “proceedings, hearings, notices, correspondence, reports, records is not subject to disclosure under FOIA. However, the commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as part of the commissioner's official duties. Id.
In decision discussing the “confidential commercial information” exemption in Sublette County Rural Health Care District v. Miley, 942 P.2d 1101 (Wyo. 1997), the court considered a suit against a county rural health care district in which the plaintiff sought disclosure of financial reports that physicians submitted to the district. The physicians were required to make the reports pursuant to contracts that governed the operation of their clinic, which was in a building owned by the district. Id. The district contended that the reports fell under the confidential commercial data exception to the disclosure requirements of the Public Records Act, Wyo. Stat. § 16-4-203(d)(v). Id. The court agreed, reasoning that such disclosure was likely to impair the district's ability to acquire necessary information because physicians could not be expected to divulge sensitive financial information if the district was required to disseminate it to the public. Id. The court also noted that mandatory disclosure of the financial statements was likely to cause substantial harm to the physicians' competitive positions. Id.
In Powder River Basin Res. Council v. Wyo. Oil & Gas Conservation Comm'n, 2014 WY 37, the Court adopted a restrictive definition of a trade secret. It held a trade secret was “a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort, with a direct relationship between the trade secret and the productive process.”