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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

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  • Alaska

    A number of statutes make certain information that is submitted to or generated by various public agencies confidential. The open meetings law authorizes, but does not require, an executive session to discuss "matters involving consideration of government records that by law are not subject to public disclosure." AS 44.62.310(c)(4). There is no case law addressing this issue under the OMA. However, in an opinion relating to one of a number of statutes providing or requiring protection for trade secrets and other proprietary information, the Attorney General states that except for information required to be kept confidential under AS 37.17.090(f), information contained in Alaska Science and Technology Foundation grant status reports is public and the reports must therefore be presented in open session, not executive session. February 25, 1991, Attorney General Opinion No. 663-91-0199. The Attorney General ruled that in instances in which it was proper to consider confidential information in executive session as part of a grant status report, the report should be presented in executive session to protect the particular confidential information, and then presented again in open session with the confidential information omitted.

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  • Arizona

    Such discussions are covered unless the information or records are “exempt by law from public inspection.”  A.R.S. § 38-431.03(A)(2).

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  • Arkansas

    Although the FOIA’s “competitive advantage” exemption protects this information when embodied in the form of records, nothing in the act allows a closed session to discuss such matters. Some statutes, however, give agencies broad discretion to safeguard such information and could be read so as to allow closed meetings. E.g., Ark. Code Ann. § 23-2-316(b) (Public Service Commission). Other statutes allow in camera judicial proceedings in cases involving trade secrets. E.g., Ark. Code Ann. §§ 4-75-605, 4-88-111(c). See also Rule 507, Ark. R. Evid.

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  • California

    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).

    The Bagley-Keene Act specifically provides that the following organizations may hold closed sessions to discuss financial or trade secret information:

    (1) The Franchise Tax Board may meet in closed session to discuss confidential tax returns or information that cannot be lawfully disclosed to the public. Cal. Gov't Code § 11126(c)(10). See, e.g., General Am. Trans. Corp. v. State Bd. Of Equalization, 193 Cal. App. 3d 1175, 238 Cal. Rptr. 865 (1987);

    (2) The State Air Resources Board may meet in closed session to consider proprietary specifications and performance data of manufacturers (Cal. Gov't Code § 11126(c)(13));.

    (3) The California Integrated Waste Management Board or its committees may meet in closed session to discuss confidential tax returns, trade secrets or confidential or proprietary information in its possession (Cal. Gov't Code § 11126(c)(15));

    (4) The State Board of Equalization may meet in closed session to consider confidential taxpayer appeals or data, which cannot be lawfully disclosed to the public (Cal. Gov't Code § 11126(f)(8)); and.

    (5) The California Gambling Control Commission may meet in closed session to discuss matters involving trade secrets, nonpublic financial data, confidential or proprietary information, and other data the disclosure of which is prohibited by law or a tribal-state gaming compact (Cal. Gov’t Code § 11126.4).

    In addition, the Brown Act provides that hospitals may conduct closed sessions to discuss trade secrets pursuant to Government Code Section 1462. Cal. Gov't Code § 54962. Closed sessions are also authorized to discuss employee hardship application for early withdrawal of funds in a deferred compensation plan. Cal. Gov’t Code § 54957.10.

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  • Colorado

    Open, unless disclosure of a trade secret is involved.

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  • Connecticut

    There are no specific provisions or exemptions in FOIA on this issue. There are also no reported court decisions on this issue.

    An executive session may be allowed if an open session would result in the disclosure of exempt records. Conn. Gen. Stat. §1-200 (6)(E). See Records Outline at II.A.2 and IV.

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  • Delaware

    Meetings regarding or discussing trade secrets or proprietary data may be closed. See 29 Del. C. § 10004(b)(6). See also 29 Del. C. § 10002(g)(2) (exempting documents relating to trade secrets or privileged or confidential financial information).

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  • District of Columbia

    A meeting, or portion of a meeting, may be closed to discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained.  D.C. Code Ann. § 2-575(b)(11).

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  • Georgia

    The Act has no exemption for discussions of financial data, etc.

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  • Hawaii

    If the meeting pertains to an individual applying for certain professional licenses and involves "personal information," the meeting qualifies as one which can be closed. Haw. Rev. Stat. § 92-5(a)(1). Otherwise, unless such matters involve "sensitive matters related to public safety or security," id. § 92-5(a)(6), such meetings cannot be closed merely because of information discussed. Id. § 92-4 (limiting executive meetings to those closed for reasons enumerated in Section 92-5).

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  • Idaho

    Most proprietary business records and trade secret information are exempt from inspection and copying. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss records that are otherwise exempt from public inspection. Idaho Code § 74-206(1)(d). Thus, this may be the proper subject of an executive session.

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  • Illinois

    Not addressed.

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  • Indiana

    The Open Door Law permits executive sessions for discussion of records classified as confidential by state or federal statute. Ind. Code § 5-14-1.5-6.1(b)(7). To the extent that these are classified as confidential records under the Access to Public Records Act, an executive session could be held to review this data. Id.

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  • Iowa

    The financial data, trade secrets and proprietary data of private corporations and individuals are confidential. Iowa Code §§ 22.7(3), (6) and (8). Meetings to discuss records which are confidential need not be held in public. Iowa Code § 21.5(1)(a).

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  • Kansas

    May be discussed in closed session. K.S.A. 75-4319(b)(4).

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  • Kentucky

    Presumptively open, but there is a possibility a meeting at which such documents were reviewed could be closed since public review of the documents is restricted by Ky. Rev. Stat. 61.878(1)(c) of the Open Records Act. See also Ky. Rev. Stat. 61.810(1)(g) (permitting closure of certain discussions concerning business siting and retention).

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  • Louisiana

    Not specifically exempted in Open Meeting Law, but proprietary or trade secret information which has been submitted to a public body is protected under the Public Records Act. La. Rev. Stat. Ann. § 44:3.2. Additionally, some opinions of the Attorney General interpreting the Public Records Act have exempted such information purportedly of a private or confidential nature. Op. Att'y Gen. 83-493; 82-860; 87320; 87-355; 89-550, 89-598, and 92-698. The Louisiana Constitution protects against invasions of privacy. Article I, Section 5.

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  • Maine

    Discussion of financial data, trade secrets, or proprietary data of private corporations and individuals (other than public employees) may be held in executive session to the extent that the discussion concerns information contained in non-public records.  1 M.R.S.A. § 405(6)(F).

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  • Maryland

    Meetings that involve an individual's privacy or reputation with respect to a matter unrelated to public business may be closed. § 3-305(b)(2).

    Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds; and the marketing of public securities may be closed. §§ 3-305(b)(3)-(6). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).

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  • Michigan

    Not addressed.

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  • Montana

    A meeting may be closed if necessary to protect trade secrets of a corporation under certain limited circumstances. Great Falls Tribune v. Montana Public Service Commission, 2003 MT 359, 319 Mont. 38, 82 P.3d 876 (disclosure of utility company records).

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  • Nebraska

    No specific exemption, but see Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984). Where public finances are involved, the "public interest" ordinarily demands an open meeting. Id. The reputation to be protected may not be that of the public body, and "slight discomfort" to an individual is insufficient to overcome the presumption of openness. Id.

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  • Nevada

    If the purpose of a meeting is to receive information that is required by law to be kept confidential, the meeting may be closed for the limited purpose of receiving that information.

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  • New Hampshire

    There is no case law on this issue but such matters would probably support a nonpublic session. See RSA 91-A:5, IV. As for trade secret records, see CaremarkPCS Health, LLC v. New Hampshire Dep't of Admin. Servs., 167 N.H. 583 (2015).

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  • New Jersey

    Access to these records is governed by the OPRA and the common law. A meeting of an effective majority of a public body to discuss business and industry relations, including plans for attracting business, is required to be open to the public unless the discussions involve (i) purchase or lease or acquisition of real property with public funds, or (ii) contract negotiations, or (iii) where the release of information would impair the right to receive federal funds. See N.J.S.A. 10:4-12b(2),(5) and (7).

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  • New Mexico

    There is no statutory or case law addressing this issue.

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  • North Carolina

    The Open Meetings Law makes no reference to discussions of any of these topics. However, a public body could go into closed session if an open session would reveal information that is a trade secret under G.S. § 132-1.2.

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  • North Dakota

    The portion of a meeting held to discuss or consider information pertaining to trade secrets and proprietary, commercial, or financial information received from a person who is interested in or is applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4.

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  • Ohio

     

    Open sessions, except that county hospitals may hold closed sessions to consider trade secrets. Ohio Rev. Code § 121.22(G)(7). Also, veterans service commissions shall hold executive sessions when reviewing applications for financial assistance and interviewing applicants. Ohio Rev. Code § 121.22(J).

    However, in light of the Ohio Supreme Court's ruling in State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992), that public offices cannot be compelled to release otherwise public records containing the trade secrets of private businesses, the same rationale may apply to meetings of public bodies.

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  • Oklahoma

    i. The Oklahoma Industrial Finance Authority may hold executive sessions when the matter to be discussed involves trade secrets. 25 O.S. § 307.C.2.

    ii. The Oklahoma Development Finance Authority may hold executive session, when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.

    iii. The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.

    iv. The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.

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  • Oregon

    If these matters are reduced to written form and qualify for a Public Records exemption, they may properly be considered in executive session. ORS 192.660(2)(f).

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  • Rhode Island

    No specific exemption.

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  • South Carolina

    While these categories of information would be exempt from mandatory disclosure in public records, there is no comparable exemption from public discussion. See City of Columbia v. A.C.L.U. of South Carolina, 475 S.E.2d 747 (S.C. 1996).

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  • South Dakota

    Presumably closed, in light of various confidential records provisions.

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  • Tennessee

    Fact-specific, case-by-case determination.  See T.C.A. § 8-44-102(b)(1)(E)(ii) (protecting trade secrets).

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  • Texas

    Other than Section 551.079, which deals with the solvency of private companies regulated by the Texas Department of Insurance, and Sections 551.081 and 551.0811 which deal with the Credit Union Commission and The Finance Commission of Texas deliberations on matters “made confidential by law,” the Act does not contain any proprietary or trade secret protection.

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  • Utah

    The Open Meetings Act contains no exemption for these topics, but there are a number of statutes (summarized in the Open Records portion of this outline) that state that records containing such data shall be confidential. It is possible that a court would allow a government entity to close that portion of a meeting that relates to topics classified as protected by statute. However, no express judicial decision on this point exists.

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  • Vermont

    Presumed closed if considering documents deemed confidential.  See 1 V.S.A. § 312(e) (“nor shall anything in this section be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State”).

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  • Virginia

    Numerous records exclusions address this topic.  Closed meeting rules address discussions of private business information by the Wireless Carrier E-911 Cost Recovery Subcommittee, Va. Code Ann.§ 2.2-3711.A.26; local bodies providing telecommunications or cable television services, Va. Code Ann. § 2.2-3711.A.32; local authorities acting under the Virginia Wireless Service Authorities Act, Va. Code Ann. § 2.2-3711.A.33; the Virginia Port Authority, Va. Code Ann. § 2.2-3711.A.37; the Virginia Tobacco Region Revitalization Commission, Va. Code Ann. § 2.2-3711.A.43;  the Commercial Space Flight Authority, Va. Code Ann. § 2.2-3711.A.44; bodies governing resource management, Va. Code Ann. § 2.2-3711.A.45; the Virginia Research Investment Committee, Va. Code Ann. § 2.2-3711.A.47.

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  • Washington

    There is no express limitation other than on financial and commercial information pertaining to export trading companies. RCW 42.30.110(1)(e).

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  • West Virginia

    The ninth exception covers "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision" (W. Va. Code §  6-9A-4(9)). That section includes the following proviso: "information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings only until the commercial competition has been finalized and completed." Id.

    A second proviso states: "that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session." Furthermore, exception 12 states that an executive session may be held to "discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one chapter twenty-nine-b [§§ 29B-1-1 et seq.] of this code." W. Va. Code § 6-9A-(4) (12).

    The West Virginia Freedom of Information Act exempts from disclosure documents which constitute "trade secrets," is defined as including but not limited to:

    "any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors."

    W. Va. Code § 29B-1-4 (a)(10). Thus, while there is no specific exception allowing closed meetings to consider financial data, trade secrets or proprietary data of private corporations and individuals, the second proviso of subsection (9) seems to require that, if documents relating to such private data or trade secrets are discussed in executive session, the documents need not be disclosed under the first proviso that requires disclosure after "the commercial competition has been finalized and completed." There are not any reported cases construing these provisos.

    Finally, in the FOIA case, Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the court held the state tax code — which prohibits "any officer or employee of the state . . . to disclose information concerning the personal affairs of any individual or the business of any single firm or corporation . . . or any particulars set forth" in any tax forms required to be filed with the state tax commissioner — also prohibited officials of a town from disclosing Business & Occupation Tax returns filed with the town. Although the court ruled the tax code's confidentiality provisions did not apply to a list of the names of businesses filing B&O tax returns, it required the list to be "treated as any confidential material and not leave [the circuit judge's] chambers." Id. at 515, 425 S.E. 2d at 186. It is possible that a court interpreting the Open Meetings Act may be persuaded by this decision to hold that meetings discussing such information must be kept confidential.

    It should also be noted that a number of other statutes require particular agencies to maintain the confidentiality of information relating to secret processes or secret methods of manufacture or production. See, e.g., the Public Energy Authority (W. Va. Code § 5D-1-21), the Community Infrastructure Authority (W. Va. Code § 31-19-19), and the Water Development Authority (W. Va. Code § 20-5C-21).

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  • Wyoming

    There is no provision that deals directly with financial data of public bodies at public meetings. See Preface. Regarding public records, the custodian may deny inspection records containing trade secrets unless otherwise provided by law. Wyo. Stat. § 16-4-203(d)(v) (1977, Rev. 1991).

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