Protecting Trade Secrets Under Florida’s Public Records Act

Providing documents to a state agency often results in those documents, and the information they contain, becoming public record. However, applying for a permit or otherwise interacting with an arm of the state or a local government does not necessarily mean that information kept as confidential will become public, if the right steps to protect that information are undertaken in a timely fashion. Florida law establishes two important and fundamental principles, each seemingly in conflict with the other: the transparency which Florida’s Public Records Act is intended to provide and the protective cloak which Florida law affords trade secret information, even if it is provided to governmental entities.

Florida’s Public Records Act and Trade Secret Protections

Article I, section 24 of the State Constitution, as well as section 119.07(1), Florida Statutes, provides that information received pursuant to law or ordinance or in connection with the transaction of official business by an agency is a public record and must be released upon request unless an exemption from the Public Records Act applies.

Regarding the production of trade secrets in the possession of the state, section 815.045, Florida Statutes, is clear and unequivocal. Therein the Legislature has not only seen fit to exempt trade secret information from the public records law, but to declare that its disclosure is a felony. The statute specifically addresses the uncertainty which public employees may face and states that “(d)isclosing trade secrets in an agency’s possession would negatively impact the business interests of those providing an agency such trade secrets by damaging them in the marketplace”. The statute specifically finds that the public and private harm in disclosing trade secrets significantly outweighs any public benefit derived from disclosure. Thus, it is without question that any documents produced to an agency that meet the definition of trade secret found in section 812.081, Florida Statutes, are confidential and exempt from disclosure under the Act. See SePRO Corp. v. Fla. Dep’t of Envtl. Prot., 839 So. 2d 781, 785 (Fla. 1st DCA 2003). It is important to note, however, that it is incumbent on a business to identify which information it considers to be trade secret from the outset when providing documents to a state agency.

While every arm of government in Florida that falls within the Public Records Act also is subject to certain general exemptions in the statute, some exemptions are particular to specific agencies. Additionally, different agencies have different mechanisms in place with respect to identifying and vetting claims of exemption from public records disclosure, which vary significantly from entity to entity. In each case, an applicant for a permit or any other individual or entity who will be filing documentation with the state or local government should make a determination, as a threshold matter, whether what will be filed contains information which may qualify as a trade secret and to take the appropriate steps to follow the agency’s procedures for the protection of that information prior to or contemporaneous with the submittal, as appropriate. A failure to timely request such protection can waive any claim that the information is exempt from disclosure as a public record. These procedures and the statutes that govern the trade secret exemption are often complex, making it cost-effective for businesses or individuals to hire competent counsel to assist when valuable trade secrets are at stake.

Dean Mead has significant experience in public records act cases, trade secret cases, and cases involving both principles. We invite you to contact our attorneys with any questions.

About the Authors:
John L. Wharton is a member of Dean Mead’s Administrative Law and Business Litigation departments and the Government Relations and Lobbying Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 30 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at jwharton@www.deanmead.com.

Brittany Finkbeiner focuses on Real Property and Administrative Law. Prior to going into private practice, Ms. Finkbeiner served as a chief attorney for the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes. In addition, she’s worked at the Florida Department of Economic Opportunity, The Florida Senate Judiciary Committee and as a legislative aide for the Florida Senate. She may be reached at bfinkbeiner@www.deanmead.com.