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Public Record or Trade Secret?

by | Jan 17, 2018 | Media Law

Down at the crossroads where innovative private enterprise meets good accountable government, there can be collisions between public records and trade secrets. Under Florida’s strong public records laws, which protects the commercially valuable secrets of those who do business with the state, not every piece of data obtained from a company is a trade secret.

A recent case in Broward County nicely illustrates the point.

In a public records request, Yellow Cab asked Broward County for, “All reports or documents reflecting pick-ups by Rasier-DC, LLC or Uber at the [airport], and the sums of money paid or owing to [the county] for those trips, beginning in October 2015 and through the present.”

However, Uber and Broward County have a license agreement governing Uber’s services at the airport and Port Everglades that requires Broward County to maintain the confidentiality of Uber’s trade secret information and asserts its exempt status in response to a public records request.

Due to that agreement, Broward County believed the reports that Yellow Cab asked for included trade secrets that could not be disclosed without Uber’s authorization, so they provided Yellow Cab with a redacted set of reports.

Yellow Cab took Broward County to court for violating Florida’s Public Records Act. They argued un-redacted monthly reports on Uber’s pickups at the airport were not worthy of trade secret protection.

When a trial court looked at the issue, it found that there were two groups of data:

  • “aggregate” data—statistics really—showing the number of pickups and the sum of money paid by Uber to the County as a usage fee at the airport, and
  • “granular” data with the time and GPS information of the pickups and drop-offs and license plate information and other details of each transaction.

The court found that the “aggregate data” were not trade secrets, but the “granular data” were. Broward County was ordered to produce the non-exempt information. Earlier this month, the state appeals court covering Broward County agreed with the trial court’s finding.

Florida law protects trade secrets obtained by government agencies as a result of contracts or other relationships with private businesses. But not every piece of business information is a trade secret worthy of protection by the government and courts.

Is the formula for Coca Cola a trade secret? Definitely. The number of bottles of Diet Coke sold in a public school? Probably not.

As the court noted, the right to examine public records belongs to the public. It cannot be given away in a contract between a government agency and private company, no matter how well meaning the transaction.

If you’re going to do business with the state, be sure you understand the limits of the state’s ability to protect information you may not want your competitors to have. What you think is secret and what the law says is secret may be two different things. Marks Gray routinely represents clients regarding public records issues. Call us with any questions about how to protect or how to obtain public records.


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