Protection of Confidential Information from Agency Disclosure

The policy of the Public Records Act (RCW 42.56) favors disclosure of public records and is liberally construed with exemptions narrowly construed in order to assure that the public interest in remaining informed is protected.  If a state or local Washington agency were to receive a request for public records that contained confidential information, the responsibility to make sure said information is not revealed often falls on the person or entity who has an interest in preventing disclosure of said information.

When contractors, scientists, inventors etc. bid on public contracts, agencies can require technical information to evaluate the responsiveness of bids. This technical information can contain trade secrets and confidential information that if released could give the bidder’s competitors an advantage and promote unfair competition.

Good news, in Washington, with limited exceptions, members of the public have a right according to state statute to the protection of trade secrets (defined in Uniform Trade Secrets Act), other confidential research, development, or commercial information concerning products or business methods.  The Public Records Act (“PRA”) recognizes that certain public records may be exempt from disclosure if another state statute exempts or prohibits disclosure of certain information.  And, the PRA has a specific exemption from disclosure of financial, commercial and proprietary information which includes several categories of information such as certain financial data, trade secrets and valuable formulae, designs, drawing etc.  Washington courts have held that the purpose of this PRA exemption is to prevent private persons from using the PRA to obtain valuable intellectual property for private gain.  Despite these exemptions, agencies do make mistakes and can disclose the information.  So, taking steps to prevent disclosure is key.

Upon receipt of notice from a state or local agency that a public records request has been made seeking the above confidential information, it is important to note whether any of the information sought should be kept confidential because it represents information which should be protected from disclosure.  Both the PRA and also the Uniform Trade Secrets Act provide avenues for prevention of disclosure, which include bringing a court action to enjoin the disclosure.  Beware that there is usually a time crunch for bringing such an action as the state or local agency is under its own statutory duty to disclose requested public records within a specific time period or risk judicial review of its action which can result in court awarded fines.

If bidding on a government contract that involves submission of confidential and proprietary information, said information should be identified as sensitive information.  This may help cue the contracting agency that the information could be exempt from disclosure or that the agency should contact the bidder prior to disclosing the information so that there is an opportunity to enjoin the disclosure.

Simi Jain, Attorney