Can a private vendor use a non-disclosure clause to keep its contract terms and pricing secret from public records requests in Florida?

Subject

Contracts -- Public Records -- Trade Secrets

Plain-English summary

An assistant general counsel for Florida State College asked the AG whether a private vendor can write non-disclosure language into its contracts with Florida public entities to keep its contract terms and pricing out of public records. The question came up because, when the college sought contract and pricing information from other public institutions, it was told the data was a trade secret exempt from disclosure under sections 815.045 and 812.081.

The AG started with a limit on its own role: it could not comment on what other public entities had done without a request from those entities. So it offered general guidance instead of resolving the specific dispute. On the general law, the AG explained that Chapter 119, the Public Records Act, exists to open government records to the public, is read liberally in favor of disclosure, and that exemptions are construed narrowly with any doubt resolved toward disclosure.

The Legislature has, however, exempted trade secrets. Section 812.081(1)(c) defines a trade secret as business information that is secret, valuable, in use, and gives a competitive advantage, where the owner takes measures to keep it from others. In Sepro Corporation v. Florida Department of Environmental Protection, the First District Court of Appeal read section 815.045 to exempt all trade secrets meeting that definition from public records, even though section 815.045 sits in the computer-crimes chapter. The practical upshot the AG drew out: whether information is protected turns on whether it actually qualifies as a trade secret and whether the owner took real steps to keep it confidential, not simply on whether a contract calls it confidential. The AG cited Cubic Transportation Systems for the point that a company that hands documents to an agency without properly asserting confidentiality can lose any trade-secret claim.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does putting a confidentiality clause in a government contract keep pricing secret?
Not by itself. The AG explained that the public-records exemption protects genuine trade secrets as defined by statute. A contract label does not create the exemption; the information has to actually qualify, and the owner has to have taken steps to keep it secret.

What counts as a trade secret under Florida law?
Section 812.081(1)(c) defines it as a formula, pattern, device, or compilation of business information that is secret, valuable, in use, and gives a competitive advantage, where the owner takes measures to prevent others from accessing it.

Why does the public-records law lean toward disclosure?
The AG noted that Chapter 119 is meant to let citizens see what their government does. Courts read it liberally in favor of openness and read exemptions narrowly, resolving doubt in favor of disclosure.

Can a company lose trade-secret protection by being careless?
Yes. The AG cited Cubic Transportation Systems, where a company that supplied documents to an agency without marking them confidential or timely asserting confidentiality was found to have failed to protect its trade-secret claim.

Background and statutory framework

The opinion sits at the intersection of two policies: Florida's strong presumption of open public records under Chapter 119, and the Legislature's decision to shield genuine trade secrets. Section 812.081(1)(c) supplies the definition of "trade secret." Section 815.045 contains the legislative finding that trade-secret information must be confidential and exempt because disclosing it is a felony; Sepro Corporation v. Florida Department of Environmental Protection held that this provision exempts all qualifying trade secrets from the public-records law, regardless of whether the information is stored on a computer.

The AG also pointed to section 202.195 and its own prior Opinion 2008-14 to show the limits of related exemptions: there it concluded that a telecommunications company's lease payment to a city was not proprietary confidential business information obtained from the company, so it was not exempt. The thread across these authorities is that the exemption attaches to the nature of the information and the owner's protective conduct, not to contract drafting.

Citations

• Chapter 119, Florida Statutes
• sections 815.045 and 812.081, Florida Statutes
• Section 812.081(1)(c)
• section 202.195, Florida Statutes
• Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781, 785-787 (Fla. 1st DCA 2003)
• Christy v. Palm Beach County Sheriff's Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997)
• Cubic Transportation Systems, Inc. v. Miami-Dade County, 899 So. 2d 453, 454 (Fla. 3d DCA 2005)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/contracts-public-records-trade-secrets
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1552

Original opinion text

Mr. Romualdo C. Marquinez, Jr.

Assistant General Counsel

Florida State College

501 West State Street

Jacksonville, Florida 32202

Dear Mr. Marquinez:

You ask for assistance in determining whether a private vendor may include non-disclosure language in contracts with Florida public entities to protect contract terms and pricing from being made public pursuant to Chapter 119, Florida Statutes. Your question arises in light of your having asked for contract and pricing information from other public institutions and having been advised that the information constitutes a trade secret exempt from public disclosure under sections 815.045 and 812.081, Florida Statutes.

Regrettably, this office may not comment on the actions of other public entities, absent a request from the entity involved. The following general comments regarding trade secrets and the availability of public information, however, is provided in order to be of assistance.

The general purpose of Chapter 119, Florida Statutes, "is to open public records to allow Florida's citizens to discover the actions of their government."[1] The Public Records Act is to be liberally construed in favor of open government, and exemptions from disclosure are to be narrowly construed so they are limited to their stated purpose.[2] Any doubt as to the applicability of a Public Records exemption should be resolved in favor of disclosure rather than secrecy.[3]

The Legislature, however, has adopted a number of exemptions relating to trade secrets. Section 812.081(1)(c), defines "Trade secret" to mean:

"the whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. 'Trade secret' includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:

1. Secret;

2. Of value;

3. For use or in use by the business; and

4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it

when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes."

In addition, the First District Court of Appeal in Sepro Corporation v. Florida Department of Environmental Protection,[4] has concluded that section 815.045, Florida Statutes,[5] "should be read to exempt from disclosure as public records all trade secrets as defined in section 812.081(1)(c), Florida Statutes. . . ." Although section 815.045 is placed in a chapter entitled Computer-Related Crimes, the Sepro court held that language of this provision should be read to exempt from disclosure as public records all trade secrets as defined in section 812.081(1)(c), Florida Statutes, whether or not they are stored on or transmitted by computers.[6]

This office has addressed several situations in which the “trade secret” or proprietary business information exemption was in question. In Attorney General Opinion 2008-14, a city asked whether the lease payment amount made by a telecommunications company to the city was proprietary confidential business information. Under a lease agreement, the company paid a yearly amount for the use of a parcel of land. While section 202.195, Florida Statutes, provides a public records exemption for proprietary confidential business information obtained by a governmental entity from a telecommunications company, this office concluded that the amount of the lease payment was not information obtained from a telecommunications company and was not required to be treated as proprietary confidential business information.[7]

I trust that these informal comments will be of assistance to you in resolving the issues you have raised.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

[1] Christy v. Palm Beach County Sheriff's Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997).

[2] Krischer v. D'Amato, 674 So. 2d 909, 911 (Fla. 4th DCA 1996); Seminole County v. Wood, 512 So. 2d 1000, 1002 (Fla. 5th DCA 1987), review denied, 520 So. 2d 586 (Fla. 1988); Tribune Company v. Public Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987). And see Southern Bell Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st DCA 1992) (Public Service Commission's determination that statutory exemption for proprietary confidential business information should be narrowly construed and did not apply to company's internal self-analysis was "consistent with the liberal construction afforded the Public Records Act in favor of open government").

[3] Tribune Company v. Public Records, supra.

[4] 839 So. 2d 781, 785-787 (Fla. 1st DCA 2003), review denied sub nom., Crist v. Florida Department of Environmental Protection, 911 So. 2d 792 (Fla. 2005).

[5] Section 815.045, Fla. Stat., provides:

"The Legislature finds that it is a public necessity that trade secret information as defined in s. 812.081, and as provided for in s. 815.04(3), be expressly made confidential and exempt from the public records law because it is a felony to disclose such records. Due to the legal uncertainty as to whether a public employee would be protected from a felony conviction if otherwise complying with chapter 119, and with s. 24(a), Art. I of the State Constitution, it is imperative that a public records exemption be created. The Legislature in making disclosure of trade secrets a crime has clearly established the importance attached to trade secret protection. Disclosing 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, and those entities and individuals disclosing such trade secrets would hesitate to cooperate with that agency, which would impair the effective and efficient administration of governmental functions. Thus, the public and private harm in disclosing trade secrets significantly outweighs any public benefit derived from disclosure, and the public's ability to scrutinize and monitor agency action is not diminished by nondisclosure of trade secrets."

[6] 839 So. 2d at 785. And see Cubic Transportation Systems, Inc. v. Miami-Dade County, 899 So. 2d 453, 454 (Fla. 3d DCA 2005) (where a company supplied documents to an agency and failed to mark them as "confidential" and "continued to supply them without asserting even a [legally ineffectual] post-delivery claim to confidentiality for some thirty days after it had once attempted to do so by so informing County staff," the company failed adequately to protect an alleged trade secret claim). Cf. Seta Corporation of Boca, Inc. v. Office of the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000).

[7] See also Ops. Att’y Gen. Fla. 09-02 (2009) and 97-87 (1997).