Can a Florida state agency keep a company's trade secrets confidential under the public records law?

Plain-English summary

The Director of the Division of Plant Industry, part of the Florida Department of Agriculture and Consumer Services, wanted to join a biotechnology regulatory pilot project with the U.S. Department of Agriculture. Before the division could participate, the USDA wanted the state Attorney General's view on whether Florida law lets the division protect the confidential business information it would receive. Attorney General Bill McCollum answered that it can, within limits.

The starting point is that the department, like any state agency, is subject to the Florida Public Records Law, so its records are open unless a statute exempts them. The Legislature created a trade-secret exemption that fits here. Section 581.199 makes it unlawful for an authorized representative who obtains trade-secret information under the plant-industry chapter to use it for personal gain or reveal it to an unauthorized person. "Trade secret" is defined in section 812.081(1)(c). The catch, drawn from the Sepro Corporation case, is that the protection depends on the owner having actually taken reasonable steps to keep the information secret, such as labeling it confidential in writing when handing it to the agency. A casual conversation with a state employee is not enough. So the division may protect qualifying trade secrets, but only when the business that supplied them did its part to mark and guard them.

Currency note

This opinion was issued in 2009. 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.

Background and statutory framework

Under Chapter 119 and Article I, section 24 of the Florida Constitution, records made or received by an agency in its official business are open unless a statute makes them confidential or exempt. Wait v. Florida Power & Light Company states the baseline that public records are open unless the Legislature has exempted them.

The exemption operates through several linked statutes. Section 581.199 bars an "authorized representative," defined in section 581.011(4) to include designated division or USDA employees, inspectors, and collaborators, from revealing trade-secret information obtained under Chapter 581. The trade-secret definition in section 812.081(1)(c) requires that the information be secret, of value, in use by the business, and advantageous, and that the owner take measures to keep it from others. In Sepro Corporation v. Florida Department of Environmental Protection, the First District read section 815.045 to exempt from disclosure all trade secrets as defined in section 812.081(1)(c), whether or not they are computer-related, and held that an owner who fails to label material as confidential or to specify in writing that it is exempt has not taken reasonable steps to maintain secrecy. Section 688.002(4) supplies a parallel statutory definition tied to reasonable secrecy efforts. The opinion also cited Cubic Transportation Systems, Inc. v. Miami-Dade County, where a company lost trade-secret protection by failing to mark its documents, and Seta Corporation of Boca, Inc. v. Office of the Attorney General.

Common questions

Q: Can a Florida agency keep a company's trade secrets out of a public records request?
A: Yes, if the information qualifies as a trade secret under section 812.081(1)(c) and the owner took reasonable steps to keep it secret. Section 815.045 makes qualifying trade secrets exempt from disclosure.

Q: What counts as protecting the secret?
A: Per the Sepro decision, the owner should label the material confidential or state in writing, on delivery to the agency, that it is exempt. A conversation with a state employee is not enough.

Q: Who is bound not to disclose under the plant-industry statute?
A: An "authorized representative" under section 581.011(4), which includes designated employees, inspectors, or collaborators of the division or the USDA, may not reveal trade secrets obtained under Chapter 581.

Q: What happens if a business does not mark its information as confidential?
A: It risks losing the exemption. Courts have held that failing to mark documents or assert confidentiality means the owner did not take reasonable measures to maintain secrecy, so the records can be released.

Citations and references

Statutes:

• Ch. 119; s. 119.011(2), s. 119.01(1), s. 119.07(1)(a), Fla. Stat. (Public Records Law)
• s. 581.199 and s. 581.011(4), Fla. Stat. (nondisclosure by authorized representatives)
• s. 812.081(1)(c), Fla. Stat. (definition of trade secret)
• s. 815.045 and s. 815.04(3), Fla. Stat. (trade secret records exemption)
• s. 688.002(4), Fla. Stat. (Uniform Trade Secrets Act definition)
• Art. I, s. 24, Fla. Const. (right of access to public records)

Cases:

• Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. 1st DCA 2003), trade secrets exempt only if the owner took reasonable steps to maintain secrecy
• Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979), records open unless statutorily exempted
• Cubic Transportation Systems, Inc. v. Miami-Dade County, 899 So. 2d 453 (Fla. 3d DCA 2005); Seta Corporation of Boca, Inc. v. Office of the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/plant-industry-division-confidential-business-records
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1791

Original opinion text

Mr. Richard D. Gaskalla

Director, Division of Plant Industry

Department of Agriculture and Consumer Services

Post Office Box 147100

Gainesville, Florida 32614-7100

RE: AGRICULTURE AND CONSUMER SERVICES, DEPARTMENT–PLANT INDUSTRY – RECORDS–TRADE SECRETS – authority of division to maintain confidential business information. ss. 119.07, 581.199, 812.081, and 815.045, Fla. Stat.

Dear Mr. Gaskalla:

As Director of the Division of Plant Industry in the Department of Agriculture and Consumer Services, you ask substantially the following question:

Does the Florida Department of Agriculture and Consumer Services, Division of Plant Industry, have the authority to protect confidential business information it receives?

In sum:

Authorized representatives of the Division of Plant Industry in the Department of Agriculture and Consumer Services are prohibited from disclosing trade secrets received in carrying out their duties under Chapter 581, Florida Statutes, to any unauthorized person, provided such trade secrets fall within the definition set forth in section 812.081(1)(c), Florida Statutes, and the owner of the trade secret has taken measures to maintain the information’s secrecy.

According to your letter, the division is interested in participating in a biotechnology regulatory services pilot project with the United States Department of Agriculture (USDA). Before the division may participate in such project, however, the USDA requires the opinion of the state Attorney General regarding the division’s authority to protect confidential business information.

You have not provided this office with information regarding the pilot project nor have you identified the type of confidential business information in question. You refer, however, to the provisions of section 581.199, Florida Statutes, relating to trade secrets. As a state agency, the Department of Agriculture and Consumer Services is subject to the provisions of the Florida Public Records Law.[1] In the absence of a statute making a record, or portion thereof, confidential or exempt, an agency is required to permit the inspection and copying of records made or received by the agency in connection with the transaction of its official business.[2]

The Legislature, however, has adopted a number of exemptions relating to trade secrets. Relevant to the division is section 581.199, Florida Statutes, which states:

"It is unlawful for any authorized representative who in an official capacity obtains under the provisions of this chapter any information entitled to protection as a trade secret, as defined in s. 812.081, to use that information for personal gain or to reveal it to any unauthorized person."

Section 581.011(4), Florida Statutes, defines "Authorized representative" to mean "any designated employee, inspector, or collaborator of the division [of Plant Industry of the Department of Agriculture and Consumer Services] or the United States Department of Agriculture." Thus, division representatives who obtain information under Chapter 581, Florida Statutes, that is entitled to protection as a trade secret as defined in section 812.081, Florida Statutes, are prohibited from revealing such information to any unauthorized person. 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."[3] (e.s.)

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.

As noted above, section 812.081(1)(c), Florida Statutes (which definition is applicable to exemption afforded the division in section 581.199, Florida Statutes), requires the trade secret owner to take measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes. The Sepro court held that a trade secret owner who fails to label a trade secret as such, or otherwise to specify in writing upon delivery to a state agency that information which it contends is confidential and exempt under the public records law is not to be disclosed, has not taken measures or made efforts that are reasonable under the circumstances to maintain the information's secrecy as required by section 812.081, Florida Statutes (and section 688.002, Florida Statutes).[6] The court further noted that a conversation with a state employee was not enough to prevent the information being made available to anybody who makes a public records request.

Thus, authorized representatives of the Division of Plant Industry in the Department of Agriculture and Consumer Services are prohibited from disclosing trade secrets received in carrying out their duties under Chapter 581, Florida Statutes, to any unauthorized person, provided such trade secrets fall within the definition set forth in section 812.081(1)(c), Florida Statutes, and the owner of the trade secret has taken measures, as discussed in Sepro Corporation v. Florida Department of Environmental Protection, supra, to maintain the information’s secrecy.

Sincerely,

Bill McCollum

Attorney General

BM/tjw

[1] See Ch. 119, Fla. Stat., and s. 119.011(2), Fla. Stat., which defines "Agency" for purposes of Ch. 119, Fla. Stat., to include:

"any state, county, district, authority, or municipal officer, department, division, board, bureau, commission, or other separate unit of government created or established by law including, for the purposes of this chapter, the Commission on Ethics, the Public Service Commission, and the Office of Public Counsel, and any other public or private agency, person, partnership, corporation, or business entity acting on behalf of any public agency."

[2] Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla. 1979) (public records are open for public inspection unless the Legislature has exempted them from disclosure). See, e.g., s. 119.01(1), Fla. Stat., stating that "[i]t is the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person. Providing access to public records is a duty of each agency;"

s. 119.07(1)(a), Fla. Stat., providing that "[e]very person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records." And see Art. I, s. 24, Fla. Const., establishing a constitutional right of access to "any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to those records exempted pursuant to this section or specifically made confidential by this Constitution."

[3] And see s. 688.002(4), Fla. Stat., defining "Trade secret" to mean

"information, including a formula, pattern, compilation, program, device, method, technique, or process that:

(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." (e.s.)

[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 784. 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). (emphasis supplied by the court). Cf. Seta Corporation of Boca, Inc. v. Office of the Attorney General, 756 So. 2d 1093 (Fla. 4th DCA 2000).