199 A.3d 542
Vt.2018Background
- Burlington negotiated a public-private redevelopment (PDA) with BTC Mall Associates (BTC) that contemplated substantial publicly financed improvements; the PDA required BTC to provide market studies and feasibility analyses to the City.
- BTC gave ECONorthwest (the City’s independent economic consultant) an unredacted Market Feasibility Assessment (Study) under a nondisclosure agreement (NDA); BTC later provided only a redacted Study to the City and public.
- Coalition for a Livable City (CLC) requested the unredacted Study under Vermont’s Public Records Act (PRA); the City denied disclosure citing lack of possession and the PRA trade-secrets exemption (1 V.S.A. §317(c)(9)).
- The trial court granted summary judgment for the City, finding the Study was not a public record the City produced or acquired and, alternatively, that the redacted financial figures and tables qualified as trade secrets.
- On appeal, the Vermont Supreme Court assumed (without deciding) the Study could be a public record but affirmed summary judgment on the alternative ground that the redacted information is exempt as trade secrets because it yields a competitive advantage and BTC took reasonable steps to keep it confidential.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the unredacted Study is a "public record" because it was provided to the City’s consultant | Study was given to ECONorthwest (City agent) and thus is a public record; City relied on consultant’s validation | City did not produce or acquire the unredacted Study; ECONorthwest’s NDA prevented disclosure and its knowledge isn’t imputed to City | Court assumed without deciding public-record status but affirmed on trade-secrets ground |
| Whether summary judgment was premature because discovery might show City actually received the unredacted Study | More discovery needed; Board of Finance executive-session minutes suggest the Study (or content) was shared | Record did not show City acquired the unredacted Study; denial of discovery insufficient to create issue | Summary judgment affirmed; alternative PRA exemption disposition made discovery unnecessary for outcome |
| Whether the redacted financial figures and tables qualify as trade secrets under 1 V.S.A. §317(c)(9) | Figures are market projections, not proprietary trade secrets; estimates and some rent info publicly available | Redacted rents, revenues, costs, lease terms and pro formas provide competitive advantage and fit statutory definition | Held: redacted information falls within the trade-secrets exemption |
| Whether BTC made reasonable efforts to keep the information secret | NDA with ECONorthwest was not City-approved and PDA was only an "agreement to agree," so efforts were insufficient | BTC limited disclosure to essential third parties and used confidentiality agreements; requested City acknowledgement of NDA | Held: BTC made reasonable efforts under the circumstances; enforceability against City not required for exemption |
Key Cases Cited
- Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 816 A.2d 448 (Vt. 2002) (financial and competitive business information can qualify as trade secrets under PRA exemption)
- State v. Corp. for Findlay Mkt., 988 N.E.2d 546 (Ohio 2013) (commercial lease rates and terms may be trade secrets exempt from public-records disclosure)
- Utah v. U.S. Dep’t of Interior, 256 F.3d 967 (10th Cir. 2001) (disclosure of core lease terms would impose competitive disadvantage and is protectable)
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 160 F. Supp. 3d 226 (D.D.C. 2016) (unit pricing and similar vendor financial data can be withheld to prevent competitive harm)
- Hyman Cos., Inc. v. Brozost, 119 F. Supp. 2d 499 (E.D. Pa. 2000) (lease negotiations and store-level profitability may be protectable as trade-secret information)