Trade secrets exemptions discussion open to public

By Dave Ress

If you want to get a sense of where Virginia’s FOIA is headed, meetings of the state Freedom of Information Advisory Council can be very, um, educational.

They’re meeting this Monday, May 15, at 1:30 p.m. in House Room 1, in the state capitol.

At that meeting, the Council’s main work will be to consider clarifying what kinds of records provided by businesses to governments can be (but not must be!) shielded from public scrutiny. FOIA currently has 28 separate exemptions for such records, most of which give specific agencies the option to withhold much less specifically defined records.

Basically, the council is trying to define what trade secrets can be shielded and to take a crack at what “proprietary” records means as well.  The issue with the latter, as the Virginia Supreme Court has pointed out, is that proprietary means “belonging to.” It’s pretty vague, and therefore can used to apply to just about anything. And is. 

The council’s staff has proposed using a definition for trade secrets that is already in an entirely different section of the Code of Virginia. Their proposal won’t actually repeat the definition in FOIA (more’s the pity for those who may not have the while Code easily to hand. To save you the bother of looking it up, the definition is information that somebody makes an effort to keep secret because it is valuable (or potentially valuable” because is it isn’t generally known. It can include a formula, process, device. The Code of Virginia requires many words than that to describe a trade secret, but hey, it was written by lawyers.

The council’s staff have floated a definition of proprietary material as information “that has not been publicly disseminated or which is unavailable from other sources, the release of which may cause the creator or submitter of the  information competitive harm.” Perhaps this seems broad?

One interesting feature of the staff’s trade secrets draft is to require a business to say it wants a trade secret to be shielded from FOIA requests and to say why. The government agency then has to say if it agrees that the information is a trade secret. That decision, of course, could always be challenged.

Defining proprietary information isn’t as easy as referring to another section of the Code of Virginia. One issue: The current language shielding a business’s financial records can be used to shield details about a public body’s financial commitment to a  project. Another is trying to set up an the same kind of “earmarking” procedure outlined for trade secrets.

There’ll be chances to comment on the drafts, which you can read here and here.

It could be a great opportunity for everyone – officials, citizens, legislators, journalists – to discuss what kind of records ought at times (not always!) be shielded from the public, and when records should always be open for inspection. 

You can also comment on other bills before the council, one of which requires every public body afford an opportunity for public comment during any open meeting and another of which allows the Tobacco Region Revitalization Commission to hold meetings through electronic communications means that shall not be required to be open to the public.

Hope to see you there!

Dave Ress covers state and regional issues for the Daily Press in Newport News. He’s worked for newspapers in Virginia and New Jersey as well as for Reuters in Canada, Britain and Africa. He is the author of Gov. Edward Coles and the Vote to Forbid Slavery in Illinois, 1823-1824 and has a PhD in history from the University of New England in Armidale, NSW, Australia.

Truth in the Field is a series of columns intended to encourage citizens' use of open government provisions. Contributors’ opinions are their own. For more information or to submit a column for potential publication, please contact the editor, Shelley Kimball, at kimball@gwu.edu.