How to Protect Trade Secrets Under the Georgia Open Records Act

One question our clients sometimes ask when doing business with governmental entities in Georgia is how to protect their trade secrets from disclosure under the Georgia Open Records Act. The answer is nuanced, and takes careful consideration and diligent effort to accomplish.

The Georgia Open Records Act, O.C.G.A. § 50-18-70 et seq., provides for broad public access to records in the possession of governmental entities, subject to several exceptions.  

The Act provides that “All public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure.”  O.C.G.A. § 50-18-71(a).

Among the many exceptions to disclosure under the Act is one for “trade secrets obtained from a person or business entity that are required by law, regulation, bid, or request for proposal to be submitted to an agency.”  O.C.G.A. § 50-18-72(a)(34).  

Any piece of information could constitute a trade secret if it satisfies the three principal requirements of O.C.G.A. § 10-1-761(4).

The first requirement is that it is “not commonly known by or available to the public.”  O.C.G.A. § 10-1-761(4).  An example would be information developed internally and not shared with the public.

The second requirement is that the information have “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.”  O.C.G.A. § 10-1-761(4)(A).  An example would be information that would have economic value to a competitor (e.g., who might try to underbid, criticize, otherwise interfere with the business relationship, etc.).

The third requirement is that the information “is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”  O.C.G.A. § 10-1-761(4)(B).  Reasonable efforts may take the form of a confidentiality provision in a contract, or an NDA.  Other ways to maintain secrecy would be for the documents to be housed in a password-protected network where only employees working on the matter have access to them, and employment agreements that require employees to return company confidential information when departing the company’s employ.  Generally speaking, the broader the group which the information is shared with (e.g., third parties outside of privity of contract, etc.), the less likely to satisfy the third requirement.

To protect information submitted to a governmental entity from disclosure as a “trade secret,” the submitting party must submit and attach an affidavit to the records affirmatively declaring that specific information in the records constitutes trade secrets as defined in O.C.G.A. § 10-1-761.  See O.C.G.A. § 50-18-72(a)(34). Provided that the information proposed to be disclosed to the government satisfies the requirements of O.C.G.A. § 10-1-761 (i.e., it is “not commonly known by or available to the public,” has “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 “is the subject of efforts that are reasonable under the circumstances to maintain its secrecy”), the information can be protected from automatic disclosure through the affidavit submission process.

However, the exclusion for trade secrets in the Open Records Act contemplates two scenarios whereby the records may be disclosed: (1) where a request for the records is made, and the governmental entity determines that the records do not constitute trade secrets; and (2) where the governmental entity determines that the records do constitute trade secrets, but the requestor files an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure.  O.C.G.A. § 50-18-72(a)(34).  

If the governmental entity agrees in advance that the records constitute trade secrets, then only the latter scenario (i.e., a successful action by a requestor in superior court) would result in disclosure of the records.  Nonetheless, even with a pre-certification agreement, it would be best practice to attach a trade secrets affidavit to each submission.  Otherwise, an open records requestor could claim that you did not comply with the statute to protect the documents from disclosure.