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Official Opinion 94-15

Official Opinion 94-15

March 31, 1994
To: 

Executive Director
Georgia Ports Authority

Re: 

Georgia Ports Authority information, meeting the definition of a trade secret under the Georgia Trade Secrets Act, is not exempt from disclosure under the Georgia Open Records Act, although trade secret information obtained from third parties may be exempt from disclosure.

You have requested my official opinion on the question of whether information contained in a contract with one of the Georgia Ports Authority's customers must be released pursuant to a request under the Georgia Open Records Act (O.C.G.A. § 50-18-70 et seq.). For the reasons set out below, it is my official opinion that the information sought may be properly obtainable under the Open Records Act.

Your request explained that several months ago an existing customer of the Ports Authority inquired whether the Authority would be interested in expanding its services to include services the customer was then receiving from another provider. The Authority determined that an initial investment would be required to offer the expanded service, but that investment would generate substantial revenues from this and other potential customers of the service. As a result, the Ports Authority and the customer entered into an agreement for the Authority to provide the service at agreed upon rates and the customer to provide minimum annual guaranteed metric tons.

Subsequently a competitor of the Georgia Ports Authority made an Open Records Act request to view the contract. The Authority expressed the feeling that the contract contains certain proprietary information, such as the rates, tonnage guarantees and monetary guarantees, which, if disclosed, would

place the Authority in a position of being unable to compete in the port industry.

At the outset it is clear that at least portions of the contract must be made available for viewing. If any parts of the contract are exempt from disclosure under the Open Records Act, or any other statute, only those parts of the contract can be excluded from disclosure. The remainder of the contract must be open for inspection. O.C.G.A. § 50-18-72(g). I have not reviewed the contract and do not know the detail of those portions the Authority feels contain "proprietary information." Therefore, I will address the question somewhat generically.

Before doing so, however, I note the reference in your request to the fact that the information is sought by a competitor and is "not a news media request under the Open Records Act." This distinction is immaterial. The statute requires all state, county and municipal records to be "open for a personal inspection by any citizen" except for disclosure of certain limited documents. O.C.G.A. §§ 50-18-70(b), -72; see 1993 Op. Att'y Gen. 93-27.

Your letter correctly notes that the Open Records Act contains no specific disclosure exemption for proprietary information. Unless the requested information fits under one of the existing disclosure exemptions, the Open Records Act can not be relied upon as a basis for non-disclosure. "This Code section [50-18-72] shall be interpreted narrowly so as to exclude from disclosure only that portion of a public record to which an exclusion is directly applicable." O.C.G.A. § 50-18-72(g) (emphasis added).

The fact that disclosure would lessen competition has not been viewed as a sufficient basis for exempting disclosure of the information. See Hardaway Co. v. Rives, 262 Ga. 631 (1992); 1991 Op. Att'y Gen. 91-11.

In the context of your inquiry, the provision most closely aligned with information which may be proprietary provides an exemption for what the Code calls "trade secrets." O.C.G.A. § 50-18-72(b). However, this Subsection provides no disclosure exemption for the Ports Authority's trade secrets. The exemption applies specifically to those trade secrets which are "obtained from a person or business entity." O.C.G.A. § 50-18-72(b)(1). For the purposes of the Open Records Act the term "trade secret" has the same meaning as is found in O.C.G.A. § 10-1-761(4). BellSouth Telecommunications, Inc. v. Georgia Pub. Serv. Comm'n, Civil Action File No. E-07376, Fulton County Superior Court, p. 14, aff'd w/o opinion per Rule 59, 263 Ga. (1993).

Where information is prepared by a private party, and that information is a trade secret as long as it is retained by that party, the fact that the information comes into the hands of a governmental entity acting as a custodian of that private information does not necessarily make such information a "public record." BellSouth Telecommunications, Inc. v. Georgia Pub. Serv. Comm'n, supra, p. 21. Although the entity with which the Authority contracted considers the contract to contain trade secrets, as evidenced by the letter accompanying your request, the information sought from the Ports Authority differs substantially from the information protected as a trade secret in BellSouth Telecommunications, Inc. In that case it was not questioned that the information met the definition of "trade secret." Additionally, the information was prepared by BellSouth for its internal use and disclosure was required by the Georgia Public Service Commission as part of a rate investigation. Contrast that with the information presently sought from the Authority, which was jointly developed, negotiated and agreed upon between the public and private entities and included in a document which the Authority "prepared and maintained in the course of the operation of a public office." Houston v. Rutledge, 237 Ga. 764, 765 (1976). However, if the contracting entity can establish that the information sought to be protected meets the definition of "trade secret" (O.C.G.A. § 10-1-761), the Ports Authority has an obligation to protect it. See O.C.G.A. § 10-1-762; BellSouth Telecommunications, supra.

The disclosure exemptions of O.C.G.A. § 50-18-72 are not exclusive. Prohibitions against, or exemptions from, disclosure may be found in other areas of the law. Hardaway Co. v. Rives, 262 Ga. 631, 632 (1992); see generally Napper v. Georgia Television Co., 257 Ga. 156, 165-69 (1987).

One potential source of exclusion is the privilege given "secrets of state" (O.C.G.A. § 24-9-21(4)) and "state matters of which the policy of the state and the interest of the community require concealment" (O.C.G.A. § 24-9-27(d)). For the reasons set out in Hardaway Co., supra, the privilege afforded these two matters does not prevent the disclosure of the information which has been requested from the Ports Authority.

The Georgia Trade Secrets Act of 1990 (O.C.G.A. § 10-1-760 et seq.) potentially provides a basis for withholding the requested information. Because O.C.G.A. § 50-18-72(b) addresses trade secrets, but only those obtained from persons or entities, the exemption in the Trade Secrets Act would have to be extremely clear to be relied upon.

The Trade Secrets Act does not provide a blanket prohibition against the disclosure of trade secrets, even those of the government. Rather, the Act addresses the "misappropriation" of trade secrets obtained by "improper means," accident or mistake. See, e.g., O.C.G.A. §§ 10-1-761, -762, -763. If the requested information is a trade secret of the Ports Authority, the Open Records Act provides no exemption from disclosure. See O.C.G.A. § 50-18-72(b); BellSouth Telecommunications, Inc., supra, p. 23. The obtaining of such information by an Open Records request, therefore, would not be an impermissible acquisition by improper means, accident or mistake. O.C.G.A. § 10-1-761(2).

Based upon the foregoing, it is my official opinion that the trade secrets of any state department, agency, board, bureau, commission or authority are not exempt from public disclosure under the Open Records Act. O.C.G.A. § 50-18-72. Information in the possession of such entity which is a trade secret of others must be protected from disclosure. BellSouth Telecommunications, Inc., supra. If it is not clear that the requested information constitutes a trade secret of another, the entity contending that the information is a trade secret may exercise its rights to protect the information. O.C.G.A. § 10-1-762.

The present situation seems to fall into this latter category. Therefore, the Authority should notify the private party with whom it contracted that the requested information will be released on a day certain approximately two weeks after the date of the notice. That would give the party sufficient time to take whatever steps it deems appropriate to protect any of its legitimate trade secrets.

Prepared by:

ROLAND F. MATSON
Senior Assistant Attorney General