Chapter §13.5 Protection of Trade Secrets From Disclosure

• Jurisdiction: Washington

§13.5 PROTECTION OF TRADE SECRETS FROM DISCLOSURE

Private commercial entities submitting trade secrets to public agencies should be aware of the potential risk that the information will be subject to public disclosure. Before submitting trade secret information to a public agency, a business should conduct due diligence and evaluate the risks associated with submitting confidential information to the agency. A business may wish to limit the information provided to that which is absolutely necessary and consider all options available that may prevent disclosure of proprietary information through a PRA request. At minimum, a business should learn, and adhere to, mandated agency labeling guidelines to mark its trade secrets as "confidential," to alert the agency that the submitted documents contain proprietary, confidential information that the submitter considers to be a trade secret.

Remember that a public agency cannot provide an enforceable contractual promise that it will prevent disclosure in response to a PRA request. "[A]n agency's promise of confidentiality or privacy is not adequate to establish the nondisclosability of information; promises cannot override the requirements of the disclosure law." Hearst Corp. v. Hoppe, 90 Wn.2d 123, 137, 580 P.2d 246 (1978). The Supreme Court's decision in Lyft, Inc. v. City of Seattle, 190 Wn.2d 769, 418 P.3d 102 (2018), clarified that public agencies have no "duty of confidentiality," even where the city had promised the plaintiffs that it would "work to achieve the highest possible level of confidentiality for information provided within the confines of state law." Id. at 774 & 788-89.

Even though public agencies cannot agree to keep trade secrets and other proprietary information confidential, they can agree to maintain confidentiality to the extent permitted by the PRA and other applicable law, and to provide entities submitting such information with notice of a third-party PRA request under RCW 42.56.540. Such an agreement provides the party submitting potentially proprietary information to agencies a procedural opportunity to protect its trade secrets, and the existence of a confidentiality agreement maybe relevant to demonstrate that the information is subject to "efforts that are reasonable under the circumstances to maintain its secrecy," and thus a trade secret. RCW 19.108.010(4). Once an agency notifies a third party that its confidential information will be released unless enjoined by a court order, the third party needs to take action to prevent disclosure. Ten business days appears to be the customary notice period. See WAC 44-14-04003(12). More notice might be appropriate under certain circumstances; however, "every additional day of notice is another day the potentially disclosable record is being withheld." Id.

The party seeking protection could pursue several options upon receiving notice that its information will be released, while still preparing for...