Chapter 4 - § 4.10 • CONFIDENTIALITY

• Jurisdiction: Colorado

§ 4.10 • CONFIDENTIALITY

The Colorado Procurement Code, generally, states that procurement information is a public record under the Colorado Open Records Act¹⁴⁴ and available to the public as provided in C.R.S. §§ 24-72-203 and -204.¹⁴⁵ Under the Colorado Open Records Act, all public records are open for inspection by any person at reasonable times.¹⁴⁶ However, requests to review public records will be denied for "[t]rade secrets, privileged information, and confidential commercial, financial, geological, or geophysical data . . . furnished by or obtained from any person."¹⁴⁷ The burden to demonstrate that records are "trade secrets" or "confidential" rests upon the party opposing disclosure.¹⁴⁸

The Colorado Open Records Act does not define "trade secrets" or "confidential." However, the Colorado Uniform Trade Secrets Act¹⁴⁹ defines "trade secrets" as follows:

[T]he whole or any portion or phase of any scientific or technical information, design, process, procedure, formula, improvement, confidential business or financial information, listing of names, addresses, or telephone numbers, or other information relating to any business or profession which is secret and of value.¹⁵⁰

Colorado case law and opinions by the Colorado Attorney General state that information is "confidential" if its disclosure is (1) likely to impair the government's ability to obtain necessary information in the future, or (2) likely to cause substantial harm to the competitive position of the person from whom the information was obtained.¹⁵¹

With invitations for bids, bids are opened publicly.¹⁵² The names of the bidders and bid prices are open to public inspection.¹⁵³ Opened bids are available for public inspection, unless bidders designate trade secrets or other proprietary information as confidential.¹⁵⁴ If bidders designate information as confidential, the confidential information must be submitted in the bid separate from the non-confidential information.¹⁵⁵ In addition, prior to bid opening, bidders must submit written requests for non-disclosure of trade secrets and other proprietary information to the procurement officer.¹⁵⁶ If the procurement officer and bidders cannot reach an agreement about the disclosure of information, the procurement officer must determine what information will and will not be disclosed, and contractors may then file protests pursuant to C.R.S. Title 24, Article 109.¹⁵⁷ At the time of award, all bids and bid documents are open for public inspection...