Trade secrets in public records
Q: In early May 2007, the media revealed that the city manager had entered into a written confidentiality agreement with representatives of a major sports team. The parties to the agreement deemed in the document that certain information to be disclosed to the City would be “trade secrets.” Further, it was reported that such “trade secrets” would be revealed to the City Council at a closed session on May 8, 2007.
On May 10, I submitted a written request under the PRA asking for documents fitting the description identified in 9 categories.
For present purposes, the first three requests were (1) the confidentiality agreement, (2) all documents and writings disclosed, made or produced pursuant to the confidentiality agreement and (3) “Any and all documents prepared and/or distributed including any notes made at or shortly after the City Council’s closed session held on May 8, 2007, relating to the team.”
On Friday, May 18, I received the City Attorney’s response which claimed no exemptions and further, that the documents requested would be ready for review this Friday May 25.
My questions are as follows:
(1) Does the failure in the City’s response to claim any exemption, give rise to a waiver of any objection to production? I can’t seem to find anything on this specific point. Until what point do they have to claim an exemption before it is waived.
(2)Does the failure in the City’s response to claim any exemption and the fact that the documents I requested at #3 above, give rise to a waiver of objection pursuant to 6254.5 if those documents subject of my request were reviewed with representatives of the team (“member of the public”) in the closed session?
(3) Can the City, when producing the documents, merely do a “document dump” or, are they required to produce pursuant to the 9 categories identified in my requesting letter.
A: With respect to your questions below:
(1) I am not aware of any provision of the Public Records Act that would cause an agency’s failure to claim an exemption in an initial PRA response to waive the exemption. Section 6253(c) of the PRA seems to provide for a single “determination” with respect to a request, but there does not seem to be any reason why an agency that discovered that one or more requested documents is actually exempt from disclosure after initially indicating that it would disclose the records would be estopped from claiming the exemption at any time until the records are actually disclosed (at which point the waiver provision of Section 6254.5, which you reference in your second question, would probably apply).
(2) It is not clear that an agreement between a private entity and city would be deemed to have been disclosed to a member of the public under Section 6254.5 because representatives of the private entity have seen the agreement. It may be, however, that the agreement or other documents are simply not exempt from disclosure in the first place.
(3) I am not aware of any authority addressing whether an agency may perform a “document dump” in response to a PRA request, but if such conduct involved deliberately hiding requested records among a large quantity of records that were not requested, it would seem to violate Section 6253’s requirement that agencies make “an identifiable record or records . . . promptly available.” Such conduct would seem at the least to run counter to the spirit of the PRA (as embodied, in particular, in Section 6253.1’s requirements that agencies assist individuals in inspecting records).