Conflicts Between the Sunshine Law and Trade Secret Protection in Public Procurement

Public officials have a duty to conduct meetings in the open. But sometimes they need to discuss private business information, like trade secrets, with vendors. This creates a conflict between being open and protecting these secrets. As the government does more business with private companies, this conflict becomes more important to resolve. When companies want to do business with the government, they have to give a lot of information about their products and how their business works. This information is usually subject to being shared with the public. However, there are laws that protect some of this information, called trade secrets, from being shared. Trade secrets can be things like a company’s customer list, financial information, or technical details about their products. These laws help companies keep their important business information private, even when they work with the government. Trade secrets are information that companies want to keep confidential, like special formulas or methods. A law in Florida protects trade secrets from being shared as public records and has criminal penalties for unauthorized disclosure. This law was created because public officials were struggling to follow the rules for public records while also protecting trade secrets. Vendors, or companies selling things to the government, need to know their trade secrets will be safe. Sometimes vendors tell the government when their proposals have trade secrets and should be kept confidential. This means the government has to keep those proposals secret even after they’ve made their decision. The problem comes when government officials need to talk about these proposals in a meeting, because there’s no law that lets them keep trade secrets secret during those meetings. The Sunshine Law says that all meetings where official decisions are made by government groups must be open to the public. This includes advisory committees and procurement meetings. Some court cases have shown that the Sunshine Law applies to the public procurement process, like vendor presentations and contract negotiations. None of these cases involved trade secret protection for vendors. Procuring agencies are in a tough spot because they have to balance the need for transparency with protecting vendors’ trade secrets. The Sunshine Law requires meetings to be open to the public, but some discussions about confidential documents, like trade secrets, need to be private. A court has recognized this and made an exception for discussing confidential documents.

Source: https://www.floridabar.org/the-florida-bar-journal/conflicts-between-the-sunshine-law-and-trade-secret-protection-in-public-procurement/