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Home My WebLink About12-23-2008 Legal opinion on Public Records RequestJan Palladino From: Kate Latorre [klatorre @ orlandolaw. net] Sent: Tuesday, December 23, 2008 12:12 PM To: Ron McLemore Cc: Jan Palladino; Michelle Greco; Andrea Lorenzo-luaces Subject: Legal Opinion on Public Records Request Attachments: Kate Latorre.vcf; Solid Waste & Trade Secret.pdf Ron Please find our legal opinion attached hereto regarding a public records request submitted to the City last week seeking information related to the City's commercial solid waste customers. Please contact Anthony or me with any questions or concerns. Thanks, Kate Ci Katherine W. Latorre, Esq. Board Certified in City, County & Local Government Law 111 N. Orange Avenue, Suite 2000 P.O. Box 2873 Orlando, Florida 32802-2873 Phone (407) 425-9566 Fax (407) 425-9596 Kissimmee (321) 402-0144 Cocoa (866) 425-9566 Website: www.orlandolaw.net Email: klatorre@orlandolaw.net Any incoming e-mail reply to this communication will be electronically filtered for "spam" and/or "viruses." That filtering process may result in such reply being quarantined (i.e., potentially not received at our site at all) and/or delayed in reaching us. For that reason, we may not receive your reply and/or we may not receive it in a timely manner. Accordingly, you should consider sending communications to us which are particularly important or time -sensitive by means other than e-mail. Confidentiality Note: This e-mail, and any attachment to it, contains privileged and confidential information intended only for the use of the individual(s) or entity named on the e-mail. If the reader of this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from your system. Thank you. BROWN, GARGANESE, WEISS & UAGRESTA, P.A. Debra S. Babb-NutcheF Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° William E. Reischmann, Jr. J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer `Board Certified City, County & Local Government Law Board Certified Appellate Practice Ronald McLemore City Manager City of Winter Springs 1126 E. State Road 434 Winter Springs, FL 32708 Attorneys at.Laiv Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett Ft. Lauderdale & Tampa Vivian P. Cocotas Scott J. Dornstein Robin Gibson Drage Christopher H. Hunt Katherine W. Latorre` Terri E. Oster Richard W. Withers December 23, 2008 Re: Public Records Request for Commercial Solid Waste Data Dear Ron: Gary M. Glassman Erin J. O'Leary' Amy J. Pitsch Catherine D. Reischmann° Of Counsel Finance Director Michelle Greco contacted my office last week seeking guidance on responding to a public records request submitted by a waste hauler seeking certain data related to the City's commercial solid waste customers. Michelle was concerned with disclosing the latest commercial customer report received by the City because Waste Pro had marked the report "Proprietary & Confidential" on each page. There is no indication that Waste Pro has changed its position with regard to the report's confidentiality. After reviewing the applicable statutes and other legal authority, as well as the City's current Franchise Agreement with Waste Pro, I recommend against disclosing the requested data because it may constitute "trade secret" information. Analysis The City's Franchise Agreement with Waste Pro requires in Section 19.3 that Waste Pro provide the City with a monthly report listing various information related to the services provided to the commercial customers located within the City. The report includes, among other things, customer names, frequency of pickup, total yards, revenue per yard, and other fees and revenues associated with the solid waste services provided to the commercial customers. Additionally, section 19.1 of the Franchise Agreement provides that the City shall have inspection and copying rights to certain records of Waste Pro that constitute public records under Chapter 119, Florida Statutes. However, the Agreement 111 N. Orange Ave, Suite 2000 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 - Cocoa (866) 425-9566 - Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net R. McLemore December 23, 2008 Page 2 provides in the same section that Waste Pro's trade secrets and proprietary information shall not be subject to public records disclosure. Florida law's definition of "trade secret" includes any "compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it." § 812.081(1)(c), Fla. Stat. Further, trade secrets include commercial information and customer lists. Id. In addition to the trade secret being used by and giving an advantage to a business, section 812.081 also specifies that trade secrets are considered to be secret and of value when the owner of the trade secret information takes measures to prevent it from becoming available to persons other than those selected by the owner to have access to it for limitedpurposes. Id. (emphasis supplied). The Florida Legislature has provided an express exemption to Florida's public records laws for trade secret information, finding such exemption to be a "public necessity." See § 815.045, Fla. Stat. Given that it is a felony to disclose trade secret information, the Legislature explained that there is legal uncertainty as to whether a public employee would be protected from a felony conviction if the employee otherwise complied with the disclosure requirements of Florida's Public Record Law. Id. Further, the Legislature explained that allowing trade secret information in an agency's possession to be disclosed would negatively impact the business interests of those to whom the trade secrets belong, thereby damaging them in the marketplace. Id. This would, in turn, cause those entities with trade secret information to hesitate in cooperating with agencies and impair the effective and efficient administration of governmental functions. Id. In Sepro Corp. v. Fla. Dep't of Environ. Protection, 839 So. 2d 781 (Fla. 1 st DCA 2003), the court considered whether certain information provided to a public agency should be disclosed as a public record or whether it constituted trade secret information. The court ruled that while "a conversation with a state employee is not enough to prevent [alleged trade secrets] from being made available to anyone who makes a public records request," documents submitted by a private party which constituted trade secrets as defined in section 812.081, Florida Statutes, and which were stamped as confidential at the time of submission to the state agency, were not subject to public access. Id. at 784 (emphasis supplied). Similarly, the report being sought from the City pursuant to the pending records request was intentionally marked by Waste Pro as "Proprietary & Confidential" and contains several pieces of data that Florida law describes as trade secret information. Notably, disclosing trade secret information willfully, knowingly, and without authorization is a felony in the third degree, punishable by a term of imprisonment for up to five years and fines up to $5,000.00. § 815.04, Fla. Stat. Alternatively, were the City to take the position that Waste Pro's commercial report is exempt from disclosure under the legal authority provided herein, the risk to the City and individual employees in comparison is significantly less severe. That is, should the City's decision not to disclose the report be subject to legal challenge, the report would likely be subject to review by a court for an inspection in camera (in closed chambers). If the court determines that the R. McLemore December 23, 2008 Page 3 asserted exemption is inapplicable, it would order the report to be immediately produced for inspection or copying as requested by the entity seeking access to the report. See § 119.071(1)(e), Fla. Stat. If the City's position that the report constitutes a trade secret is found to be in error, the City may be responsible for reasonable attorneys' fees. § 119.12, Fla. Stat. Additionally, knowing violations of the public records laws constitute misdemeanors of the first degree. § 119.10(1)(b), Fla. Stat. However, under the circumstances, there is no criminal intent on the part of the City employees to subvert the public records laws given the complexity of this issue. Recommendation As you can discern, the City is faced with deciding between the lesser of two evils and must balance the risks associated with each choice. However, because Waste Pro's commercial report contains several characteristics described by Florida law as "trade secrets," and considering that Waste Pro affirmatively marked the report "Proprietary & Confidential" upon submitting the report to the City, I advise against disclosing the report in response to the pending public records request. Furthermore, maintaining the confidentiality of the report is consistent with the City's contractual obligations under its Franchise Agreement with Waste Pro. In refusing to disclose the report, the City should cite to sections 812.045 and 815.081, Florida Statutes, as its authorization to exempt this information from disclosure under Florida's public records laws. Please contact my office if you have any questions or desire to discuss this matter further. Very truly yours, Kate Latorre Assistant City Attorney Cc: Andrea Lorenzo-Luaces, City Clerk Michelle Greco, Finance Director