F. Financial data, trade secrets, or proprietary data of private corporations and individuals

The Alabama Open Meetings Act allows governmental bodies to convene an executive session to discuss information of the character defined or described in the Alabama Trade Secrets Act. Ala. Code § 36-25A-7(a)(7). See Ala. Code §§ 8-27-1 through 8-27-6 (2002) (Alabama Trade Secrets Act).

Note that personal financial records submitted to and considered by a regional planning commission as part of a determination regarding award of funds do not fall within one of the enumerated exceptions, and thus discussions of same cannot be closed. Op. Att’y Gen. Ala., 2006-068.

Also, financial data is explicitly protected by several statutory provisions regarding records. See, e.g., Ala. Code §11-65-15 (information on applications for racing facility license regarding confidential financial information, percentage of ownership, etc., is not open to the public); Ala. Code § 22-22-9(c) (water pollution control records produced to the Department of Environmental Management that would divulge production or sales figures or unique methods, processes, or production, trade secrets, or other competitive information is not open to the public). Public officials who receive this sensitive material probably will be aware, or will be made aware, that the confidentiality of much of this data is protected by law and will avoid discussion of the data in open meetings in such a way that confidentiality would be breached.

A number of statutes make certain information that is submitted to or generated by various public agencies confidential. The open meetings law authorizes, but does not require, an executive session to discuss "matters involving consideration of government records that by law are not subject to public disclosure." AS 44.62.310(c)(4). There is no case law addressing this issue under the OMA. However, in an opinion relating to one of a number of statutes providing or requiring protection for trade secrets and other proprietary information, the Attorney General states that except for information required to be kept confidential under AS 37.17.090(f), information contained in Alaska Science and Technology Foundation grant status reports is public and the reports must therefore be presented in open session, not executive session. February 25, 1991, Attorney General Opinion No. 663-91-0199. The Attorney General ruled that in instances in which it was proper to consider confidential information in executive session as part of a grant status report, the report should be presented in executive session to protect the particular confidential information, and then presented again in open session with the confidential information omitted.

Such discussions are covered unless the information or records are “exempt by law from public inspection.”  A.R.S. § 38-431.03(A)(2).

Although the FOIA’s “competitive advantage” exemption protects this information when embodied in the form of records, nothing in the act allows a closed session to discuss such matters. Some statutes, however, give agencies broad discretion to safeguard such information and could be read so as to allow closed meetings. E.g., Ark. Code Ann. § 23-2-316(b) (Public Service Commission). Other statutes allow in camera judicial proceedings in cases involving trade secrets. E.g., Ark. Code Ann. §§ 4-75-605, 4-88-111(c). See also Rule 507, Ark. R. Evid.

Business and financial records are open to public access when used as the basis for a public agency's decision-making. San Gabriel Valley Tribune v. Superior Court, 143 Cal. App. 3d 762, 192 Cal. Rptr. 415 (1983). However, information that constitutes a trade secret is generally exempt from disclosure. Gov't Code § 7927.705 (engrafting into CPRA exemptions under federal and state law, including provisions of California Evidence Code relating to privileges). Trade secret protection, however, is not absolute. See, e.g., Coal. of Univ. Emps. v. Regents of Univ. of Cal., 32 Med. L. Rptr. 1212 (Cal. Sup. Ct. 2003) (even assuming internal rates of return of private equity investments made by university were trade secrets, disclosure turns on balancing of interests and public interest in disclosure outweighed interest in nondisclosure).

The Bagley-Keene Act specifically provides that the following organizations may hold closed sessions to discuss financial or trade secret information:

(1) the Franchise Tax Board may meet in closed session to discuss confidential tax returns or information that cannot be lawfully disclosed to the public. Cal. Gov't Code § 11126(c)(10). See, e.g., General Am. Trans. Corp. v. State Bd. Of Equalization, 193 Cal. App. 3d 1175, 238 Cal. Rptr. 865 (1987);

(2) the State Air Resources Board may meet in closed session to consider proprietary specifications and performance data of manufacturers (Cal. Gov't Code § 11126(c)(13));.

(3) the California Integrated Waste Management Board or its committees may meet in closed session to discuss confidential tax returns, trade secrets or confidential or proprietary information in its possession (Cal. Gov't Code § 11126(c)(15));

(4) the State Board of Equalization may meet in closed session to consider confidential taxpayer appeals or data, which cannot be lawfully disclosed to the public (Cal. Gov't Code § 11126(f)(8)); and

(5) the California Gambling Control Commission may meet in closed session to discuss matters involving trade secrets, nonpublic financial data, confidential or proprietary information, and other data the disclosure of which is prohibited by law or a tribal-state gaming compact (Cal. Gov’t Code § 11126.4).

In addition, the Brown Act provides that hospitals may conduct closed sessions to discuss trade secrets pursuant to Government Code Section 1462. Cal. Gov't Code § 54962. Closed sessions are also authorized to discuss employee hardship application for early withdrawal of funds in a deferred compensation plan. Cal. Gov’t Code § 54957.10.

Open, unless disclosure of a trade secret is involved.

There are no specific provisions or exemptions in FOIA on this issue. There are also no reported court decisions on this issue.

An executive session may be allowed if an open session would result in the disclosure of exempt records. Conn. Gen. Stat. §1-200 (6)(E). See Records Outline at II.A.2 and IV.

Meetings regarding or discussing trade secrets or proprietary data may be closed. See 29 Del. C. § 10004(b)(6); see also id. § 10002(o)(2) (exempting documents relating to trade secrets or privileged or confidential financial information).

A meeting, or portion of a meeting, may be closed to discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained.  D.C. Code Ann. § 2-575(b)(11).

See discussion above at II.A.2(3) (Description of Each Exemption, Trade Secrets).

The Act has no exemption for discussions of financial data, etc.

If the meeting pertains to an individual applying for certain professional licenses and involves "personal information," the meeting qualifies as one which can be closed. Haw. Rev. Stat. § 92-5(a)(1). Otherwise, unless such matters involve "sensitive matters related to public safety or security," id. § 92-5(a)(6), such meetings cannot be closed merely because of information discussed. Id. § 92-4 (limiting executive meetings to those closed for reasons enumerated in Section 92-5).

Most proprietary business records and trade secret information are exempt from inspection and copying. The Open Meeting Law expressly permits a governing body to hold an executive session to discuss records that are otherwise exempt from public inspection. Idaho Code § 74-206(1)(d). Thus, this may be the proper subject of an executive session.

Not addressed.

The Open Door Law permits executive sessions for discussion of records classified as confidential by state or federal statute. Ind. Code § 5-14-1.5-6.1(b)(7). To the extent that these are classified as confidential records under the Access to Public Records Act, an executive session could be held to review this data. Id.

The financial data, trade secrets and proprietary data of private corporations and individuals are confidential. Iowa Code §§ 22.7(3), (6) and (8). Meetings to discuss records which are confidential need not be held in public. Iowa Code § 21.5(1)(a).

May be discussed in closed session. K.S.A. 75-4319(b)(4).  See “Requirement to state statutory authority for closing meetings before closure” above.

Presumptively open, but there is a possibility a meeting at which such documents were reviewed could be closed since public review of the documents is restricted by Ky. Rev. Stat. 61.878(1)(c) of the Open Records Act. See also Ky. Rev. Stat. 61.810(1)(g) (permitting closure of certain discussions concerning business siting and retention).

Not specifically exempted in Open Meeting Law, but proprietary or trade secret information which has been submitted to a public body is protected under the Public Records Act. La. Rev. Stat. Ann. § 44:3.2. Additionally, some opinions of the Attorney General interpreting the Public Records Act have exempted such information purportedly of a private or confidential nature. Op. Att'y Gen. 83-493; 82-860; 87320; 87-355; 89-550, 89-598, and 92-698. The Louisiana Constitution protects against invasions of privacy. Article I, Section 5.

Discussion of financial data, trade secrets, or proprietary data of private corporations and individuals (other than public employees) may be held in executive session to the extent that the discussion concerns information contained in non-public records.  1 M.R.S.A. § 405(6)(F).

Meetings that involve an individual's privacy or reputation with respect to a matter unrelated to public business may be closed. § 3-305(b)(2).

Meetings that relate to the acquisition of real property; matters concerning a proposal for the location, expansion or retention of a business or industrial organization within the State; the investment of public funds; and the marketing of public securities may be closed. §§ 3-305(b)(3)-(6). The Act also allows a body to close a meeting to "discuss, before a contract is awarded or bids are opened, a matter directly related to a negotiating strategy or the contents of a bid or proposal, if public discussion or disclosure would adversely impact the ability of the public body to participate in the competitive bidding or proposal process." § 3-305(b)(14).

A public body may go into executive session “to discuss trade secrets or confidential, competitively-sensitive or other proprietary information provided in the course of activities conducted by a governmental body as an energy supplier under a license granted by the department of public utilities . . . , in the course of activities conducted as a municipal aggregator . . . or in the course of activities conducted by a cooperative consisting of governmental entities . . . , when such governmental body, municipal aggregator or cooperative determines that such disclosure will adversely affect its ability to conduct business in relation to other entities making, selling or distributing electric power and energy.” Mass. Gen. Laws Ann. ch. 30A, § 21 (West).

The statutory definition of “public records” also exempts “trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality,” see G.L. c. 4, § 7, cl. 26(g). In addition, the statutes relating to specific agencies may authorize closed discussions of trade secrets or financial information received from businesses. See e.g. G.L. c. 40D, § 5 (Mass. Industrial Development Financing Authority).

As to an individual’s right of privacy, see G.L. c. 214, § 1B (prohibiting unreasonable, substantial, or serious invasions of an individual’s privacy), Att’y Gen. v. Sch. Comm. of Northampton, 375 Mass. 127, 375 N.E.2d 1188 (1978) (candidates for vacant school superintendency have right to keep fact of application private unless and until they reach semi-finalist status).

Not addressed.

Presumably open, although in a discussion of data protected under the Act, which might include certain private financial data, the data remains protected (although records of the meetings shall be public), and the public body may discuss such data without liability or penalty, provided the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body. Minn. Stat. § 13D.05, subd. 1(a).

No specific exemption.

Meetings relating to scientific and technological innovations in which the owner has a proprietary interest are closed. Mo.Rev.Stat. § 610.021(15). Corporate and financial information of private corporations and individuals are closed by a variety of statutes:

Any documents acquired by the State Veterinarian that reveal the financial condition of a licensee are confidential. Mo.Rev.Stat. § 277.120.

Tax returns and Department of Revenue reports, containing information received by the Department of Revenue in connection with the administration of tax laws are made confidential by Mo.Rev.Stat. § 32.057.1, and can only be disclosed under certain circumstances enumerated in § 32.057.2.

Generally, corporate information obtained by the Secretary of State or the Supervisor of Corporation Registration is required to keep confidential information obtained during the course of examining the books and records of any corporation. Mo.Rev.Stat. § 351.665.

Information obtained from financial institutions (banks, trust companies, small loan businesses) by the Missouri Director of Finance in the course of examinations is generally deemed confidential. Confidential information includes information relating to private accounts, affairs and transactions, and financial information of assets and liabilities. Mo.Rev.Stat. § 361.080.

The books and records of Savings and Loan Associations pertaining to accounts and loans of account holders, borrowers, and stockholders are to be held confidential by the Director of the Division of Finance, examiners, and other State representatives pursuant to Mo.Rev.Stat. § 369.099.

Information obtained from savings and loan associations obtained by examiners of the Division of Finance and Examiners is generally confidential. Mo.Rev.Stat. § 409.830.

Generally, all information retained by the Missouri Commissioner of Securities is public information and must be available for examination by the public. Mo.Rev.Stat. § 409.830. However, information obtained in the course of private investigations by the Commissioner of Securities may be closed to the public. Id.

Records submitted to the Missouri Department of Economic Development, the Missouri Economic Development, Export and Infrastructure Board, or to a Regional Planning Commission relating to financial investments in a business, sales projections or other business plan information, are closed under Mo.Rev.Stat. § 620.014.

Risk Based Capital (RBC) Reports are comprehensive financial plans that insurance companies are required to submit annually to the National Association of Insurance Commissioners (NAIC) and Missouri Department of Insurance (on or before March 1). Mo.Rev.Stat. § 375.1252. RBC Reports are confidential but the director may decide to share the Reports with other regulatory agencies, the National Association of Insurance Commissioners, and law enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document and its information. Mo.Rev.Stat. § 375.1267.

The Missouri Department of Natural Resources requires that any owner or operator of an underground storage tank furnish the Department with information relating to the tanks. Mo.Rev.Stat. § 319.117. Generally, records containing that information are to be made available to the public. Id. However, if a person demonstrates to the Department that public disclosure of such records would divulge commercial or financial information entitled to protection under state law, the Department will deem the records confidential. Id.

Information submitted to the Land Reclamation Commission in connection with permits for coal exploration may be withheld from the public if it constitutes trade secrets or privileged commercial or financial information. Mo.Rev.Stat. § 444.845.2.

Mo.Rev.Stat. § 198.032 provides that medical, social, personal, or financial records of any nursing home resident is confidential, only to be released upon a court order, or to certain enumerated agencies, law enforcement officials, or the person to whom the records pertain.

A meeting may be closed if necessary to protect trade secrets of a corporation under certain limited circumstances. Great Falls Tribune v. Montana Public Service Commission, 2003 MT 359, 319 Mont. 38, 82 P.3d 876 (disclosure of utility company records).

No specific exemption, but see Grein v. Board of Education, 216 Neb. 158, 164, 343 N.W.2d 718, 723 (1984). Where public finances are involved, the "public interest" ordinarily demands an open meeting. Id. The reputation to be protected may not be that of the public body, and "slight discomfort" to an individual is insufficient to overcome the presumption of openness. Id.

If the purpose of a meeting is to receive information that is required by law to be kept confidential, the meeting may be closed for the limited purpose of receiving that information.

There is no case law on this issue but such matters would probably support a nonpublic session. See RSA 91-A:5, IV. As for trade secret records, see CaremarkPCS Health, LLC v. New Hampshire Dep't of Admin. Servs., 167 N.H. 583 (2015).

Access to these records is governed by the OPRA and the common law. A meeting of an effective majority of a public body to discuss these issues  is required to be open to the public unless the discussions fall into one of the categories set forth in N.J.S.A. 10:4-12b(1)-(9).

There is no statutory or case law addressing this issue.

An executive session may be conducted to discuss the financial, credit or employment history of a particular person or corporation. N.Y. Pub. Off. Law § 105(1)(f) (McKinney 1988). See LaCorte Electrical Construction and Maintenance v. Cty. of Rensselaer, 177 A.D.2d 786, 576 N.Y.S.2d 397 (3d Dep’t 1991), rev’d on other grounds, 80 N.Y.2d 232, 604 N.E.2d 88, 590 N.Y.S.2d 26 (1992) (discussion of bidder’s financial, credit, and employment history in closed session was proper); Weatherwax v. Town of Stony Point, 97 A.D.2d 840, 468 N.Y.S.2d 914 (2d Dep’t 1983) (executive session held by town board was in violation of OML; the board’s policy decision not to extend insurance benefits to police officers on disability retirement applied equally to all retirees, even though decision affected only one person when made, and thus it could not be said that the meeting was to discuss the “medical, financial, credit or employment history of a particular person”); Orange Cty. Publications v. Cty. of Orange, No. 5686-78 (Sup. Ct., Orange Cty., Oct. 26, 1983) (executive session held by a local legislative committee to discuss salaries for two elected positions was in violation of the OML, as “the salary histories of the positions were discussed and not the particular persons involved”).

The Open Meetings Law makes no reference to discussions of any of these topics. However, a public body could go into closed session if an open session would reveal information that is a trade secret under G.S. § 132-1.2.

The portion of a meeting held to discuss or consider information pertaining to trade secrets and proprietary, commercial, or financial information received from a person who is interested in or is applying for or receiving financing, technical assistance, or other forms of business assistance. N.D.C.C. § 44-04-18.4.

 

Open sessions, except that county hospitals may hold closed sessions to consider trade secrets. Ohio Rev. Code § 121.22(G)(7). Also, veterans service commissions shall hold executive sessions when reviewing applications for financial assistance and interviewing applicants. Ohio Rev. Code § 121.22(J).

However, in light of the Ohio Supreme Court's ruling in State ex rel. Allright Parking Co. v. City of Cleveland, 63 Ohio St. 3d 772, 591 N.E.2d 708 (1992), that public offices cannot be compelled to release otherwise public records containing the trade secrets of private businesses, the same rationale may apply to meetings of public bodies.

• The Oklahoma Industrial Finance Authority may hold executive sessions when the matter to be discussed involves trade secrets. 25 O.S. § 307.C.2.
• The Oklahoma Development Finance Authority may hold executive session, when the matter to be discussed concerns trade secrets. 25 O.S. § 307.C.3.
• The Oklahoma Center for the Advancement of Science and Technology may hold executive sessions when the item to be discussed concerns trade secrets. 25 O.S. § 307.C.4.

• The Oklahoma Health Research Committee may hold executive sessions to discuss matters pertaining to research and development of products, if public disclosure would interfere with the development of patents, copyrights, products or services. 25 O.S. § 307.C.6.

If these matters are reduced to written form and qualify for a Public Records exemption, they may properly be considered in executive session. ORS 192.660(2)(f).

The Act provides that such information may be kept confidential if protected by a privilege or other legal measure. 65 Pa. C.S.A. § 708.

No specific exemption.

While these categories of information would be exempt from mandatory disclosure in public records, there is no comparable exemption from public discussion. See City of Columbia v. A.C.L.U. of South Carolina, 475 S.E.2d 747 (S.C. 1996).

Presumably closed, in light of various confidential records provisions.

Fact-specific, case-by-case determination.  See T.C.A. § 8-44-102(b)(1)(E)(ii) (protecting trade secrets).

Other than Section 551.079, which deals with the solvency of private companies regulated by the Texas Department of Insurance, and Sections 551.081 and 551.0811 which deal with the Credit Union Commission and The Finance Commission of Texas deliberations on matters "made confidential by law," the Act does not contain any proprietary or trade secret protection.

The Open Meetings Act contains no exemption for these topics, but there are a number of statutes (summarized in the Open Records portion of this outline) that state that records containing such data shall be confidential. It is possible that a court would allow a government entity to close that portion of a meeting that relates to topics classified as protected by statute. However, no express judicial decision on this point exists.

Presumed closed if considering documents deemed confidential.  See 1 V.S.A. § 312(e) (“nor shall anything in this section be construed to require the making public of any proceedings, records, or acts which are specifically made confidential by the laws of the United States of America or of this State”).

Numerous closed meeting exclusions address this topic.  Closed meeting rules address discussions of private business information by certain universities, Va. Code Ann. §§ 2.2-3711.A.22 and 23; the Wireless Carrier E-911 Cost Recovery Subcommittee, Va. Code Ann.§ 2.2-3711.A.26; local bodies providing telecommunications or cable television services, Va. Code Ann. § 2.2-3711.A.32; local authorities acting under the Virginia Wireless Service Authorities Act, Va. Code Ann. § 2.2-3711.A.33; the Virginia Port Authority, Va. Code Ann. § 2.2-3711.A.37; the Virginia Tobacco Region Revitalization Commission, Va. Code Ann. § 2.2-3711.A.43;  the Commercial Space Flight Authority, Va. Code Ann. § 2.2-3711.A.44; bodies governing resource management, Va. Code Ann. § 2.2-3711.A.45; the Virginia Innovation Partnership Authority, Va. Code Ann. § 2.2-3711.A.47 and 52.

There is no express limitation other than on financial and commercial information pertaining to export trading companies. RCW 42.30.110(1)(e).

The ninth exception covers "[m]atters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving competition which, if made public, might adversely affect the financial or other interest of the state or any political subdivision" (W. Va. Code §  6-9A-4(9)). That section includes the following proviso: "information relied on during the course of deliberations on matters involving commercial competition are exempt from disclosure under the open meetings only until the commercial competition has been finalized and completed." Id.

A second proviso states: "that information not subject to release pursuant to the West Virginia freedom of information act does not become subject to disclosure as a result of executive session." Furthermore, exception 12 states that an executive session may be held to "discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the freedom of information act as set forth in article one chapter twenty-nine-b [§§ 29B-1-1 et seq.] of this code." W. Va. Code § 6-9A-(4) (12).

The West Virginia Freedom of Information Act exempts from disclosure documents which constitute "trade secrets," is defined as including but not limited to:

"any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented which is known only to certain individuals within a commercial concern who are using it to fabricate, produce or compound an article or trade or a service or to locate minerals or other substances, having commercial value, and which gives its users an opportunity to obtain business advantage over competitors."

W. Va. Code § 29B-1-4 (a)(10). Thus, while there is no specific exception allowing closed meetings to consider financial data, trade secrets or proprietary data of private corporations and individuals, the second proviso of subsection (9) seems to require that, if documents relating to such private data or trade secrets are discussed in executive session, the documents need not be disclosed under the first proviso that requires disclosure after "the commercial competition has been finalized and completed." There are not any reported cases construing these provisos.

Finally, in the FOIA case, Town of Burnsville v. Cline, 188 W. Va. 510, 425 S.E.2d 186 (1992), the court held the state tax code — which prohibits "any officer or employee of the state . . . to disclose information concerning the personal affairs of any individual or the business of any single firm or corporation . . . or any particulars set forth" in any tax forms required to be filed with the state tax commissioner — also prohibited officials of a town from disclosing Business & Occupation Tax returns filed with the town. Although the court ruled the tax code's confidentiality provisions did not apply to a list of the names of businesses filing B&O tax returns, it required the list to be "treated as any confidential material and not leave [the circuit judge's] chambers." Id. at 515, 425 S.E. 2d at 186. It is possible that a court interpreting the Open Meetings Act may be persuaded by this decision to hold that meetings discussing such information must be kept confidential.

It should also be noted that a number of other statutes require particular agencies to maintain the confidentiality of information relating to secret processes or secret methods of manufacture or production. See, e.g., the Public Energy Authority (W. Va. Code § 5D-1-21), the Community Infrastructure Authority (W. Va. Code § 31-19-19), and the Water Development Authority (W. Va. Code § 20-5C-21).

Administrative hearing examiners may protect “trade secrets.” Wis. Stat. § 227.46(7). Personal financial data may be the subject of a closed meeting if its disclosure would have a “substantial adverse effect upon the reputation of any person.” Wis. Stat. § 19.85(1)(f).

There is no provision that deals directly with financial data of public bodies at public meetings. See Preface. Regarding public records, the custodian may deny inspection records containing trade secrets unless otherwise provided by law. Wyo. Stat. § 16-4-203(d)(v) (1977, Rev. 1991).