FLORIDA TRADE SECRET LAW: PROTECTING TRADE SECRETS DURING PUBLIC RECORDS COMPLIANCE

Businesses submitting licensing applications with state or local government agencies are often required to file confidential documents and financial records. The State of Florida has a broad public records policy requiring that “all state, county, and municipal records…[shall be]…open for personal inspection and copying by any person.” Florida Statute § 119.01(1). Businesses are often confronted with the challenge of protecting its trade secrets while complying with the obligation to disclose confidential information to a municipality. Peter Mavrick is a business litigation lawyer who has extensive experience with trade secret protection.

The Florida legislature created an exemption to the public records law for trade secrets. Pursuant to Florida Statute § 815.045, businesses may identify which confidential information furnished to a state agency should be excluded from public disclosure. However, failure to identify information as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret. Sepro Corporation v. Florida Department of Environmental Protection, 839 So. 2d 781 (Fla. 1st DCA 2003) (a company must label a trade secret or specify in writing as such upon delivery to a state agency to invoke the exemption from disclosure).

Even when a trade secret owner has taken the necessary precautions to label its confidential information, the risk of disclosure remains because Florida courts liberally construe the Public Records Act and favor disclosure. Christy v. Palm Beach County Sheriff’s Office, 698 So.2d 1365 (Fla. 4th DCA 1997). Designating information furnished to a government agency as confidential does not automatically render the record exempt from disclosure. Instead the information must qualify as a trade secret pursuant to Florida law. The trade secret owner also must undertake reasonable measures to protect the information from disclosure.

A recent appellate decision in the Fourth District Court of Appeal of the State of Florida demonstrates an instance where a conflict arose between the Florida’s Uniform Trade Secrets Act and Public Records Policy. Rasier -DC, LLC v. B & L Service, Inc., 237 So.3d 374, 376 (Fla. 4th DCA 2018) ruled on whether Yellow Cab was entitled to inspect documents filed by Uber in Broward County for a licensing agreement, which Uber designated as a trade secret pursuant to Florida Statute § 812.081(1)(c). Broward County agreed that it would maintain the confidentiality of Uber’s trade secret information. Yellow Cab requested from Broward County, “[a]ll reports or documents reflecting pick-ups by … Uber at the [airport], and the sums of money paid of owing to [the county] for those trips …” Broward County produced redacted documents to Yellow Cab. During an in camera inspection of the records, the court found that Yellow Cab requested two different groups of information: 1) aggregate data and 2) granular data. Aggregate data included information showing the number of pickups and the sum of money paid by Uber to the County as a usage fee at the airport. The granular data included information on every pickup and drop-off, including a time stamp, the longitude and latitude, and the first three characters of the driver’s license plate which identified the individual.

Rasier -DC, LLC v. B & L Service, Inc. held that the aggregate data did not provide an advantage to competitor or independent economic value to Uber by keeping the information secret. The appellate court therefore ruled that the aggregate data should be produced, but that the granular data should maintain its trade secret protection.

Rasier -DC, LLC v. B & L Service, Inc. is consistent with many other opinions from Florida courts, holding that data or a list of information can enjoy trade secret protection as long as the list or data is not just a compilation of information readily available to the public. See, for example, Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So.3d 804 (Fla. 3rd DCA 2014) (confidential business information such as a customer list can qualify as a trade secret when the list is not just a compilation of information readily available to the public, but rather acquired or compiled through the owner’s industry); Cotter v. Lyft, Inc., 2016 WL 3654454 (N.D. Cal. June 23, 2016) (finding that “the bare output” of Lyft’s commissions and revenues from certain products were not trade secrets).

The Mavrick Law Firm practices business litigation and trade secret litigation in Broward, Miami-Dade, and Palm Beach Counties, Florida. This article does not serve as a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311.