Saturday, March 29, 2014

Wyoming Supreme Court adopts FOIA definition of "trade secret" in "public records" dispute

The Wyoming Supreme Court, in POWDER RIVER BASIN RESOURCE
discusses the matter of public access of materials disclosed to state regulators.

The background: Recently-adopted regulations require companies engaged in hydraulic fracturing ["fracking"]
to disclose the chemical compounds used to the Commission. Appellants sought disclosure of the chemicals
in several companies’ hydraulic fracturing products from the Commission, but the Supervisor, custodian of the
records, found that information to be exempt from public disclosure as trade secrets under
the Wyoming Public Records Act (WPRA).

An interesting result was that the Wyoming Supreme Court found the state agency needed to use the definition of "trade secret" developed in federal case law under the Freedom of Information Act (FOIA), not the definition under the Uniform Trade Secrets Act.

Relevant text:

A trade secret in the public records context is “a
secret, commercially valuable plan, formula, process,or device
that is used for the making, preparing,compounding, or processing
of trade commodities and that can be
said to be the end product of either innovation or substantial effort.”
Anderson, 907 F.2d at 943-44 (quoting Public Citizen Health Research
Group v. Food & Drug Admin. , 704 F.2d 1280 , 1288 (D.C. Cir. 1983)).
This “definition requires that there be a ‘direct
relationship’ between the trade secret and the productive process.”

Left open

We are left with the question of whether individual ingredients of hydraulic
fracturing formulae can constitute trade secrets under the definition we adopt above.
We cannot resolve that issue in this appeal, unfortunately.

See also paper by Elizabeth Rowe, "Striking a Balance..."


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