Your Contract May Not Be as Confidential as You Think: Another Lesson in Safeguarding Trade Secrets in Government Procurement
By Grant S. Degginger and Michael A. Nesteroff
For a second time this year, the Washington Court of Appeals has rejected claims that pricing and other information contained in contracts between private companies and government agencies are trade secrets not subject to disclosure under the Public Records Act (PRA).
In Belo Management Services, Inc. v. CLICK! Network, decided on November 25, several broadcasters obtained an injunction after a daily newspaper submitted a public records request to Click!, which is a cable TV system owned by the City of Tacoma. The request sought copies of the retransmission consent agreements, which allow a cable system to broadcast programming for the payment of licensing fees. Click! believed that the records were subject to disclosure under the PRA and put the broadcasters on notice that it intended to release the records. The broadcasters and Click! submitted affidavits and declarations stating that they considered the rebroadcast fee information confidential. The broadcasters alleged that they would be harmed by disclosure because other cable systems would use the fee information to negotiate lower fees for themselves. Also, the broadcasters and Click! alleged that disclosure would harm the public interest because it would discourage other broadcasters from contracting with Click! if it could not promise confidentiality. The trial court ruled that the agreements contained trade secrets and enjoined Click! from releasing the contracts and related records.
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