Allco Renewable Energy Ltd. v. Freedom of Information Commission ( 2021 )

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ALLCO RENEWABLE ENERGY LIMITED ET AL. v.
FREEDOM OF INFORMATION
COMMISSION ET AL.
(AC 42992)
Bright, C. J., and Elgo and Alexander, Js.
Syllabus
The plaintiffs, a solar development company and its principal, appealed to
this court from the judgment of the trial court dismissing their appeal
from the final decision of the defendant Freedom of Information Com-
mission. The plaintiffs requested certain records from the defendant
Department of Energy and Environmental Protection relating to its
request for proposals issued to solicit offers from developers for large-
scale clean energy contracts. The RFP indicated that each bidder was
to submit a public version of its proposal, with any confidential business
information redacted, as well as an unredacted version of the proposal
that identified all confidential and proprietary information. The RFP
informed bidders that the department would disclose certain information
in its final determination but that it would take reasonable steps to
protect confidential information. The department retained independent
consultants to evaluate the costs and benefits of the proposals submitted
using a market simulation model. The result of the analysis was an
answer key that compiled the data submitted by the bidders, including
confidential, proprietary information. The department denied the plain-
tiffs’ request for the release of the answer key, stating that it was a trade
secret exempt from disclosure requirements pursuant to the applicable
provision (§ 1-210 (b) (5)) of the Freedom of Information Act (§ 1-200
et seq.). The plaintiffs appealed from the department’s denial to the
commission, which, following a hearing, denied the appeal. The plaintiffs
then appealed to the trial court, which affirmed the decision of the
commission, and the plaintiffs appealed to this court. Held:
1. The trial court properly determined that the commission’s conclusion
that the answer key met the trade secret criteria set forth in § 1-210
(b) (5) (A) (i) was supported by substantial evidence: the department
engaged in trade by coordinating the RFP and using the answer key to
analyze the proposals, as the process required making a significant
investment within a highly competitive industry for the benefit of rate-
payers across the state; moreover, even though the department did not
have any direct competitors in the renewable energy industry, it was a
participant with a direct interest in ensuring competitive rates because
it had a statutory duty to obtain value for ratepayers; furthermore, there
was sufficient evidence to find that the answer key held economic value
to the department based on the resources expended to develop it, its
value to the market, and the significance of the resulting projects to
ratepayers, and that the answer key’s value derived from its secrecy,
as its confidentiality was required to maintain the integrity of the state’s
procurement process.
2. The trial court properly determined that the commission’s conclusion
that the bidders and the department intended for the information submit-
ted to be given and maintained as confidential information in accordance
with § 1-210 (b) (5) (A) (ii) and (B) was supported by substantial evi-
dence: the commission’s determination that reasonable efforts were
made to maintain the secrecy of the information was supported by
testimony given at the commission hearing indicating that nondisclosure
agreements were made, that bidders relied on the department’s guaran-
tees of confidentiality, and that certain bidders pursued protective orders
with respect to the information; moreover, based on the testimony at
the hearing, there was substantial evidence to support the conclusion
that the information was ‘‘given in confidence’’ in accordance with § 1-
210 (b) (5) (B) because, although the RFP stated that the department
intended to disclose certain bid information in its final determination,
the department gave express assurances of, and the bidders had resulting
expectations of, confidentiality with respect to a majority of the informa-
tion.
Argued November 19, 2020—officially released June 8, 2021
Procedural History
Appeal from the decision of the named defendant
dismissing the plaintiffs’ complaint regarding a records
request submitted to the defendant Department of
Energy and Environmental Protection, brought to the
Superior Court in the judicial district of New Britain,
where the court, Huddleston, J., rendered judgment
dismissing the appeal, from which the plaintiffs
appealed to this court. Affirmed.
Michael Melone, for the appellants, with whom, on
the brief, was Thomas Melone, self-represented, the
appellant (plaintiffs).
Paula S. Pearlman, commission counsel, for the
appellee (named defendant).
Robert Snook, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, and
Clare Kindall, solicitor general, for the appellee (defen-
dant Department of Energy and Environmental Protec-
tion).
Opinion
ELGO, J. The plaintiffs, Allco Renewable Energy Lim-
ited (Allco) and its principal Thomas Melone, appeal
from the judgment of the Superior Court dismissing
their appeal from the final decision of the defendant
Freedom of Information Commission (commission), in
which the court concluded that the commission prop-
erly dismissed the plaintiffs’ request for certain docu-
ments of the codefendant Department of Energy and
Environmental Protection (department).1 On appeal,
the plaintiffs claim that the court improperly concluded
that the commission correctly applied General Statutes
§ 1-210 (b) (5) (A) and (B) of the Freedom of Informa-
tion Act (act), General Statutes § 1-200 et seq. We affirm
the judgment of the Superior Court.
The following undisputed facts, which were found
by the commission, are relevant to this appeal. On
November 12, 2015, the department issued a request
for proposals (RFP), pursuant to No. 13-303 of the 2013
Public Acts and No. 15-107 of the 2015 Public Acts.2
The RFP, issued in coordination with officials from
Massachusetts and Rhode Island for the purpose of
meeting clean energy goals in a cost-effective manner,
sought to solicit offers from developers for large-scale
clean energy contracts. Parties in each state then would
‘‘select the project(s) that is/are most beneficial to its
customers and consistent with its particular Procure-
ment Statutes. Consequently, evaluation and selection
[would] involve an iterative process by which, after an
initial threshold examination followed by a quantitative
analysis of the bids, the parties from each state [would]
review and rank bids based on the qualitative require-
ments of their respective state.’’
The RFP also established an ‘‘Evaluation Team’’
(team), comprised of ‘‘the soliciting parties, electric
distribution companies (EDCs)3 . . . the Connecticut
Procurement Manager, the Connecticut Office of Con-
sumer Counsel, the Connecticut Attorney General and
the Massachusetts Department of Energy Resources,
who evaluated and ranked the bids.’’ (Footnote added.)
The team retained independent consultants, most nota-
bly Levitan & Associates, Inc. (Levitan), to aid its evalua-
tion and solicited input from ISO New England, Inc., a
federally regulated grid operator for the New England
region. The RFP informed bidders that the department
would disclose certain information in its final determi-
nation and would take reasonable steps where neces-
sary to protect confidential information. Representa-
tives of utility companies on the team signed an
agreement known as the ‘‘Utility Standard of Conduct,’’
which prohibited discussion of the RFP between EDC
personnel on the team and EDC personnel involved in
bid preparation.
Various companies submitted a total of thirty-one
proposals. After receiving the bids,4 the department
selected nine projects in Connecticut, including two
proposed by the wind power development companies
Antrim Wind Energy, LLC (Antrim), and Cassadaga
Wind, LLC (Cassadaga). Accordingly, the department
notified the EDCs and directed them to negotiate con-
tracts with the nine selected projects. Six of the project
proposals, including Cassadaga’s proposal, resulted in
agreed upon, long-term contracts with the state of Con-
necticut. These projects were then subject to regulatory
review by the Public Utilities Regulatory Authority
(PURA) and were approved on September 13, 2017.
Allco is a solar development company that competes
in the market at issue and had submitted unsuccessful
bids in several other renewable energy procurements
by the department in the past. On December 1, 2016,
the plaintiffs submitted a freedom of information
request via e-mail to the department. In that request,
the plaintiffs sought disclosure of responses to the RFP
made by several bidders, including Antrim and Cassa-
daga, as well as ‘‘any record or file made by the [depart-
ment] in connection with the contract award process.’’
The department denied the request in an e-mail sent
on January 17, 2017. In that response, the department
stated in relevant part that it ‘‘does not have any records
to produce in response to this request because they are
exempt from disclosure under the [act] . . . §§ 1-210
(b) (24), 1-210 (b) (4), and 1-210 (b) (5).’’5
The plaintiffs appealed from the department’s denial
to the commission on February 16, 2017. The commis-
sion held a contested hearing, in which Antrim and
Cassadaga intervened, on October 16, November 9 and
November 17, 2017. At the hearing, the department pro-
vided the plaintiffs with a compact disc containing unre-
dacted copies of documents that did not fall within the
relied on exemptions. The plaintiffs narrowed the scope
of their request to records concerning the Antrim and
Cassadaga proposals, as well as the content of a docu-
ment known as the ‘‘Levitan Answer Key’’ (answer key).
At the time of this appeal, only the disclosure of the
answer key remains at issue.
Following the hearing, the commission reviewed
unredacted copies of the disputed records in camera.
The commission then issued a written decision in which
it found that the answer key was ‘‘in its entirety . . .
of the kind included in the nonexhaustive list contained
in [§ 1-210 (b) (5) (A)]. . . . It is found that the [a]nswer
[k]ey (i) derives independent economic value, actual
or potential, from not being generally known to, and
not being readily ascertainable by proper means by,
other persons who can obtain economic value from its
disclosure or use, and (ii) is the subject of efforts that
were reasonable under the circumstances to maintain
secrecy.’’ (Citation omitted; internal quotation marks
omitted.) The commission, therefore, denied the plain-
tiffs’ appeal with respect to the answer key. From that
decision, the plaintiffs appealed to the Superior Court.
In a detailed memorandum of decision dated March 18,
2019, the court affirmed the decision of the commission,
and this appeal followed.
On appeal, the plaintiffs claim that the court improp-
erly concluded that the commission correctly deter-
mined that (1) the answer key qualified as a ‘‘trade
secret’’ within the ambit of § 1-210 (b) (5) (A) and (2)
the information in the answer key was both given and
kept in secrecy in accordance with § 1-210 (b) (5) (A)
and (B). In response, the department argues that the
information in the answer key fully satisfies the defini-
tion of a ‘‘trade secret’’ and that it was subject to strict
confidentiality. We agree with the department.
We begin by setting forth the relevant legal principles
and applicable standard of review. ‘‘It is well established
that [j]udicial review of [an administrative agency’s]
action is governed by the Uniform Administrative Pro-
cedure Act [(UAPA), General Statutes § 4-166 et seq.]
. . . and the scope of that review is very restricted.
. . . With regard to questions of fact, it is neither the
function of the trial court nor of this court to retry
the case or to substitute its judgment for that of the
administrative agency. . . .
‘‘Even as to questions of law, [t]he court’s ultimate
duty is only to decide whether, in light of the evidence,
the [agency] has acted unreasonably, arbitrarily, ille-
gally, or in abuse of its discretion. . . . Conclusions of
law reached by the administrative agency must stand
if the court determines that they resulted from a correct
application of the law to the facts found and could
reasonably and logically follow from such facts. . . .
Ordinarily, this court affords deference to the construc-
tion of a statute applied by the administrative agency
empowered by law to carry out the statute’s purposes.
. . . Cases that present pure questions of law, however,
invoke a broader standard of review than is . . .
involved in deciding whether, in light of the evidence,
the agency has acted unreasonably, arbitrarily, illegally
or in abuse of its discretion. . . . Furthermore, when
a [public] agency’s determination of a question of law
has not previously been subject to judicial scrutiny . . .
the agency is not entitled to special deference.’’ (Inter-
nal quotation marks omitted.) Dept. of Public Safety v.
Freedom of Information Commission, 298 Conn. 703,
716, 6 A.3d 763 (2010). ‘‘This court is required to defer
to the subordinate facts found by the commission, if
there is substantial evidence to support those findings.’’
(Internal quotation marks omitted.) Dept. of Public Util-
ities v. Freedom of Information Commission, 55 Conn.
App. 527, 531, 739 A.2d 328 (1999). ‘‘Substantial evi-
dence exists if the administrative record affords a sub-
stantial basis of fact from which the fact in issue can
be reasonably inferred. . . . This substantial evidence
standard is highly deferential and permits less judicial
scrutiny than a clearly erroneous or weight of the evi-
dence standard of review. . . . The reviewing court
must take into account [that there is] contradictory
evidence in the record . . . but the possibility of draw-
ing two inconsistent conclusions from the evidence
does not prevent an administrative agency’s finding
from being supported by substantial evidence . . . .
The burden is on the [plaintiffs] to demonstrate that
the [agency’s] factual conclusions were not supported
by the weight of substantial evidence on the whole
record.’’ (Internal quotation marks omitted.) Sams v.
Dept. of Environmental Protection, 308 Conn. 359, 374,
63 A.3d 953 (2013).
The department is a public agency within the meaning
of General Statutes § 1-200 (1). Public agencies ‘‘within
the meaning of § 1-200 (1) . . . [are] . . . required
under the act to disclose public records unless disclo-
sure is otherwise limited or prohibited by law.’’6 Univer-
sity of Connecticut v. Freedom of Information Com-
mission, 303 Conn. 724, 733, 36 A.3d 663 (2012)
(UConn); see also Maher v. Freedom of Information
Commission, 192 Conn. 310, 314–15, 472 A.2d 321(1984) (‘‘[s]ince . . . the [agency at issue here] is a
[public] agency for purposes of the [act], [it] is bound
. . . to maintain its records as public records available
for public inspection unless these records fall within
one of the statutory exemptions to disclosure’’).
The act sets forth several exemptions that ‘‘reflect a
legislative intention to balance the public’s right to
know what its agencies are doing, with the governmen-
tal and private needs for confidentiality. . . . [I]t is this
balance of the governmental and private needs for confi-
dentiality with the public right to know that must govern
the interpretation and application of the [act]. The gen-
eral rule, under the act, however, is disclosure. . . .
Exceptions to that rule will be narrowly construed in
light of the underlying purpose of the act . . . and the
burden of proving the applicability of an exemption
rests upon the agency claiming it.’’ (Internal quotation
marks omitted.) Maher v. Freedom of Information
Commission, supra, 192 Conn. 315. ‘‘[D]isclosure under
the act does not turn on the motive for the request.
Nonetheless . . . the question of whether . . . per-
sons . . . could obtain economic value from the disclo-
sure would be relevant in assessing whether the infor-
mation constitutes a trade secret.’’ UConn, supra, 303
Conn. 728 n.5.
Section 1-210 provides in relevant part: ‘‘(b) Nothing
in the [act] shall be construed to require disclosure of
. . . (5) (A) Trade secrets, which for purposes of the
[act], are defined as information, including formulas,
patterns, compilations, programs, devices, methods,
techniques, processes, drawings, cost data, customer
lists, film or television scripts or detailed production
budgets that (i) derive independent economic value,
actual or potential, from not being generally known to,
and not being readily ascertainable by proper means
by, other persons who can obtain economic value from
their disclosure or use, and (ii) are the subject of efforts
that are reasonable under the circumstances to main-
tain secrecy . . . .’’ The trade secret exemption codi-
fied in § 1-210 (b) (5) (A) analyzes ‘‘the nature and
accessibility of the information, not . . . the status or
characteristics of the entity creating and maintaining
that information.’’ UConn, supra, 303 Conn. 734. ‘‘[T]o
constitute a trade secret, information must be of the
kind included in the nonexhaustive list contained in the
statute.’’ Elm City Cheese Co. v. Federico, 251 Conn.
59, 70, 752 A.2d 1037 (1999). ‘‘[T]o qualify for a trade
secret exemption . . . [a] substantial element of
secrecy must exist, to the extent that there would be
difficulty in acquiring the information except by the use
of improper means.’’ (Internal quotation marks omit-
ted.) Director, Dept. of Information Technology v. Free-
dom of Information Commission, 274 Conn. 179, 194,
874 A.2d 785 (2005) (Director).
Our Supreme Court previously construed the term
‘‘trade secret’’ in Town & Country House & Homes
Service, Inc. v. Evans, 150 Conn. 314, 318–20, 189 A.2d
390 (1963) (Town & Country). In that case, relying on
the commentary to § 757 of the Restatement of Torts,
the court stated that ‘‘[s]ome of the factors to be consid-
ered in determining whether given information is a trade
secret are (1) the extent to which the information is
known outside the business; (2) the extent to which
it is known by employees and others involved in the
business; (3) the extent of measures taken by the
employer to guard the secrecy of the information; (4)
the value of the information to the employer and to
his competitors; (5) the amount of effort or money
expended by the employer in developing the informa-
tion; (6) the ease or difficulty with which the informa-
tion could be properly acquired or duplicated by oth-
ers.’’ Town & Country, supra, 319; see 4 Restatement,
Torts § 757, comment (b), p. 6 (1939).
This court has referenced the definition of trade
secrets set forth in Town & Country when applying
the trade secret exemption under the act. See Dept. of
Public Utilities v. Freedom of Information Commis-
sion, supra, 55 Conn. App. 531–32. At its core, ‘‘[t]he
basis for the protection of trade secrets is that the
recipient obtains through a confidential relationship
something he did not know previously.’’ Allen Mfg. Co.
v. Loika, 145 Conn. 509, 517, 144 A.2d 306 (1958). ‘‘The
question of whether information sought to be protected
. . . rises to the level of a trade secret is one of fact
for the trial court.’’ (Internal quotation marks omitted.)
Elm City Cheese Co. v. Federico, supra, 251 Conn. 68.
I
The plaintiffs first claim that the court improperly
concluded that the commission correctly determined
that the answer key at issue was exempt pursuant to
§ 1-210 (b) (5) (A). They argue that, under § 1-210 (b)
(5) (A) (i), the answer key cannot be a trade secret in
light of our Supreme Court’s decision in UConn because
the department did not engage in ‘‘trade.’’ We do not
agree.
The following additional facts were found by the com-
mission. Connecticut, Massachusetts, and Rhode Island
coordinated to issue requests for proposals. The goal
of each state’s RFP was to procure renewable energy
contracts so as to help meet clean energy goals in a
manner that would provide savings for ratepayers. The
team constituted a collaboration between a number of
prominent parties including, among others, the depart-
ment, the EDCs, several Connecticut agencies, and the
Massachusetts Department of Energy Resources. It also
solicited input from independent contractors, most
notably Levitan, and the regional grid operator, ISO
New England, Inc. The department invested ‘‘significant
resources’’ in organizing the RFP, disbursing $330,000
for the contract with Levitan and dedicating hundreds
of work hours to the procurement process.
The commission found that the renewable energy
industry was highly competitive and that the informa-
tion at issue was ‘‘highly market sensitive and unique
to the particular RFP proposals.’’ After it was retained
by the department, Levitan evaluated the costs and ben-
efits of bids using a market simulation model known
as ‘‘Aurora.’’ The result of this analysis constituted the
answer key, which the department asserted was ‘‘a com-
pilation of extraordinarily complicated data, huge
amounts of data and includes . . . confidential propri-
etary information submitted by all bidders, and cannot
be replicated.’’ (Internal quotation marks omitted.) The
department argued before the commission that the con-
fidentiality of the answer key was ‘‘essential to main-
taining the integrity of the state’s procurement process,
confidence of prospective bidders in future RFPs, and
quality and competitiveness of the bids received.’’ The
department also asserted that future RFPs would be
impacted because bidders could discern confidential
information from the answer key that would provide
them with an advantage.7 Moreover, the department
contended that disclosure would not only chill future
bids, but also impair the ability of participating states
to meet their goals because bidders would be able to
adjust their proposals to gain a competitive advantage.
In particular, the department cited the ‘‘millions of Con-
necticut ratepayer dollars’’ at risk if the answer key
were to be mishandled and testified that the RFP’s
projected savings amounted to approximately $330 mil-
lion.
In its written decision, the commission found that
the answer key contained ‘‘highly market sensitive’’
information and derived independent economic value
from its secrecy and, accordingly, that it is a trade secret
exempt from disclosure under § 1-210 (b) (5) (A). On
appeal, the Superior Court upheld the commission’s
findings, noting that, ‘‘[a]s several witnesses testified
at the hearing, the market for clean energy is intensely
competitive. Development costs are high and the avail-
ability of opportunities to contract with utilities for the
sale of electricity are very limited. The RFP required
developers to provide highly sensitive commercial
information, including operational and financial infor-
mation that were closely guarded by the developers.’’
Regarding the answer key, the court noted: ‘‘According
to the department’s witnesses, the . . . answer key
itself is the output of an extensive and complicated
computer modeling of energy production for every hour
of twenty years, calculated for each of the projects
proposed in response to the RFP. The input that went
into the modeling included the confidential information
provided by developers. . . . The output itself—that
is, the four page spreadsheet for which the department
asserted the trade secret exemption—discloses the final
ranking of the projects, information about the costs and
benefits of each proposal, and . . . scores for each
project. A person knowledgeable about the industry
could use the information presented in the . . . answer
key to back out other information that would reveal
confidential pricing information . . . .’’ The court also
noted the department’s concern that disclosure of the
answer key would reveal not only confidential devel-
oper information but also sensitive information about
the department’s own analyses. Analyzing the informa-
tion in the answer key under the Town & Country test
and the evidence on the record, the court concluded
that ‘‘the information in the [answer key] is evidence
of the kind identified in § 1-210 (b) (5) (A).’’
On appeal, the plaintiffs now argue that the depart-
ment cannot claim trade secret protection for the
answer key because it did not ‘‘engag[e] in trade’’ by
conducting the RFP. In UConn, supra, 303 Conn. 727,
on which the plaintiffs principally rely, an alumni group
sought disclosure of various databases containing the
information of donors, subscribers, and ticket buyers.
The court held that the definition of trade secret under
§1-210 (b) (5) (A), on its face, ‘‘focuses exclusively on
the nature and accessibility of the information’’; id.,
734; rejecting the commission’s argument that the uni-
versity, as a public agency, could not claim trade secret
protection because it ‘‘is not principally engaged in a
trade.’’ Id., 726. UConn establishes that a public agency
may hold a trade secret regardless of whether it regu-
larly engages in trade, so long as the nature and accessi-
bility of the document at issue qualifies it as a trade
secret. Id., 734. In distinguishing UConn from the pres-
ent case, the plaintiffs contrast the conduct of the uni-
versity in ‘‘marketing and selling’’ school event tickets
with the department’s conduct as a ‘‘regulator.’’ They
assert that the nature of the information must include
being used in a trade, stating: ‘‘If there is no trade,
there is no trade secret.’’ They argue that extending the
exemption to the answer key would effectively read
the word ‘‘trade’’ out of the term ‘‘trade secret’’ because
the department did not engage in trade when it promul-
gated and administered the RFP.
To assess the plaintiffs’ claim, we begin with the
language of the act. In defining a trade secret for the
purposes of the act, § 1-210 (b) (5) (A) highlights eco-
nomic value and secrecy as the two determinative fac-
tors.8 ‘‘Trade secret’’ is a legal term of art. ‘‘If the infor-
mation meets the statutory criteria, it is a trade secret
. . . .’’ UConn, supra, 303 Conn. 734. The term is
defined in § 1-210 (b) (5) (A) (i) as deriving ‘‘indepen-
dent economic value, actual or potential, from not being
generally known to . . . other persons who can obtain
economic value from [its] disclosure or use.’’ If informa-
tion qualifies as a trade secret under the statutory crite-
ria, it is then also true that ‘‘the entity creating that
information would be engaged in a trade for purposes
of the act even if it was not so engaged for all purposes.’’
(Emphasis added.) UConn, supra, 734. Furthermore, as
the trial court noted, in accordance with the holding
of UConn, ‘‘to address the nature of the information at
issue, the analysis must consider the competitive nature
of the industry involved . . . .’’
The inquiry necessarily considers the extent to which
the economic value of the thing being assessed inheres
in the secrecy by which it is developed and maintained.9
A ‘‘substantial element of secrecy must exist, to the
extent that there would be difficulty in acquiring the
information except by the use of improper means.’’
(Internal quotation marks omitted.) Director, supra, 274
Conn. 194. Beyond that, ‘‘[i]t is not possible to state
precise criteria for determining the existence of a trade
secret. The status of information claimed as a trade
secret must be ascertained through a comparative eval-
uation of all the relevant factors, including the value,
secrecy, and definiteness of the information . . . .’’10
Restatement (Third), Unfair Competition § 39, com-
ment (d), p. 430 (1995). Our review of the record reveals
that the nature of the information in the answer key
inherently relates to trade and that its value is a function
of the secrecy involved in both its development and use.
First, the department fundamentally engaged in com-
merce in this case. General Statutes § 22a-2d charges
the department with fulfilling goals for the purposes of
energy policy and regulation, which include ratepayer
cost maintenance.11 The commission found that the RFP
was a multistate effort to meet clean energy goals and
achieve cost savings for ratepayers. It further found that
the renewable energy procurement process is highly
competitive and that the department ‘‘invested signifi-
cant resources . . . including . . . $330,000 on the
contract with Levitan,’’ with the expectation of signifi-
cant ratepayer savings in the amount of $330 million.
Although ‘‘the primary economic value identified’’
accrued to the ratepayers, the department played a key
role in generating that value. The court described the
department as acting ‘‘at least in part as a procurement
agent’’ for the EDCs. Accordingly, this case features a
state entity that, as a commercial actor, has made a
significant investment within a heavily competitive
industry for the benefit of ratepayers across the state.
Therefore, like the state treasurer who analyzes invest-
ments for the benefit of the state, here the department
engages in trade by coordinating the RFP and using the
answer key to analyze multimillion dollar proposals to
benefit the state and its ratepayers.
The plaintiffs argue that the answer key cannot be
a ‘‘trade’’ secret because ‘‘there is no value [in] the
information to the competitors (because there are
none).’’ The plaintiffs read the fourth Town & Country
factor too narrowly.12 The department has a statutory
duty to obtain value for ratepayers. Thus, although it has
no direct competitors, the department is nevertheless
a participant in the industry with a direct interest in
ensuring competitive rates. There is no rational reason
to exclude the department from trade secret protection
simply because it seeks to cultivate a competitive mar-
ket of bidders as opposed to being itself a bidder in
the industry.
Second, the court concluded that there was sufficient
evidence before the commission for it to find both that
(1) the information held economic value to the depart-
ment on the basis of the evidence presented concerning
the resources expended to develop it, its value to the
market, and the significance of the projects to ratepay-
ers and (2) the information’s value to the department
derived from its being held confidential from the market
at large. Our review of the record confirms that these
findings were fully supported by the evidence. The pur-
pose of the RFP was to obtain significant savings to
ratepayers at a statewide level. The commission found
that the renewable energy market is highly competitive.
If made public, as the department testified, bidders
would be able to extract sensitive details about devel-
oper submitted pricing information and departmental
analyses, including details that would aid in future bids.
Significant consequences, thus, could result to ratepay-
ers in the state. Although the plaintiffs question the
necessity of the answer key’s secrecy, we cannot dis-
turb the commission’s conclusion when the evidence
in the record supports it. The record as a whole reflects
that the answer key’s entire benefit relies on the depart-
ment holding it in confidence in order to ensure the
integrity of the undertaking for public benefit.
The plaintiffs’ hyperbolic argument that classifying
the department’s conduct as a trade would render the
act ‘‘useless, as every government agency could claim
an exemption,’’ misses the point. If acting as a regulator
could never constitute trade, then it would eviscerate
the ability of a public agency to raise the trade secret
exemption when necessitated by the public interest. As
our Supreme Court has observed, the act ‘‘does not
confer upon the public an absolute right to all govern-
ment information.’’ Wilson v. Freedom of Information
Commission, 181 Conn. 324, 328, 435 A.2d 353 (1980).
Rather, it ‘‘reflects a legislative intention to balance the
public’s right to know what its agencies are doing, with
the governmental and private needs for confidentiality.’’
Id. Wilson directs the court to balance these counter-
vailing interests as they apply to the case before it, in
order to determine the applicability of the exemptions
in the act. See Commissioner of Consumer Protection
v. Freedom of Information Commission, 207 Conn.
698, 701, 542 A.2d 321 (1988).
The present case actually provides a more compelling
rationale for secrecy than that which was provided in
UConn. The enterprise undertaken by the department
aims to provide added benefit for ratepayers, as
directed by statute. In other words, this case represents
a quintessential example of a public agency acting on
its statutory mandate to protect the public interest. See
footnote 11 of this opinion. The state has an interest
in the benefits that accrue from the RFP process. See
UConn, supra, 303 Conn. 736–37 (‘‘It cannot reasonably
be questioned that the university expends considerable
resources of the state . . . . The state’s ability to
recoup costs or reap the financial benefits for such
efforts would be seriously undermined if any member
of the public could obtain such information simply by
filing a request under the act. . . . Although the act
embodies a public policy in favor of disclosure, that
presumption is subject to clear limits within which the
university may claim an exemption.’’ (Citations omit-
ted.)) Here, the stakes are considerably higher than
what was at issue in UConn. The present case deals not
with an institution’s customer lists but with statewide
utilities delivering value to the public. We further note
the need for caution when a party seeking disclosure is
not a disinterested member of the public but an industry
competitor that participates in bidding processes con-
ducted by the department. See id., 728 n.5.
In light of the foregoing, we conclude that the court
properly determined that the commission’s conclusion
that the answer key required confidentiality was sup-
ported by substantial evidence and that the department
met its burden of proving that the answer key met the
statutory trade secret criteria. Accordingly, the plain-
tiffs’ first claim fails.
II
The plaintiffs next claim that the answer key does
not constitute a ‘‘secret’’ within the term ‘‘trade secret.’’
In support of this contention, the plaintiffs raise two
arguments. First, they argue that the Superior Court
misapplied the ‘‘secrecy’’ requirement of § 1-210 (b) (5)
(A) (ii) in this case because the department did not
make reasonable efforts to maintain the secrecy of the
information in the answer key. Second, they argue that
the information was not ‘‘given in confidence’’ to the
department under § 1-210 (b) (5) (B)13 because the
developers did not have a reasonable expectation that
their information would be kept private. We disagree.
The following additional facts, as found by the com-
mission, are relevant to this claim. When the department
issued the RFP, it ‘‘required bidders to submit copies
of a ‘public version’ of each proposal. If a bidder chose
to redact information that it deemed to be ‘confidential
business information’ from the public version of its
proposal, then it was also required to submit an unre-
dacted version of the proposal and to identify all confi-
dential or proprietary information, including pricing.
The public version of each proposal was posted on the
public website established for the New England Clean
Energy RFP.’’ The RFP required that any communica-
tions concerning it be submitted via e-mail to the team
and prohibited bidders from direct contact with any
member of the team and any related consultant.
‘‘The RFP informed bidders that: ‘The [e]valuation
[t]eam shall use commercially reasonable efforts to
treat the confidential information that it receives from
bidders in a confidential manner and will not use such
information for any purpose other than in connection
with this RFP. . . . If confidential information is
sought in any regulatory or judicial inquiry or proceed-
ing or pursuant to a request for information by a govern-
ment agency with supervisory authority over any of the
EDCs, reasonable steps shall be taken to limit disclo-
sure and use of said confidential information through
the use of nondisclosure agreements or requests for
orders seeking protective treatment, and bidders shall
be informed that the confidential information is being
sought.’ ’’
‘‘The RFP also advised bidders that: ‘As it has done
with previous RFPs, [the department] intends to dis-
close certain bid information in its final determination
once contract negotiations are completed and a filing is
made with PURA . . . . At this time, [the department]
anticipates such disclosure will include some informa-
tion attributed to named projects responsive to the
[Connecticut] portion of the RFP: specifically, the quali-
tative and quantitative score and threshold eligibility
determinations attributed to specific projects respon-
sive to the [Connecticut] portion of this RFP, and pric-
ing data for winning bids. [The department] may also
disclose aggregate or average pricing data for all bids
responsive to the [Connecticut] portion of the RFP but
without attribution to specific projects.’ ’’
Appendix G of the RFP stated, as pertaining to Con-
necticut: ‘‘With this submission of information claimed
and labeled as confidential, you must provide the legal
basis for your confidentiality claim, describe what
efforts have been taken to keep the information confi-
dential, and provide whether the information sought to
be protected has an independent economic value by
not being readily known in the industry. With your legal
support and reasonable justification for confidentiality
. . . the Connecticut state agencies participating on the
Soliciting Parties will be better equipped to safeguard
your confidential information should it become the sub-
ject of [an inquiry under the act]. . . . All information
for winning bidders, including confidential information,
will be released and become public 180 days after con-
tracts have been executed and approved by all relevant
regulatory authorities, unless otherwise ordered by the
Connecticut PURA.’’
Representatives from both intervenors testified at the
hearing before the commission that they relied on the
department’s assurances of discretion. Cassadaga sub-
mitted its proposal in both redacted and unredacted
form with the understanding that the department would
keep its information confidential and notify it in the
event of a request for disclosure. Cassadaga also
obtained two protective orders from PURA, which
remained in effect at the time of the hearings before the
commission. A representative from Cassadaga testified
that the records in question were sensitive and included
information protected by third-party nondisclosure
agreements into which Cassadaga had entered. A repre-
sentative from Antrim testified that its information was
also highly sensitive and valuable and, where applica-
ble, covered by third-party nondisclosure agreements.
Antrim relied on the RFP’s representations in submit-
ting both redacted and unredacted proposals to the
department along with a letter outlining its need for
confidentiality. In the absence of the RFP’s assurances,
Antrim testified that it would not have submitted a
proposal.
The commission found that ‘‘the renewable energy
market and the procurement process for renewable
energy is highly competitive, and that the information
at issue in this matter including, but not limited to,
costs, pricing and bidding information, is highly market
sensitive and unique to the particular RFP proposals.’’
The commission further found that the department took
various measures to keep the answer key confidential.
Namely, ‘‘[t]he specific criteria and information pro-
vided by [the department] were shared only with those
individuals on the [team] and Levitan. Further, within
[the department], limited access to the [a]nswer [k]ey
was granted only to a small set of employees within its
Bureau of Energy and Technology Policy assigned to
work on the procurement process.14 During the PURA
regulatory review of the executed contracts, [the
department] also sought to protect the [a]nswer [k]ey
by filing a motion for protective order, which was
granted and still in effect at the time of the hearings in
this matter.’’ (Footnote added.)
The commission also found that Levitan and the team
members were required to sign nondisclosure agree-
ments. The EDC representatives on the team were fur-
ther required to sign an agreement, known as the ‘‘Util-
ity Standard of Conduct,’’ that barred them from
discussing the RFP with EDC personnel involved in
the RFP bidding process. Accordingly, the commission
concluded, and the court agreed, that the answer key
derived independent economic value from its secrecy
and, accordingly, that it is a trade secret exempt from
disclosure under § 1-210 (b) (5) (A).
On appeal, the plaintiffs first argue that the informa-
tion in the answer key was neither ‘‘the subject of efforts
that are reasonable under the circumstances to main-
tain secrecy’’ in accordance with § 1-210 (b) (5) (A)
(ii), nor ‘‘[c]ommercial or financial information given
in confidence, not required by statute,’’ to the depart-
ment in accordance with § 1-210 (b) (5) (B), because the
department failed to ensure confidentiality by imposing
sufficient restrictions in the form of nondisclosure
agreements. They insist that there was no evidence to
support the commission’s findings that nondisclosure
agreements existed because testimony was conflicting
and the department did not produce the agreements15
and, thus, they argue that when the Utility Standard of
Conduct expired, there was no further obligation of
confidentiality. The plaintiffs also advance the closely
related argument that the information was not ‘‘given
in confidence’’ per § 1-210 (b) (5) (B) on the basis of
(1) their claim that nondisclosure agreements were not
produced and (2) the department’s representations to
bidders concerning the public disclosure of informa-
tion, which they claim meant that the bidders ‘‘had no
reasonable expectation that their bids would be held
in confidence.’’ The plaintiffs’ arguments are unavailing.
The requirement of § 1-210 (b) (5) (A) (ii) is highly
fact specific and focuses on reasonableness. ‘‘The ques-
tion of whether, in a specific case, a party has made
reasonable efforts to maintain the secrecy of a pur-
ported trade secret is by nature a highly fact-specific
inquiry. . . . What may be adequate under the peculiar
facts of one case might be considered inadequate under
the facts of another. According to [General Statutes]
§ 35-51 (d) (2), the efforts need only be reasonable
under the circumstances . . . .’’ (Citation omitted;
emphasis omitted; internal quotation marks omitted.)
Elm City Cheese Co. v. Federico, supra, 251 Conn. 80.
As for the ‘‘given in confidence’’ requirement, we have
not had occasion previously to interpret it. In its deci-
sion, the commission construed the phrase ‘‘commer-
cial or financial information, given in confidence,’’
which is contained within § 1-210 (b) (5) (B).16 Noting
that ‘‘Connecticut appellate case law has not defined
[the phrase],’’ the commission looked to federal case
law for guidance, as well as to Connecticut authority
in Lash v. Freedom of Information Commission, 300
Conn. 511, 14 A.3d 998 (2011), Dept. of Public Utilities v.
Freedom of Information Commission, Superior Court,
judicial district of New Britain, Docket No. CV-99-
0498510-S (January 12, 2001) (29 Conn. L. Rptr. 215),
and Chief of Staff v. Freedom of Information Commis-
sion, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX-S (August 12, 1999) (25
Conn. L. Rptr. 270). The commission concluded that
‘‘ ‘given in confidence’ . . . requires an intent to give
confidential information, based on context or inference,
such as where there is an express or implied assurance
of confidentiality, where the information is not available
to the public from any other source, or where the infor-
mation is such that [it] would not customarily be dis-
closed by the person who provided it.’’ The Superior
Court subsequently concluded that ‘‘the commission’s
construction of the phrases ‘given in confidence’ and
‘not required by statute’ was careful, thorough, and
consistent with the principles of statutory construction
applied by Connecticut’s courts.’’ We agree with the
commission’s well reasoned analysis.
The record before us belies the plaintiffs’ argument
that the commission clearly erred in finding that nondis-
closure agreements had been made. The commission’s
finding is supported by the testimony offered at the
hearing before the commission. It is further supported
by the evidence that Cassadaga and Antrim relied on
confidentiality guarantees, as well as on the depart-
ment’s other efforts to maintain secrecy, such as pursu-
ing protective orders. We must defer to the commis-
sion’s findings of fact, which were sufficiently
supported by the evidence before it.
As the court correctly noted, this case readily is dis-
tinguishable from Dept. of Public Utilities v. Freedom
of Information Commission, supra, 55 Conn. App. 532,
in which there was ‘‘no evidence that the study was
to be kept confidential.’’ In that case, the lack of a
confidentiality agreement or other ‘‘efforts to limit . . .
dissemination,’’ as well as the wide distribution of the
information at issue, defeated the claim of secrecy. Id.,
533. The plaintiffs claim that Dept. of Public Utilities is
‘‘directly on point’’ because of the lack of nondisclosure
agreements in the present case, but the evidence here
supports the findings by the commission and the court
that nondisclosure agreements had been executed.17
Similarly, the plaintiffs’ reliance on Elm City Cheese
Co. v. Federico, supra, 251 Conn. 86, for the proposition
that ‘‘precautionary measures [such as] requiring
employees to sign confidentiality agreements’’ are
important, is misplaced because, unlike in Elm City
Cheese Co., the record here indicates that nondisclosure
agreements were produced. The commission was free
to weigh the testimony before it and conclude that
nondisclosure agreements had bound the team.
‘‘[B]ecause the [commission] is the [fact finder] in this
case, we decline to appraise and weigh the evidence
considered by the [commission] in reaching its determi-
nation on the challenged findings.’’ Board of Education
v. Freedom of Information Commission, 208 Conn.
442, 452, 545 A.2d 1064 (1988). Accordingly, we reject
the plaintiffs’ claim that the time limited Utility Standard
of Conduct is the only agreement in play here,18 and,
thus, the plaintiffs’ reliance on case law in which time
limited nondisclosure agreements were insufficient to
afford trade secret protection is inapplicable here.
The plaintiffs also argue that the RFP put bidders on
notice that the information was subject to disclosure.
Read in full, the RFP plainly advised bidders that certain
information would be disclosed and that other informa-
tion would be kept confidential. The RFP disclosed to
bidders that, ‘‘[a]s it has done with previous RFPs, [the
department] intends to disclose certain bid information
in its final determination once contract negotiations
are completed and a filing is made with PURA . . . .’’
(Emphasis added.) At the same time, Appendix G of
the RFP contained a disclaimer regarding the act, advis-
ing that ‘‘[w]ith your legal support and reasonable justi-
fication for confidentiality . . . the Connecticut state
agencies participating on the Soliciting Parties will be
better equipped to safeguard your confidential infor-
mation should it become the subject of a Connecticut
Freedom of Information Act inquiry. . . . All informa-
tion for winning bidders, including confidential infor-
mation, will be released and become public 180 days
after contracts have been executed and approved by
all relevant regulatory authorities, unless otherwise
ordered by the Connecticut PURA.’’ (Emphasis added.)
The plain language of the RFP makes clear that if a
bidder requested, with appropriate justification, that its
information be held confidential, the department would
take measures to protect it. Moreover, the RFP, as the
court put it, ‘‘contained an important qualifier: it indi-
cated that information would be disclosed unless other-
wise ordered by PURA.’’ (Internal quotation marks
omitted.) The commission found that Cassadaga, per
the testimony of its representative, relied on this quali-
fier in submitting its bid and sought protective orders,
which were granted by PURA. Antrim’s representative
also testified that it relied on the RFP’s assurances of
confidentiality and discretion. We agree that there was
substantial evidence to support the conclusion that the
department intended to give express assurances of, and
that the bidders had resulting expectations of, confiden-
tiality.
The context of the situation also indicates that confi-
dentiality was implied by the representations and con-
duct of the parties involved in the RFP. Our review of
the record supports the commission’s finding that there
was a clear understanding between the department and
the bidders that sensitive information would be pro-
tected. Ignoring the evidence in the record, the plaintiffs
argue that the decision of the Superior Court in Chief
of Staff v. Freedom of Information Commission, supra,25 Conn. L. Rptr. 271, in which the administrative record
disclosed that the city of Hartford (city) had given ‘‘no
express assurance of confidentiality’’ to developers
responding to an RFP, applies to the present case. How-
ever, the court in Chief of Staff construed the trade
secret exemption as referring to the provision of infor-
mation both ‘‘under an express assurance of confidenti-
ality or in circumstances from which such an assur-
ance could reasonably be inferred.’’ (Emphasis added;
internal quotation marks omitted.) Id. Turning to that
second question, the court stated that ‘‘[w]hether there
was an implied assurance of confidentiality presents a
close question’’ because a majority of the developers
had an understanding of confidentiality with the city,
but, fatally, the city had informed the developers that
their proposals would be disseminated. Id. The court
recognized that ‘‘[w]hether the circumstances show an
implied assurance of confidentiality is ordinarily a ques-
tion of fact’’ and deferred to the commission’s factual
finding that ‘‘the majority of the information was not
given in confidence.’’ Id. The cumulative evidence
before the commission, namely the testimony concern-
ing nondisclosure agreements and Antrim’s and Cassa-
daga’s reliance on the department’s representations,
sufficiently supported the commission’s conclusion that
the bidders and the department understood confidenti-
ality to be an important consideration. Moreover, unlike
in Chief of Staff, the RFP in the present case did not
promise full disclosure by its terms. After reviewing
the evidence before it, the commission concluded that
the answer key was given in confidence.
Applying the commission’s construction of the phrase
‘‘given in confidence’’ to the commission’s findings, we
agree with the trial court that the commission properly
concluded that the bidders and the department mutually
intended to submit and collect confidential information,
respectively. This conclusion is supported by the hear-
ing testimony provided by representatives from Cassa-
daga and Antrim, which the commission evidently cred-
ited. That testimony also supports the department’s
assertions regarding the existence of nondisclosure
agreements. We therefore conclude that the commis-
sion’s determination with respect to § 1-210 (b) (5) (B)
is supported by the record.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The commission has adopted the brief of the department in this appeal.
2
An Act Concerning Connecticut’s Clean Energy Goals; Public Acts 2013,
No. 13-303, §§ 6 and 7; was codified at General Statutes §§ 16a-3f and 16a-
3g. An Act Concerning Affordable and Reliable Energy; Public Acts 2015,
No. 15-107, § 1; was codified at General Statutes § 16a-3j. These three statutes
provide for the department to solicit from providers of Class I renewable
energy sources proposals that are in the interest of ratepayers.
3
General Statutes § 16-1 (23) defines ‘‘electric distribution company’’ as
‘‘any person providing electric transmission or distribution services within
the state, but does not include: (A) A private power producer, as defined
in section 16-243b; (B) a municipal electric utility established under chapter
101, other than a participating municipal electric utility; (C) a municipal
electric energy cooperative established under chapter 101a; (D) an electric
cooperative established under chapter 597; (E) any other electric utility
owned, leased, maintained, operated, managed or controlled by any unit of
local government under any general statute or special act; (F) an electric
supplier; (G) an entity approved to submeter pursuant to section 16-19ff;
or (H) a municipality, state or federal governmental entity authorized to
distribute electricity across a public highway or street pursuant to section
16-243aa . . . .’’
4
The trial court noted that it ‘‘recognize[d] the distinction between bids
submitted pursuant to an invitation for bids and proposals submitted in
response to a request for proposals. See Hartford v. Freedom of Information
Commission, 41 Conn. App. 67, 70 n.3, 674 A.2d 462 (1996). There is no
dispute that the proceeding at issue in this appeal was a request for proposals.
Nevertheless, the RFP itself described the responses to the RFP as ‘bids’
and the developers submitting such responses as ‘bidders.’ . . . The com-
mission followed this colloquial usage in its decision, and the court will
similarly follow it herein.’’ (Citation omitted.) We similarly follow this con-
vention in this opinion.
5
The department later abandoned its claims under § 1-210 (b) (4) and
(24), and the commission did not address them in its decision.
6
General Statutes § 1-200 (5) defines ‘‘public records’’ as ‘‘any recorded
data or information relating to the conduct of the public’s business prepared,
owned, used, received or retained by a public agency . . . .’’
7
At oral argument before this court, the department argued that, even
though the answer key is geared toward the 2015 RFP, pricing information
can be ‘‘back[ed] out’’ and the department’s process could be reverse engi-
neered to obtain future forecasts from past prices.
8
Section 1-210 (b) (5) (A) requires only that the information derives
independent economic value from its secrecy and is the subject of reasonable
efforts to maintain that secrecy. Accordingly, the department may still claim
a trade secret on the basis of the information’s value even if the economic
benefit ultimately goes to the ratepayers. In arguing that the holder of a
trade secret must receive an economic benefit itself, the plaintiffs cite the
Restatement (Third) of Unfair Competition, which transferred and modern-
ized the section of the 1939 Restatement of Torts addressed in Town &
Country. It defines a trade secret as ‘‘any information that can be used in
the operation of a business or other enterprise and that is sufficiently valu-
able and secret to afford an actual or potential economic advantage over
others.’’ Restatement (Third), Unfair Competition § 39, p. 425 (1995). We
are not persuaded that this subsequent iteration of the Restatement supports
a contrary conclusion. First, it extends beyond businesses to ‘‘other enter-
prise[s]’’; comment (d) to § 39 clarifies that ‘‘nonprofit entities such as
charitable, educational, governmental, fraternal, and religious organizations
can also claim trade secret protection for economically valuable information
. . . .’’ Id., comment (d), p. 429; see also UConn, supra, 303 Conn. 734–35
(noting that the trade secret definition in § 1-210 (b) (5) (A) ‘‘mirrors the
definition under Connecticut’s Uniform Trade Secrets Act,’’ which includes
government agencies in its definition of ‘‘person’’). Second, the language of
§ 39 also does not, on its face, require that the economic advantage must
accrue to the entity claiming trade secret protection itself.
9
Similarly, the Town & Country test, generally stated, looks to the informa-
tion’s availability, value, and cost of development and to the measures taken
to maintain its secrecy. See Town & Country, supra, 150 Conn. 319. At its
core, the test effectively seeks to conduct a cost-benefit analysis between
the countervailing interests of privacy and full disclosure.
10
We note that, although a case specific evaluation of the nature of the
information still is required, information like that contained in the answer
key often qualifies as a trade secret. Our Supreme Court has stated that
‘‘financial details [such as] costs, pricing and bidding . . . fully meet the
definition of trade secrets set forth in [Town & Country] . . . .’’ Triangle
Sheet Metal Works, Inc. v. Silver, 154 Conn. 116, 126, 222 A.2d 220 (1966).
11
General Statutes § 22a-2d (a) provides in relevant part: ‘‘There is estab-
lished a Department of Energy and Environmental Protection, which shall
have jurisdiction relating to the preservation and protection of the air, water
and other natural resources of the state, energy and policy planning and
regulation and advancement of telecommunications and related technology.
For the purposes of energy policy and regulation, the department shall have
the following goals: (1) Reducing rates and decreasing costs for Connecti-
cut’s ratepayers, (2) ensuring the reliability and safety of our state’s energy
supply, (3) increasing the use of clean energy and technologies that support
clean energy, and (4) developing the state’s energy-related economy. . . .
The Public Utilities Regulatory Authority within the department shall be
responsible for all matters of rate regulation for public utilities and regulated
entities under title 16 and shall promote policies that will lead to just and
reasonable utility rates. . . .’’
12
The plaintiffs’ appeal centers most prominently on the fourth factor.
We note that the court also found that the remaining five factors of the
Town & Country test support the classification of the answer key as a
trade secret.
13
General Statutes § 1-210 provides in relevant part: ‘‘(b) Nothing in the
[act] shall be construed to require disclosure of . . . (5) . . . (B) Commer-
cial or financial information given in confidence, not required by statute
. . . .’’
14
The trial court also found that the record contained evidence that unre-
dacted proposals were logged and stored in locked cabinets with limited
access.
15
At oral argument before this court, the department admitted that it no
longer has copies of the nondisclosure agreements but asserted that, at the
time of the events at issue, the agreements existed. As discussed in this
opinion, the department presented sufficient evidence for the commission
to make such a finding.
16
Because the plaintiffs do not address the phrase ‘‘required by statute’’
in their brief, we focus solely on the ‘‘given in confidence’’ requirement of
§ 1-210 (b) (5) (B).
17
In the trial court proceeding underlying the appeal in UConn, the Supe-
rior Court found that the university ‘‘also established that it has taken
reasonable efforts to maintain the secrecy of the list. It has denied requests
for disclosure in the past and has never provided the entire list to anyone
outside of the [u]niversity.’’ University of Connecticut v. Freedom of Infor-
mation Commission, Superior Court, judicial district of New Britain, Docket
No. CV-XX-XXXXXXX-S (April 21, 2010) (49 Conn. L. Rptr. 856, 862), aff’d, 303
Conn. 724, 36 A.3d 663 (2012). By comparison, the department’s efforts in
the present case, including the execution of nondisclosure agreements and
motions for protective order, similarly reflect an intent to guard the informa-
tion in the answer key.
18
The plaintiffs argue in their brief that, ‘‘[i]f the EDC representatives
were required to sign nondisclosure agreements, there would have been no
need for them to sign the Utility Standard of Conduct.’’ This speculative
contention is not proof of the absence of nondisclosure agreements and, in
any case, it asks this court to make a factual finding, which we cannot do.
See Batista v. Cortes, 203 Conn. App. 365, 372, 248 A.3d 763 (2021) (appellate
court does not act as fact finder).