powder-river-basin-resource-council-wyoming-outdoor-council-earthworks , 2014 WY 37 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 37
OCTOBER TERM, A.D. 2013
March 12, 2014
POWDER RIVER BASIN RESOURCE
COUNCIL, WYOMING OUTDOOR
COUNCIL, EARTHWORKS, and
CENTER FOR EFFECTIVE
GOVERNMENT (formerly OMB
WATCH),
Appellants
(Petitioners),
v.
WYOMING OIL AND GAS S-13-0120
CONSERVATION COMMISSION,
Appellee
(Respondent),
and
HALLIBURTON ENERGY
SERVICES, INC.,
Appellee
(Intervenor).
Appeal from the District Court of Natrona County
The Honorable Catherine E. Wilking, Judge
Representing Appellants:
Timothy J. Preso and Laura D. Beaton* of Earthjustice, Bozeman, Montana;
Shannon Anderson, Sheridan, Wyoming. Argument by Mr. Preso.
Representing Appellee Wyoming Oil and Gas Conservation Commission:
Peter K. Michael, Interim Attorney General; Eric A. Easton, Senior Assistant
Attorney General. Argument by Mr. Easton.
Representing Appellee Halliburton Energy Services, Inc.:
Steven L. Leifer of Baker Botts L.L.P., Washington, D.C.; John A. Masterson and
Alaina M. Stedillie of Lewis Roca Rothgerber, LLP, Casper, Wyoming.
Argument by Mr. Leifer.
Before KITE, C.J., and HILL, VOIGT,† BURKE, and DAVIS, JJ.
* Order Allowing Withdrawal of Counsel Laura D. Beaton filed September 25, 2013
†
Justice Voigt retired effective January 3, 2014
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellants Powder River Basin Resource Council, Wyoming Outdoor Council,
Earthworks, and Center for Effective Government appeal from a district court order
affirming the Wyoming Oil and Gas Conservation Commission (Commission)
Supervisor’s denial of a public records request. Recently-adopted regulations require
companies engaged in hydraulic fracturing 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). Rather than simply requesting that the
district court issue an order to show cause which would require the Supervisor to justify
his decision at an evidentiary hearing under the WPRA, Appellants sought review of his
decision under the Wyoming Administrative Procedure Act (APA). The district court
affirmed the Supervisor’s decision, finding his decision to be reasonable and legally
correct.
[¶2] We hold that Appellants were required to follow the procedures set forth in the
WPRA, which they did not do. The WPRA requires the district court to independently
determine whether information must be disclosed or not, rather than to review a decision
of the Supervisor as an administrative decision.
[¶3] This appeal also raises the question of how trade secrets are defined under the
WPRA, a question that can be answered as a matter of law on this record, and one we
find to be appropriate to address in the interest of judicial economy. We decide that the
Supervisor and the courts should apply the definition developed in federal case law under
the Freedom of Information Act (FOIA). We decline to determine whether individual
chemical ingredients can be trade secrets because that is not solely a question of law and
it cannot be decided on the record before us. We reverse and remand for further
proceedings consistent with this opinion.
ISSUE
[¶4] Appellants present a single issue on appeal:
Whether the Supervisor of the Wyoming Oil and Gas
Conservation Commission acted arbitrarily and unlawfully in
denying Appellants’ request for public records documenting
the identities of chemicals used in hydraulic fracturing
operations in the state.
[¶5] Although varying in tone and tint, the Commission and Halliburton Energy
Services, Inc. (Halliburton) restate essentially the same issue, asking us to apply the
1
APA. However, the denial of Appellants’ WPRA request does not fall under the APA.
We therefore restate the issue to be determined as follows:
Did the district court err in determining that the information
sought in Appellants’ public records request concerning the
identity of certain chemicals used in hydraulic fracturing
fluids are exempt from public disclosure as trade secrets
under the WPRA?
FACTS
[¶6] In 2010, in response to concerns about the effect of hydraulic fracturing on
groundwater in the state, the Commission amended its rules and regulations to require
companies engaged in fracking to disclose the identity of chemicals used for well
stimulation. Rules, Wyo. Oil & Gas Conservation Comm’n, Ch. 1-5 (2010). The
amended rules were intended to provide the Commission with information about the
chemicals and to make fracturing activities more transparent to the public. They mandate
that operators submit “[t]he chemical additives, compounds and concentrations or rates
proposed to be mixed . . . .” to the Commission before initiating and after completing any
well stimulation. Id. at Ch. 3 § 45(d) (emphasis in original). Companies engaged in
fracturing must include the type of chemical (the ingredient’s purpose), the chemical
compound name, CAS number, and the concentration of each chemical. Id. A CAS
number is a unique identifier assigned to every chemical described in public scientific
literature. A person who knows the CAS number for a chemical can identify it by
looking it up on the Chemical Abstracts Service website.1
[¶7] The Commission adopted rules intended to balance its need for the information,
the public’s interest in identifying chemicals which may find their way into groundwater,
and the industry’s need to protect proprietary information in order to maintain
competitive advantage. The rules provide the following mechanism for determining
whether information provided to the Commission will be deemed confidential and not
available to the public:
[B]y written letter to the Supervisor justifying and
documenting the nature and extent of the proprietary
information, confidentiality protection shall be provided
consistent with WYO. STAT. ANN. § 16-4-203(d)(v) of the
Wyoming Public Records Act for the following records:
“trade secrets, privileged information and confidential
1
See National Institute of Standards and Technology, Standard Reference Data, available at
http://webbook.nist.gov/chemistry/cas-ser.html; see also FracFocus, available at http://fracfocus.org.
2
commercial, financial, geological or geophysical data
furnished by or obtained from any person.”
Rules, supra, Ch. 3 § 45(f).
[¶8] After the above rules were promulgated, the Supervisor 2 established a more
specific policy and procedure for reviewing trade secret protection requests submitted by
operators. Operators are required to submit written trade secret protection requests with
two attachments; the first providing justification for deeming all or part of the
formulation of a product to be a trade secret, and the second containing the product name,
the product type, the CAS number for each chemical component of the product, and the
concentration of the chemicals in the product. If the Supervisor finds the information to
be a trade secret, the second attachment is detached from the letter requesting trade secret
status and protected from public disclosure by the Supervisor, while other information
not entitled to trade secret status is published on the Commission’s website and thus
made available to the public.
[¶9] On November 15, 2011, Appellants submitted a public records request seeking
chemical information not publically available from the Commission. Relying upon the
WPRA, the Appellants requested:
1) All records, including electronic records, WOGCC has in
its possession that list or identify the type, chemical
compound name, and/or Chemical Abstract Services (CAS)
number of chemicals or other constituents that have been or
will be injected through hydraulic fracturing or other well
stimulation operations in Wyoming since September 15,
2010, by the following companies and that have not been
disclosed on the WOGCC website: CHEM EOR; CESI
Chemical, Inc.; NALCO Company; CalFrac Well Services;
Multi-Chem Group; Baker Hughes; Kroff Well Service;
Halliburton Energy; BJ Services Company; Core Lab
Reservoir Optimization; SNF, Inc.; Spectrum Tracer
Services; Water Mark Technologies; and Weatherford. In
responding to this request, please include records provided to
WOGCC by any subsidiary or agent companies.
2
The Wyoming Legislature recently amended the qualifications for the Commission Supervisor position,
which now requires a person to be a “qualified petroleum engineer or petroleum geologist with at least ten
(10) years of experience in his respective field of expertise . . . .” 2013 Wyo. Sess. Laws, Ch. 4, § 1. Prior
to the amendment, the qualifications for the position were for a person to be a “qualified and registered
professional petroleum engineer or petroleum geologist . . . .” Wyo. Stat. Ann. § 30-5-108 (LexisNexis
2011) (amended 2013).
3
2) All records, including correspondence, memoranda,
reports, and WOGCC staff notes that are not otherwise
available on the WOGCC website that discuss WOGCC’s
determinations regarding applicability of public disclosure
exemptions, including trade secret or confidential business
information exemptions, for the companies listed above.
[¶10] The Supervisor responded to this request on January 10, 2012, referring
Appellants to information on the Commission website and providing copies of, inter alia,
correspondence relating to the confidentiality requests submitted by various operators.
The Supervisor redacted certain information from the documents, including the identity
of chemicals he found to be exempt from disclosure as trade secrets under the WPRA,
Wyo. Stat. Ann. § 16-4-203(d). The redacted information includes specific chemical
compound names, chemical compound types, CAS numbers, and concentrations for each
ingredient in a specific formula.
[¶11] The Supervisor’s response complied with the provisions of Wyo. Stat. Ann. § 16-
4-203(e), which requires justification for his refusal to disclose documents under the
trade secret exception to the WPRA. He acknowledged that this Court had not addressed
the meaning of trade secrets in the context of the WPRA, but relied upon the definition of
trade secrets in Wyoming’s Uniform Trade Secrets Act, Wyo. Stat. Ann. § 40-24-
101(a)(iv). The Supervisor also described the multi-part test he applied in making
determinations as to trade secret protections:
Other states have addressed similar public records
exceptions. The state of New York addressed the disclosure
of confidential information/trade secrets, and adopted a multi-
part requirement for consideration as [a] trade secret. The Oil
and Gas Conservation Commission has utilized this as a
model to evaluate requests for trade secret status:
a. The extent to which the information is known
outside the business of the person submitting the information;
b. The extent to which it is known by the person’s
employees and other[s] involved in the business;
c. The extent of measures taken by the person to guard
the secrecy of the information;
d. The value of the information to the person and his
competitors;
4
e. The amount of effort or money expended by the
person in developing the information, and;
f. The ease or difficulty with which the information
could be properly acquired or duplicated by others.
The response concluded by explaining the initial exemption process he employed, stating
that “[t]he application for and justification for confidential status/trade secret status, and
the submitted Chemical Abstract Services [CAS] numbers are not considered
confidential” and such information is “filed with other public documents and have been
posted on the [Commission] website with other well information.” However, according
to the Appellants, some of the documents disclosed by the Supervisor or available on the
Commission’s website omitted or redacted the CAS numbers.
[¶12] The Supervisor’s response prompted Appellants to submit a second public records
request specifically seeking disclosure of CAS numbers for individual chemical
ingredients associated with their prior request on January 12, 2012. Eight days later, the
Supervisor responded to this second request, standing by his initial determination and
clarifying “that certain records, including the CAS number, are withheld from public
disclosure as they constitute ‘Trade Secrets’ and as such are exempt from disclosure
under the Wyoming Public Records Act.”
[¶13] Undeterred, Appellants submitted a third WPRA request on February 8, 2012. In
it, they urged the Supervisor to reconsider his previous decision to withhold certain
information from public disclosure as trade secrets, asserting “that mere identification of
names and CAS numbers of hydraulic fracturing chemicals is not a trade secret pursuant
to Wyoming’s Public Records Act.” Appellants also supplied information that they felt
provided additional guidance regarding the breadth of trade secret exemptions from
disclosure, including: (1) a report from a chemical analytical laboratory specializing in
deformulation, or reverse engineering, of products, discussing the information necessary
for or useful to deformulating products; (2) a report discussing the unreliability of
material safety data sheets for identifying human health hazards; (3) a 2010 notice in the
Federal Register from the U.S. Environmental Protection Agency regarding review of
confidentiality claims and disclosure of chemical identities; and (4) an article discussing
public health concerns related to hydraulic fracturing.
[¶14] The Supervisor declined to change his position by letter dated February 24, 2012.
He explained that he believed this information to be exempt under the trade secret
protections provided by the WPRA because “[t]he protection from and prevention of
reverse engineering through deformulation of chemical compounds is the protection that
providers of chemical compounds used in well stimulation are seeking” and that
“[d]eformulation or reverse engineering of chemical compounds would negatively impact
those chemical providers.”
5
[¶15] On March 23, 2012, Appellants filed a Petition for Review of Administrative
Action; Complaint for Declaratory Relief3 pursuant to the APA, claiming that the
Supervisor’s refusal to disclose indentifying information of certain chemicals was
arbitrary, capricious, an abuse of discretion, and not in accordance with the law.
Appellants challenged the Supervisor’s decision not to disclose chemical information
regarding thirty-eight approved trade secret submissions by various operators, arguing
that these approvals were based upon requests which were unlawfully broad or not
sufficiently justified. Although they sought relief exclusively through the APA, in their
prayer for relief Appellants asked the district court to compel the Supervisor to show
cause why its partial denial of their request for access to its records was lawful.
However, no order to show cause was ever issued, and as discussed below, the district
court never held a show-cause evidentiary hearing.
[¶16] Halliburton intervened in the action, and all parties entered into a stipulation
concerning materials they relied upon to support their position. The stipulated record
consists of information concerning (1) sixty-five requests for trade secret status approved
by the Supervisor, all of which are posted on the Commission’s website, and (2) various
correspondence ranging from general questions from the public concerning the
Commission’s 2010 rule amendments to specific inquires from companies how to request
trade secret exemptions for certain information concerning its hydraulic fracturing
products.
[¶17] Appellants and Halliburton filed cross-motions for summary judgment based on
the information contained in the stipulation. After holding a hearing on the motions, the
Court granted summary judgment4 in favor of Appellees. It identified a single issue for
review:
Did the Wyoming Oil and Gas Conservation Commission
Supervisor act arbitrarily and capriciously, or otherwise
contrary to law when he found that individual ingredients of
hydraulic fracturing formulas constituted trade secrets under
the WOGCC public disclosure rule and the Wyoming Public
3
Although the Petition’s caption says that it is also a complaint for declaratory relief, Appellants alleged
that the district court had jurisdiction only under the APA and W.R.A.P. 12. Nowhere in the complaint
did Appellants actually invoke or refer to the Uniform Declaratory Judgments Act, Wyo. Stat. Ann, § 1-
37-101 to -115.
4
We are somewhat nonplussed by the use of the summary judgment procedure identified in Wyoming
Rule of Civil Procedure 56 given the fact that the matter was treated as an administrative review. Review
of administrative decisions by the district courts is governed by the Wyoming Rules of Appellate
Procedure. W.R.A.P. 12.01. There is no summary judgment procedure in the appellate rules. It is clear
that the district court did in fact act in the capacity of a reviewing court, rather than a trial court, an issue
which we address below.
6
Records Act, and denied the Petitioners the right to inspect
those records?
To answer this question, the district court examined the WPRA, our precedent regarding
the same, and the definition of trade secrets within the WPRA. In analyzing the term
“trade secret” in the WPRA, the district court referred to three different definitions—the
definition in the FOIA, the definition in the Restatement (Third) of Unfair Competition §
39, and the Uniform Trade Secrets Act definition (Wyo. Stat. Ann. § 40-24-101). The
court found that hydraulic fracturing chemical identity information could qualify as a
trade secret under all three definitions. After considering the issue, it applied the APA,
finding that “the WOGCC Supervisor acted reasonably when he established a policy for
evaluating trade secret protection requests and that policy is in accordance with the
[WPRA]” and that Appellants “failed to demonstrate that the Supervisor’s decisions to
grant trade secret protection requests were arbitrary, capricious, or not in accordance with
the law.” It is apparent from the record and the decision that the district court considered
its role to be to review the Supervisor’s decision as an administrative decision, rather than
to engage in an independent determination of whether the information withheld was
entitled to trade secret protection under the WPRA.
[¶18] Appellants timely perfected this appeal.
STANDARD OF REVIEW
[¶19] We must first determine whether the district court had authority to evaluate the
Supervisor’s decision using an administrative standard of review under Wyoming’s
appellate rules, or whether it should have used the procedures specified in the Wyoming
Public Records Act. We must also construe the WPRA’s definition of trade secrets.
Both of these questions involve statutory interpretation.
In interpreting statutes, our primary consideration is to
determine the legislature’s intent. All statutes must be
construed in pari materia and, in ascertaining the meaning of
a given law, all statutes relating to the same subject or having
the same general purpose must be considered and construed
in harmony. Statutory construction is a question of law, so
our standard of review is de novo. We endeavor to interpret
statutes in accordance with the legislature’s intent. We begin
by making an inquiry respecting the ordinary and obvious
meaning of the words employed according to their
arrangement and connection. We construe the statute as a
whole, giving effect to every word, clause, and sentence, and
we construe all parts of the statute in pari materia. When a
statute is sufficiently clear and unambiguous, we give effect
7
to the plain and ordinary meaning of the words and do not
resort to the rules of statutory construction. Wyoming Board
of Outfitters and Professional Guides v. Clark, 2001 WY 78,
¶ 12, 30 P.3d 36, [41] (Wyo. 2001); Murphy v. State
Canvassing Board, 12 P.3d 677, 679 (Wyo. 2000). Moreover,
we must not give a statute a meaning that will nullify its
operation if it is susceptible of another interpretation. Billis v.
State, 800 P.2d 401, 413 (Wyo. 1990) (citing McGuire v.
McGuire, 608 P.2d 1278, 1283 (Wyo. 1980)).
. . .
Only if we determine the language of a statute is ambiguous
will we proceed to the next step, which involves applying
general principles of statutory construction to the language of
the statute in order to construe any ambiguous language to
accurately reflect the intent of the legislature. If this Court
determines that the language of the statute is not ambiguous,
there is no room for further construction. We will apply the
language of the statute using its ordinary and obvious
meaning.
Mountain Cement Co. v. S. of Laramie Water & Sewer Dist., 2011 WY 81, ¶ 13, 255 P.3d
881, 885-86 (Wyo. 2011) (quoting BP Am. Prod. Co. v. Dep’t of Revenue, 2005 WY 60,
¶ 15, 112 P.3d 596, 604 (Wyo. 2005)) (some citations omitted).
DISCUSSION
Procedural Issues
[¶20] Wyoming Statute § 16-4-201(a)(v) defines “public records” as “when not
otherwise specified includes the original and copies of any paper, correspondence, form,
book, photograph, photostat, film, microfilm, sound recording, map drawing or other
document, regardless of physical form or characteristics that have been made by the state
of Wyoming and any counties, municipalities and political subdivisions thereof and by
any agencies of the state, counties, municipalities and political subdivisions thereof, or
received by them in connection with the transaction of public business, except those
privileged or confidential by law.” Wyo. Stat. Ann. § 16-4-201(a)(v) (LexisNexis
2011).5 The parties agree that the fracturing chemical information sought must be
5
We note that the definition was amended effective July 1, 2012, which now defines “public records” as
“when not otherwise specified includes any information in a physical form created, accepted, or obtained
by the state or any agency, institution or political subdivision of the state in furtherance of its official
function and transaction of public business which is not privileged or confidential by law. Without
8
available for public inspection unless it is privileged or confidential by law. They
disagree as to whether it is privileged or confidential.
[¶21] The WPRA requires custodians to deny public requests for inspection of records
they deem to be trade secrets. Wyo. Stat. Ann. § 16-4-203(d)(v) (LexisNexis 2013). “If
the custodian denies access to any public record, the applicant may request a written
statement of the grounds for the denial,” which “shall cite the law or regulation under
which access is denied and shall be furnished to the applicant.” Wyo. Stat. Ann. § 16-4-
203(e) (LexisNexis 2013); see Sheridan Newspapers, Inc. v. City of Sheridan, 660 P.2d
785, 788-89 (Wyo. 1983).
[¶22] The legislature anticipated that records custodians and the public would at times
disagree as to whether information was subject to inspection under the Act, and specified
a procedure to resolve those conflicts in the district court in § 16-4-203(f):
Any person denied the right to inspect any record
covered by this act may apply to the district court of the
district wherein the record is found for any [sic] order
directing the custodian of the record to show cause why he
should not permit the inspection of the record.
Wyo. Stat. Ann. § 16-4-203(f) (LexisNexis 2013).
[¶23] Any person denied the right of access to public records can therefore apply to the
district court for an order directing the custodian of the record to show cause6 why
inspection should not be permitted. Id.; see Freudenthal v. Cheyenne Newspapers, Inc.,
2010 WY 80, ¶ 8, 233 P.3d 933, 935 (Wyo. 2010); Sheaffer v. Univ. of Wyoming, 2006
WY 99, ¶ 4, 139 P.3d 468, 470 (Wyo. 2006); Allsop v. Cheyenne Newspapers, Inc., 2002
WY 22, ¶ 29, 39 P.3d 1092, 1101 (Wyo. 2002); Sheridan Newspapers, 660 P.2d at 788-
89.
[¶24] “The role of the district court [is] to examine [the disputed information], all of the
other materials in the record and the applicable law, and then make a judgment as to
whether [the custodian] was correct in his conclusion.” Allsop, ¶ 29, 39 P.3d. at 1101.
limiting the foregoing, the term “public records” includes any written communication or other
information, whether in paper, electronic, or other physical form, received by the state or any agency,
institution or political subdivision of the state in furtherance of the transaction of public business of the
state or agency, institution or political subdivision of the state, whether at a meeting or outside a
meeting.” Wyo. Stat. Ann. § 16-4-201(a)(v) (LexisNexis 2013).
6
An order to show cause is “[a]n order directing a party to appear in court and explain why the party took
(or failed to take) some action or why the court should or should not grant some relief.” Black’s Law
Dictionary 1207 (9th ed. 2009).
9
“It [is] also incumbent upon the district court to employ logic and reason in that process.”
Id. In determining whether the custodian has met his burden, a show cause proceeding
provides the district court with a variety of tools to make evidentiary determinations as to
each piece of information in dispute, including oral testimony by lay and expert
witnesses; detailed affidavits; in camera review of the contested records and related
sensitive information; closed proceedings and sealed submissions to ensure protection of
the same; or such other alternative procedures it deems necessary to develop an adequate
factual basis to determine whether information is a trade secret under the WPRA. See
Freudenthal, ¶ 8, 233 P.3d at 935; Allsop, ¶ 30, 39 P.3d at 1101; cf. Anderson v. Dep’t of
Health & Human Servs., 907 F.2d 936, 942 (10th Cir. 1990).
[¶25] If the custodian bears his burden of showing that an exemption applies to the
record sought, that is the end of the judicial inquiry. See Allsop, ¶ 33, 39 P.3d at 1102
(Golden, J., dissenting); Sheridan Newspapers, 660 P.2d at 788-89, 799. If the custodian
fails to prove that the record is exempt from inspection by the public, the court must
order the custodian to allow inspection.
[¶26] The right to judicial review of administrative decisions is entirely statutory.
Albertson’s, Inc. v. City of Sheridan, 2001 WY 98, ¶ 8, 33 P.3d 161, 164 (Wyo. 2001)
(citing Indus. Siting Council v. Chicago & North Western Transp. Co., 660 P.2d 776, 778
(Wyo. 1983)). Often that review occurs under the APA. See Wyo. Stat. Ann. § 16-3-
114(a) (LexisNexis 2013) (agency action or inaction is reviewable under the APA unless
there is a statutory or common law provision precluding or limiting review). In the case
of the WPRA, the legislature determined that disputes over public access must be decided
in the district courts.
[¶27] The wisdom of the legislature’s approach is apparent in this case. The record
consists of information quite omnifarious, from irrelevant communications with various
members of the public to trade secret protection requests from companies, the truth of
which cannot be tested in a meaningful way. The record does not tell us what specific
information the Supervisor relied upon, or why he did so, and therefore neither this Court
nor the district court has a sufficient basis to determine whether he acted properly or not.
On the other hand, as the WPRA and cases cited above point out, the district court is in a
position to resolve issues of credibility, decide in the first instance whether the documents
in question should be public or not, and create a meaningful record for appellate review
by using the show-cause procedure in the WPRA.
[¶28] Proceedings to challenge denial of access to documents claimed to be public must
follow procedures established by the WPRA, and those are not subject to review under
the Administrative Procedures Act. See Sheaffer, ¶ 4, 139 P.3d at 470 (after denial of
public records request, show cause proceedings followed in accordance with the WPRA).
“[T]he legislature has assigned to the courts the task of providing remedies, both to the
10
public and to government, when issues under the WPRA arise.” Allsop, ¶ 14, 39 P.3d at
1096.
[¶29] We will therefore reverse and remand to the district court. That court will have to
determine whether to permit Appellants to amend their pleadings and file appropriate
documents to seek an order to show cause, or whether to dismiss the case instead. In the
latter event, Appellants may file a new action with an appropriate request for an order to
show cause as contemplated by the WPRA. The district court is vested with broad
discretion to determine whether to allow amendment of pleadings, and we will not
interfere with that discretion. Voss v. Goodman, 2009 WY 40, ¶ 14, 203 P.3d 415, 420
(Wyo. 2009). Regardless of which choice the district court makes, on presentation of an
adequate application for an order to show cause, the district court should conduct
appropriate proceedings and determine whether the information Appellants seek
constitutes trade secrets or not, with the burden of showing that they do upon the
custodian (here the Supervisor) and any intervenors.
[¶30] We understand the difficulty attendant upon holding these proceedings – they
must be conducted in such a manner that the information sought to be protected is not
disclosed until the court can determine whether it is in fact subject to disclosure. This
may require the use of in camera hearings, sealed files, or even closed hearings, tools that
courts customarily use in cases involving alleged trade secrets. Cf. Anderson, 907 F.2d at
942 (“The FOIA allows the district court flexibility in utilizing in camera review of the
disputed documents, indexing, oral testimony, detailed affidavits, or alternative
procedures . . . .”); Uniform Trade Secrets Act, Wyo. Stat. Ann. § 40-24-105 (LexisNexis
2013) (“[A] court shall preserve the secrecy of an alleged trade secret by reasonable
means, which may include granting protective orders in connection with discovery
proceedings, holding in camera hearings, sealing the records of the action and ordering
any person involved in the litigation not to disclose an alleged trade secret without prior
court approval.”).
Definition of Trade Secrets under the WPRA
[¶31] Despite the procedural flaw that leads us to reverse and remand, we are unwilling
to cast the district court adrift without some guidance on the standard to be applied in
trade secret cases under the WPRA. This is a general question of law which can be
answered without regard to the limited record we have, and it is in the interest of judicial
economy to do so. See Sterrett Properties, LLC v. Big-D Signature Corp., 2013 WY 154,
¶ 16, 314 P.3d 1155, 1159 (Wyo. 2013) (addressing premature issue in the interests of
judicial economy).
[¶32] In order to maintain an open and accountable government, the Wyoming
legislature enacted the WPRA in 1969. The Act provides a public right of access to
records of the state, its agencies, and local government entities. Wyo. Stat. Ann. § 16-4-
11
202(a) (LexisNexis 2013) (all public records “shall be open for inspection by any person
at reasonable times”); Freudenthal, ¶ 21, 233 P.3d at 939.
[¶33] The WPRA, like the FOIA, requires that disclosure generally prevail over secrecy.
Sheridan Newspapers, 660 P.2d at 793 (assigning the same legislative intent to the
WPRA as is found characteristic of the FOIA). “Implementation of that goal is provided
by affording a liberal interpretation to the WPRA and construing its exceptions
narrowly.” Allsop, ¶ 10, 39 P.3d at 1095 (footnote omitted); see also Laramie Cnty. Sch.
Dist. No. One v. Cheyenne Newspapers, Inc., 2011 WY 55, 250 P.3d 522, 525 (Wyo.
2011); Houghton v. Franscell, 870 P.2d 1050, 1052 (Wyo. 1994); Sheridan Newspapers,
660 P.2d at 793.
[¶34] Consistent with the WPRA’s overarching purpose, “the custodian, in any exercise
of his right to withdraw, must confine his withdrawal discretion to those areas and
circumstances prescribed by this Act,” employing such discretion on a selective basis
rather than through the withdrawal of entire categories of public records. Allsop, ¶ 10, 39
P.3d at 1095 (quoting Sheridan Newspapers, 660 P.2d at 795-96). Put another way, the
WPRA creates a presumption that the denial of inspection is contrary to public policy,
and therefore places “the burden of proof upon the custodian to show that the exercise of
his discretion does not run afoul of statutory limitations in any particular instance where
custodial withdrawal is effected.” Sheridan Newspapers, Inc., 660 P.2d at 795-96. It is
through this lens of the legislature’s intent in adopting the WPRA that we must interpret
the term “trade secrets.”
[¶35] Striking a delicate balance between the public’s right of access to government
records and the protection of proprietary information, the WPRA contains several
exemptions from disclosure, which are set forth in §§ 16-4-203(b) & (d). The exemption
pertinent to this appeal states:
The custodian shall deny the right of inspection of the
following records, unless otherwise provided by law:
. . .
(v) Trade secrets, privileged information and confidential
commercial, financial, geological or geophysical data
furnished by or obtained from any person[.]
Wyo. Stat. Ann. § 16-4-203(d)(v) (emphasis added). Although exemption § 203(d)(v)
covers several different types of information, our analysis is confined to the term “trade
12
secrets,” which has never been subject to interpretation in the forty-plus years of the
WPRA’s existence.7
[¶36] The parties have presented and argued three possible definitions for the term
“trade secrets:”
 Trade Secret Under the FOIA: 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. See Anderson, 907 F.2d at 943-44.
 Trade Secret Defined by the Restatement (Third) of Unfair Competition § 39:
Any information that can be used in the operation of a business or other enterprise
and that is sufficiently valuable and secret to afford an actual or potential
economic advantage over others. See Briefing.com. v. Jones, 2006 WY 16, ¶ 8,
126 P.3d 928, 932 (Wyo. 2006).
 Trade Secret Defined by the Uniform Trade Secrets Act: Information, including
a formula, pattern, compilation, program device, method, technique or process
that: (A) 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 (B) Is the
subject of efforts that are reasonable under the circumstances to maintain its
secrecy. See Wyo. Stat. Ann. § 40-24-101(a)(iv) (LexisNexis 2013).
7
The parties invite us to consider whether the disputed information can also be classified as confidential
commercial information under the WPRA. However, an opinion on this question would be advisory,
because neither the Supervisor nor the district court decided whether the chemical information is also
exempt from disclosure as confidential commercial information. As the district court pointed out:
The Parties spend a great deal of time arguing about confidential
commercial information, however, the Supervisor’s refusal to disclose
the requested individual chemical ingredients relied solely upon a finding
that they represented trade secrets, not confidential commercial data.
Therefore, the Court’s analysis will focus on trade secrets rather than
confidential commercial data.
“This Court has said repeatedly that it will not issue advisory opinions,” and we decline to depart from
our precedent here. State Bd. of Equalization v. Jackson Hole Ski Corp., 745 P.2d 58, 59 (Wyo. 1987)
(“Although the question as postulated in this case may be properly before us in the future, to render an
opinion here would be to issue an advisory opinion.”). If the Supervisor determines the records in dispute
are also confidential commercial information, he can deny public records requests on that basis as well
and Appellants can apply to the district court for an order to show cause for it to make independent
determinations pursuant to our precedent. See Sublette Cnty. Rural Health Care Dist. v. Miley, 942 P.2d
1101, 1103 (Wyo. 1997) (analyzing the WPRA exemption for confidential commercial information and
adopting the FOIA’s federal test).
13
[¶37] This Court has consistently considered federal precedent interpreting the FOIA in
determining issues under the WPRA. See Miley, 942 P.2d at 1103 (“Because we have
noted the parallel language of our statute and the federal statute, it is appropriate also to
examine persuasive authority, particularly pertinent federal cases.”); see also
Freudenthal, ¶¶ 14-18, 25, 31, 233 P.3d at 937-38, 940, 942; Sheaffer, ¶ 9, 139 P.3d at
472; Allsop, ¶¶ 19-20, 39 P.3d at 1098; Sheridan Newspapers, 660 P.2d at 793-95.
Consulting federal precedent is especially appropriate in this case, as the philosophy
behind the FOIA is consistent with that which led to the adoption of the WPRA, and the
FOIA also exempts trade secrets from public disclosure. Compare Wyo. Stat. Ann. § 16-
4-203(d)(v) with 5 U.S.C.A. § 552(b)(4) (exempt from disclosure under the FOIA are
“trade secrets and commercial or financial information obtained from a person and
privileged or confidential”).
[¶38] Having carefully contemplated the purpose of the WPRA, studied relevant case
law, and considered competing arguments, we adopt the definition of trade secrets
articulated by federal courts under the FOIA. 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.” Id.
[¶39] We arrive at this conclusion based largely upon our agreement with the reasoning
in Public Citizen Health Research Group and Anderson. In adopting the narrower
definition of trade secrets under the FOIA, the D.C. Circuit rejected the broader and
therefore more inclusive definition of trade secrets in the first Restatement of Torts,8
finding that it is “inconsistent with the language of the FOIA and its underlying policies.”
Public Citizen Health Research Group, 704 F.2d at 1288. The court explained that in the
context of public records “trade secret status is reserved for information involving ‘the
productive process itself, as opposed to collateral matters of business confidentiality such
as pricing and sales volume data, sources of supply and customer lists.’” Id. at 1287.
[¶40] In Anderson, the Tenth Circuit also rejected the broader Restatement of Torts
definition, agreeing “with the D.C. Circuit’s narrow definition because . . . it is more
consistent with the policies behind the FOIA than the broad Restatement definition.”
Anderson, 907 F.2d at 944; see Herrick v. Garvey, 298 F.3d 1184, 1190 (10th Cir. 2002).
Anderson went on to explain that
8
The first Restatement of Torts states that a “[a] trade secret may consist of any formula, pattern, device
or compilation of information which is used in one’s business, and which gives him an opportunity to
obtain an advantage over competitors who do not know or use it. . . . A trade secret is a process or device
for continuous use in the operation of the business.” Restatement of Torts, § 757 cmt. b (1939).
14
[o]f the arguments put forth by that court in support of its
construction, we find most compelling the observation that
adoption of the Restatement definition of “trade secrets”
would render superfluous the “commercial or financial
information” prong of Exemption 4 because there would be no
category of information falling within the latter but outside the
former. Like the D.C. Circuit, we are reluctant to construe the
FOIA in such a manner. “A statute should be construed so that
effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant, and so that
one section will not destroy another unless the provision is the
result of obvious mistake or error.” J. Sutherland, Statutes and
Statutory Construction, § 46.06 at 104 (C. Sands 4th ed. rev.
1984).
Anderson, 907 F.2d at 944; see also Herrick v. Garvey, 200 F. Supp. 2d 1321, 1326 (D.
Wyo. 2000), aff’d, 298 F.3d 1184 (10th Cir. 2002); Lawrence Kaplan, What Constitutes
“Trade Secrets and Commercial or Financial Information Obtained From Person and
Privileged or Confidential,” Exempt From Disclosure Under Freedom of Information Act
(5 U.S.C.A. § 552(b)(4)) (FOIA), 139 A.L.R. Fed. 225 (2011). Applying this narrow
definition in the FOIA case before it, the court had no choice but to remand because it
could not tell if the district court applied that definition and because sufficient findings
were not made for review on appeal. Anderson, 907 F.2d at 944.
[¶41] We also find the narrower common law definition more in tune with the policies
behind the WPRA than the broader definitions of the Restatement (Third) of Unfair
Competition or the Trade Secrets Act. As we have explained, “implementation of that
goal [i.e., public disclosure] is provided by affording a liberal interpretation to the
[WPRA] and construing its exceptions narrowly.” Miley, 942 P.2d at 1103 (citing
Sheridan Newspapers, 660 P.2d at 794). The Restatement and Trade Secrets Act are
intended to prevent unfair competition and misappropriation and not to guarantee the
public’s right to access documents which will reveal the operations of our government.
See Restatement (Third) of Unfair Competition § 39 cmt. a (1995) (“The protection of
trade secrets advances several interests [including] . . . the unfairness inherent in
obtaining a competitive advantage through a breach of confidence . . . [and] development
of rules protecting trade secrets formed part of a more general attempt to articulate
standards of fair competition.”); see also Wyo. Stat. Ann. § 40-24-107 (LexisNexis
2013); cf. Uniform Trade Secrets Act § 1 cmt. (1985) (“One of the broadly stated policies
behind trade secret law is ‘the maintenance of standards of commercial ethics.’ Kewanee
Oil Co. v. Bicron Corp., 416 U.S. 470 (1974).”).9 Adopting these broader and more
9
The comments to the Restatement (Third) of Unfair Competition further explain:
15
inclusive definitions of trade secrets would be inconsistent with the language of the
WPRA, its fundamental purpose, and our precedent. Laramie Cnty. Sch. Dist. No. One.,
¶ 2, 250 P.3d at 524 (“[T]he policy behind the [WPRA] is well settled as one of
disclosure, not secrecy, as the legislature of this state has stressed the importance of
making available to the public agency records.” (internal quotation marks omitted)).
[¶42] Additionally, our study of the broader definitions reveals that both alternatives to
the definition in federal FOIA case law would render meaningless the WPRA’s
exemption for confidential commercial information, because there would be no category
of information falling within it but outside that for trade secrets. See Anderson, 907 F.2d
at 944; Public Citizen Health Research Group, 704 F.2d at 1288-89. We have said:
Statutes must be construed so that no portion is
rendered meaningless. Interpretation should not produce an
absurd result. We are guided by the full text of the statute,
paying attention to its internal structure and the functional
relation between the parts and the whole. Each word of a
statute is to be afforded meaning, with none rendered
superfluous. Further, the meaning afforded to a word should
be that word’s standard popular meaning unless another
meaning is clearly intended. If the meaning of a word is
The definition of a trade secret contained in this Section, however, is
directly applicable only to the imposition of civil liability under the rules
stated in § 40. It does not apply, other than by analogy, in actions under
criminal statutes or in other circumstances not involving civil liability for
the appropriation of a trade secret, such as the protection of trade secrets
from disclosure under the Freedom of Information Act (5 U.S.C. § 552).
Restatement, supra, § 39 cmt. b. Similarly Wyoming’s Trade Secrets Act states:
(a) Except as provided in subsection (b) of this section, this act displaces
conflicting tort, restitutionary and other law of this state providing civil
remedies for misappropriation of a trade secret.
(b) This act does not affect:
(i) Contractual remedies, whether or not based upon misappropriation of
a trade secret;
(ii) Other civil remedies that are not based upon misappropriation of a
trade secret; or
(iii) Criminal remedies, whether or not based upon misappropriation of a
trade secret.
Wyo. Stat. Ann. § 40-24-107.
16
unclear, it should be afforded the meaning that best
accomplishes the statute’s purpose.
McTiernan v. Jellis, 2013 WY 151, ¶ 20, 316 P.3d 1153, 1160 (Wyo. 2013). Giving
effect to all words and phrases in the WPRA requires an interpretation that does not
include any and all information that is confidential commercial information within the
concept of trade secrets.
[¶43] Accordingly, we hold that a trade secret under the WPRA 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, with a direct relationship
between the trade secret and the productive process.
Hydraulic Fracturing Ingredient Identities
[¶44] 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. The Commission and intervenor
Halliburton contend that disclosure of individual chemicals will reveal trade secrets
because competitors who employ chemists and petroleum geologists can reverse-engineer
formulas for a product if they know the wells the product is used upon, the general
geology of the area, and the identity of certain chemicals, even if they do not know the
precise quantity of the chemical used in the product. Appellants contend the contrary.
Each side has experts who will render opinions on this issue. The district court must
independently resolve this dispute based on the credibility of the witnesses and
persuasiveness of the evidence presented by each party.
CONCLUSION
[¶45] A trade secret under the WPRA 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, with a direct relationship between the trade secret and the productive
process. We are unable to determine whether the identity of individual chemicals may
be trade secrets in the context of hydraulic fracturing operations based upon the
information in the record, and therefore do not reach that issue.
[¶46] Because the district court reviewed the Commission Supervisor’s decision under
the APA, we must reverse and remand. The district court is directed to determine
whether it will permit Appellants to amend their existing pleadings to request and issue
an order to the Supervisor to show cause as to why the documents requested should not
be produced, or dismiss the case, which will permit Appellants to file a new action. In
17
either event, the district court is required to determine as a matter of fact on evidence
presented to it whether the information sought is a trade secret, and not whether the
Supervisor acted arbitrarily or capriciously under the deferential administrative standards
applied in the original proceedings. The district court will have to review the disputed
information on a case-by-case, record-by-record, or perhaps even on an operator-by-
operator basis, applying the definition of trade secrets set forth in this opinion and
making particularized findings which independently explain the basis of its ruling for
each.
[¶47] Reversed and remanded for further proceedings consistent with this opinion.
18