Whitaker v. Vt. Info. Tech. Leaders, Inc. ( 2017 )

Whitaker v. Vt. Info. Tech. Leaders, Inc., No. 781-12-15 Wncv (Teachout, J., Jun. 28, 2017).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 781-12-15 Wncv
STEVEN WHITAKER
Plaintiff
v.
VERMONT INFORMATION TECHNOLOGY LEADERS, INC.
Defendant
DECISION FOLLOWING PRODUCTION
In an October 27, 2016 decision, the court determined that Defendant Vermont
Information Technology Leaders, Inc. (VITL) is the functional equivalent of a public agency
subject to Vermont’s Access to Public Records Act, 1 V.S.A. §§ 315–320, and Plaintiff Steven
Whitaker’s public records request. Following that decision, VITL produced the responsive
records with two exceptions. It produced a document with the salaries of its employees but
redacted their identities. It produced its contract with Medicity but redacted several provisions
as exempt “trade secrets.” 1 V.S.A. § 317(c)(9). Mr. Whitaker objects to the redactions and
argues that he should be entitled to the documents in their unredacted form.
Salaries of employees
VITL produced the salaries of its employees but redacted their identities so one viewing
the record would not be able to determine which salary corresponds to which employee. VITL
claims some interest in privacy associated with these redactions. However, there is no lawful
basis for them. The court has determined that VITL is subject to the Act. The Act provides that
“[i]ndividual salaries and benefits of and salary schedules relating to elected or appointed
officials and employees of public agencies shall not be exempt from public inspection and
copying.” 1 V.S.A. § 317(b) (emphasis added). Accordingly, VITL shall produce the
unredacted salary document forthwith.
Trade secrets
VITL also made numerous redactions to the produced Medicity contract claiming that
they are exempt trade secrets: “confidential business records or information . . . which a
commercial concern makes efforts that are reasonable under the circumstances to keep secret,
and which gives its user or owner an opportunity to obtain business advantage over competitors
who do not know it or use it.” 1 V.S.A. § 317(c)(9). This exception “reflects a legislative desire
to protect from public access some nontechnical, competitively useful business information” and
is not limited to “intellectual property.” Springfield Terminal Ry. Co. v. Agency of Transp., 174
Vt. 341, 347 (2002). While the Court ruled in that case that the exemption applied, the
information that qualified for the exemption was internal information about an entity that bid for
a state contract. It was not terms of a contract with the State, as is involved in this case.
VITL provided an unredacted copy of the contract to the court under seal and an index
describing the redactions. Some redactions relate to pricing, fees, and other financial aspects of
the agreement. Other redactions relate to particular services, such as “incident escalation
processes,” “incident and data recovery processes,” and “business processes and services for data
retention.” For each redaction, VITL asserts that the information redacted gives Medicity “an
opportunity to obtain a business advantage over competitors who do not know it and cannot use
it when competing with Medicity.”
The court cannot simply look at the redacted material and ipso facto conclude that its
continued confidentiality gives Medicity (or VITL and Medicity) any real “business advantage
over competitors.” Whether specific terms of a contract with VITL constitute “competitively
useful business information” is not self-evident as it was in the Springfield case. VITL has
asserted the exemption, but it has not made any specific factual showing, with affidavits or
argument, that the exemption properly applies to the redacted information. Rather, the redaction
log simply asserts the conclusion that it does. “The burden of showing that a record falls within
an exception is on the agency seeking to avoid disclosure.” Wesco, Inc. v. Sorrell, 2004 VT 102,
¶ 10, 177 Vt. 287. Because VITL has not met that burden, Mr. Whitaker is entitled to an
unredacted copy of the Medicity contract.
The court recognizes, however, that VITL’s opposition to complete production may be
motivated in part by its interest in complying with the Confidentiality of Agreement provision of
the Medicity contract, ¶ 6.2, and the party with the more direct interest in the redacted
information, Medicity, is not a party to this case. Accordingly, the court will stay the order to
produce the unredacted copy of the contract for 30 days during which Medicity may seek to
intervene and oppose complete production, if it chooses to do so. The court requests that VITL
provide Medicity a copy of this order forthwith and so certify to the court.
ORDER
For the foregoing reasons:
1. VITL shall promptly produce an unredacted copy of the record showing the schedule of
salaries; and
2. VITL shall produce an unredacted copy of the complete Medicity contract.
3. The order to produce the Medicity contract is stayed for 30 days.
Dated at Montpelier, Vermont this __ day of June 2017.
_____________________________
Mary Miles Teachout
Superior Judge
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