Michael Long, Lynn Martin, Steven Goodkind and the Coalition for a Liveable City v. City of Burlington and BTC Mall Associates, LLC

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2018 VT 103
No. 2017-434
Michael Long, Lynn Martin, Steven Goodkind Supreme Court
and the Coalition for a Livable City
On Appeal from
v. Superior Court, Chittenden Unit,
Civil Division
City of Burlington and BTC Mall Associates, LLC.
April Term, 2018
Robert A. Mello, J.
John L. Franco, Jr., Burlington, for Plaintiff-Appellant Coalition for a Livable City.
Richard W. Haesler, Jr. and Justin St. James, Burlington, for Defendant-Appellee City of
Burlington.
Jonathan T. Rose and Brian S. Dunkiel of Dunkiel Saunders Elliott Raubvogel & Hand, PLLC,
Burlington, for Defendant-Appellee BTC Mall Associates, LLC.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 1. ROBINSON, J. Plaintiff Coalition for a Livable City (CLC) appeals the trial
court’s summary judgment denying its Public Records Act (PRA) request to the City of Burlington
for an unredacted financial feasibility study provided by a private developer to a contractor hired
by the City of Burlington to help the City assess the viability of the developer’s plans. The
development plans included some public improvements to be financed with tax dollars. We do
not decide whether the documents qualify as public records under the PRA because we conclude
that, assuming without deciding that they do, the redacted information falls under the PRA trade-
secrets exemption. Accordingly, we affirm.
¶ 2. The undisputed facts are as follows. In December 2014, the Burlington City
Council took its first steps toward redevelopment of several downtown city blocks then home to
the Burlington Town Center Mall (Project) by approving a process to create a public-private
partnership with the property’s owners, Devonwood Investors, LLC and BTC Mall Associates,
LLC (collectively BTC). The City contracted with an economic consulting firm called
ECONorthwest to help the City analyze the Project and structure a public-private partnership.
ECONorthwest is an independent Seattle-based consulting firm that has experience providing
economic and technical expertise to state and local governments on economic redevelopment
projects.
¶ 3. Over the next seventeen months, the City, with technical assistance from
ECONorthwest, worked with BTC to conceptualize and refine the Project. This effort led to a
Predevelopment Agreement (PDA) to memorialize the basic Project concept and identify the next
steps in bringing it to fruition. BTC’s proposed redevelopment included, among other things,
residential, retail, and commercial office components, as well as parking. The PDA contemplated
up to $222 million in public improvements and acquisitions financed by tax increment financing.
The City Council approved this PDA in May 2016.
¶ 4. The PDA included a provision requiring BTC to provide the City with copies of
any market studies and feasibility analysis prepared for the benefit of BTC’s lenders or investors
and available to BTC. The PDA recited:
The Parties agree that such reports customarily include data that
analyze whether a market exists for the retail, commercial and
residential components of a project, and whether the anticipated
market demand for the retail, commercial and residential
components of a project is sufficient to support the anticipated costs
of developing, constructing and operating it.
This provision involved disclosures of information “that if disclosed to BTC’s competitors, could
harm BTC commercially.” The City sought this information to test the assumptions in BTC’s
2
financial projections. The agreement further provided that BTC would work cooperatively with
ECONorthwest to provide a range of customary financial underwriting information, and stated,
“The parties agree to cooperate as needed to facilitate the completion of these disclosures and
assessments, including appropriate treatment of proprietary or confidential information.”
¶ 5. In August 2016, BTC and ECONorthwest purported to enter into a nondisclosure
agreement (NDA) pursuant to which BTC agreed to provide confidential business information to
ECONorthwest so it could do its own assessment of the project, and ECONorthwest agreed that it
would not disclose that confidential business information to anyone, including the City. Whether
this agreement created any enforceable rights or obligations is disputed.1
¶ 6. Soon thereafter, BTC provided ECONorthwest with a copy of a Market Feasibility
Assessment (Study) prepared by its own consultants. The Study concluded that the Project was
economically feasible and represented a viable investment for the developer. In September 2016,
ECONorthwest issued its own analysis of the Study, concluding that the Study was generally well
conceived and agreeing with its findings.
¶ 7. BTC provided a redacted copy of the Study to the City and the public. BTC asserts
that the redactions include figures showing estimated rents, revenues, costs, and other proprietary
financial information associated with the Project. CLC contends that since the unredacted
document has not been made available, it has no basis to admit or deny BTC’s assertion as to the
nature of the redactions. The document itself undisputedly includes the following redactions made
by BTC2:
1
CLC contends that only the City Council had legal authority to approve such an
agreement, and the City Council neither approved this NDA nor authorized ECONorthwest to
enter into it.
2
The record in dispute actually says “[REDACTED]” where indicated.
3
[T]he analysis indicates that the project achieves a Net Operating
Income of $[REDACTED] million in year 2020, resulting in a Yield
on Cost of [REDACTED] percent.
....
As of the time of this writing, monthly rental rates [in the 139
market rate rental units] were projected as following: Efficiencies -
$[REDACTED] per month; One Bedroom - $[REDACTED] per
month, Two Bedroom - $[REDACTED] per month.
....
. . . Triple Net [retail] leases under negotiation range from
$[REDACTED] to $[REDACTED] per square foot.
....
Based on current retail rents in the Church Street Marketplace and
the developer’s ongoing negotiations with potential commercial
tenants in pre-lease negotiations, significant retailers and service
providers are expected to lease in the $[REDACTED] -
$[REDACTED] PSF NNN range,[3] and the project overall is
expected to achieve toward the high end of downtown core retail
rates.
....
. . . For pro forma purposes . . . a blended retail lease rate of
$[REDACTED] PSF NNN has been assumed.
....
An executed Letter of Intent between the University of Vermont
Medical Center and Devonwood Investors LLC commits the
Medical Center to lease 110,000 square feet of office space at a triple
net rate of $[REDACTED] per square foot. The lease has a
[REDACTED]-year term, with two [REDACTED] year options to
extend.
Negotiations are underway for an additional 105,000 square feet of
office space, at rents of $[REDACTED] NNN.[4]
....
Based upon the negotiated lease and leases under the negotiation
and the time that will pass between now and initial office occupancy,
3
PSF stands for “per square foot” and NNN stands for “triple net.”
4
BTC redacted a footnote to this statement in its entirety.
4
the smaller size of remaining office units and the quality of the Class
A space, we estimate lease rates [for office space] to range from
$[REDACTED] to $[REDACTED] NNN.
....
. . . As of this writing, monthly fees [for on-site parking] are
projected at $[REDACTED].
....
The 555 parking spaces rented on monthly leases
($[REDACTED])/Month) will reach full occupancy and demand
will remain at a high level.
In addition, various tables were redacted, including “[a] detailed construction cost estimate,” a
table reflecting loan sources, and tables showing projected five-year returns from the residential,
retail, office, and parking components of the Project.
¶ 8. In October 2016, Lynn Martin, on behalf of CLC, requested a copy of the
unredacted Study and related documents from the City pursuant to the PRA. The Burlington City
Attorney denied the request, explaining that: the City did not have an unredacted copy of the
document and thus it had no responsive public records; the document was shared with the City’s
economic consultant, ECONorthwest, pursuant to an NDA that prohibited its disclosure to others;
and even if the document were a public record, it would be exempt from disclosure pursuant to
1 V.S.A. §317(c)(9)—the trade-secrets exemption to the PRA. The Burlington mayor denied
CLC’s appeal on essentially the same grounds.
¶ 9. Several individual plaintiffs and CLC filed suit against the City alleging that it
violated the PRA by failing to disclose the unredacted Study. 5 In addition to naming the City,
plaintiffs sued BTC claiming if the unredacted study is a public record subject to disclosure, BTC
would be a necessary party because only BTC held the record.
5
The plaintiffs’ complaint included several other counts unrelated to the PRA that were
resolved prior to this public-records claim. These claims are not at issue in this appeal.
5
¶ 10. Considering the above undisputed facts, the trial court granted the City summary
judgment and dismissed the claim against BTC. First, the court reasoned that the study is not a
public record under the PRA. See 1 V.S.A. § 317(b) (defining “public record” as “any written or
recorded information . . . which is produced or acquired in the course of public agency business”).
The court concluded that the City neither produced nor acquired the unredacted Study in the course
of public agency business, and it had no legal right to obtain the unredacted copy pursuant to the
NDA.
¶ 11. The court rejected the argument that the unredacted Study is a public record because
it was disclosed to an agent of the City pursuant to City business. The court questioned the
applicability of agency law to the analysis, noting that some trial courts in Vermont have applied
a “functional equivalence” test, considering whether the private entity from which records are
sought is the “functional equivalent of a public agency” and whether the records sought “are within
the scope of that equivalency.” The court implicitly concluded that ECONorthwest was not the
functional equivalent of the City, emphasizing that, pursuant to the NDA, the City had no legal
right to acquire the unredacted version of the Study. Moreover, the court concluded that even if
common-law agency principles did apply in this context, an agent’s knowledge is not imputed to
the principal if the agent is subject to a duty to another not to disclose the fact to the principal. In
light of the NDA, ECONorthwest’s knowledge of the redacted information cannot, the court
reasoned, be imputed to the City.
¶ 12. Second, as an alternate ground, the court concluded that the redacted information
was exempt as a trade secret. See 1 V.S.A. § 317(c)(9) (exempting “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”). The court rejected CLC’s claim that
it is impossible to tell what information was redacted without the court reviewing the document
6
itself, noting that it is clear on the face of the document exactly what was redacted, and virtually
all of the redactions are numbers, dollar figures, or tables of dollar figures where the narrative
context makes it crystal clear what those redacted dollar figures represent. It concluded that public
disclosure of the redacted information, reflecting BTC’s pricing, cost, and revenue information,
could be competitively harmful.
¶ 13. Further, noting that BTC shared the unredacted Study only with ECONorthwest,
and only after negotiating an NDA that was acknowledged by the City Attorney, the court
concluded that BTC had made reasonable efforts under the circumstances to keep the information
secret. To the extent that City Council authorization was required for the City to “acknowledge”
the NDA, the court concluded that this authorization was provided by the City’s agreement in the
PDA to cooperate as needed to facilitate disclosures, “including appropriate treatment of
proprietary and confidential information.” On these bases, the court awarded the City summary
judgment on the public records claim and dismissed the claim against BTC.
¶ 14. CLC filed a motion to reconsider asserting that although, pursuant to the City’s
statement of undisputed facts, the “full, unredacted copy” may not have been shared with the City,
much of the redacted information was actually shared in an executive session of the Burlington
Finance Board along with many other members of the Burlington City Council. CLC had not
previously raised this argument.
¶ 15. The trial court denied the motion. In its ruling, the court considered the effect of
this Court’s intervening decision in Toensing v. Attorney General, 2017 VT 99, ¶¶ 1, 22, __ Vt.
__, 178 A.3d 1000, in which we held that the PRA applies to digital documents stored in private
accounts where those documents otherwise meet the definition of public records—that is, they
were produced or acquired in the course of public agency business. The trial court reiterated its
7
conclusion that in this case the Study was neither produced nor acquired by the City in the course
of agency business. CLC appealed.6
¶ 16. On appeal, CLC emphasizes that the unredacted Study was provided to an agent of
the City who acted on the information by validating the Study’s findings to the City. Alternatively,
it contends that summary judgment is premature because more discovery is needed to find out
whether the redacted information actually was shared with the City. Finally, CLC argues that the
redacted information is not the type of information that qualifies under the trade-secrets exemption,
and that sufficient efforts were not made to ensure the secrecy of the materials.
¶ 17. On the first point, CLC emphasizes that BTC provided this information to the City’s
contractor in connection with a proposal that would entail substantial taxpayer financing in order
to enable the City to determine the project’s viability. It invokes the public significance of the
information as part of the basis for denying trade-secret status.
¶ 18. In the alternative, CLC notes that the City’s undisputed evidence does not establish
that the City did not actually acquire the redacted information. CLC points to minutes of a
September 2016 meeting of the City Board of Finance, posted online, that suggest that in executive
session the Board of Finance reviewed privileged and confidential information concerning the
BTC redevelopment project, including the feasibility report. CLC argues that the Finance Board’s
receipt of the redacted information undercuts the City’s claim that the unredacted Study is not a
public record, and it argues that summary judgment is premature because more discovery is
required.
¶ 19. Finally, with respect to the trade-secrets exemption, CLC argues that this is not the
kind of information that qualifies as a trade secret, and BTC did not in any event make sufficient
efforts to ensure the secrecy of the materials. It argues that the redacted material does not contain
6
Prior to the court’s decision, the individual plaintiffs withdrew pursuant to a settlement
agreement.
8
any of BTC’s existing trade information; rather, it is an estimation of what retail, commercial, and
residential rents future markets will bear. The Study identifies the range, relative to existing rates,
in which BTC rental rates will fall (generally, the higher end), but redacts the specific projected
rental figures. The assessment of the current range of rental rates in Burlington, which is based on
publicly available information and is not redacted, is not uniquely in the possession of BTC, and
is not a trade secret. Moreover, CLC argues that once asking rents are actually made known to
third parties, they are no longer known only to individuals within a commercial concern and lose
their exemption from disclosure.7 With respect to the construction cost estimates and the return
and yield estimates, CLC argues that these all reflect estimates rather than BTC’s actual
experience, and the City did not prove the information was not otherwise available. With respect
to BTC’s efforts to ensure the secrecy of the materials, CLC argues that the NDA between
ECONorthwest and BTC did not constitute a sufficient effort to ensure the secrecy of the
information because the NDA was never approved by the City Council and the PDA approved by
the City Council was merely an “agreement to agree.”
¶ 20. We review a motion for summary judgment without deference using the same
standard as the trial court. In re All Metals Recycling, Inc., 2014 VT 101, ¶ 6, 197 Vt. 481, 107
A.3d 895. “[S]ummary judgment is appropriate only when the record clearly shows that there is
no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”
Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996); see V.R.C.P. 56(a).
¶ 21. Applying this standard, we affirm the trial court’s judgment on the ground that,
assuming without deciding that the unredacted Study is a public record, the redacted information
7
CLC makes an additional argument concerning the redaction of information relating to
a letter of intent between the University of Vermont Medical Center (UVMMC) and BTC. It
argues that the City did not prove that this information is not otherwise available, and points to an
article posted on VTDigger, an online news source, in which UVMMC confirmed that it agreed to
pay $22 per square foot to lease 80,000 to 110,000 square feet.
9
is exempt from disclosure under the PRA pursuant to 1 V.S.A. § 317(c)(9).8 In understanding the
scope of § 317(c)(9), we rely on the plain language of the exemption and our caselaw construing
it. Applying this law to the record in this case, we conclude that the redacted information is of the
type that may be included within the exemption, and that BTC has made reasonable efforts under
the circumstances to keep the information secret.
¶ 22. The public records act exempts from disclosure “trade secrets,” which it defines to
mean:
confidential business records or information, including
any . . . plan, . . . production data, or compilation of information
which is not patented, 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).9 Like any exemption to the disclosure requirements in the PRA, the trade-
secrets exemption should be construed strictly against the custodian of records with doubts
8
We dispense quickly with the City’s and BTC’s arguments that CLC cannot prosecute
this appeal because the unincorporated association has not registered as a business organization
with the Secretary of State and is thus precluded from maintaining an action in court. See 11
V.S.A. §§ 1621, 1626. The City raised this defense for the first time in its post-decision opposition
to CLC’s motion to reconsider. We have held that failure to register pursuant to 11 V.S.A. § 1621
is an affirmative defense that must be raised specifically in a timely manner. See Coty v. Ramsey
Assocs., Inc., 149 Vt. 451, 469, 546 A.2d 196, 208 (1988) (declining to consider argument that
party lacked standing to sue in name of business because business was not registered pursuant to
§ 1621 because “it constitutes an affirmative defense which was not raised specifically and in a
timely manner”); Senesac v. Duclos 128 Vt. 601, 603, 270 A.2d 156, 158 (1970) (noting that
challenge to standing based on failure to register is affirmative defense that should have been
pleaded or else it was waived); V.R.C.P. 12(b) (requiring affirmative defenses to be pled in answer
except for listed defenses that may be asserted by motion before answer); V.R.C.P. 12(g)
(requiring consolidation of defenses in motion, with identified exceptions in Vermont Rule of Civil
Procedure 12(h)(2)). We recognize that the City and BTC may have opted against raising the issue
sooner because prior to the July 2017 withdrawal of the individual plaintiffs, CLC’s status as an
additional plaintiff had no practical effect. However, CLC was a named plaintiff from the outset
of this litigation, and the City and BTC had ample opportunity to raise the defense. Because this
issue has not been preserved, we do not address the merits.
9
This definition is consistent with the definition of “trade secret” for purposes of
Vermont’s laws addressing the misappropriation of trade secrets:
10
resolved in favor of disclosure. Springfield Terminal Ry. v. Agency of Transp., 174 Vt. 341, 345,
816 A.2d 448, 452 (2002). The burden of establishing that an exemption is applicable is on the
agency seeking to avoid disclosure. Id.
¶ 23. This Court previously analyzed the applicability of this exemption to documents
disclosing a business’s sensitive financial data in Springfield Terminal Railway, 174 Vt. at 341,
816 A.2d at 448. In that case, multiple bidders responded to a request by the Vermont Department
of Transportation (VTrans) for proposals to provide rail freight service in the state. After VTrans
selected a contractor, a disappointed bidder sought disclosure of records relating to the bidding
process. VTrans asserted exemptions for financial information submitted by competing bidders,
including “balance sheets, income statements, profit and loss statements, statements of retained
earnings, statements of cash flows, five or six year freight and passenger flow projections . . . the
names of current and potential shippers, stockholder information, and employee information.” Id.
at 344, 816 A.2d at 451. In affirming the trial court’s determination that the records were exempt,
we made several important observations about § 317(c)(9).
¶ 24. First, we concluded that the plain language of the exemption undermined any
suggestion that the Legislature intended to limit this “statutory definition of trade secrets to
proprietary information in the nature of intellectual property.” Id. at 346, 816 A.2d at 453. The
Legislature specifically included in the list of exempt information “compilations of information,”
“Trade secret” means 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.
9 V.S.A. § 4601(3).
11
and we recognized that this includes information, not patented, “known only to those individuals
within a commercial concern” that creates “an opportunity to obtain a business advantage over
competitors who do not know or use that information.” Id. at 347, 816 A.2d at 454. We held that
the financial information described above was generally private corporate information that gave
its possessor a commercial advantage over others and was therefore exempt from disclosure.
¶ 25. Second, we concluded that a contrary interpretation would “lead[] to absurd or
irrational results.” Id. at 348, 816 A.2d at 454. Recognizing that the various businesses had
submitted the sensitive financial information to allow for effective evaluation of their proposals
by VTrans, we noted that interpreting § 317(c)(9) in a manner that does not protect this information
“would significantly hamper VTrans’s ability to conduct a comprehensive bid process.” Id. at 348,
816 A.2d at 454-55. We explained, “[i]t is a matter of common sense that the disclosure of
information the Government has secured from voluntary sources on a confidential basis will both
jeopardize its continuing ability to secure such data on a cooperative basis and injure the provider’s
interest in preventing its unauthorized release.” Id. at 348, 816 A.2d at 455 (quotation omitted).
And we concluded, “if we construed the exemption” to be inapplicable, “contractors and service
providers may decline to cooperate with the state, thus impairing the state’s ability to make
intelligent, well-informed decisions.” Id. at 349, 816 A.2d at 455.
¶ 26. Third, and for the reasons set forth above, we held that voluntary submission of
financial information that qualified for protection under § 317(c)(9) does not operate as a waiver
of that protection. Id.
¶ 27. Applying this law, we conclude that the redacted information in this case is exempt
from disclosure.10 In particular, it is the type of information that “gives its user or owner an
10
Like the trial court, we reject the argument that a court must review the unredacted
document in camera (meaning privately in chambers) before considering whether the information
is exempt. Such individualized review may be required in most cases where the content of the
12
opportunity to obtain business advantage over competitors who do not know it or use it,” and BTC
has made reasonable efforts to keep the information secret. 1 V.S.A. § 317(c)(9).
¶ 28. The undisputed record, our Springfield Terminal Railway decision, and persuasive
authority from other jurisdictions support the contention that BTC would lose a business advantage
over competitors if the redacted information were made public. BTC submitted an uncontradicted
affidavit from its principal explaining that the anticipated project costs and revenues, financial
projections, and confidential lease terms with a major prospective tenant contained in the
document are the types of information considered highly sensitive in the real estate development
industry. The principal explained that if competitors had access to BTC’s financial projections
and lease information, they could “reverse engineer” BTC’s pricing and forecasting models and
use the information to undercut BTC’s pricing and terms. Prospective office, retail, and residential
tenants could use the pricing and revenue information to obtain an unfair advantage over BTC in
future negotiations. This undisputed evidence supports the City’s position.
¶ 29. Moreover, in response to the City’s statement of undisputed material facts, CLC
did not dispute that the information BTC was required to share pursuant to the PDA, including
market studies and feasibility analyses, was needed to test the assumptions in BTC’s economic
projections, and “would necessarily involve disclosure of information that if disclosed to BTC’s
competitors, could harm BTC commercially.” This admission was not directed at the specific
redactions at issue here, but it did relate to the type of information generally included within the
Study.
¶ 30. Exempting this evidence is consistent with our analysis in Springfield Terminal
Railway. As noted above, in that case we concluded that the company’s projections of future
redacted information in a document is not entirely known. But we agree with the trial court that
in this case, the content of each of the redactions is clear on the face of the redacted version of the
document that is in the record.
13
passenger flow, as well as internal balance sheets and profit and loss statements, fell within the
trade-secrets exemption because it was “generally private corporate information that gives its
possessor a commercial advantage over others.” 174 Vt. at 348, 816 A.2d at 454. As in Springfield
Terminal Railway, the exemption here promotes not only the private company’s interest in
protecting its commercial secrets, but also the government’s interest in “its continuing ability to
secure such data on a cooperative basis . . . to make intelligent, well-informed decisions.” Id. 174
Vt. at 348-49, 816 A.2d at 455.
¶ 31. Courts in other jurisdictions have likewise affirmed that similar information
qualifies as trade secret, either for purposes of public records law exemptions, laws regulating
misappropriation of trade secrets, or both. For example, the Ohio Supreme Court concluded that
the price and duration terms in commercial subleases between subtenants and a private entity that
leased a historic marketplace from a municipality were trade secrets exempt from disclosure under
the Ohio public records law. State v. Corp. for Findlay Mkt., 2013-Ohio-1532, 988 N.E.2d 546.
The court based its conclusion in part on expert testimony that the term and rental rates for
subleases in the commercial context are secrets closely guarded by property managers, and that
knowledge of these items about competitors would be invaluable to property managers. Id. ¶ 19.
Concluding that the “information derives independent economic value from not being generally
known,” and that the sub-lessor took reasonable steps under the circumstances to maintain its
secrecy, the court affirmed the denial of the public records law claim. Id. ¶¶ 20-26; see also Utah
v. U.S. Dep’t of Interior, 256 F.3d 967, 971 (10th Cir. 2001) (concluding in analysis of federal
Freedom of Information Act (FOIA) exemption that competitive disadvantage to tribe and nuclear
waste storage company would be “overwhelming” if core terms of lease were publicly disclosed);
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 160 F. Supp. 3d 226, 238
(D.D.C. 2016) (holding in FOIA case that vendor would be put at competitive disadvantage if unit
pricing information were made public); Hyman Cos., Inc. v. Brozost, 119 F. Supp. 2d 499, 504
14
n.1 (E.D. Pa. 2000) (concluding that knowledge of lease negotiations and profitability of individual
stores was subject to protection under state laws protecting against disclosure of trade-secret
information). Given these considerations, we conclude that BTC derives a business advantage
from the continued confidentiality of the redacted information.
¶ 32. In addition, we conclude that BTC has made reasonable efforts to protect the
confidentiality of the information at issue. This conclusion is based on the undisputed evidence
of BTC’s efforts and does not turn on the validity of the NDA vis-à-vis the City. The record is
clear that BTC went to great lengths to protect the confidentiality of the redacted information. The
uncontested affidavit of BTC’s principal states that: BTC only shares the information with third
parties when absolutely necessary, and only then on the condition that the information not be
shared further; BTC had a confidentiality agreement with its own consultant prohibiting the
sharing of the financial information without BTC’s consent; before disclosing the study to
ECONorthwest, BTC required the contractor to sign the NDA; and BTC requested confirmation
from the City that it acknowledge the NDA. This evidence shows more than reasonable efforts to
protect the confidentiality of the information.
¶ 33. We reject CLC’s suggestion that the reasonableness of BTC’s efforts in this regard
turns on the enforceability of the NDA vis-à-vis the City. There is no requirement an entity enter
into a binding NDA with a government agency before disclosing trade-secret information to invoke
the PRA exemption in 1 V.S.A. § 317(c)(9). If there were, then none of the records in the
Springfield Terminal Railway case would have been exempt from disclosure, as that decision
makes no reference to any nondisclosure agreement with the State. Here, the undisputed evidence
is that BTC did not disclose this information to third parties unless necessary, and when it did, it
generally entered into confidentiality agreements—as it did when disclosing the information to
ECONorthwest. Even if the City’s “acknowledgment” of that agreement were not binding on the
City—either because it was not properly enacted by the City Council, or because the City cannot
15
by agreement circumvent its obligation to make disclosures for otherwise nonexempt public
records—we conclude, in the absence of contrary evidence as to the standard of reasonableness,
that BTC’s efforts to protect the confidentiality of the protected information was reasonable.11
¶ 34. For the above reasons, we conclude that the information that has been redacted from
the Study falls within the PRA exemption for trade secrets, 1 V.S.A. §317(c)(9), and accordingly
affirm the trial court’s summary judgment for the City, and dismissal of CLC’s claims against
BTC.12
Affirmed.
FOR THE COURT:
Associate Justice
Moreover, even if CLC’s belated assertion that City Councilors and others from the City
11
viewed the information in an executive session of the Finance Board had been established in the
summary judgment record, we would reach the same conclusion. The act of sharing the
information in a nonpublic executive session of an otherwise open meeting is fully consistent with
reasonable efforts to protect the confidentiality of the information.
12
In its appeal brief, CLC represents that UVMMC publicly confirmed that it had agreed
to pay $22 per square foot to lease 80,000 to 100,000 square feet from BTC, and argues that the
trade-secrets exemption cannot apply to such publicly confirmed information. We agree generally
that the exemption cannot apply to information that has been made widely known by the lessor or
the lessee. However, because CLC’s assertion is based on evidence post-dating the summary
judgment decision and outside of the summary judgment record, we do not address its specific
argument here. It also asserts that the information is not exempt because it is publicly available
through UVMMC pursuant to the PRA. In making this assertion, CLC relies on cases in which
we have applied the PRA to the University of Vermont. It has offered no briefing with respect to
the status of UVMMC as a public agency, and we accordingly decline to reach this argument. See
Bishop v. Town of Barre, 140 Vt. 564, 579, 442 A.2d 50, 57 (1982) (explaining that “this Court
will not search the record for errors inadequately briefed”).
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