Welcome to MuckRock's Delaware Freedom of Information Act appeal guide!
Each entry provides background and context about an exemption to the public records laws in all fifty states, as well as federal FOIA. Read more about Delaware's public records law or explore all our expert FOIA guides. Have a public records appeal or information on an exemption we should include? Consider sharing your knowledge with everyone by donating your FOIA appeal language.
Trade Secrets exemption
Also known as 29 Del. C. § 10002(I)(2) 29 Del. C. § 10002(I)-2.
Thank you to Curtis Waltman for contributing to this entry. This guide is for informational purposes only, is general in nature, and is not legal opinion nor legal advice regarding any specific issue or factual circumstance.
This exemption deals with trade secrets. In order to be defined as a trade secret the document must be “commercial or financial information obtained from a person which is of a privileged or confidential nature,” and which “if it falls into a rival’s hands will cause serious competitive disadvantage.”
In order to successfully appeal this exemption there are a few things that must be explained. It matters if the information requested was released to the agency voluntarily or if it was required the company disclose the information. If it was a voluntarily release of records it is exemptible if the records are not generally made available to the public. This is proved through the defendant’s customary handling of the documents, not the industry standard. If it is a required release of records, it is exemptible if it would render future efforts by the government to obtain the records more difficult, or it would do serious competitive harm. If the information is typically released to the public it shouldn’t be difficult to prove that it will not do serious competitive damage. If it is a request for gross receipts, inventory or other basic financial document releases it is not likely to be exempted.
Furthermore, internal documents are not automatically exempted either. Internal managerial reviews and comments whether by or to management, and other internal documents relating to the performance of a company, with regard to the public, has precedent to be released. Documents such as settlement agreements are also considered public records in many cases. In Delaware there is legal precedent for not allowing a document’s creator to mark a document exempt because internally the entity had decided it was confidential.
Example Appeals
Here a request for a Management Review document sent by Dingle & Kane accounting firm to Camden-Wyoming Sewer and Water Authority was denied due to CWSWA’s assertion that it was Dingle & Kane’s privacy they were protecting.
The AG did not find their reasoning to be grounds for withholding a document. It is not up to any entity to decide what is confidential, only the law. Furthermore, the document was not commercial or financial but a comment sent by an accounting firm about ways to better manage systems and data. There were no potential competition disadvantages or privacy issues. The documents were ordered disclosed.
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In this appeal a requester asked for monetary amounts that top phone companies had payed to the Department of Technology and Information’s Delaware Broadband Fund. The request was denied due to AT&T, Sprint and Verizon deeming the information confidential and commercially sensitive. The Attorney General disagreed, finding that the fact that most other phone companies requested furnished the data with no questions and that no serious competitive disadvantages could be created through release of such basic financial information as gross receipts involving a companies dealings in a certain state.
Precedents set by the rest of the industry is not in itself a great stand alone argument against this exemption as by law it cannot hold up as reasoning itself. Here however, it acts as further evidence that the information requested is not a grave threat to competition but instead standard information that should be public knowledge. This is usually the best tack for this exemption. Agencies must be very careful about being able to back up if the documents can actually constitute a competitive disadvantage in the industry.
It is also important to remember here that neither companies nor agencies can decide on what is confidential information. It still must be held up to the language of the law.
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Proper Use
- exempting a document that is of a confidential or privileged nature
- exempting a document that if released would create a serious competitive disadvantage for a company
Improper Use
- exempting a document that is customarily released to the public
- exempting a document that will not do serious competitive damage if released
- exempting a document that is only deemed confidential by the specific body holding the records
Key Citations
ID Biomedical Corp. v. TM Technologies, Inc., 1994 WL 384605
State ex rel. Findlay Publ’g Co. v. Hancock County Bd. of Comm’rs, 684 N.E.2d 1222, 1225 (Ohio 1997)
Nat’l Parks & Conservation Ass’n v. Morton, 498 F.2d 765 (D.C. Cir. 1974)