FLORIDA SUNSHINE? State High Court Orders Gerrymandering Documents Made Public, Justice Thomas Rejects Last-Minute Appeal

This past summer, we reported on an emergency petition to Justice Clarence Thomas of the United States Supreme Court to stay a Florida Supreme Court’s decision permitting disclosure of documents submitted under seal during a trial challenging Florida legislature’s redistricting process.  The emergency petition was filed by Patrick Bainter and Data Targeting, Inc., political consultants hired by the Republican Party of Florida to assist with the redistricting process in that state.  At issue in the petition were more than 500 pages of documents that purportedly contained confidential and trade secret documents regarding the “internal deliberations and strategy, and the names and contact information for like-minded individuals….”  Justice Thomas did not stay the Florida Supreme Court’s decision before the trial resumed, and Bainter ultimately withdrew that petition.  As we recognized then, Bainter’s unanswered petition raised important questions as to whether trade secrets entrusted under a protective order would be preserved.

On November 13, 2014, the Florida Supreme Court ordered the 538 pages of documents released.  As before, Bainter appealed.  On November 21, 2014, Justice Thomas denied, without comment, Bainter’s last-minute appeal to keep the records sealed without comment, allowing the release of 538-pages of documents—which can be found here.  At first glance, this may appear to be a crushing defeat for trade secret protection.  However, a review of the documents, consisting primarily of emails, raises a more fundamental question—namely, whether the documents every actually contained information constituting trade secrets under Florida law.

By way of background, in 2010, voters amended Florida’s Constitution to end gerrymandering in advance of the 2012 decennial redistricting.  The day after the redistricting, however, the League of Women Voters Florida (“the League”) challenged the redistricting process as intentionally (and therefore unconstitutionally) favoring the Republican Party and incumbents while diluting the voting power of African-American and Hispanic voters.  To demonstrate the existence of a shadow redistricting process designed to suppress or dilute votes, the League requested certain documents in the possession of Bainter and Data Targeting.  Although he initially resisted, Bainter eventually disclosed the documents but did so under seal—asserting confidentiality and trade secret protections.

In May 2014, a Florida appellate court stayed the trial court’s order allowing the disclosure of the documents and reversed the trial court’s decision that allowed the use or disclosure at trial of the documents.  On May 27, 2014, the Florida Supreme Court overturned those decisions, allowing the League to use the documents during trial, but only under seal and in a sealed courtroom.  This led to Bainter’s emergency petition to stay the Florida Supreme Court’s decision.  Justice Thomas did not stay the Florida Supreme Court’s decision before May 29, when the trial resumed.  Bainter testified at trial in a closed courtroom.  On May 30, Bainter withdrew his petition.

In July 2014, Judge Terry P. Lewis found that two of Florida’s congressional redistricting maps were unconstitutional and that Bainter and Data Targeting had improperly influenced the redistricting process.  In so holding, Judge Lewis found the documents Bainter authored to be “highly relevant,” demonstrating the firm’s role in drawing the maps.  Bainter and Data Targeting appealed arguing, among other things, the documents contained trade secrets.  On November 13, 2014, the Florida Supreme Court ordered the Bainter documents made public, rejecting Bainter’s claim of trade secrets. Justice Thomas rejected Bainter’s subsequent petition.

Did the Florida Supreme Court and Justice Thomas get it right? Are the documents trade secrets or merely potential cannon fodder for political campaigns to come?  Florida defines trades secrets as:

[I]nformation, 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.

The documents are now available for the world to see, allowing everyone to judge for themselves.  The documents consist of internal Data Targeting emails between Bainter and others at Data Targeting discussing, among other things, how to address redistricting.  Other Bainter emails reflect proposed changes to maps of Florida’s political districts as well as performance data for particular districts.

The release of the Bainter documents begs a unique set of questions—specifically whether documents relating to how elected officials reach decisions should constitute trade secrets.  For example, should politicians and their consultants be allowed to claim trade secret to protect political campaign strategies?  How far does that protection span?  Does allowing politicians and their consultants to claim trade secret protections on matters of public importance—such as redistricting—diminish the integrity of our political process?  In turn, does releasing such documents add validity to our political process?  Does it encourage accountability?  Undoubtedly, these are philosophical questions that go beyond the scope of this blog.  In the meantime, one thing is clear:  in the ongoing battle between public disclosure and confidentiality protections (which we identified as a trend to watch in 2014), the Florida Supreme Court has cast its vote on the side of public disclosure.