Upon Reflection, Some Trade Secrets May Be Less Secret Than They Appear

A recent case in Florida is a reminder that when dealing with government entities, trade secrets may be disclosed to the public, especially if that information has been aggregated.  The District Court of Appeal of Florida affirmed a circuit court’s ruling ordering Broward County to produce information that Uber claimed were trade secrets.  Uber and Broward County had entered into an agreement governing Uber’s services at the airport and Port Everglades.  Part of the agreement required that Uber provide Broward County with monthly self-reports.  These reports contained both aggregated data and granular data.  The aggregated data was comprised of the total number of pickups and drop-offs at the airport and seaport, multiplied by the fee in each of those zones.  The granular data included a time stamp, longitude and latitude of pick-ups or drop-offs, and the first three characters of the driver’s license plate.  Per the agreement, Uber marked these monthly reports as containing trade secrets exempt from Florida’s Public Records Act, which Broward County was required to keep confidential.

Yellow Cab made a public records request to Broward County, asking for all reports or documents that reflected pick-ups by Uber at the airport and the amount of money paid for those trips.  Broward County responded to the request by refusing to produce any reports marked as a trade secret pursuant to the agreement.  Instead, the County produced a redacted set of documents to Yellow Cab.  Yellow Cab filed a complaint against Broward County alleging that it violated Florida’s Public Records Act.

While initially finding that the requested information were trade secrets and, therefore, exempt from disclosure under Florida’s Public Records Act, the circuit court reversed course after a rehearing where it conducted an in camera review.  It found that although the longitude and latitude and the specific dates and times of pick-ups and drop-offs, and the first three characters of license plates of Uber’s drivers were trade secrets, the aggregate number of pick-ups and the sum of money paid by Uber to the County were not.

The appellate court affirmed the lower court’s decision.  It agreed that while certain information, such as price models and algorithms, could constitute trade secrets, aggregate data, such as the total number of pick-ups/drop-offs made by Uber and total amount of money paid to Broward County for those trips, could not.  Additionally, it made clear that public records cannot be made private simply because an agent of the government promised to keep that information private.

This case is a cautionary tale to companies with government contracts. Be aware that whatever information you provide to a government entity can be subject to a public records request, regardless of any agreement to keep information confidential.  The best way to keep your trade secrets secret is to not disclose them.  This is especially true when the information you are trying to protect is an aggregation of what would otherwise be trade secret protectable information.