Trade Secrets And Proprietary Information — Recent Changes To Virginia Law

The Virginia Freedom of Information Act (FOIA) provides access to various public records, subject to certain exemptions included directly in FOIA or in other statutes, such as the Virginia Public Procurement Act (VPPA).

A recent bill amended VPPA §2.2-4342, to prohibit bidders, offerors, or contractors from designating as trade secrets or proprietary information: (1) entire bids, proposals, or prequalification applications; (2) portions of bids, proposals, or prequalification applications that do not contain trade secrets or proprietary information; and (3) line item prices or total prices for bids, proposals, or prequalification applications.  The bill also amended §2.2-4343 to clarify that §2.2-4342 applies to procurements with all counties, cities, and school divisions, as well as to towns with populations greater than 3,500 people, regardless of whether they have adopted their own procurement policies or procedures. Considering this amendment, it is important to carefully consider when and where to include trade secrets or proprietary information designations, as blanket designations will not be effective.

Another recent bill amended FOIA §2.2-3705.6 to exempt from mandatory disclosure trade secrets (including, but not limited, to financial information, including balance sheets and financial statements not generally available to the public through regulatory disclosure or otherwise, and revenue and cost projections) submitted by a private or non-governmental entity to VDOT for an audit, special investigation, or any study requested by VDOT. For this trade secret exemption to apply the private entity must make a written request to VDOT invoking the trade secrets exemption at the time it submits the information.  The writing must identify with specificity which information the entity considers to be trade secrets, and state why protection of the information from disclosure is necessary.

Before you submit trade secrets or proprietary information to any government entity you should carefully evaluate the extent to which such information will remain confidential, and the steps required to accomplish that goal.