A lawyer for the state Freedom of Information Commission abandoned an argument his office had been making for the past three years when he got to the Supreme Court on Monday, confusing the Supreme Court Justices and the man who filed the FOI complaint.
Up until Monday, the case had been expected to be the first time the Supreme Court would consider whether public entities can use an exemption in the state’s freedom of information statutes to withhold trade secrets.
The case stems from a 2008 freedom of information request made by former state Rep. Jonathan Pelto, who asked the University of Connecticut for databases including lists of customers who purchase athletic department tickets or tickets for the Jorgensen Center for the Performing Arts.
Pelto said he requested the information to contact people for Friends of UConn, a new advocacy group he planned to start.
However the university declined to release the information, citing an exemption in the state’s freedom of information statutes regarding trade secrets. UConn said the lists could be used by competitors to lure customers away from the school’s events.
The commission eventually ordered the university to turn over the lists but the decision was overturned in Superior Court. The Supreme Court heard oral arguments in commission’s appeal Monday.
Cliff Leonhardt, the commission’s lawyer, decided not to argue that public entities can not create trade secrets. Rather he argued the university should produce the lists because it could not prove the information wasn’t available from different sources.
After the hearing, Leonhardt said he had studied the case for a couple weeks and thought arguing against trade secrets was not a credible position.
“I don’t think it’s a reasonable position that the university can’t create its own trade secrets,” he said.
The school’s ability to keep some things secret is especially important because the state has made large investments in its bioscience program, he said. The state must allow UConn to protect its research if it wants a return on those investments, he said.
“Would you rather all those jobs go to California or Massachusetts?” he asked.
After the hearing Pelto said he was shocked by what transpired in the courtroom. In the briefs and hearings before Monday the argument had always been that the university did not have a right to trade secrets, he said.
“Clearly the lawyer assigned made some decision to argue a set of issues that were different from those that had been argued up to that point,” he said. “… I feel like I fell down the rabbit hole or something. I’ve been working on this for three years.”
Pelto wasn’t the only one surprised. The justices also seemed to be expecting to hear a different argument. Soon after Leonhardt began speaking, Justice Lubbie Harper, Jr. stopped him to clarify whether he was arguing that there was “nothing in the statutes that precludes a public entity to maintain trade secrets.”
“We’ll leave that up to you,” Leonhardt said.
Assistant Attorney General Michael Sullivan, who was representing UConn, was also confused by the change in position.
“I’m a little bit at a loss because I thought the commission’s major thrust was that the university can’t maintain a trade secret,” he told the justices.
Like Leonhardt, Sullivan said it wasn’t practical for the court to forbid the university from keeping trade secrets in light of huge investments in bioscience and stem cell research.
“It does not make sense to invest in those programs and then say we can not have trade secrets to recoup on those investments,” he said.
Sullivan said he was delighted the Freedom of Information Commission now agreed. Pelto, however, was not delighted.
“No court in Connecticut has ever allowed a public entity to claim a trade secret,” he said.
Allowing a public entity to claim trade secrets starts the state down a slippery slope, he said. The freedom of information law was written extraordinarily broad with very specific exemptions to ensure public access to as much information as possible, he said.
In his argument to the court, Leonhardt agreed that the school should be as open as possible.
“The more that is kept closed for the sake of the university, the weaker we will be,” he said.
Though he wasn’t willing to say the university could not claim trade secrets, he argued that the information Pelto requested should not be classified that way. In order to qualify for the trade secret exemption, the university must demonstrate, among other things, that the information cannot be found elsewhere. Leonhardt said they had failed to prove that.
The school also had not proven that the information on the lists had real economic value to the school, he said. The list Pelto requested from the Jorgensen theatre contained 80,000 names but only about 1,000 were actual season subscribers, he said.
“Most of the names are just prospects. The economic value of the list hasn’t been proven,” he said.
However, the justices said they were hearing much of Leonhardt’s argument for the first time.
“There’s been no analysis regarding any facts whether these documents can be attained from other sources. This is being raised for the first time here,” Justice Richard Palmer said and asked Leonhardt whether that assessment was unfair.
“No I would never say you were unfair, Justice Palmer,” he responded.
The Supreme Court has an indefinite amount of time to come to a decision on the issue.