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Someone I know recently submitted a FOIL request for records related to the investments backing the state retirement system.
The state comptroller denied the request, claiming it is a trade secret—a term that, as far as I can tell, is defined in case law in reference to “businesses” or “commercial enterprises.” Have you ever seen a government invoke the trade secret exemption for information not originating from a private corporation but from the government itself?
This is an interesting question that I have not considered or addressed before.
The FOIL statute under §87(2) lists this exemption, which seems to imply that a public entity could have trade secrets, as the exemption applies to records that are trade secrets or are submitted by a commercial enterprise:
(d) are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise.
The case below involves a FOIL lawsuit against the Comptroller’s Office regarding payroll metadata records. However, the Comptroller argued that the information was a commercial trade secret of the vendor they were using:
Case involving Comptroller’s Office
This case regarding a program used by the Department of Corrections implies that agencies can have trade secrets:
Case involving Dept. of Corrections
In this context:
I have not encountered an opinion or case that specifically addresses trade secrets originating within a governmental agency. Most cases focus on commercial records submitted to an agency and the potential competitive harm caused by their release.