FINANCIAL DATA from Disclosure Under the Georgia Open Records Act

a contractor wants to try to prevent a public agency’s disclosure of that information in response to an Open Records Act request, the contractor must act to protect that information.

By Douglas L. Tabeling Smith, Currie & Hancock LLP

Public owners at times require contractors to submit financial statements or other sensitive financial data or proprietary information as part of the contractors’ responses to requests for qualifications, requests for proposals or invitations for bids. When financial or proprietary information is submitted to a state or local government agency in Georgia, that information becomes subject to Georgia’s Open Records Act. Georgia law does not treat a contractor’s financial data as confidential by default. If

The Georgia Open Records Act requires a contractor who wants to protect sensitive financial data from public disclosure to attach to those documents an affidavit specifically identifying that information and declaring the information is a “trade secret” as defined by section 10-1-761 of the Georgia Code. If the affidavit is not submitted at the same time as the financial information, then the public agency can release the financial records without notifying the contractor. In some cases a public owner might warn the contractor about the pending possible disclosure and allow, or even ask, the contractor to submit a later affidavit that the agency might be willing to rely, but the owner is under no obligation to do so.

If a contractor attaches an affidavit meeting the statutory requirements, then, before producing the identified financial records in response to an Open Records Act request, the public owner must notify the contractor of the owner’s intention to disclose that financial information unless the owner is prohibited from doing so by an appropriate court order. If the contractor wants to prevent disclosure of the requested records in that event, the company can file an action in state court seeking a protective order exempting the requested records from disclosure. If the affidavit is provided, however, it increases the likelihood that the public owner will determine that the specifically identified information is indeed a trade secret and will withhold the records from disclosure. If the affidavit is provided and the public owner determines that the information is a trade secret, then a requester intent on obtaining the documents would have to file an action in court seeking an order setting aside the agency’s determination and stating that the requested records are subject to disclosure.

A contractor’s duty to act to protect its financial information from release varies from state to state. In some states, no action is required in certain circumstances, as the law presumes the confidentiality of that information and exempts it from disclosure. Florida’s Public Records Law, for example, exempts “any financial statement that an agency requires a prospective bidder to submit in order to prequalify for bidding or for responding to a proposal for a road or any other public works project.” But contractors should not presume that every state’s public-records laws will treat contractors’ financial data the same way. Contractors wanting to protect confidential financial information submitted to a public entity during the course of pursuing a public contract should be mindful of not only their rights and but also their responsibilities. ■