tovey services v. dept health

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-00989
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Tovey Services, Inc. d/b/a New England Call Center v. Vermont Department of
Health

ENTRY REGARDING MOTION
Title: Motion for a Temporary Restraining Order and Preliminary Injunction, Emergency
(Motion: 1)
Filer: Andrew W. Macilwaine
Filed Date: March 14, 2024

The matter came before the court for hearing plaintiff Tovey Services, Inc. d/b/a
New England Call Center’s motion for injunctive relief.

Plaintiff was present through its president, John Zerbi, and represented by
Attorney Andrew Macilwaine. Defendant Vermont Department of Health (“State”) was
represented by Attorney David Mclean.

Plaintiff has filed for injunctive relief seeking to enjoin the State from releasing
information plaintiff provided to the State in connection with a bid for a contract and
following the award of the contract to it. Plaintiff maintains that the information
constitutes trade secrets the public disclosure of which would severely harm its
business interests.

The State took no position on the exemption from disclsure issue.

Plaintiff has also moved to file documents under seal reflecting that information
for possible in camera review.

The parties stipulated to the admissibility of plaintiff’s pre-filed exhibits 1
through 4, and to their remaining under seal.

The submissions and arguments of the parties show that, in response to a request
for bids by the State, plaintiff submitted certain materials. The State’s bidding process
asked proposed bidders to identify any information submitted that the bidder deemed
confidential. Plaintiff complied. It identified the Price Schedule and portions of the
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Technical response as confidential and submitted a version of its bid with that
information redacted.

The State awarded the contract to plaintiff. The contract agreed to by the party
contains Section 2.2, titled “Confidentiality of Contractor Information.” That provision
states:

The Contractor acknowledges and agrees that this Contract and any
and all Contractor information obtained by the State in connection
with this Contract are subject to the [PRA]. The State will not disclose
information for which a reasonable claim of exemption can be made
pursuant to 1 V.S.A. § 317(c), including, but not limited to, trade
secrets, proprietary information or financial information, including any
formulae, plan, pattern, process, tool, mechanism, compound,
procedure, production data, or compilation of information which is not
patented, which is known only to the Contractor, and which gives the
Contractor an opportunity to obtain business advantage over
competitors who do not know it or use it.

The State shall immediately notify Contractor of any request made
under the [PRA] . . . . [and] Contractor may, in its discretion, seek an
appropriate protective order, or otherwise defend any right it may have
to maintain the confidentiality of such information under applicable
State law within three business days of the State’s receipt of any such
request.

The State has received requests under the Public Records Act (PRA) for
information regarding the bidding process that would include information
plaintiff deems to be trade secrets. The State has indicated it will release the
unredacted information unless plaintiff obtains a Court Order directing it not
to do so.

Here, the Contract requires that the State not release records “for which a
reasonable claim of exemption can be made pursuant to 1 V.S.A. § 317(c).” In
other words, the Court need not resolve the PRA issue, it need only determine
whether the claim of trade secrets is reasonable. If the Court makes that
determination, the State would be directed to deny the request as to any
unredacted responsive documents, which would place responsibility for
determining whether the subject documents are exempt under the PRA to the
Court reviewing the PRA determination.
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A significant advantage to that approach is that plaintiff could intervene
in that PRA action, and then, the parties having a real interest in the resolution
of the exemption question would be before the Court. The public interest favors
resolving PRA issues on their merits and after consideration of the competing
viewpoints.

Given those considerations, the Court has considered the submissions,
reviewed the subject documents, and considered the arguments and
stipulations of counsel. Based on the above, the Court concludes that plaintiff
has a reasonable claim that the documents are exempt from the PRA as trade
secrets and that public disclosure of that information would be harmful to its
business interests.

Accordingly, the request for injunctive relief is granted. Regarding PRA
requests for information involving the subject information, the State shall
produce only redacted documents and shall indicate that a reasonable claim of
exemption is being made as to the redacted portions. The State shall also
inform plaintiff of any PRA taken in response to that position, which will allow
plaintiff an opportunity to intervene in that action.

The motion is GRANTED.
Signed Electronically on April 5, 2024 pursuant to V.R.E.F. 9(d).

_________________________________________
David Barra
Superior Court Judge

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