When you contracted with a Georgia state agency before April 2012, you could rest comfortably that your business's trade secrets were not disclosable by the agency under Georgia's Open Records Act. State law automatically protected trade secrets, and Georgia's Open Records Act excluded trade secrets from the act's mandatory disclosure requirements.
But now, businesses cannot passively rely on the trade secret laws to protect trade secrets that come into the State's possession.
The new changes to the law shift the burden of protection onto the business by requiring businesses to notify the agency, by affidavit, of the trade secrets. In particular, when a business submits records to a Georgia agency that contain trade secrets, the business must submit and attach an affidavit to the records affirmatively declaring that specific information in the records constitute trade secrets. The implication is that without the affidavit, the agency no longer has an obligation to prevent itself from disclosing trade secrets whenever anyone (including a competitor) requests copies of the bid or other documents.
By simply following the new affidavit requirement, though, a business will at least be given prior notice under the new statutory provisions before the agency discloses trade secrets, thus giving the business an opportunity to seek a court order to protect its trade secrets from mandatory disclosure.
If your business provides bids to or enters into contracts with any Georgia agency, please contact Richard Bennett to assist you with this new statutory requirement.