OBERMAYER CLIENT ALERT: Commonwealth Court Win Protecting Corporate Records

Attention C-Suites:

If you are sitting in a C-suite or representing one, this is a must-read post.  The next few paragraphs are the most important you will read today and will save you time, money, sleepless nights, and headaches if your company does business with or is regulated by a federal, state, or local government.

Obermayer’s first-of-a-kind in the nation Transparency Law and Public Data group has again created new and welcome Right to Know case law.

Representing a multi-billion-dollar, international gaming company that provides analytics to lotteries in multiple states and more than 50 countries, Obermayer successfully protected its clients’ valuable proprietary and confidential information from competitors who tried to capture records that contained the trademark “secret sauce.”

In Scientific Games, LLC v. Tellerinio, a 7-0  en banc decision authored by Judge Anne Covey, the Pennsylvania Commonwealth Court agreed with Obermayer: records that reveal confidential and proprietary material must be protected.

Obermayer’s Transparency team, led by Terry Mutchler, successfully argued the case, which broadened and clarified the framework for what constitutes confidential and proprietary information delineated in Section 708(b)(11) of the Right to Know Law. This is a critical decision for third-party government contractors and vendors in Pennsylvania because it provides a new and expanded aperture from which to view and apply this record-protecting exemption.

For companies with government contracts, this case again demonstrates that just because your company is private, it doesn’t mean the public can’t access your records. If you have a government contract, your records are potentially reachable under state and federal public records access laws.

As a result of that gravely mistaken error, they act in two fatal ways that put their companies at risk:

• They do not take proper internal steps to protect their information when they submit materials to the government because they believe government agencies will surely identify their corporate information as confidential; and
• They downplay appeals before the Office of Open Records, dismissing the power of that independent administrative agency.

Obermayer’s experienced attorneys can train your companies to avoid costly errors that we have seen time and time again, as we know that the best RTKL protections occur long before a case makes its way to the judiciary. The most effective planning and precautions are designed to head off litigation altogether.

Here is the big takeaway: It is essential that companies doing business with the government understand the intricacies and processes under the law to protect their corporate crown jewels – and know how to weave those protections into their third-party contracts. Obermayer attorneys work with multinational corporations,  media conglomerates, financial services firms, and publicly traded and privately held businesses to help them understand the complexities of access laws and build in protections at every step of the way.

Working on this case were attorneys from Obermayer’s Transparency and Appellate groups, including Mathieu Shapiro, Terry Mutchler, Corinna Wilson, and Melissa Blanco.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.