It is common for businesses to disclose confidential information to governmental entities for regulatory and/or other purposes. However, once that information is disclosed, it may be vulnerable to public records requests. Competitors or other interested parties may use public records requests to gain valuable information regarding your businesses' operations, customer information, or other sensitive material. It is important to understand what these requests are and how to protect your business' confidential and sensitive information.

Each state has its own version of the federal Freedom of Information Act. The Mississippi Public Records Act (the "Act") is codified in §§ 25-6-1 through 25-61-17 of the Mississippi code.1 The Act provides that all public records are public property and that any person has the right to inspect or obtain a copy thereof subject to certain procedures concerning costs, time, and method of access. The Act allows any person or corporation to request access to Mississippi's public records and does not require a stated purpose for the records or restrict the use of the records. The Act defines "records" as all books, records, papers, accounts, letters, maps, photographs, films, cards, tapes, recordings or reproductions thereof, and any other documentary materials, regardless of physical form or characteristics, having been used, being in use, or prepare, possessed or retained for use in the conduct, transaction or performance of any business, transaction, work, duty or function of any public body, or required to be maintained by any public body.2 A public body is defined as any: 1) department, 2) bureau, 3) division, 4) council, 5) commission, 6) committee, 7) subcommittee, 8) board, 9) agency, and 10) any other entity of the state or a political subdivision thereof, and any municipal corporation and any other entity created by the constitution or by law, executive order, ordinance or resolution.3

Importantly, section 25-61-9(1) of the Act provides an avenue for your business to prevent disclosure of its sensitive information.4 First, the public body that receives a request for information that contains trade secrets confidential commercial or financial information must give notice to your business before it provides that information to the requesting party. Second, your business must file a petition for protective order no later than twenty-one (21) days of receiving notice. The petition must be filed in the chancery court where the public body sits. The petition should contain: 1) the information that is requested; 2) an explanation of how the information is sensitive; and 3) an explanation of how your business would be harmed if the data was produced. Finally, the Act requires that any party seeking the protective order provide notice to the requesting party. Although the act does not require it, the party seeking the protective order should also provide notice to the public body. Service must be completed on the public body and the requesting party.

Once the petition is served, the petitioner must request a hearing in the chancery court in which the petition was filed. It is not uncommon for petitions to go unchallenged by the party requesting the information. If that is the case, the requesting party will likely decline to answer the petition or appear for the hearing. In that instance, the judge may sign a proposed protective order restricting the release of the information. If the request is challenged, then the chancery court will examine whether the requested information in the petition are exempted under the Act.5 If the petition is denied, then the Public body must release the information within a reasonable time.

It is important to respond to these requests promptly and correctly. Any petition for protective order filed after the twenty-one (21) day time period may not succeed. You should contact an attorney as soon as you receive notice from the public body that your business's sensitive and confidential information has been requested.

Footnotes

1 "This chapter shall be known and may be cited as the 'Mississippi Public Records Act of 1983.' It is the policy of the Legislature that public records must be available for inspection by any person unless otherwise provided by this act. Furthermore, providing access to public records is a duty of each public body and automation of public records must not erode the right of access to those records. As each agency increases its use of and dependence on electronic records keeping, each agency must ensure reasonable access to records electronically maintained, subject to the rules of records retention." Miss. Code Ann. 25-61-1.

2 Miss. Code Ann. 25-61-3(b)

3 Miss. Code Ann. 25-61-3(a)

4 "Records furnished to public bodies by third parties which contain trade secrets or confidential commercial or financial information shall not be subject to inspection, examination, copying or reproduction under this chapter until notice to said third parties has been given, but the records shall be released no later than twenty-one (21) days from the date the third parties are given notice by the public body unless the third parties have filed in chancery Court a petition seeking a protective order on or before the expiration of the twenty-one day time period. Any party seeking the protective order shall give notice to the party requesting the information in accordance with the Mississippi Rules of Civil Procedure." Miss. Code Ann. § 25-61-9.

5 Mississippi State University v. People for Ethical Treatment of Animals, Inc., 992 So. 2d 595, 609 (Miss. 2008) (holding substantive portions of company's completed Institutional Animal Care and Use Committee (IACUC) protocol forms, which forms were required by federal law, were exempt from disclosure under the Public Records Act; the completed forms contained confidential, proprietary, and trade secrets information about company's animal research at state university.)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.