Identify trade secret issues before, or at the latest, upon receipt of an information request from an environmental agency.

• These issues can greatly affect the size and nature of the response, and you must address them at the outset to prevent later problems that either cannot be corrected or may harm the company in substantive matters before the agency.

Negotiate with the requesting agency over such issues as:

• Scope of the request. Find out from agency staff exactly what types and amount of information the agency truly needs. The agency may be amenable to limiting the amount of sensitive information it receives. After all, an agency has to devote scarce resources to reviewing all the boxes of information it receives. The agency may also welcome the idea of reducing the amount of information that it would have to provide pursuant to an FOIA request.
• Format of the response. Public records statutes generally apply only to documentary information that is in the possession of the agency, so you can limit the chance for errors by asking to present trade secret information to the agency in the form of an oral presentation at which notes are not taken. You can also ask regulators to examine the necessary documents while they remain in the possession of the company and to make no notes containing the trade secret information.
• Timing of the response. Haste makes waste. To avoid potentially disastrous mistakes, insist on sufficient time to do a proper trade secret review of the documents to be provided to the agency.

Carefully identify the company’s trade secrets.

• Each definition of trade secret or confidential business information that may apply must be carefully compared to the information in the proposed response. Weed out any sensitive information that was not requested.

Focus on practical issues.

• It can save a lot of time and prevent confusion if the pages in a submission are numbered for later ease of reference in substantiation letters, confidentiality determinations, or court submissions. Clearly marking every page containing confidential information with a legend indicating its confidential nature will also prevent problems if the submission is later reshuffled or excerpted.

Test the system by:

• Pretending you are a competitor. Before you provide your submission to the agency, give company personnel all of the public information in it and other documents and see whether they can derive the interrelated sensitive information.
• Pretending you are a requester. Formally ask the agency for your own information. Such a simple request can determine at an early stage whether the agency is properly filing, segregating, and photocopying the redacted portions of the submission.
• Taking the agency out of the equation. In some circumstances, there may be only a few individuals or organizations (other than competitors) outside the government that are interested in your company’s information. Confidentiality agreements with these groups can avoid costly mistakes by the agency and costly disputes with uncertain outcomes.
• Being prepared for damage control. Murphy’s law applies. A company’s legal, technical, and public relations professionals should be on the lookout for signs that its sensitive information may have inadvertently been released to a public requester or competitor. Its lawyers should be ready to spring into action by notifying all suspected recipients and malfeasors.

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