Tuesday, December 05, 2006, 12/05/2006 07:47:00 AM

Asphalt Mixes Protected as Trade Secrets under Georgia Open Records Act

In Douglas Asphalt Co. v. E.R. Snell Contractor, Inc., 2006 WL 3393145 (Ga. App. Nov. 22, 2006), the Georgia Court of Appeals held that asphalt mix formulas submitted by contractors to the Georgia Department of Transportation (DOT) were exempt from requests for disclosure under the Georgia Open Records Act.

The plaintiff paving company requested production of all formulas from DOT and defendant and ten other contractors applied for an injunction forbidding any response to the request. The trial court ruled in favor of exempting the documents from disclosure and the Court of Appeals affirmed.

The court noted that the asphalt paving business was highly competitive and that material costs -- which make up the largest part of overall costs -- could be derived from the mix formulas, thereby giving a competitor an advantage in bidding.

The Georgia Open Records Act, while generally requiring disclosure of information given to the state, does not apply to "[a]ny trade secrets obtained from a person or business entity which are of a privileged or confidential nature and required by law to be submitted to a government agency . . . ." OCGA ยง 50-18-72(b)(1).

Because the mix formula was not readily ascertainable and cannot be duplicated by independent research, it was a trade secret under Georgia law and thus exempt from disclosure.

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