Monday, July 14, 2008, 7/14/2008 11:55:00 AM

Healthcare Contract Data Subject of Georgia Trade Secrets Litigation

By Todd is reporting that an open records battle between the state's doctors and a major health insurance company will continue because a decision in the case by the Georgia Court of Appeals has left neither side satisfied.

A panel of the appellate court ruled on July 3 that doctors were entitled to see certain documents related to United HealthCare's administration of the state's employee benefits plan because they are public records generally covered by the state open records law. But the panel said a Fulton County judge has to consider whether some of those documents—those that UHC hasn't given to the state government yet—are trade secrets that would be exempt from disclosure to physicians' groups.

Having rejected the trial court's decision-making path, the appeals panel had to consider whether the documents sought were actually trade secrets.

The appellate panel readily concluded that the documents in the state's possession are not trade secrets exempted from the open records law—meaning the doctors' groups won the appeal as far as those documents. The contract between the state and UHC contains a specific provision that, except for proprietary software, information received by the Department of Community Health is subject to disclosure under the Open Records Act, noted Bernes, amounting to a contractual waiver by UHC.

But the doctors didn't win on the documents UHC hasn't given to the state. The appeals court rejected the doctors' argument that the trade secret exemption couldn't apply because UHC had voluntarily entered into a public contract to administer public funds.

“A private entity's voluntary participation in a government contract does not, standing alone, strip the entity's documents of their trade secret status,” wrote Bernes. “Moreover, SGPA and MAG's argument is vitiated by the existence of the statutory trade secrets exemption itself, which is intended to prevent the disclosure of trade secret information in documents that have already met the threshold requirement of being public records due to their connection to a government program or activity.”

The appeals panel did not decide whether the documents that UHC hasn't given to the state are exempted trade secrets, though, because Judge Lane's (the trial judge's) approach to the case meant she hadn't reached that question. The Court of Appeals sent the case back to her to decide that.

We'll keep an eye on this one for you.
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