DECISION ON RULE 80C APPEAL
Justice M. Michaela Murphy, Business and Consumer Court.
The Lewin Group, Inc. (Lewin) appeals the February 7, 2014, decision of the Department of Health and Human Services (the Department) to release documents pursuant to the Maine Freedom of Access Act (FOAA), 1 M.R.S. §§ 400-521 (2013). See 5 M.R.S. § 11001 (2013) (entitling an aggrieved party to judicial review of final agency action); M.R. Civ. P. 80C (providing procedure for filing an administrative appeal). (Administrative Record (hereinafter, "A.R.") 347-50, ) The documents in question (hereinafter, the "proprietary documents") were submitted to the Department by Lewin as a bid proposal in response to request for proposal (RFP) number 20130960. Lewin maintains that the proprietary documents are privileged trade secrets, not public records pursuant to I M.R.S, § 402(3)(B), and thus not subject to public inspection. Upon review of the administrative record and the parties' arguments, the Court affirms the decision of the Department to release the documents.
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2013, the Department published RFP No. 201309604 for proposals to provide evaluation services for the Maine State Innovation Model. (A.R. 1.) Of particular relevance to the present dispute, the RFP stated:
Following announcement of an award decision, all submissions in response to this RFP will be considered public records available for public inspection pursuant to the State of Maine Freedom of Access Act. In the event a request is made to produce any proposal, the Department will notify the bidder that the Department will produce the proposal unless the bidder takes steps it deems necessary to prohibit production. The Department will not undertake to determine whether any proposal or part of any proposal is confidential or otherwise protected from disclosure,
(A.R, 5.) See also 5 M.R.S. § 1825-B(6) (2013) ("Each bid, with the name of the bidder, must be entered on a record. Each record, with the successful bid indicated, must be open to public inspection after the letting of the contract.")
There were 4 entities that responded to the RFP, including Lewin and the University of Southern Maine (USM). (80C Petition ¶¶ 4-5, 7.) Lewin submitted its response to the RFP on November 22, 2013. (A.R. 44.) Lewin marked the Budget Narrative in its proposal "LEWIN PROPIETARY & CONFIDENTIAL", but did not designate or otherwise indicate that any other document in the proposal was confidential, (C.R, 163-80.) On January 2, 2014, Lewin was awarded the bid. (80C Petition ¶ 6.)
Although the initial request is not included in the administrative record, USM requested a copy of Lewin's proposal some date prior to January 8, 2014, because on that date the RFP Coordinator provided USM with a version of the proposal that redacted information marked by Lewin as proprietary or confidential. (A.R. 181; see also A.R. 213.) Among the documents released to USM on January 8, 2014, were three documents in the Budget Form that were not marked confidential, but which Lewin contends were in fact confidential. (A.R. 190; C.R. 152, 154-55.)
On January 10, 2014, USM submitted a FOAA request to the RFP Coordinator for Lewin's full, non-redacted proposal. (A.R. 181.) By letter dated January 13, 2014, the Department notified Lewin of the request and stated it intended to release the documents on January 17, 2014, unless Lewin objected and took timely legal action to prevent production. (A.R. 182.) Lewin stated is objections via letter on January 16, 2014, and January 17, 2014, asserting that the proprietary documents were trade secrets because they contained "budget detail for the Project by person by task; and indirect cost rate detail consistent with its federally approved accounting practices for the allocation of costs, " (A.R. 190; see A.R, 189-94.) Lewin asserted that the proprietary documents have "independent economic value to Lewin by virtue of its secrecy and if available to competitors of Lewin without an obligation to keep it confidential, could be used to generate competitive harm from, either [from] competitive procurements [or] seeking to hire Lewin personnel to join the competitor, " (A.R. 190, ) Lewin asserted that the information within the proprietary documents was not widely known or distributed within Lewin itself and provided the Department with two confidentiality forms it utilizes to protect the pricing information and its policy regarding protecting information and confidential assets. (A.R. 193, 196, 198, 202-03.)
USM revised its FOAA request by letter dated January 17, 2014 (A.R. 199-200), and on January 20, 2014, the FOIA Group, Inc. requested unredacted versions of all the proposals submitted in response to RFP No. 20130960 (A.R. 204). USM responded to Lewin's assertion that the proprietary documents were trade secrets on January 28, 2014. (A.R. 340-45.)
On February 7, 2014, the Department issued its decision to release Lewin's full proposal. The Department's reasoning was twofold. First, eacli bidder was on notice pursuant to the RFP that its submission would be considered a public document pursuant to FOAA, and prior to submission, Lewin did not seek a protective order of the proprietary documents. (A.R. 349.) Second, the Department concluded that the proprietary documents were not in fact trade secrets because they contained primarily compensation data, which the law Court has indicated is not a trade secret. (A.R. 349-50 (citing Town of Burlington v. Hosp, Admin. Dist. No. 1, 2001 ME 59, 769 A.2d 857).) The decision stated that it constituted final agency action by the Department. (A.R. 350.)
On February 13, 2014, the Bureau of General Purchases withdrew the award to Lewin arid announced its intention to re-review and rescorc the submissions. (80C Petition ¶ 6 n. 1; Pet.'s Br, 1 n.1.)
Lewin filed an appeal of the Department's decision in Kennebec County Superior Court on February 14, 2014, The matter was approved for transfer to the Business and Consumer Court on February 28, 2014, The Court agreed to expedite briefing on ...