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Public Access Opinion 18-004

Private Developer’s Budget Is Not Exempt from Disclosure as a “Trade Secret” Under Section 7(1)(g) of FOIA

Administrator Contracts
Case: Public Access Opinion 18-004
Date: Tuesday, March 6, 2018

The PAC found that the City of Elgin (“City”) violated FOIA when it improperly denied a FOIA request for a private developer’s redevelopment cost budget for a building project in the City. The project was financed in part by tax increment financing monies from the City. The City denied the request under Section 7(1)(g) of FOIA, which exempts from disclosure “trade secrets and commercial or financial information obtained from a person or business where the trade secrets or commercial or financial information are furnished under a claim that they are proprietary, privileged or confidential, and that disclosure. . . would cause competitive harm to the person of business.” 5 ILCS 140/7(1)(g). The City asserted that the developer had given the budget to the city with the implied promise it would be kept confidential, and it generally argued that disclosure of the information would result in competitive harm to the developer and the project because other developers could use the financial information to structure their own developments.

The PAC was unpersuaded by the City’s arguments, finding that it had failed to meet the plain language of the exemption under 7(1)(g). First, the City could not invoke the exemption because there has been no express claim made by the developer that the information was “proprietary, privileged, or confidential.” Second, even if such an express claim of confidentiality had been made, the City failed to provide specific facts or evidence to demonstrate how disclosure of the budget would result in competitive harm, such as identifying the competition the developer or project was facing or describing how certain line items in the budget could be used to a competitor’s advantage in a way that would harm the developer or project. Additionally, the fact that developers could be dissuaded from doing business with the City for fear their trade secrets could be disclosed was not relevant to the 7(1)(g) analysis. The PAC ordered the City to provide a copy of the budget document to the FOIA requester.

This opinion is binding only to the parties involved and may be appealed pursuant to State law.