May 20, 2019

Colorado Court of Appeals: Disclosure of Proprietary Software Not Required When it Would Violate Terms of Licensing Agreement

The Colorado Court of Appeals issued its opinion in Todd v. Hause on Thursday, July 30, 2015.

Colorado Open Records Act—Trade Secret Exception—Personal Information—Redaction—Public Interest—Privacy Rights.

According to his complaint, Todd is a “consulting paralegal to Colorado attorneys” who “devotes a significant amount of his professional time to assisting criminal defense attorneys in DUI and DUID defense. . . .” Todd made several written Colorado Open Records Act (CORA) requests to the Colorado Department of Public Health and Environment (Department) for all data gathered from the Intoxilyzer 9000, the device Colorado law enforcement agencies use to test the breath alcohol level of suspected intoxicated drivers. In response to Todd’s request, the Department asserted that the COBRA (Computerized Online Breath Archive) software is proprietary and that, under its license agreement with the developer, CMI, Inc., it was prohibited from copying or transferring the software. The Department offered to convert the data to Comma-Separated Values (.csv) file format, a different file format than SQL and, after redacting all confidential or personally identifying data fields, to provide the data to Todd. Todd refused this offer and filed a complaint in district court to enforce his CORA request.

On appeal, Todd contended that the Department did not meet its initial burden to show that there was no disputed issue of material fact regarding whether the data in SQL format was protected from disclosure under CORA’s trade secret exception. The Department met this burden, however, by asserting that (1) its software licensing agreement with CMI restricts it from copying or transferring the COBRA software, (2) the Intoxilyzer 9000 test data in SQL format could not be separated from the COBRA software, and (3) disclosure of this information would violate the licensing agreement and disclose trade secrets owned by CMI.

Todd also contended that the district court erred in permitting the Department to redact certain personal information of the operators of the Intoxilyzer 9000. The district court correctly found that disclosure of the operator identification, login information, and personal identification numbers would substantially injure the public interest. However, the Department failed to meet its burden to establish that there was no genuine issue of material fact that the test-takers possessed a legitimate expectation that their personal information would not be disclosed. Accordingly, that part of the summary judgment order allowing redaction of the test takers’ personal information was reversed, and the case was remanded for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

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