Coventry Trade Secrets And Work Papers Submitted To OIR To Remain Confidential
Coventry First LLC is a Florida viatical settlement provider. It provided the OIR with thousands of pages of documents during OIR’s regulatory investigation of Coventry’s business in 2007. Among the documents produced to the OIR were Coventry trade secrets. When the documents were produced, the Insurance Code made the documents confidential and exempt from disclosure under Florida’s public records laws as investigation “work papers.” After the documents were produced, the Code was amended to make such documents confidential and exempt only until the exam report is filed or the investigation is complete. In short, a time limit on the exemption was added to the Code. The OIR received a public records request for many of the documents and Coventry in response went to the court to protect the documents, arguing that the Code amendment could not be applied retroactively to the documents it had produced before the amendment. The trial court issued a temporary injunction prohibiting the OIR from filling the public records request with the documents.
While that public records dispute was ongoing, and the injunction was in place, the OIR separately issued a show cause order against Coventry, ordering Coventry to show that it had not violated the Code on a number of issues. In the text of that order, the OIR included much of the information that was included in the records request – information that Coventry maintained was protected as both trade secrets and confidential work papers. The trial court then ruled that the Code amendments could be applied retroactively – thus the work papers Coventry provided before the effective date of the amendment were now subject to the public records exemption time limit – and that the issue of whether the documents were trade secrets was moot because the OIR had already disclosed them. The First District Court of Appeal, in an opinion released February 12, 2010, disagreed. The First District first held that the amendment putting a time limit on the public records exemption cannot be applied retroactively. Coventry produced the documents “based on a reasonable belief the same would remain confidential and exempt from public disclosure without time limitations.” In short, by applying the amendment retroactively, OIR deprived Coventry of its vested property rights in the continuing confidentiality and exemption of its trade secrets. The First District then held that Coventry’s trade secret claim (that the documents could not be disclosed by the OIR because they were trade secrets) was not moot. OIR’s disclosure of the information in the show cause order “contrary to the injunction, without affording the company a reasonable advance opportunity to review was improper and will not be available to bootstrap up a later claim of mootness.” In short, the pre-amendment version of the Code applies and therefore the work papers in the Coventry investigation will remain confidential and exempt from disclosure under the public records law indefinitely and also constitute trade secrets that are otherwise confidential and exempt from disclosure.