The Volokh Conspiracy
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Pennsylvania School District Must Disclose DEI Training Materials, Though It Claimed They Were a "Trade Secret"
In Trethewey v. Downingtown Area School Dist., a Feb. 26 Pennsylvania appellate court decision by Judge Mary Hannah Leavitt (joined by Judges Renée Cohn Jubelirer and Christine Fizzano Cannon), Trethewey sought these records under the Pennsylvania Right-to-Know Law (RTKL):
[1.] Copy of all documents and materials (paper or electronic) and all presentations used by the [DEI] program director and DEI staff that were used to instruct or lead any training or programs to any staff, teacher, counselor or student in the [ ] School District.
[2.] Copy of any Copyright information on materials used (paper or electronic).
[3.] Copy of all documents and materials (paper or electronic) and all presentations that were used to instruct or lead any cultural awareness, courageous conversations, unconscious bias and cultural proficiency training or programs to any staff, teacher, counselor or student in the [ ] School District….
The School District said no, on the grounds that the records were exempt under the RTKL because they "constitute[d] or reveal[ed] a trade secret [or] confidential proprietary information." "[T]he School District's DEI Director, Justin Brown" certified:
[2.] I created the materials requested above, prior to my employment by the [School District] and prior to my appointment as [DEI Director] – they were not created using the resources of the [School District], are protected by copyright and are my personal proprietary training materials.
[3.] These materials are not made available to the public, or other organization (as that would substantially interfere with the confidential commercial nature of them)[,] and I ensure the confidentiality of these materials using the following best practices and safeguards:
[a.] The materials are password protected and the credentials are maintained in confidence;
[b.] No person outside of the [School District] is provided with or permitted to observe these materials;
[c.] The training that was conducted was undertaken solely within the [School District] and limited to employees thereof – it is not shared with any third parties outside of [the School District], such as external vendors, regulators, other [school districts], the public or any other outside entity[;]
[d.] The [School District] employees are notified that the training is confidential and that to the extent the training is interactive, the [School District] employees are assured that their participation will not be released or otherwise disclosed;
[e.] [School District] employees understood that their answers were to be kept confidential from the public; and were only disclosed to select [School District] employees to the extent necessary to evaluate the training[; and]
[f.] Disclosing the training materials would put me and the [School District] at a marketing disadvantage in relation to other school districts or other educational services as the training sought to be disclosed is unique, not available to the public or competing education serviced [sic] and there is no other similar [sic] from any other districts such as this one….
Brown later added:
[3.] I have been conducting trainings since 2008. I have held my Copyright since 2010 (almost 11 years prior to working with the [School] District), and established a [limited liability company] on April 1, 2019. I have a Masters in Student Affairs and am nationally trained by Greendot, NCBI, NCORE, Office of Civil Rights and the Center for Conflict Resolution…..
[5.] I use these materials outside the classroom as Creator and President of D.A.P. (Diversityawarenessprogram.com) which conducts team building workshops and open discussion sessions dealing with diversity and cultural awareness.
[6.] I plan, direct, coordinate, [and] assist as the internal consultant to the major businesses, superintendents, principals[,] and executive leadership team[s] regarding diversity, equity, and inclusion matters.
[7.] I own and operate a company which has an online portal for certification and training and created and assisted with 10+ "Diversity Audits" for institutions of higher learning.
[8.] I am President and [Chief Executive Officer] of Onward and Upward, that provides prospective college students with the skills and knowledge to be successful in institutions of higher learning. I have held my Copyright since 2017 (almost 4 years prior to working with the [School] District). The website: https://onwardupward6.wixsite.com/program.
[9.] My materials are not distributed as part of the training program. If they were other trainers can steal that material and claim it as their own and will not use my training portal.
[10.] [ ] [The training materials] are of value to me because outside entities decide who they will pull in to do training. If the materials were made [sic] to the public, it would significantly impact my business and future endeavors.
The OOR [Office of Open Records] agreed with the District, and so did the trial court, but the appellate court concluded that the records had to be released. A brief excerpt from the long decision:
A trade secret may consist of a technical drawing, formula, pattern, device, or compilation of information that is used in an individual's business and that gives the individual an advantage over competitors who do not know it or use it…. To claim the trade secret exemption from disclosure under the RTKL, the record must be an actual secret of peculiar importance to the business….
[Brown's] affidavits may establish that the training materials have proprietary value to Brown; that DEI training is a competitive industry; and that the training materials are protected from duplication. However, these affidavits do not explain how these training materials derive their value "from not being generally known to, and not being generally ascertainable by proper means by other persons." To the contrary, the training materials derive their value from being shared with School District employees and anyone who participates in D.A.P.'s training program.
This point is illustrated in Stromback v. New Line Cinema (6th Cir. 2004). This case concerned a screenplay, which was found to have no economic value until "exploited publicly through broad dissemination." As such, the screenplay was not a trade secret.
Likewise, in Mainardi v. Prudential Insurance Company of America (E.D. Pa. 2009), the federal district court held that copyrighted audiovisual materials, sold to "independent insurance agents, financial and insurance marketing firms, financial planners[,] and major insurance companies" did not constitute trade secret information. The economic benefit was derived from the sale of the product. By active marketing, the product became "readily ascertainable by proper means by[ ] other persons who [could] obtain economic value from [the] disclosure or use," and, thus, was not the type of information that is protected as a trade secret. {The plaintiffs developed software to "educate and emotionally motivate customers via audiovisual vignettes designed to demonstrate how lack of planning could put the potential customers' business and personal finances at risk."}
Similar to a poem, screenplay, or educational software, Brown's training materials only have economic value when shared with other persons. As such, they do not constitute trade secret information.
Further, Brown's training materials are not in the nature of a "formula, drawing, pattern, [or] compilation including a customer list, program, device, method, technique or process." Brown's attestation and supplemental certification conflate the concepts of trade secret and product. A trade secret is essential to the product, but it is not the product itself. For example, Coca Cola uses a secret formula to create its product known as "Coke." Brown did not identify a "formula" or "algorithm" that was the secret to the creation of his product, which is DEI training material. Because that product is widely shared to School District employees, it is not secret….
The court also rejected the "confidential proprietary information" claim, on similar grounds.
Wally Zimolong and James Fitzpatrick, members of the Goldwater Institute's American Freedom Network of pro bono attorneys, represent plaintiff.
