Caremarkpcs Health, LLC v. N.H. Dep't of Admin. Servs., 2014–120

• Decision Date: 30 April 2015
• Docket Number: No. 2014–120,2014–120
• Citation: 167 N.H. 583,116 A.3d 1054
• Parties: CAREMARKPCS HEALTH, LLC v. NEW HAMPSHIRE DEPARTMENT OF ADMINISTRATIVE SERVICES
• Court: New Hampshire Supreme Court

167 N.H. 583

116 A.3d 1054

CAREMARKPCS HEALTH, LLC

v.NEW HAMPSHIRE DEPARTMENT OF ADMINISTRATIVE SERVICES

No. 2014–120

Supreme Court of New Hampshire.

Argued: October 15, 2014

Opinion Issued: April 30, 2015

Ransmeier & Spellman, P.C., of Concord (Daniel J. Mullen on the brief), and Foley & Lardner LLP, of Chicago, Illinois (John F. Zabriskie on the brief and orally), for the petitioner.

Joseph A. Foster, attorney general (Richard W. Head, associate attorney general, on the brief and orally), for the respondent.

BASSETT, J.

The respondent, the New Hampshire Department of Administrative Services (Department), appeals an order of the Superior Court (Smukler , J.) granting summary judgment in favor of the petitioner, CaremarkPCS Health, LLC (Caremark). The trial court ruled that certain information constituting trade secrets under the New Hampshire Uniform Trade Secrets Act (UTSA), RSA ch. 350–B (2009), is exempt from disclosure under the Right–to–Know Law, RSA ch. 91–A (2013 & Supp. 2014). Specifically, the trial court ruled that disclosure of Caremark's trade secrets by the Department would constitute a "misappropriation" under the UTSA and, therefore, that the subject information is exempt from disclosure under the Right–to–Know Law. See RSA 91–A:4, I (2013). On appeal, the Department argues that the trial court erred in finding that the UTSA prohibits the Department from disclosing Caremark's trade secrets under the "otherwise prohibited by statute" exemption in RSA 91–A:4, I. We affirm.

The following facts are undisputed. In 2010, the Department issued a Request for Proposals (RFP) for pharmacy benefit management services for the State of New Hampshire's health plan. The RFP, in pertinent part, provided that:

If a request is made to the State to view portions of a proposal that the Vendor has properly and clearly marked confidential, the State will notify Vendor of the request and of the date the State plans to release the records. By submitting a proposal, Vendor agrees that unless the Vendor obtains a court order, at its sole expense, enjoining the release of the requested information, the State may release the requested information on the date specified in the State's notice without any liability to Vendor.

In response to the RFP, Caremark submitted a bid, which ultimately led to a final negotiated contract with the Department. The Governor and Executive Council approved the contract on November 17, 2010. Both the bid and final contract included statements to the effect that certain information set forth in those documents is proprietary and constitutes trade secrets of Caremark.

In 2011, the Department received multiple requests to inspect and copy Caremark's bid and the final contract. Two of the requests were made by Caremark's competitors. Caremark, after being informed by the Department of the requests, responded that certain confidential information contained in the bid and final contract was exempt from disclosure under the Right–to–Know Law. The parties disputed whether certain information was subject to disclosure.

Caremark filed a petition for declaratory and injunctive relief seeking to enjoin the Department from disclosing certain information. Thereafter, the parties filed pleadings that the trial court treated as cross-motions for summary judgment. As part of the summary judgment proceedings, the parties filed a joint stipulation of facts, identified the information as to which they continued to disagree (designated information), and stipulated that the designated information constitutes "trade secrets" as defined in the UTSA, RSA 350–B:1, IV, and constitutes "confidential, commercial, or financial information" within the meaning of the Right–to–Know Law, RSA 91–A:5, IV (Supp. 2014). The parties also agreed that disclosure of the designated information "could have a chilling effect on the willingness of potential bidders to submit proposals for [pharmacy benefit management] services to a government entity...."

Following a non-evidentiary hearing, the trial court entered summary judgment in favor of Caremark and granted its request for injunctive relief. The trial court ruled that RSA 91–A:4, I, which exempts from disclosure information that is "otherwise prohibited by statute," did not require a balancing of interests. The court further found that Caremark "provided the [D]epartment with the information under the duty of confidentiality." The court concluded that, pursuant to RSA 350–B:1, II(b)(2), the UTSA "prohibits disclosure of the designated information" by the Department and, therefore, the designated information was exempt from disclosure under RSA 91–A:4, I. This appeal followed.

On appeal, the Department asserts that the trial court erred in ruling that the designated information was exempt from disclosure. Although the Department acknowledges that RSA 91–A:4, I, does not require the trial court to engage in the same balancing test required under RSA 91–A:5, IV, see Goode v. N.H. Legislative Budget Assistant, 148 N.H. 551, 554, 813 A.2d 381 (2002), it argues that the UTSA "does not contain sufficient explicit language prohibiting disclosure to fall under RSA 91–A:4." Rather, the Department contends that the trial court should have engaged in the balancing test applicable to "confidential, commercial, or financial information" under RSA 91–A:5, IV. See Goode, 148 N.H. at 554, 813 A.2d 381. Caremark counters that the trial court correctly ruled that the UTSA prohibits the disclosure of trade secrets and that, therefore, the designated information is exempt from disclosure under RSA 91–A:4, I. Alternatively, Caremark argues that the designated information is exempt from disclosure under RSA 91–A:5, IV.

In reviewing the trial court's rulings on cross-motions for summary judgment, "we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Bovaird v. N.H. Dep't of Admin. Servs., 166 N.H. 755, 758, 103 A.3d 1207 (2014). "On appeal, we review the trial court's application of law to the stipulated facts de novo ." Nash Family Inv. Properties v. Town of Hudson, 147 N.H. 233, 234, 786 A.2d 825 (2001). This case presents the legal question of whether the UTSA prohibits disclosure of trade secrets and, therefore, whether the designated information falls under the exemption in RSA 91–A:4, I, for information the disclosure of which is "otherwise prohibited by statute."

"Resolution of this case requires us to interpret several statutory provisions, including certain provisions of the Right–to–Know Law."

Lambert v. Belknap County Convention, 157 N.H. 375, 378, 949 A.2d 709 (2008). "The ordinary rules of statutory construction apply to our review of the Right–to–Know Law." Id. "Thus, we are the final arbiter of the legislature's intent as expressed in the words of the statute considered as a whole." Id. "When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used." Id. "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. "We also interpret a statute in the context of the overall statutory scheme and not in isolation." Id.

"The purpose of the Right–to–Know Law is to ensure both the greatest possible public access to the actions, discussions and records of all public bodies, and their accountability to the people." 38 Endicott St. N. v. State Fire Marshal, 163 N.H. 656, 660, 44 A.3d 571 (2012) (quotation omitted). "Although the statute does not provide for unrestricted access to public records, we resolve questions regarding the Right–to–Know Law with a view to providing the utmost information in order to best effectuate these statutory and constitutional objectives." Id. ; see also N.H. CONST. pt. I, art. 8. "As a result, we broadly construe provisions favoring disclosure and interpret the exemptions restrictively." Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 788, 35 A.3d 562 (2011). "The party seeking nondisclosure has the burden of proof." N.H. Civil Liberties Union v. City of Manchester, 149 N.H. 437, 439, 821 A.2d 1014 (2003).

Therefore, Caremark has the burden of demonstrating that the designated information is exempt from disclosure under the Right–to–Know Law.

RSA 91–A:4, I, in relevant part, states:

Every citizen during the regular or business hours of all public bodies or agencies, and on the regular business premises of such public bodies or agencies, has the right to inspect all governmental records in the possession, custody, or control of such public bodies or agencies, ... except as otherwise prohibited by statute or RSA 91–A:5.

(Emphasis added.) Caremark argues that, because the UTSA precludes disclosure of the designated information under the circumstances here, that information is exempt from disclosure under RSA 91–A:4, I.

The UTSA does not prohibit the disclosure of trade secrets under all circumstances; rather, it provides remedies for the "[a]ctual or threatened misappropriation" of trade secrets. RSA 350–B:2, I. The UTSA defines misappropriation as:

(a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(b) Disclosure or use of a trade secret of another without express or implied consent by a person who:

(1) Used improper means to acquire knowledge of the trade secret; or

(2) At the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was derived from or through a person who had utilized improper means to acquire it; or acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or derived from or through a person who owed a duty to the person seeking relief to

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