Todd v. Hause, Court of Appeals No. 14CA1219
| Decision Date | 30 July 2015 |
| Docket Number | Court of Appeals No. 14CA1219 |
| Citation | 371 P.3d 705,2015 COA 105 |
| Parties | Vincent C. TODD, Plaintiff–Appellant, v. Ann HAUSE, as director of Legal and Regulatory Compliance for the Colorado Department of Public Health and Environment; Jeffery A. Groff, as program manager for the Evidential Breath Alcohol Testing Program of the Colorado Department of Public Health and Environment; and Colorado Department of Public Health and Environment, Defendant–Appellee. |
| Court | Colorado Court of Appeals |
Gary Pirosko PC, Gary F. Pirosko, Denver, Colorado, for Plaintiff–Appellant.
Cynthia H. Coffman, Attorney General, Alisa A. Campbell, Assistant Attorney General, Denver, Colorado, for Defendant–Appellee.
Opinion by JUDGE BERGER
¶ 1 Plaintiff, Vincent C. Todd, appeals the district court's grant of summary judgment in favor of defendant, the Colorado Department of Public Health and Environment (Department), and denial of Todd's Colorado Open Records Act (CORA) request for access to certain information in records maintained by the Department regarding breath alcohol level testing by Colorado law enforcement agencies.1
¶ 2 We affirm the judgment in all respects except as to the portion of the court's order denying Todd access to information about persons who took the breath tests. As to that portion of the court's order, we reverse and remand for further proceedings.
¶ 3 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 CORA requests to the 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.
¶ 4 The Department maintains the centralized database server for in-field Intoxilyzer 9000 instruments. The database links with Intoxilyzer 9000s to retrieve and transfer instrument data, to perform instrument updates, and for remote control of the instruments. The database links with the in-field Intoxilyzer 9000s through software developed by CMI, Inc., called Computerized Online Breath Archive (COBRA) software. In response to Todd's request, the Department asserted that the COBRA software is proprietary and that, under its license agreement with CMI, it was prohibited from copying or transferring the COBRA software.
¶ 5 While the Department acknowledged that the information contained in the database is not protected under the licensing agreement, it claimed that the COBRA database file contains proprietary programming belonging to CMI that cannot be separated from the Intoxilyzer 9000 data while in the native Structured Query Language (SQL) file format. Thus, according to the Department, providing the data to Todd in SQL format would necessarily disclose CMI's proprietary software, which in turn would violate the licensing agreement entered into by the Department with CMI.
¶ 6 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.
¶ 7 Todd refused this offer and filed a complaint in district court alleging that, under CORA, the Department was required to disclose the data in SQL format and that certain redactions claimed by the Department were not authorized by the statute. Todd has never explained why the data in .csv file format is materially different than the data in SQL file format.
¶ 8 Both parties filed motions for summary judgment. In its summary judgment motion, the Department asserted that, under CORA's trade secret exception, section 24–72–204(3)(a)(IV), C.R.S. 2014, the data in SQL format was not subject to disclosure. The Department further asserted that it had the right to redact any personally identifying information of both the persons who performed the tests and the persons who took them. As to the former, the Department contended that disclosure of such identifying information could compromise the security of the state DUI enforcement system. As to the latter, the Department asserted that persons who were required to take the breath tests had privacy rights in the information.
¶ 9 In support of these assertions, the Department submitted the affidavits of CMI's corporate counsel and two Department employees who provided computer-related support for the Department's breath alcohol testing program.
¶ 10 Todd submitted only his own affidavit in opposition to the Department's motion for summary judgment and in support of his own motion.
¶ 11 The district court granted the Department's motion and denied Todd's.
¶ 12 Summary judgment is appropriate if the pleadings, affidavits, depositions, or admissions show that there is no disputed issue of material fact and that the moving party is entitled to judgment as a matter of law. McDaniels v. Laub, 186 P.3d 86, 87 (Colo. App. 2008) (citing C.R.C.P. 56(c) ). The party requesting summary judgment has the initial burden to demonstrate the absence of evidence in the record that supports the nonmoving party's case. Civil Serv. Comm'n v. Pinder, 812 P.2d 645, 649 (Colo. 1991).
¶ 13 Once this initial burden is met, the burden shifts to the nonmoving party to show that a disputed issue of material fact exists. Id . In making this showing, the party opposing summary judgment cannot rest on the mere allegations of the pleadings, but must demonstrate by specific facts admissible under the rules of evidence that a controversy exists. USA Leasing, Inc., L.L.C. v. Montelongo, 25 P.3d 1277, 1278 (Colo. App. 2001).
¶ 14 When the nonmoving party presents no affidavits or other counterevidence to contradict the moving party's initial showing, a court must conclude that no genuine issue of material fact exists. Pinder, 812 P.2d at 649.
¶ 15 We review a grant of summary judgment de novo. Arnold v. Anton Co – op. Ass'n, 293 P.3d 99, 105 (Colo. App. 2011).
¶ 16 Todd first contends that the Department did not meet its initial burden to show that there was no disputed issue of material fact whether the data in SQL format was protected from disclosure under CORA's trade secret exception. We reject this argument.
¶ 17 Under CORA's trade secrets exception, a custodian of public records may deny the right of inspection if the records are “trade secrets, privileged information, [or] confidential commercial ... data.” § 24–72–204(3)(a)(IV).
¶ 18 Through the affidavits submitted in support of its summary judgment motion, the Department asserted that its software licensing agreement with CMI restricts it from copying or transferring the COBRA software. The Department claimed that the Intoxilyzer 9000 test data in SQL format could not be separated from the COBRA software: CMI's corporate counsel stated in his affidavit that sharing the data in SQL format is the same as sharing the COBRA software itself. He asserted that therefore anyone receiving the data in SQL format would necessarily obtain CMI's COBRA software, which would violate the licensing agreement.
¶ 19 Todd argues that the statements in the affidavits regarding the proprietary nature of the COBRA software are incompetent under C.R.C.P. 56(e) because they purportedly express legal opinions, not facts. Like the district court, we reject that argument.
¶ 20 C.R.C.P. 56(e) requires affidavits to (1) be made on personal knowledge; (2) set forth facts, which would be admissible under the rules of evidence; and (3) demonstrate that the affiant is competent to testify to the matters stated therein.
¶ 21 The Department's affidavits contain information from persons who have personal knowledge of the nature of the database. Moreover, based on the information contained in the affidavits, the affiants are competent to testify about such matters. The affidavits address the proprietary nature of the COBRA software and do not contain opinions as to the law or ultimate issues in the case.2
¶ 22 We also reject Todd's argument that the determination of whether the data may be withheld under the trade secrets exception must be made based only on the four corners of the software licensing agreement.
¶ 23 Todd's argument is fundamentally inconsistent with Colorado's statutory recognition of trade secrets in the Colorado Uniform Trade Secrets Act, sections 7 –74–101 to –110, C.R.S. 2014. No contractual agreement is necessary to create or protect a trade secret. Provided the requirements of the Uniform Trade Secrets Act are met, a trade secret is subject to protection under Colorado law. Todd cites no authority to the contrary and we are aware of none that would support the proposition that a court may look only to a contract to determine whether information is within CORA's trade secret exception.
¶ 24 Accordingly, the Department met its initial summary judgment burden, and the burden then shifted to Todd to establish a disputed issue of material fact whether supplying the data in SQL format would violate the licensing agreement and disclose trade secrets owned by CMI. Todd's only counterevidence was his conclusory statement that the SQL file format (the general programming language itself) is not proprietary. That statement, however, does not create a disputed issue of material fact because the Department never asserted that the SQL file format itself was proprietary. Instead, the Department claimed that providing the data in SQL file format entailed disclosing proprietary information.
¶ 25 Todd did not, by admissible evidence, contradict any of the factual statements in the Department's affidavits. Accordingly, the district court correctly determined that the Department was entitled to summary judgment and could...
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