What is public?

January 6, 2015

A recent state court case in Pennsylvania brings into focus the issue of “public”. As you know, or should know, one of the key elements of competitive intelligence is the use of public resources to develop intelligence. As I’ve said many times, public is broader than published, but this case adds a new twist.

The case involves an FBI affidavit of probable cause to search an individual’s home. The state case itself is but one element in a very complicated story[1], one of whose key elements is that the federal affidavit in question was supposed to be confidential, sealed by order of a federal court in 2006. With a series of twists that are interesting to read, but difficult to summarize, the affidavit in question was later filed by a law firm in a civil case against its former client, the subject of the search warrant (I told you it was complicated).

The state court found that this affidavit, even though sealed by order of a federal court, was a “public record”. As it turns out, the affidavit was erroneously attached to a publicly accessible section of the federal court’s docket, which was in the online docketing system. That meant that the affidavit was “left unsealed on that docket for years”. The state court determined that this made the federal affidavit a “public record”.

The lesson? Just because a document should be confidential, or even a trade secret, doesn’t mean that it cannot be used in your competitive intelligence analysis if, and I stress if, it has been made “public” in some way, even accidentally. Therein also lies a warning – to keep information and data confidential is an ongoing task where even one misstep can destroy the legal protections against its disclosure or use.

[1] For more details on the case, see Gina Passarella, “Pepper Hamilton Can’t Be Sued for Using Public Documents”, The Legal Intelligencer, January 6, 2015.


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