Right to access documents containing a company know-how for legal defense

The Italian Administrative Court, with judgement n. 2150 of March the 27th 2020, ruled on the appeal brought by a company against the ruling of Emilia Romagna’s Regional Administrative Court that dismissed its appeal against the action denying its right to access documents of a tendering procedure.

The appellant asked to look at records that contained the commissioners’ assessments and administrative and technical documents presented by the successful tenderer, but the request was only partly accepted, following the objection of the successful tenderer based on the presence of a confidential know-how.

The Regional Administrative Court confirmed the decision of the administrative authority.

The company resorted then to an appeal complaining about the wrong doing of the ruling where the disclaimers opposed by the administration were considered legitimate “in view of the necessity to protect a claimed industrial know-how concerning the technical offer presented in the tendering procedure” and advocating “the violation and false application of article 53 of the legislative decree 50/2016. The violation of articles 97 and 113 of the Italian Constitution, the violation of the transparency and good conduct of the administrative action. In any case the violation of the law and misuse of power for lack of conditions”.

According to the recurrent there was not the necessity to ensure the confidentiality of some pieces of information contained in the technical document of the tenderer because they weren’t covered by technical or trade secrets of which it didn’t provide any evidence.

Moreover, in its view, the list of logistic centers provided by the tenderer and their location on the territory do not constitute technical or trade secrets, for it concerned the mere list of addresses and it would have been a responsibility of the administration to prove which would have been the specific reasons for preserving the industrial or trade secret kept in the documents of the tendering procedure.

Finally, the appellant argued that, pursuant to art. 53, paragraph 6 of Legislative Decree 50/2016, the access is allowed even in presence of technical or trade secrets, where the access is functional to the exercise of the defensive prerogatives of the other party.

The Italian Administrative Court partly accepted the reasons of the recurrent.

In regards to the right to access information given as part of the offer that constitute technical or trade secrets, the Italian Administrative Court reaffirmed the necessity to perform the balance referred to art. 53, paragraph 6 of Legislative Decree 50/2016, a special rule compared to the art. 24, paragraph 7 of Law 241/1990, considering the marked criteria of jurisprudence that need the indispensability of knowledge of secret information in order to protect the applicant in the context of a determined judgment (see Italian Administrative Court, V, 64/2020).

Following this interpretative principle, the information for which the appellant didn’t provide evidence of indispensability must therefore be excluded from the access.

This due to the fact that the necessity to protect the information with technical or trade secrets is in contrast to the interest of the defense in court, with the consequence that where these don’t exist the principles of transparency and publicity of administrative actions resume force in the public procurement outsource procedures (see art. 30 of 20/2016 Legislative Decree).

In light of the above, it can’t be overlooked how important the preservation of commercial secret is in the strict ways required by the Italian Code of Industrial Property Rights.

A company know-how is a fundamental asset of every company but too often they fail to preserve and protect it in accordance with the law and the consequence of this shortcoming is the impossibility to invoke it, in a situation of its illegitimate use or in a case of tenders or of opposition to the right to access records such as in the present case.