In this recent post (now extensively revised) I consider two standard exceptions to the definition of Confidential Information and propose what I’d do instead. Now we’ll look at another exception, the one relating to public information. With this exception, the question is how exactly to phrase it.
The Kind of Information
Let’s look at the different components of the exception, starting with what kind of information falls within the exception. Here are the possibilities I’ve encountered:
- publicly available
- available to the public
- publicly known
- widely available to the public
- generally available to the public
- widely available in the widget industry
- in the public domain
Let’s start with public (option 1). Black’s Law Dictionary gives as the relevant definition “Open or available for all to use, share, or enjoy.”
Consider use of available in that definition. If I create a website, make no effort to publicize it, and put some information on that site, is the information available? In theory, anyone with an internet connection has access to it, but it wouldn’t make sense to say that that’s enough to make the information available. The word available must connote not just that one has access to information but also that one is aware that the information exists and where to get it.
I wouldn’t take seriously the “available for all” component of the Black’s definition. It can’t mean that everybody—every human on the planet—knows that the information is available. Instead, what you should consider is whether it’s availability in a given community. For purposes of a confidentiality agreement, the appropriate community might be whatever industry might want to make use of the information in question.
The Black’s definition suggests that availability is implicit in the word public, but you could make that explicit and say publicly available (option 2) or available to the public (option 3). But I suggest it’s redundant to refer to availabilty.
Instead of referring to availability you could refer to knowledge, as in publicly know (option 4). That would seem to represent a more demanding standard, but it doesn’t reflect our relationship with information. The information we actually know is only a tiny fraction of the information that’s available, and we can now retrieve information in the blink of an eye. Limiting the exception to information that is known doesn’t make sense.
In option 5 and option 6, widely and generally are redundant, as those concepts are inherent in the idea of information being public. But if you want to make it explicit that the community to be considered is a given industry, I’d use the formula in option 7.
Saying in the public domain (option 8) is simply a mistake, as it has no bearing on the general availability of information. Ned Barlas, my Penn Law Review colleague from long ago and one of my prized sources of intellectual-property advice, tells me that in the public domain refers to the copyright status of a work of authorship that is no longer subject to copyright protection, and that formerly patented inventions and unpatentable inventions are also sometimes said to be in the public domain. It’s safe to assume that anyone who uses in the public domain in the public-information exception simply assumes it’s a hey-I-sound-like-a-smart-lawyer alternative to public.
Next, let’s consider the timeframe. Here are the possibilities:
- is public
- becomes public
- is or becomes public
- is already public when the Disclosing Party discloses it to the Recipient or becomes public after the Disclosing Party discloses it to the Recipient
One or other of the first three options can be found in countless contracts, but the problem with each is that it raises the question, When? To make it clear that the reference point isn’t when the contract is signed but instead is when information is disclosed, use option 4.
A Limit to the Exception
The public-information exception can be limited as follows (one sees many variants):
- other than as a result of breach of this agreement by the Recipient
- through no fault of the Recipient
- through no wrongful act of the Recipient
- for reasons beyond the control of the Recipient
The sensible choice is option 1. It’s not clear what other kind of disclosure, if any, the other options might be contemplating.
It might not be necessary to include option 1: it would require serious chutzpah on the part of the recipient to leak confidential information so it becomes public, then claim that the information falls within the public-information exception. There’s no right or wrong choice, but I’m inclined to make that explicit.
The End Result
So here’s my version of the public-information exception:
information that is already public when the Disclosing Party discloses it to the Recipient or becomes public (other than as a result of breach of this agreement by the Recipient) after the Disclosing Party discloses it to the Recipient;
[I adjusted this proposed language based on Mark’s comment.]