When Does Information Become Public?

A standard element of confidentiality agreements is exclusions from the definition of “Confidential Information.” They’re sufficiently inevitable that longtime reader Michael Fleming refers to them as “The Four Romanettes®.”

I’ve been mulling over one of them, the exclusion for information that becomes public. Actually, that’s just one way of phrasing it. Here’s a range of alternatives:

  • information that is or becomes public
  • information that is or becomes publicly available
  • information that is or becomes in the public domain
  • information that is or becomes generally known to the public
  • information that is or becomes widely available to [the software industy]

The first version is the simplest possible; the second, third, and fourth versions were offered in Brian D. Bowden, Drafting and Negotiating Effective Confidentiality Agreements, 59 Tex. B.J. 524, 526 (1996). (I learned about this article from Michael Woronoff’s chapter on confidentiality in Negotiating and Drafting Contract Boilerplate.) So, what are the implications of these different versions? Let’s consider them one at a time.

First, what does it mean to say that information is “public”? Black’s Law Dictionary (9th ed. 2009) gives as a definition of public “Open or available for all to use, share, or enjoy.” According to this definition, what matter is not how widely known the information is, but whether it’s available.

Let’s consider what “available” means. 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 would be hopelessly literal-minded to say that that’s enough to make the information available. To make sense, the notion of availability has to mean not just that I can access the information but also that I’m aware that the information exists and where to get it. I haven’t come up with a way of articulating that meaning more explicitly than does “available.”

And what about “available for all”? Does that mean that for a given piece of information to be public, everybody—every human on the planet—would have to know that it’s available? That’s a hopeless standard; I’d replace it with “widely available.”

Furthermore, when you’re considering how widely available, you have to consider community. If the information in question relates to quantum mechanics, it will never be widely available to every human on the planet. (Mind you, almost nothing could meet that standard.) Instead, what you should consider is whether it’s widely available in a given community. For purposes of a confidentiality agreement, perhaps the appropriate community is whatever industry might want to make use of the information in question.

What about the second version, using “publicly available.” That’s no more informative than “public.” I’ve seen the variant “generally publicly available”; that would seem to be a wordier version of “widely available.”

As for the third version, “in the public domain” has no bearing on how widely available any given information is. Instead, it means that the information isn’t protected by intellectual-property rights and so can be used by anyone free of charge. That would represent an irrationally narrow exclusion from the definition of “Confidential Information,” so I propose not offering it as a Koncision option.

As for the fourth version, I agree with Bowden that requiring that information not only be available but also be actually known represents a more demanding standard. But I don’t think the distinction is meaningful, so I don’t have in mind incorporating that standard in Koncision’s confidentiality-agreement templates.

The fifth version? That’s what I’m contemplating using in Koncision’s confidentiality-agreement templates. Of course, it remains a vague standard—how wide is “widely”?—but there’s no getting around that.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.