It's a common assumption in litigation under the Freedom of Information Act that trade secrets lose value with the passage of time. The January 19, 2011 decision in Taylor v. Babbitt, No 03-0173-RMU (D.D.C. Jan. 19, 2011), shows there's much more to the story. The case involved a 2002 FOIA request seeking “plans, blueprints, specifications, engineering drawings and data" submitted to the government in 1935 in support of a type certificate application for the Fairchild F-45. After a harrowing ride through the court system, including a trip to the Supreme Court, United States District Judge Ricardo M. Urbina ordered the government to produce the 75-year-old documents.
It was not just the age of the documents that dictated the result. A key fact supporting the district court's opinion was Fairchild's 1955 letter authorizing the government to "loan" F-45 design documents to the public for use as reference material in repairing F-45 aircraft. Even though the documents had not actually been released, Fairchild's letter was enough to foreclose any argument that the documents could be considered "secrets." Even taking action to revoke the release authorization and to prevent their future release—as Fairchild did when it first received notice of the FOIA request—would be ineffective. In this court's view, a bag that has been open for 40 years cannot be closed even if the cat has not yet escaped.
The fact that the F-45 design would have no commercial value to Fairchild was also a factor in the decision. According to the opinion, any commercial value in the F-45 design documents would be found in the market for the restoration of antique aircraft. The government offered no evidence that Fairchild competes in that market. Without proof of a competitive advantage to Fairchild, the documents could not be considered trade secrets under FOIA Exemption 4:
Thus, although the FAA asserts that the F-45 type certification materials are valuable in the antique aircraft market, the FAA has not shown that the F-45 materials confer a competitive advantage upon Fairchild in the antique aircraft market. Consequently, the court concludes that the F-45 type certification materials are not commercially valuable, and thus do not constitute trade secrets under Exemption 4.
Aside from its discussion of the merits, this case is noteworthy because of its long history. It began with a 1997 FOIA request submitted by the plaintiff's friend and "close associate" Greg Herrick. The 10th Circuit Court of Appeals refused Mr. Herrick access to the F-45 design documents in 2002. Herrick v. Garvey, 298 F.3d 1184 (10th Cir. 2002). Like Judge Urbina, the 10th Circuit decision holds that the F-45 design documents could not be considered trade secrets because Fairchild had authorized their public release in 1955. But despite this conclusion, the 10th Circuit did not order the government to release the documents. Interestingly enough, the trial court in Herrick accepted the government's argument that Fairchild had essentially reinstated the trade secret status of the F-45 documents in 1997 when it received notice of Mr. Herrick's FOIA request. A footnote at the end of the appellate court opinion points out that Mr. Herrick did not challenge that conclusion on appeal.
Apparently confident that the F-45 documents would ultimately be released, Mr. Taylor submitted his own FOIA request in 2002. He filed suit in 2003, and Fairchild intervened in 2004. The district court dismissed the case in 2005 because the merits had already been litigated and resolved in Herrick. The D.C. Circuit affirmed in 2007. In a 9-0 opinion written by Justice Ginsburg, the Supreme Court reversed in 2008. After some additional skirmishing and a bankruptcy filing by Fairchild in 2009, the government and Mr. Taylor finally filed their motions for summary judgment on the merits of the Exemption 4 issue in the summer of 2010.