Public Info & Confidentiality: Navigating Job Exemptions

Publicly Available Information: A Safety Net in Confidentiality Agreements

Confidentiality agreements are ubiquitous in today's business world, protecting sensitive information from unauthorized disclosure. But what happens when the "confidential" information is already out there? Can a confidentiality agreement truly prevent you from sharing something that's freely available to the public?

The answer is: it depends. While confidentiality agreements aim to restrict the use and disclosure of specific information, they generally don't apply to information that's already publicly accessible. This concept of "publicly available information" (PAI) acts as a safety net, allowing individuals to discuss and share information that is already in the public domain without breaching their confidentiality obligations.

Defining Publicly Available Information:

The key to understanding this exemption lies in clearly defining "publicly available information." This typically includes:

• Information published in newspapers, magazines, books, or online publications.
• Data released by government agencies or publicly traded companies.
• Information presented at public conferences or meetings.
• Materials freely accessible on the internet, such as websites, blogs, and social media posts.

The Nuances:

While PAI offers a valuable exception, it's crucial to navigate its complexities carefully. Here are some points to consider:

• Specificity Matters: A confidentiality agreement might still restrict information that was once confidential but has since become public. Be sure to review the agreement's language and consider the context of the disclosure.

• Timing is Key: If information was publicly available at the time it was shared, it likely falls under the PAI exemption. However, if the information was previously confidential and became public later, the exemption might not apply retrospectively.

• Derivative Works: While sharing factual information from a public source may be permissible, creating derivative works based on confidential information could still violate the agreement.

Best Practices:

To avoid potential disputes, follow these best practices when dealing with PAI within confidentiality agreements:

• Review Your Agreement Carefully: Understand the specific terms and definitions used regarding "confidential information" and "publicly available information."
• Document Your Sources: Keep records of where you obtained information, especially if it was previously confidential.
• Seek Legal Counsel: When in doubt, consult with an attorney specializing in contract law to clarify your obligations and ensure compliance with the confidentiality agreement.

Remember, the law surrounding confidentiality agreements can be complex. While publicly available information generally provides a safe harbor, it's essential to exercise caution and seek professional guidance when necessary to protect yourself from potential legal risks.

Real-Life Examples of PAI and Confidentiality Agreements:

Let's delve into some real-life scenarios where the concept of "publicly available information" plays a crucial role in navigating confidentiality agreements.

Scenario 1: The Tech Startup & the Investor:

Imagine a tech startup developing a groundbreaking new social media platform. They secure funding from an angel investor who signs a confidentiality agreement promising not to disclose sensitive information about the platform's features and technology. However, during a public event showcasing the company's progress, the CEO accidentally reveals key details about the platform's user interface and algorithms in a presentation open to the press and the public.

In this case, even though the investor signed a confidentiality agreement, the information shared by the CEO at the public event becomes "publicly available information." The investor can now legally discuss these features and algorithms with others without breaching their agreement. This highlights the importance of understanding that publicly shared information, even if initially confidential, loses its protected status once it enters the public domain.

Scenario 2: The Pharmaceutical Company & the Competitor:

A pharmaceutical company develops a new drug for treating a rare disease. They share details about the drug's development and efficacy with a competitor during a closed-door meeting as part of a potential partnership. However, due to regulatory requirements, the company later publicly discloses detailed clinical trial results in a scientific journal accessible to all researchers and healthcare professionals.

The competitor now possesses both confidential information shared in the closed meeting and publicly available data from the published trial results. While they might not be able to legally disclose details specific to the closed meeting without breaching their agreement, they can freely discuss the publicly disclosed clinical trial findings with potential investors or partners. This demonstrates how PAI can allow for a wider dissemination of information even within restricted contexts.

Scenario 3: The Journalist & the Government Agency:

A journalist receives confidential documents from a government agency detailing a controversial policy proposal. Before publishing the story, they carefully review the documents to identify any information already publicly available through official government websites or press releases. The journalist chooses to focus their reporting on the previously undisclosed details and redacts any information that falls under PAI.

This example illustrates how journalists can utilize the PAI exemption responsibly. By clearly distinguishing between confidential and publicly accessible information, they can ensure their reporting remains ethical and adheres to confidentiality agreements while still shedding light on important public issues.

These real-life examples demonstrate the complexities of navigating confidentiality agreements in conjunction with publicly available information. It's crucial to remember that while PAI provides a valuable safety net, understanding its nuances and seeking legal counsel when necessary is essential for protecting both yourself and your interests.