Entry Regarding Motion Page 1 of 3

24-CV-00989 Tovey Services, Inc. d/b/a New England Call Center v. Vermont Department of Health

VERMONT SUPERIOR COURT CIVIL DIVISION

Washington Unit

65 State Street

Montpelier VT 05602

802-828-2091

www.vermontjudiciary.org

Case No. 24-CV-00989

Tovey Services, Inc. d/b/a New England Call Center v. Vermont Department of 

Health

ENTRY REGARDING MOTION

Title: Motion for a Temporary Restraining Order and Preliminary Injunction, Emergency 

(Motion: 1)

Filer: Andrew W. Macilwaine

Filed Date: March 14, 2024

The matter came before the court for hearing plaintiff Tovey Services, Inc. d/b/a 

New England Call Center’s motion for injunctive relief.

Plaintiff was present through its president, John Zerbi, and represented by 

Attorney Andrew Macilwaine. Defendant Vermont Department of Health (“State”) was 

represented by Attorney David Mclean.

Plaintiff has filed for injunctive relief seeking to enjoin the State from releasing 

information plaintiff provided to the State in connection with a bid for a contract and 

following the award of the contract to it. Plaintiff maintains that the information 

constitutes trade secrets the public disclosure of which would severely harm its 

business interests. 

The State took no position on the exemption from disclsure issue. 

Plaintiff has also moved to file documents under seal reflecting that information 

for possible in camera review. 

The parties stipulated to the admissibility of plaintiff’s pre-filed exhibits 1 

through 4, and to their remaining under seal.

The submissions and arguments of the parties show that, in response to a request 

for bids by the State, plaintiff submitted certain materials. The State’s bidding process 

asked proposed bidders to identify any information submitted that the bidder deemed 

confidential. Plaintiff complied. It identified the Price Schedule and portions of the 
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24-CV-00989 Tovey Services, Inc. d/b/a New England Call Center v. Vermont Department of Health

Technical response as confidential and submitted a version of its bid with that 

information redacted. 

The State awarded the contract to plaintiff. The contract agreed to by the party 

contains Section 2.2, titled “Confidentiality of Contractor Information.” That provision 

states:

The Contractor acknowledges and agrees that this Contract and any

and all Contractor information obtained by the State in connection

with this Contract are subject to the [PRA]. The State will not disclose

information for which a reasonable claim of exemption can be made

pursuant to 1 V.S.A. § 317(c), including, but not limited to, trade

secrets, proprietary information or financial information, including any

formulae, plan, pattern, process, tool, mechanism, compound,

procedure, production data, or compilation of information which is not

patented, which is known only to the Contractor, and which gives the

Contractor an opportunity to obtain business advantage over

competitors who do not know it or use it.

The State shall immediately notify Contractor of any request made

under the [PRA] . . . . [and] Contractor may, in its discretion, seek an

appropriate protective order, or otherwise defend any right it may have

to maintain the confidentiality of such information under applicable

State law within three business days of the State’s receipt of any such

request.

The State has received requests under the Public Records Act (PRA) for 

information regarding the bidding process that would include information 

plaintiff deems to be trade secrets. The State has indicated it will release the 

unredacted information unless plaintiff obtains a Court Order directing it not 

to do so. 

Here, the Contract requires that the State not release records “for which a 

reasonable claim of exemption can be made pursuant to 1 V.S.A. § 317(c).” In 

other words, the Court need not resolve the PRA issue, it need only determine 

whether the claim of trade secrets is reasonable. If the Court makes that 

determination, the State would be directed to deny the request as to any 

unredacted responsive documents, which would place responsibility for 

determining whether the subject documents are exempt under the PRA to the 

Court reviewing the PRA determination. 
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24-CV-00989 Tovey Services, Inc. d/b/a New England Call Center v. Vermont Department of Health

A significant advantage to that approach is that plaintiff could intervene 

in that PRA action, and then, the parties having a real interest in the resolution 

of the exemption question would be before the Court. The public interest favors 

resolving PRA issues on their merits and after consideration of the competing 

viewpoints.

Given those considerations, the Court has considered the submissions, 

reviewed the subject documents, and considered the arguments and 

stipulations of counsel. Based on the above, the Court concludes that plaintiff 

has a reasonable claim that the documents are exempt from the PRA as trade 

secrets and that public disclosure of that information would be harmful to its 

business interests.

Accordingly, the request for injunctive relief is granted. Regarding PRA 

requests for information involving the subject information, the State shall 

produce only redacted documents and shall indicate that a reasonable claim of 

exemption is being made as to the redacted portions. The State shall also 

inform plaintiff of any PRA taken in response to that position, which will allow 

plaintiff an opportunity to intervene in that action.

The motion is GRANTED.

Signed Electronically on April 5, 2024 pursuant to V.R.E.F. 9(d).

_________________________________________

David Barra

Superior Court Judge