Whitaker v. Vt. Info. Tech. Leaders, Inc., No. 781-12-15 Wncv (Teachout, J., Jun. 28, 2017). 

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is not guaranteed.]

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 781-12-15 Wncv

STEVEN WHITAKER

Plaintiff

v.

VERMONT INFORMATION TECHNOLOGY LEADERS, INC.

Defendant

DECISION FOLLOWING PRODUCTION

In an October 27, 2016 decision, the court determined that Defendant Vermont 

Information Technology Leaders, Inc. (VITL) is the functional equivalent of a public agency 

subject to Vermont’s Access to Public Records Act, 1 V.S.A. §§ 315–320, and Plaintiff Steven 

Whitaker’s public records request. Following that decision, VITL produced the responsive 

records with two exceptions. It produced a document with the salaries of its employees but 

redacted their identities. It produced its contract with Medicity but redacted several provisions 

as exempt “trade secrets.” 1 V.S.A. § 317(c)(9). Mr. Whitaker objects to the redactions and 

argues that he should be entitled to the documents in their unredacted form.

Salaries of employees

VITL produced the salaries of its employees but redacted their identities so one viewing 

the record would not be able to determine which salary corresponds to which employee. VITL 

claims some interest in privacy associated with these redactions. However, there is no lawful 

basis for them. The court has determined that VITL is subject to the Act. The Act provides that 

“[i]ndividual salaries and benefits of and salary schedules relating to elected or appointed 

officials and employees of public agencies shall not be exempt from public inspection and 

copying.” 1 V.S.A. § 317(b) (emphasis added). Accordingly, VITL shall produce the 

unredacted salary document forthwith.

Trade secrets

VITL also made numerous redactions to the produced Medicity contract claiming that 

they are exempt trade secrets: “confidential business records or information . . . which a 

commercial concern makes efforts that are reasonable under the circumstances to keep secret, 

and which gives its user or owner an opportunity to obtain business advantage over competitors 

who do not know it or use it.” 1 V.S.A. § 317(c)(9). This exception “reflects a legislative desire 

to protect from public access some nontechnical, competitively useful business information” and 

is not limited to “intellectual property.” Springfield Terminal Ry. Co. v. Agency of Transp., 174 

Vt. 341, 347 (2002). While the Court ruled in that case that the exemption applied, the 

information that qualified for the exemption was internal information about an entity that bid for 
2

a state contract. It was not terms of a contract with the State, as is involved in this case.

VITL provided an unredacted copy of the contract to the court under seal and an index 

describing the redactions. Some redactions relate to pricing, fees, and other financial aspects of 

the agreement. Other redactions relate to particular services, such as “incident escalation 

processes,” “incident and data recovery processes,” and “business processes and services for data 

retention.” For each redaction, VITL asserts that the information redacted gives Medicity “an 

opportunity to obtain a business advantage over competitors who do not know it and cannot use 

it when competing with Medicity.”

The court cannot simply look at the redacted material and ipso facto conclude that its 

continued confidentiality gives Medicity (or VITL and Medicity) any real “business advantage 

over competitors.” Whether specific terms of a contract with VITL constitute “competitively 

useful business information” is not self-evident as it was in the Springfield case. VITL has 

asserted the exemption, but it has not made any specific factual showing, with affidavits or 

argument, that the exemption properly applies to the redacted information. Rather, the redaction 

log simply asserts the conclusion that it does. “The burden of showing that a record falls within 

an exception is on the agency seeking to avoid disclosure.” Wesco, Inc. v. Sorrell, 2004 VT 102, 

¶ 10, 177 Vt. 287. Because VITL has not met that burden, Mr. Whitaker is entitled to an 

unredacted copy of the Medicity contract.

The court recognizes, however, that VITL’s opposition to complete production may be 

motivated in part by its interest in complying with the Confidentiality of Agreement provision of 

the Medicity contract, ¶ 6.2, and the party with the more direct interest in the redacted 

information, Medicity, is not a party to this case. Accordingly, the court will stay the order to 

produce the unredacted copy of the contract for 30 days during which Medicity may seek to 

intervene and oppose complete production, if it chooses to do so. The court requests that VITL 

provide Medicity a copy of this order forthwith and so certify to the court.

ORDER

For the foregoing reasons:

1. VITL shall promptly produce an unredacted copy of the record showing the schedule of 

salaries; and

2. VITL shall produce an unredacted copy of the complete Medicity contract.

3. The order to produce the Medicity contract is stayed for 30 days.

Dated at Montpelier, Vermont this __ day of June 2017.

_____________________________

Mary Miles Teachout

Superior Judge