The Council of State on the right of access to administrative documents and the protection of trade secrets

With Order no. 2150/2020 of 27 march 2020, The Council of State ruled on the relationship between the right of access to administrative documents and the protection of trade secrets regarding a public tender procedure.

Here is the background of the decision. The Province of Rimini organised a public tender procedure concerning the concession for the maintenance service and the securing of the road network and its appliances. The he company Sicurezza e Ambiente S.p.a., i.e. the runner-up in the tender pocedure, presented two requests of access regarding, among others, the technical report and relative annexes submitted by the successful tenderer, RTI Zini Elio S.r.l. The requests was only  partially accepted by the Province of Rimini, which provided the applicant with a partially obscured version of the technical report, denying  access to several parts as a consequence of the successful tenderer’s express opposition.

Sicurezza e Ambiente therefore filed an appeal before the Emilia-Romagna Administrative Court against the decision of refusal issued by the Province of Rimini, demanding that the latter be ordered to disclose the documents. However, by Order No. 973/2019, the Administrative Court rejected the appeal, based on the overriding public interest in the confidentiality of the documents at issue and by deeming adequate the evidence already available to the applicant.

The Company Sicurezza e Ambiente therefore appealed the Administrative Court Order before the Council of State on the basis of the following arguments: firstly, the appellant would have a legally relevant interest in the access, aimed at protecting his own rights in judicial proceedings. Secondly, most of the information contained in the successful tenderer’s technical report would be covered by “only alleged and never proven” trade secrets, given that the successful tenderer would have failed to provide the relevant evidence; in fact, such information would not constitute technical or trade secrets: in particular, the list of the logistic centres made available by the successful tenderer and their geographical locations would not be secret, as well as the number plates of the vehicles to be used for the service provided. Finally, the Administrative Court Order would be vitiated by misapplication of Article 53 of the Legislative Decree no. 50/2016 (Public Contracts Code), insofar as it «recognises the right of access even in the presence of technical and trade secrets where the former is functional to the exercise of the right of defence of the appellant».

In addressing the case, the Council of State, preliminarily provides clarification on Article 53.5 (a) of the Public Contracts Code, pursuant to which shall be excluded from the right of access «the information provided in the context of the offer, or to justify thereof, that constitutes, according to a reasoned and demonstrated statement of the tenderer, technical or trade secrets». According to the court, this must be interpreted as meaning that the following parts are excluded from the discovery of the tender procedure documents: those concerning «specific and classified technical or managerial capacities of the tenderer company (know-how), namely the set of know-how, original and generally reserved skills and experiences, acquired in the conduct of industrial and commercial business which contributes to define and qualify the specific competitiveness of the company in the market ». In any case, as confirmed by the latest jurisprudence, the interested party has the burden of proving the actual existence of an industrial or trade secret to be protected, whilst the contracting authority has the burden to reasonably assess the arguments submitted by the party, in order to verify the applicability of the secrecy regime.

Where the presence of a trade secret is found, the Council of State continues, it is necessary to refer to the balancing of interests criterion envisaged in Article 53.6 of the Public Contracts Code, pursuant to which the access to such information is only allowed for the purpose of defending the competitor’s interests in relation to the contract award procedure. The provision at issue is more restrictive than the general rule laid down in Article 24.7 of the Law no. 241/1990 – pursuant to which the access to those documents, the knowledge of which is necessary for protecting the applicant’s legal interests, must be guaranteed – and sets forth on the applicant the burden to demonstrate the indispensability of the knowledge of the documents and information covered by secrecy in order to defend himself in a specific proceeding.

In the case at issue, the Council of State, finding that RTI Zini Elio S.r.l. had correctly provided evidence of the existence of technical or trade secrets with regard to the content of its technical report, excluded such information from the scope of the right of access, since the appellant did not provide the proof of the indispensability of their knowledge in accordance with Article 53.6 of the Code of Public Contracts. However, the Council of State found that not all the information contained in the tender documentation had the secrecy requirement set out in Article 53.5 (a) of the Code of Public Contracts: such secrecy, in fact, does not cover the address of the logistic centers and number plates of the vehicles to be used for the services covered by the contract. With regard to such information, the Council of State considered the general principles to be applicable on the right of access laid down in the Law No. 241/1990, which only requires « the relevance of the information to be accessed to the subject-matter of the proceedings and to the appellant’s defensive purposes, irrespective of any prognosis of the latter’s merit, for the purposes of the right of access». In fact, once the existence of technical or trade secrets are excluded, the access shall be regulated by this general and less restrictive rule, which requires no investigation into the usefulness and the effectiveness of the document in the perspective of judicial protection, but only the existence of a link between the interest that is intended to protect and the document itself.

Based on all of the above, the Council of State partially reversed the Administrative Court Order, ordering the local administration to disclose the documents not covered by secrecy.