Last month, the Occupational Safety and Health Review Commission (“OSHRC”) refused to release SeaWorld’s new safety protocols for trainers interacting with killer whales, despite a recent court ruling that such protocols do not qualify for trade secret protection. The new protocols include new safety measures taken by SeaWorld in the wake of the death of trainer Dawn Brancheau, who was killed by an orca in February 2010.
In August, a federal judge held that the protocols were not trade secrets, and gave OSHRC a month to review the order before making the protocols publicly available. According to Judge Welsch, “The protocols that SeaWorld wants to remain under seal reflect the training methods and techniques its trainers implement poolside with the killer whales. . . An observer knowledgeable in the behavior and training of killer whales could likely ascertain the information contained in the written protocols by watching the trainers interact with the killer whales.”
Judge Welsch’s ruling suggests that information must fall clearly into the definition of a trade secret to merit protection. In order to show that information is a trade secret, the owner must show that (1) it has instituted reasonable measures to maintain the secrecy of the information, and (2) the information is economically valuable because of its secrecy. Here, Judge Welsch’s ruling suggests that Seaworld has not kept the information at issue secret, because it is publicly available and can be easily ascertained by an observer. Thus, Welsch holds that the information cannot qualify for trade secret protection.
Despite Judge Welsch’s ruling that the information at issue is not protected as a trade secret, OSHRC has not made the information available to the public. According to the Associated Press, OSHRC was supposed to provide the protocols in late September, but has failed to do so, apparently because OSHRC officials fear criminal liability for releasing trade secrets. According to an agency spokesman, “A few of the lawyers here were concerned about whether the agency could potentially be held liable for releasing the protocols.” As of this writing, the agency does not appear to have released the documents to the public.
The case is currently on appeal before the DC Circuit. SeaWorld, however, is not contesting the trade secret determination, instead, choosing to focus its appeal on the Court’s broad application of the Occupational Safety and Health Act, a federal safety law meant to protect workers in unusual circumstances.