                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

SURTERRA FLORIDA, LLC.,             NOT FINAL UNTIL TIME EXPIRES TO
ALPHA FOLIAGE, INC. and             FILE MOTION FOR REHEARING AND
REDLAND NURSERY, INC.,              DISPOSITION THEREOF IF FILED

      Appellants,

v.                                  CASE NO. 1D16-4091

FLORIDA DEPARTMENT OF
HEALTH and MICHAEL
BARFIELD,

      Appellees.


_____________________________/

Opinion filed June 9, 2017.

An appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

John L. Wharton and Brittany O. Finkbeiner of Dean, Mead & Dunbar, Tallahassee,
for Appellants.

Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health,
Tallahassee, for Appellee Florida Department of Health; Andrea Flynn Mogensen
of Law Office of Andrea Flynn Mogensen, P.A., Sarasota, for Appellee Michael
Barfield.
PER CURIAM.

      Appellants 1 challenge an order finding that the identities and related

information of their consultants, investors, and partners do not meet the definition

of a trade secret under Florida law. We affirm the trial court’s findings regarding

investors and partners because appellants did not prove that the names and related

information of their individual investors and partners are trade secrets. However, we

reverse the trial court’s findings regarding appellants’ consultants and remand to the

trial court to make more specific findings as to whether the particular identities and

related information of appellants’ consultants meet the requirements of section

812.081(1)(c), Florida Statutes (2015).

                                       I. Facts

      In 2015, appellants submitted applications to the Florida Department of

Health (Department) for licenses to operate dispensing organizations for “low-THC

cannabis” or “medical cannabis” pursuant to section 381.986(5)(b), Florida Statutes

(2015). Appellants indicated that portions of their applications contained

confidential trade secrets pursuant to section 812.081, Florida Statutes (2015), and

were exempt from disclosure as public records under section 815.045, Florida


1
  Appellants Alpha Foliage, Inc., and Redland Nursery, Inc., are nurseries that have
applied for licenses to operate dispensing organizations in the State of Florida.
Appellant Surterra Florida, LLC, is the contractual agent of Alpha Foliage, Inc., and
Redland Nursery, Inc. For the purposes of this opinion, the three entities will be
referred to jointly as “appellants.”
                                          2
Statutes (2015). The Department reviewed the applications and appellants’ written

materials supporting their claimed trade secret exemptions and ultimately found that

some portions of the applications were trade secrets under Florida law.

      Appellee Michael Barfield submitted a public records request to the

Department for the files related to appellants’ applications. The Department declined

to release to Mr. Barfield appellants’ unredacted applications pursuant to section

815.045 but told him that he could retrieve the redacted versions of the applications

on its website. Subsequently, Mr. Barfield filed suit for a declaratory judgment that

the exemption asserted by the Department does not apply to the redacted portions of

appellants’ applications.

      The trial court held a hearing to examine the documents and to determine

whether they contained trade secrets. At the hearing, Robert Jacob Bergmann, the

Chief Executive Officer of Surterra Florida, LLC, testified about the alleged trade

secret information. Mr. Barfield and his counsel were permitted to hear only a

portion of Mr. Bergmann’s testimony. 2

      Subsequently, the trial court found that appellants’ purported trade secret

information falls into the following five categories: (1) investor, consultant, and

partner identity; (2) financial structure; (3) security processes and building designs;



2
  We do not address the propriety of the ex parte portion of this procedure because
it was neither objected to nor raised as an issue on appeal in this case.
                                           3
(4) nursery operations, scientific processes, and business plans; and (5)

administrative materials and standard operating procedures. As to the latter four

categories of appellants’ information, the trial court concluded that they are trade

secrets and exempt from disclosure under the Florida public records law. These

findings have not been appealed to this Court and are therefore not at issue. As to

the first category of appellant’s information, however, the trial court found that the

identities and related information of appellants’ investors, consultants, and partners

do not meet the trade secret definition under section 812.081(1)(c). Appellants now

seek reversal on appeal as to the court’s findings regarding the first category of

information.

                                      II. Analysis

      Florida’s broad public records policy provides “that all state, county, and

municipal records are open for personal inspection and copying by any person.” §

119.01(1), Fla. Stat. (2015); see also Art. I, § 24(a), Fla. Const. (“Every person has

the right to inspect or copy any public record made or received in connection with

the official business of any public body, officer, or employee of the state, or persons

acting on their behalf . . . .”). However, the Legislature has made some exemptions

to the public records law. One such exemption is that of trade secrets. See § 815.045,

Fla. Stat. (2015) (“The Legislature finds that it is a public necessity that trade secret




                                           4
information . . . be expressly made confidential and exempt from the public records

law because it is a felony to disclose such records.”).

      Chapter 381, Florida Statutes (2015), the chapter under which appellants

submitted their applications to become dispensing organizations, reflects both

Florida’s public records policy and the trade secret exemption. Section 381.83(1),

Florida Statutes (2015), states that “[r]ecords, reports, or information obtained from

any person under this chapter . . . shall be available to the public, except upon a

showing satisfactory to the department . . . that such records, reports, or information,

or a particular part thereof, contains trade secrets as defined in s. 812.081(1)(c).”

      Section 812.081(1)(c), Florida Statutes (2015), defines the term “trade secret”

as:

      [T]he whole or any portion or phase of any formula, pattern, device,
      combination of devices, or compilation of information which is for use,
      or is used, in the operation of a business and which provides the
      business an advantage, or an opportunity to obtain an advantage, over
      those who do not know or use it. “Trade secret” includes any scientific,
      technical, or commercial information, including any design, process,
      procedure, list of suppliers, list of customers, business code, or
      improvement thereof. Irrespective of novelty, invention, patentability,
      the state of the prior art, and the level of skill in the business, art, or
      field to which the subject matter pertains, a trade secret is considered to
      be:

      1. Secret;

      2. Of value;

      3. For use or in use by the business; and

                                           5
      4. Of advantage to the business, or providing an opportunity to obtain
      an advantage, over those who do not know or use it when the owner
      thereof takes measures to prevent it from becoming available to persons
      other than those selected by the owner to have access thereto for limited
      purposes.

      We apply the competent, substantial evidence standard of review to a trial

court’s factual determination that documents do or do not contain trade

secrets. See Sepro Corp. v. Dep’t of Envtl. Prot., 839 So. 2d 781, 785 (Fla. 1st DCA

2003) (holding that the trial court’s “finding [that documents at issue contained trade

secrets] necessarily rests on factual determinations that are assailable on appeal only

if unsupported by competent, substantial evidence”). At issue in this case is whether

appellants proved that the identities and related information of their investors,

consultants, and partners are trade secrets.

      In the hearing before the trial court, Mr. Bergmann testified generally that he

and appellants considered all of the redacted information in their applications to be

trade secrets. Likewise, he made broad assertions that the identities and related

information of appellants’ investors and partners met the definition of a trade secret

under section 812.081(1)(c). However, appellants did not present evidence showing

that the identities and related information of the specific investors and partners at

issue established each of the requirements found in section 812.081(1)(c).

      Conversely, Mr. Bergmann testified why he believed particular consultants’

identities and related information met the trade secret definition based on the

                                          6
information they supplied to appellants. He presented evidence that at least some of

the consultants’ identities and related information concerned the production process,

which met the definition of a trade secret. Further, appellants’ consultants differed

from their investors and partners.

      A “list of suppliers” can qualify as a trade secret according to section

812.081(1)(c). Consultants in the low-THC cannabis and medical cannabis industry

can supply organizations with valuable information about how to cultivate, process,

transport, and dispense cannabis. A list of such consultants might qualify as a list of

suppliers considered to be: secret; of value; for use or in use by the business; and of

advantage to the business, or providing an opportunity to obtain an advantage, over

those who do not know or use it when the owner thereof takes measures to prevent

it from becoming available to persons other than those selected by the owner to have

access thereto for limited purposes. Therefore, such a list may qualify as a trade

secret under section 812.081(1)(c).

      However, the trial court did not make any findings as to whether it accepted

Mr. Bergmann’s testimony as true and whether appellants proved that their list of

consultants met each of the trade secret requirements in section 812.081(1)(c).

Therefore, we reverse the court’s general finding that the list of identities and related

information of appellants’ consultants is not a trade secret. We do not rule on

whether appellants proved that the identities and related information of their

                                           7
consultants are in fact trade secrets. That determination should be made by the trial

court. Rather, we instruct the trial court to make specific findings as to whether the

list of appellants’ consultants meets each of the requirements found in Florida’s trade

secret definition. Because appellants did not prove that the names and related

information of their individual investors and partners are trade secrets, we affirm the

trial court’s finding that they do not constitute trade secrets.

      AFFIRMED in part; REVERSED in part; REMANDED.

WOLF and WETHERELL, JJ., and LESTER, DON H., ASSOCIATE JUDGE,
CONCUR.




                                            8
