SHREDDING TRADE SECRETS: Heli-Ski Operators Fret over FOIA Disclosures Releasing a Blizzard of Confidential Information

3 minute read | January.24.2015

Heli-skiing: it’s the holy grail for thrill-seeking skiers and snowboarders.   Ride to the roof of the world aboard a helicopter.  Descend thousands of vertical feet through fresh, untracked powder.  No lift lines, no ski patrol.

This is what heli-skiers pay upwards of $1,000 per day to see.  What they don’t see is the heli-ski tour company owner, back at the office fretting over his trade secrets.

These fly-by-day firms have many of the same trade secrets concerns as the technology companies, restaurateurs, fragrance makers, executive recruiting firms and countless other businesses we regularly write about. 

They worry about protecting client lists in a business where a small number of customers spend big to go big.  They sweat losing control of business plans and marketing and promotion programs. In a seasonal business with thin profit margins, they fear losing control of financial data showing how they control costs.  Helicopters are expensive to operate, and costs relating to aircraft leases, insurance and fuel can be valuable and confidential business information.  They’d rather keep GPS data about their routes to themselves.

But heli-ski companies have an added set of worries: they usually operate on public lands.  This means they must disclose data about their businesses to their landlords—local, state or federal government agencies.  Which raises the possibility that a government agency could release their confidential business information in response to a public records act request.

All of this brings us to Joel Serra, an IBM lawyer-turned-heli-ski guide who combined his two interests and became attorney for the Heli-Ski U.S. Association, Inc. It’s a trade group that works on behalf of select heli-ski operators in Alaska, Wyoming, Washington, Nevada, Idaho, Colorado, and Utah.  Before he retired, Serra drafted a legal memo for his member companies on how to “protect confidential data, greatly limiting the scope of information that might be released to a third party via a FOIA request.”

In his memo, Serra points out that the federal Freedom of Information Act contains an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”  His guidance specifically targets operating plans, the documents that helicopter skiing firms provide to such agencies as the U.S. Forest Service as part of the permitting process.  These documents contain sensitive information such as locations of landing zones, safety procedures, guide and pilot training, and emergency response planning.

Developing such a plan can cost between $50,000 and $100,000, Serra told Trade Secrets Watch from his home near Taos Ski Valley, New Mexico.  (Serra still skis when he can, although an injury sustained in an avalanche in 2006 has cut down his time on the slopes.).  And, he says, it’s exactly that type of information that a competitor would seek to use when a permit comes up for renewal and the Forest Service opens the process up to all comers.  “A helicopter skiing operator has a legitimate interest in protecting that information,” he says.  “It is an asset of its business that others should not get possession of simply by filing a FOIA request.”

The Ninth Circuit has “implicitly found that a Forest Service permittee’s operating plan was a form of trade secret,” Serra writes in his memo, citing the 1996 decision in Frazee v. United States Forest Service.  But, Serra cautions, the Ninth Circuit also concluded that the operating plan at issue was readily available from public sources and was therefore not “confidential,” subjecting it to release.

Serra also advises heli-ski companies:

  • Provide only what is absolutely necessary to the government;
  • Retrieve confidential information after filing it with agencies;
  • Label anything confidential as such;
  • Tell the Forest Service they wish to be informed any time a FOIA request affects them;
  • “Fight the FOIA request – but act quickly!”