Appellee Theragenics Corporation is a Georgia company that develops, manufactures and sells radioactive “seeds” for use in a cancer treatment procedure know as brachytherapy. The active element in the seeds is Palladium-103 Pd-103, which does not exist in nature and which Theragenics manufactures by using its own proprietary method. Theragenics was the first company to produce and market a Palladium seed, and it is apparently only one of two that currently produces a Pd-103 seed. Because radioactive material is used in manufacturing the product, Theragenics’s operations are subject to regulation by the Environmental Protection Division EPD of the Georgia Department of Natural Resources DNR. In order to obtain and maintain a license to operate in Georgia, Theragenics was required to furnish EPD with detailed information regarding all aspects of its operation. This resulted in Theragenics filing a significant number of documents with EPD. Of that material, Theragenics only designated approximately one-third as “proprietary” or “confidential.” In November of 1997, EPD received a request under the Georgia Open Records Act, OCGA § 50-18-70 et seq., to review Theragenics’s files. This request was made by an attorney representing International Brachytherapy, S. A., IBt, a competitor whose principals are former Theragenics employees and against which Theragenics had a pending trade secret misappropriation action. EPD informed Theragenics of the request, and of its intent to disclose all material which were not expressly marked as confidential or proprietary material when originally filed. Theragenics reviewed its files, and informed EPD that many of the items that were not specifically designated as trade secrets contained protected information. Theragenics identified and marked those documents considered to contain trade secrets, and requested EPD to refrain from disclosing that material to IBt. However, EPD informed Theragenics that it would provide access to all papers which were not designated as trade secrets at the time of original filing. Theragenics sought injunctive relief. The trial court denied a preliminary injunction, concluding that Theragenics failed to take reasonable efforts to protect its trade secrets when it did not specifically notify EPD at the time of filing which documents contained protected information. The Court of Appeals reversed, holding that
if reasonable efforts were made to protect the dissemination of the information except for providing it to the EPD, then trade secret status was not lost simply because Theragenics did not notify EPD each time that it provided them with information containing trade secrets.
