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On June 9, 2026, Express Scripts, Inc. (Express Scripts) filed an action against Texas Attorney General Ken Paxton, seeking a declaratory judgment to prevent the Texas A&M University System (Texas A&M) from releasing an unredacted version of a contract between Express Scripts and Texas A&M. Following a public information request for the contract, Express Scripts had proposed redactions to shield what it characterizes as (1) trade secrets and confidential commercial and financial information (including pricing, response times, and programmatic details), and (2) personal information of individuals (such as signatures and initials). The Texas Office of the Attorney General (OAG) reviewed the proposed redactions and, in a ruling dated June 2, 2026, concluded that the contract must be released in its entirety without any redactions. The OAG determined that, under relevant Texas state law, state agencies are required to post vendor contracts on their websites (Government Code § 2261.253(a)(1)), and that the trade secret and confidential information exemptions present in Texas state law do not apply here (Government Code § 552.0222(b)(1)). The OAG further held that common-law privacy could not serve as a basis to withhold information that is specifically made public by statute.
Express Scripts challenges the OAG's ruling on multiple grounds. It contends that the OAG's interpretation renders the statutory exceptions from disclosure in Texas state law effectively meaningless. Express Scripts further argues that the redacted commercial information qualifies as protected trade secrets under Texas case law and OAG precedent. With respect to the redaction of personal information, Express Scripts argues that Texas state law provides a specific statutory exception justifying that type of redaction (Government Code § 552.101).
Pharmacy benefit managers (PBMs), health plans, and any other entity that contracts with a public entity to provide administrative services for a benefit plan should consider the applicable public records laws to determine what exemptions exist and what procedural steps that must be taken to invoke them. A majority of states proactively disclose at least some public contracts online, including:
- Florida: Requires contracts between public and private entities to be posted, provided that confidential or exempt information is redacted.
- Indiana: Established the Indiana Transparency Portal earlier this year, allowing the public to monitor state expenditures in several categories, including in private contracts.
- Pennsylvania: Mandates that state agencies publish any contract for $5,000 or more but provides a carve-out for confidential or proprietary information and sensitive personal information, among other things.
We would note, though, that the level of risk can vary depending on the type of public entity. In Texas, for example, the posting requirement at issue here applies only to state agencies and institutions of higher education — not school districts, municipalities, or counties. Contracts with local entities remain subject to public records requests, but the benefits administrator (such as a health plan or PBM) may still be able to assert trade secret exemptions under relevant law, an option apparently foreclosed for contracts like the one between Express Scripts and Texas A&M. Nonetheless, the specific scope of the disclosure laws for different types of public entities will vary, and benefits administrators should carefully consider these nuances when structuring their contracts.
Benefits administrators, such as PBMs and health plans, should also clearly label and segregate confidential information within the contract to ensure it falls within a disclosure exemption. For example, the Texas State Auditor’s Office has recommended that agencies and their contractors “clearly identify and label the contract provisions that include proprietary information.” Where possible, benefits administrators should structure contracts so that proprietary information is segregated from other general contract provisions, including through the use of a confidential exhibit or schedule.
Generally speaking, the most effective way to prevent public disclosure is to draft the contract so that confidential information clearly falls within the relevant disclosure exception specific to that state, such as by using language to describe a trade secret that is taken verbatim from or adheres closely to the applicable state trade secret statute. Contracts should also include provisions requiring the public entity to provide prompt notice of any public records request (which appears to have been included in the agreement between Express Scripts and Texas A&M). However, benefits administrators, such as PBMs and health plans, should be aware that parties cannot fully avoid certain disclosure requirements through creative drafting of contracts. Wisconsin’s Public Records Law Compliance Guide, for example, specifically states that parties cannot contract away the public’s right to disclosure. Similarly, the relevant portion of Texas state law only exempts certain types of information that are indisputably confidential from disclosure (Government Code § 552.0222).
Finally, PBMs and health plans should maintain an independent record of measures taken to protect confidential information, including contemporaneous documentation (i.e., internal policies restricting access, encryption protocols, employee training records, and consistent marking of documents as confidential) to support a trade-secret claim if challenged.
Given the prevalence of contracts between benefits administrators and public entities, PBMs and health plans should be aware that agreements with public entities can trigger public disclosure requirements. This awareness, combined with precise contract drafting with respect to confidential or sensitive proprietary information, will help to mitigate the risk that such information is disclosed to the public (including commercial competitors), to their detriment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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