Confidential means confidential for VOWs

The deadline for MLSs to adopt a VOW policy consistent with the final judgment (settlement) in the NAR/DOJ litigation may have passed (February 15), but questions about the policy remain.  One of the questions that continues is what information MLSs can exclude from VOW feeds as confidential. I think the key language to answer this question is in Section III(2) of Exhibit A (PDF) to the Final Judgment, which states “Confidential data includes only that which Participants are prohibited from providing to customers orally and by all other delivery mechanisms.”  To comply with this “parity” provision, I would recommend that for every field the MLS deems confidential for purposes of VOW feeds, there should be a mirror provision in the MLS rules that says the same fields cannot be disclosed to customers orally or by any other means.  As a practical matter, I think this means that very very few fields can be excluded from VOW feeds and every field sought to be excluded needs to be examined very carefully to ensure that the confidentiality of the field can truly be maintained (i.e., not disclosed to customers in any way).