Secrecy and Access in an Innovation Intensive Economy: Reordering Information Privileges in Environmental, Health, and Safety Law

Abstract

This article examines the law concerned with access to information that is commercially valuable when it is kept secret but is also essential to environmental, health, and safety (EHS) risk evaluation. EHS law stimulates sustainable economic activity, including new technologies, and thus complements intellectual property law. Access to EHS information is essential to risk management, but current disclosure obligations are unclear, as the law is a patchwork of familiar but ill-fitting concepts and entitlements. The article discusses the current law that affects disclosure, taking into account recent changes in the technological and economic landscape. It also describes the contrasting uses of EHS information in risk management and in commercial competition. When the tensions between commercial uses of information and EHS risk management are viewed in context, the essential functions and the value of EHS disclosure become apparent. The article draws the outlines of a realignment of the relationship between the two interests in the information. It concludes that, rather that balance the two competing interests, the law should make clear that EHS disclosure is the general rule and should allow only very limited nondisclosure privileges to protect emerging innovations.