Access to Trade Secret Environmental Information: Are TRIPS and TRIPS Plus Obligations a Hidden Landmine?

Abstract

Freedom of Information Acts (FOIAs) have been fundamental to enabling access to environmental information. The effectiveness of domestic and international environmental regulatory standards has been dependent on ensuring strong information access regimes, especially for information submitted to governments by firms. However, there has been an ongoing tension between providing and accessing complete regulatory information on the one hand, and the interest in maintaining the economic value of trade secrets. Such tensions have historically been managed at the domestic level within constitutional structures balancing access to information, privacy interests, and economic interests. However, the almost simultaneous advent of international norms and treaties containing obligations on ensuring access to information on the one hand (especially environmental treaties) and rules requiring greater scope and stronger protection of trade secrets and confidential business information (e.g. the TRIPS Agreement; the Trans-Pacific Partnership) on the other, may have altered the structure of those domestic processes in ways that privilege private interests in trade secrets over public interests. This article argues that the specificity and strength of trade secret protections in TRIPS (Article39) and TRIPs-plus regional and bilateral free trade agreements are a hidden landmine that may unravel current access to information regimes e.g. Freedom of Information Acts (FOIAs). The aim of this paper is to delineate the nature and scope of the limits that TRIPS and TRIPS-plus regimes place on domestic access to environmental information regimes for information submitted to governments.

Keywords: Freedom of Information, Regulations, Trade Secrets, TRIPs

JEL Classification: K23