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

Freedom of Information laws (“FOI laws”) are fundamental to enabling access to environmental information. The effectiveness of domestic and international environmental regulatory standards is dependent on ensuring strong information access regimes, especially for information submitted to governments by firms. However, there is an ongoing tension between providing and accessing complete regulatory information on the one hand, and maintaining the economic value of trade secrets on the other hand. Historically, this tension has been managed at the domestic level, within constitutional structures that balance access to information, privacy interests, and economic interests. However, the almost simultaneous advent of international norms and treaties containing obligations that ensure access to information on the one hand (especially through environmental treaties) and rules that require 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 in access to information. This Article argues that the specificity and strength of trade secret protections in TRIPS (article 39) and TRIPS-Plus regional and bilateral free trade agreements (“FTAs”) are hidden landmines that may unravel current access-to- information regimes (e.g. FOI laws). The aim of this Article 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.

55 Colum. J. Transnat'l L. 648