Access to Commercial Information

1. Access to Commercial Information A Comparative Overview Darian PavliOpen Society Justice Initiative

2. Access to Commercial Info in the US US FOIA Case-law: Exemption 4 “Trade secrets … and commercial or financial information … [that is] privileged or confidential” • Trade secrets: • traditional v. FOIA definition: any info that provides competitive advantage v. info related to production process (Public Citizen case) • Confidential financial info: National Parks’ objective test: • Would disclosure impair govt’s ability to obtain the info in the future? • Would it cause substantial harm to competitive position of provider?

3. Access to Commercial Info in the US Impairment to Govt: divergent case-law: • DC Circuit distinguishes between compelled and voluntary info: voluntary info not released if not customarily made public (Critical Mass case) • Allows govt agencies to choose what info to keep undisclosed. • Other Circuit Courts have refused to adopt the distinction: • Promises of confidentiality not sufficient to deny access • If govt has legal powers to request info, impairment arguments are unlikely to prevail

4. Access to Commercial Info in the US Substantial Competitive Harm: • Agency must prove: • provider faces competition; and • likely consequences of disclosure. • Info generally protected by courts: • data re assets, profits, losses and market share; • sales info: date, location, volume, price terms • some info related to govt contracts • but not info with ‘embarrasing potential’ for commercial entities

5. Access to Commercial Info in the US Disclosure of Procurement Info: • Basic procurement info is generally public: difficult for agencies to claim impairment or competitive harm • Voluntarily provided info less less likely to be disclosed • Most requests filed by competitors. Providers entitled to notification, giving rise to reverse-FOIA lawsuits • Not all info in procurement files made public: • Eg unit prices yes, but not line item or detailed pricing

6. Access to Commercial Info in the EU • Regulation 1049/2001 on access to EU documents: • Protects commercial interests of a natural or legal person … unless there is an overriding public interest in disclosure (Art. 4). • Third parties entitled to notification, unless a clear case of disclosure or non-disclosure • The practice: commercial confidentiality is third most invoked ground for refusals (8-16% in 2004), and the trend is upwards. • Directive 2004/18 on public contracts: • Regulates access to public contracts within the internal market • Strong guarantee of confidentiality in Art 6: contracting authority shall not disclose information forwarded to it by economic operators which they have designated as confidential—subject to national law

7. Access to Commercial Info in the EU • Directive 2004/18 on public contracts: Even final contract info may be withheld … • if it would impede law enforcement … • or otherwise be contrary to the public interest … • would harm the legitimate commercial interests of economic operators, public or private … • or might prejudice fair competition between them.

8. Access to Commercial Info in the EU • Slovenia: Radovljica Municipality case: • Procurement contracts are generally public, except for trade secrets. Trade secrets imply a competitive advantage. • Ireland: Rowan Solicitors case: • Post contract, fee rates and other details necessary to understand the nature of the services are public—even if causing some competitive harm—eg fee structure, terms of payment • Info submitted by non-successful bidders is generally protected • Scotland: the Prison Service case: • Private entities that do business with govt should accept “reasonable terms of scrutiny and openness provided for by the freedom of information legislation.” • Confidentiality agreements should be avoided, or include a public interest/FOI exemption clause

9. Access to Commercial Info in the EU Some food for thought: • Does the context matter: requests driven by competitive interests v. mismanagement/corruption concerns? • Different standards for different contexts? What about among EU members? • How does the increasing privatization of public services affect public info on good management and quality of service?