Consultant: CMDC Joint Venture Confidentiality Issues

Consultant: CMDC Joint Venture Directives IPPC Directive 96/61/EC EIA Directive 85/337/EEC, 97/11/EC Also relevant: Access to Information Directive 2003/4/EC

Consultant: CMDC Joint Venture IPPC Directive Art. 15 Subject to confidentiality, the following should be made available to the public: Permit application Decision on the permit application, with reasons The permit, including updates Results of monitoring of releases.

Consultant: CMDC Joint Venture EIA Directive Subject to confidentiality, the following should be made available to the public: Request for development consent Information on the proposed project (Art. 5) The decision, any conditions and reasons for the decision Description of main measures to reduce / avoid the major adverse effects

Consultant: CMDC Joint Venture Access to Information 2003/4/EC Art. 4.2 Request for environmental information may be refused, inter alia, if it would seriously affect: d)Confidentiality of commercial or industrial information e)Intellectual property rights f)Confidentiality of personal data g)Third party rights h)Protection of the environment

Consultant: CMDC Joint Venture The Art. 4.2 exceptions are to be interpreted in a restrictive way. Need to weigh the public interest of disclosure against the interest served by the refusal. Cannot refuse to disclose information on emissions to the environment.

Consultant: CMDC Joint Venture UK Guidelines

Consultant: CMDC Joint Venture Commercial confidential information Three categories 1.Trade secrets 2.Commercial confidences 3.Intellectual property

Consultant: CMDC Joint Venture Trade secrets (1) Information: is or may be used in trade / business Is not generally known in that trade/business Has economic value from not being generally known Is the subject of reasonable efforts to keep its secrecy

Consultant: CMDC Joint Venture Trade secrets (2) Would include information, e.g Formula Pattern Programme Method Technique Information contained in a product, device or mechanism

Consultant: CMDC Joint Venture Commercial confidences (1) Extends beyond trade secrets, since the information does not need to be capable of industrial or commercial application or use Two basic types of such information:

Consultant: CMDC Joint Venture Commercial confidences (2) 1.Information which has an intrinsic commercial value, where that value depends on the ability of the operator to maintain its confidentiality Criteria: a)Commercial – inc financial, scientific & technical information b)Confidential – has been treated as such by the operator

Consultant: CMDC Joint Venture Commercial confidences (3) Examples of 1: Information on proposed projects, tenders Details of decision-making processes Cost structures Development plans Production oriented information not under “trade secret”

Consultant: CMDC Joint Venture Commercial confidences (4) 2. Information which may not have intrinsic commercial value, but whose disclosure may unreasonably disadvantage the operator in the conduct of their lawful business. So is more of a “catch all” type of category of information

Consultant: CMDC Joint Venture Commercial confidences (5) Examples of 2 Background information about the organisation that may in some way influence the way the organisation develops or operates in the future.

Consultant: CMDC Joint Venture Intellectual property (1) Information: Linked to R&D of new equipment, designs, processes, Typically in advance of production/use stage

Consultant: CMDC Joint Venture Intellectual property (2) Note: When deciding if such information should be disclosed – Remember that the disclosure of an invention before an application for a patent has been submitted may prevent the owner from obtaining a patent!

Consultant: CMDC Joint Venture In deciding whether information should be commercially confidential, there are two key questions: 1.Would the information be useful to a competitor, and would otherwise be unobtainable to them? 2.Would disclosure of the information unreasonably damage the commercial interests of the operator?

Consultant: CMDC Joint Venture Three tests to answer these two questions Test 1 Is the information within one of the 3 categories: Trade secret Commercial confidence, or Intellectual property?

Consultant: CMDC Joint Venture Test 2 Would its disclosure be likely to prejudice to an unreasonable degree the commercial interests of the operator?

Consultant: CMDC Joint Venture Test 3 Is the information readily available in the public domain? e.g. via Public registers Consent applications Planning applications External emergency plans (Seveso II) Technical literature Published incidence reports Press articles or other media publications

Consultant: CMDC Joint Venture If answers to: Test 1 = yes Test 2 = yes Test 3 = no Information should be determined to be commercially confidential

Consultant: CMDC Joint Venture If answers to: Test 1 or 2 = no Test 3 = yes Information should NOT be treated as commercially confidential

Consultant: CMDC Joint Venture In UK test is applied very strictly The operator has to make a very strong case for commercial confidentiality As a result there are very few applications in the UK (and no decisions of the CA have been challenged!)

Consultant: CMDC Joint Venture In early days of IPPC, many operators thought that they had to include everything about their installation on the permit application Thus there were many concerns about Commercial Confidentiality (CC)

Consultant: CMDC Joint Venture View of the CA Need to look at the purpose of the IPPC permit Is there a bearing on the environmental performance of the installation? Are there any environmental impacts? If NO – then probably do not need to include this information on the application – thus issue of CC does not arise

Consultant: CMDC Joint Venture Chemical companies Thought that they had to include details of all chemicals on application Concerns that this would give a competitive edge to competitors View of CA Only needed to include information on chemicals in general terms Therefore issue of CC did not arise

Consultant: CMDC Joint Venture Snack (crisps) producer Worried that it would have to disclose chemicals used in flavouring View of CA Has no bearing on environmental performance of the installation, so needed to be included in application

Consultant: CMDC Joint Venture So message is: Remember what the overall purpose of the IPPC permit is for Important to discuss issues with operator in pre-application stage Application does not have to include everything: Discuss with operator before application is made If it does not have to be included in the application, then issue of CC may be resolved before it is raised

Consultant: CMDC Joint Venture How long does information remain confidential? Information that is deemed to be CC one day may not be CC at a later date Remember – e.g. patents are only valid for a limited period of time

Consultant: CMDC Joint Venture In UK If CA agrees with operator that information may be CC It only remains so for 4 years (or shorter period of time if specified by CA) Then operator has to re-apply for CC

Consultant: CMDC Joint Venture Chemical company wanted to test a new process Had not yet applied for patent CA Information could be CC for a limited period of time (until patent had been applied for)

Consultant: CMDC Joint Venture Sometimes have to think laterally! Major company, many coal-fired LCPs for producing electricity Applied for “substantial change” to introduce sulphur scrubbers at all its LCPs Wanted this information to be CC for a limited period of time

Consultant: CMDC Joint Venture CA granted application for CC Company wanted the sulphur scrubbers as it intended to move from (domestic) hard coal (low sulphur) to (imported) brown coal (high sulphur) Scrubbers needed to remove SO2 to stay within ELV limits

Consultant: CMDC Joint Venture Problem: Final agreement with new suppliers of the lignite coal had not been reached Company concerned that if information on the scrubbers came out this would highlight their intention to change suppliers of coal This may affect world prices of coal before agreement had been reached So wanted CC until agreement had been concluded.