Access to Commercial Information A Comparative Overview Darian Pavli Open Society Justice Initiative

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?

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

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

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

Access to Commercial Info in the EU Regulation 1049/2001 on access to EU documents: 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).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-disclosureThird 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.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: Directive 2004/18 on public contracts: Regulates access to public contracts within the internal marketRegulates 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 lawStrong 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

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

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

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