Private Sector Environmental Information and the Law

Acknowledgements

List of acronyms and abbreviations






Introduction





Why now?



Background and scope



Normative Framework




Preliminary Notions of the Right to Know and the Private Sector





Legal and Historical Precedents of Access to Environmental Information





Transition to democratic state models



The transparency trend



'Information governance' and environmental reform



The evolution of human rights theory




Fundamental notions of Private Entities





Public v Private



Definition of Private Entities



Public and Private Information



The protection of business confidentiality




The Aarhus Convention: Fundamental concepts and contribution





Environmental Participation under Aarhus



Contribution and innovative features






Characterisation of the Right to Access Environmental Information





Recognition of the right to information as a human right





The Right to Access Environmental Information in International Law



Influence of International Law in regional and national jurisdictions



Statutory and constitutional recognition of the right to information



The right of access to environmental information at national level




Systems for public participation in environmental matters




Scope of the Laws providing Access to Information





Scope of beneficiaries: Is access to information provided without discrimination and without having to state an interest?



Material scope: What information can be accessed?





Data, information and knowledge



Restrictions based on format



The definition of 'Environmental Information'



Access to 'relevant' environmental information in decision-making processes




Scope of obligated subjects



Scope of exempted information




Access to Private Sector Environmental Information





Why increase access to private sector environmental information?



Indirect access through public authorities





Active disclosure: from the private duty to report to the public obligation to inform



Passive access: Indirect access by request to a public authority




Direct access to environmental information held by private entities





Private entities included in the definition of 'public authorities'



Private entities not included in the definition of 'public authorities'



Private entities active disclosure






The Protection of Trade Secrets and 'Confidential Business Information'





Why is business confidentiality worthy of protection?



Defining 'confidential business information'



The logic behind the protection of CBI





Trade secrets as property



Trade secrets as Intellectual Property



Trade secrets as Human Rights




Statutes for the protection of CBI





Trade secrets under international law



CBI protection and national level



CBI not qualifying as trade secrets or IP



Types of CBI and trade secrets with special protection




Protection of CBI and trade secrets via exceptions to disclosure





Access to information about emissions into the environment according to the CJEU






Problems of the System for Access to Private Sector Information





Shortcomings of the public/private divide for access to environmental information





No clear criteria to assimilate private entities to public authorities



Deficiencies of corporate transparency



The organic focus of access laws




Overlapping between the definitions of 'environmental information' and 'confidential business information'





Cost-benefit analysis and other financial information



Technical information about hazardous activities or products



Chemical substances



Health and safety data



Environmental Impact Assessments and other relevant information on specific projects



Geotechnical information and natural resource's locations




Inconsistencies in the applicable laws



The current toolbox for solving conflicts between access to environmental information and the protection of CBI




Proposal to Reform Access to Environmental Information





Matrix of Values



Integrated contextual analysis instead of 'balancing of interests'




Conclusions and Recommendations





Colombia



The US



The EU