Jump to Navigation
Jump to Content

Comment on Information Access--Surveying the Current Legal Landscape of Federal Right-to-Know Laws

August 2009

Citation: ELR 10783

Author: Mark Cohen

Prof. David Vladeck's article, Information Access--Surveying the Current Legal Landscape of Federal Right-toKnow Laws, provides a powerful case for strengthening existing environmental right-to-know laws such as the Freedom of Information Act (FOIA) and other enabling statues that require firms to report--and the government to provide public access to--environmental information. He focuses on two examples where almost by default, due to procedural burdens and the ability to claim proprietary business information, the government can withhold and/or delay release of data. Instead of focusing on the legal aspects of right-to-know laws, this brief comment argues that information provides an important social value--but one that must be weighed against the potential costs of information provision. Clearly identifying these costs and benefits helps to shed light on the appropriate legal thresholds for disclosure.

The costs of disclosure are well articulated by both firms and government regulators. From a company's perspective, there is both the physical cost of disclosure (e.g. filling out Toxics Release Inventory reports) and the potential cost of losing proprietary information. The first cost is not particularly relevant to Vladeck's article, since he focuses primarily on data that has already been provided to the government or information that the government itself has either collected or generated. Certainly, the issue of firm proprietary data needs to be taken seriously--but it is also one that can be dealt with through judicial oversight without much difficulty. Courts know how to weigh the private interest of proprietary information against the public interest of disclosure. Even if there is a legitimate concern about proprietary data being released, if the potential social benefit is high enough that disclosure is warranted, adequate safeguards can often be provided so that the data can be selectively disclosed without fear disclosure to a competitor.

Mark A. Cohen is Vice President for Research, Resources for the Future; Professor of Management and Law and Co-Director, Vanderbilt Center for Environmental Management Studies, Vanderbilt University.

You must be a News & Analysis subscriber to download the full article.

You are not logged in. To access this content: