consultant: cmdc joint venture confidentiality issues

Consultant: CMDC Joint Venture

Confidentiality Issues


Directives

• IPPC Directive 96/61/EC

•EIA Directive 85/337/EEC, 97/11/EC

Also relevant:•Access to Information Directive 2003/4/EC


IPPC Directive

Art. 15Subject 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.


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


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


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.


UK Guidelines


Commercial confidential information Three categories

1. Trade secrets

2. Commercial confidences

3. Intellectual property


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


Trade secrets (2)

Would include information, e.g•Formula•Pattern•Programme•Method•Technique•Information contained in a product, device or mechanism


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:



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



Examples of 1:•Information on proposed projects, tenders•Details of decision-making processes•Cost structures•Development plans•Production oriented information not under “trade secret”



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



Examples of 2•Background information about the organisation that may in some way influence the way the organisation develops or operates in the future.


Intellectual property (1)

Information:•Linked to R&D of new equipment, designs, processes, •Typically in advance of production/use stage


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!


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?


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?


Test 2

Would its disclosure be likely to prejudice to an unreasonable degree the commercial interests of the operator?


Test 3Is 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


If answers to:

Test 1 = yes

Test 2 = yes

Test 3 = no

Information should be determined to be commercially confidential


If answers to:

Test 1 or 2 = no

Test 3 = yes

Information should NOT be treated as commercially confidential


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!)


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)


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


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


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


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


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


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


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)


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


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


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.

consultant: cmdc joint venture confidentiality issues

Documents

information directive

background information

environmental information

confidentiality of commercial

commercial application

intrinsic commercial

directive subject

operatorcommercial confidences