Comment on Information Access-Surveying the Current Legal Landscape of Federal Right-to-Know Laws
| Date | 01 August 2009 |
| Author |
8-2009 ENVIRONMENTAL LAW AND POLICY ANNUAL REVIEW 39 ELR 10783
Comment on Information Access—
Surveying the Current Legal Landscape
of Federal Right-to-Know Laws
by Mark A. Cohen
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.
Prof. David Vladeck’s article, -
Know Laws,1 provides a powerful case for strengthening
existing environmental right-to-know laws such as the Free-
dom of Information Act (FOIA) and other enabling statues
that require rms 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 infor-
mation, 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 t he potential costs of information provision. Clearly
identifying these costs and benets helps to shed light on the
appropriate legal thresholds for disclosure.
e costs of disclosure a re well a rticulated by both rms
and government regulators. From a company’s perspective,
there is both the physical cost of d isclosure (e.g. lling out
Toxics Release Inventory reports) and the potential cost of
losing proprietary information. e rst cost is not particu-
larly relevant to V ladeck’s article, since he focuses prima rily
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 rm proprietary data needs
to be taken seriously—but it is also one that can be dealt with
through judicial oversight without much diculty. Courts
know how to weigh the private interest of proprietary infor-
mation against the public interest of disclosure. Even if there
is a legitimate concern about proprietary data being released,
if the potential social benet 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.
1. David C. Vladeck,
, 39 ELR (E. L. P’ A. R.) 10773
(Aug. 2009) (a longer version of this Article was originally published at 86 T.
L. R. 1787 (2008)).
e costs to the government of disclosure are threefold.
First, there are the physical costs of disclosure, which can
be substantial when records must be searched and carefully
reviewed for legitimate concerns of non-disclosure. Second,
concerns have been raised that disclosure might stie the free
ow of internal deliberations t hat come with transparency.
Of course, many people would argue that government should
be transparent in its deliberations, and the latter argument is
not valid, even if the matter involves settlement negotiations
with a defendant. e extent to which more transparency on
these deliberations would reduce settlements is an empirical
issue to assess. us, there might need to be clear legal rules
that attempt to protect the settlement process but otherwise
allow for government transparency. ird, there have been
calls for less disclosure due to national security concerns,
especially following 9/11. While potentially a serious cost,
there is also evidence that immediately following 9/11, this
provided cover for signicant reductions in public data provi-
sion that provided little or no such threat.2
e benets of increased transparency accrue to both
private par ties and to society at large. Individuals who are
harmed by chemical releases, for example, might require
access to government data in order to both establish liabil-
ity and to estimate damages. e potential benets from
this information disclosure are signicant, a nd since this is
largely compensation for harm caused by one par ty against
another, this compensation is not a social cost at all. Instead,
it is a classic instance of internalizing externalities a nd thus
provides a net positive social benet.
Not all requests for information disclosure are for pur-
poses of litigation. Even if this information is not to be used
for litigation, it could provide local residents with important
knowledge about t he risks they face, and prompt them to
alter their behavior in ways that will improve their welfare—
whether it be to keep children from playing in certain areas,
pressuring local agency regulators to enforce existing laws,
lobbying political leaders to tighten environmental laws, or
2. See Mark A. Cohen.
9 C. E. S , 368-74 (2002).
Copyright © 2009 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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