Levine, David S. --- "The Impact of Trade Secrecy on Public Transparency" [2011] ELECD 557; in Dreyfuss, C. Rochelle; Strandburg, J. Katherine (eds), "The Law and Theory of Trade Secrecy" (Edward Elgar Publishing, 2011)

Book Title: The Law and Theory of Trade Secrecy

Editor(s): Dreyfuss, C. Rochelle; Strandburg, J. Katherine

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847208996

Section: Chapter 16

Section Title: The Impact of Trade Secrecy on Public Transparency

Author(s): Levine, David S.

Number of pages: 36

Extract:

16 The impact of trade secrecy on public
transparency
David S. Levine*


I. INTRODUCTION

During his first day as President of the United States, Barack Obama issued
a `memorandum for the heads of executive departments and agencies'
regarding the Freedom of Information Act (FOIA). In the first sentence
of the memorandum, President Obama noted that a `democracy requires
accountability, and accountability requires transparency'. The memo-
randum went on to state that FOIA `should be administered with a clear
presumption: in the face of doubt, openness prevails'. As part of the direc-
tive, President Obama ordered the Attorney General to issue new FOIA
guidelines and the Office of Management and Budget to `update guidance'
to the agencies to effect his directive.1 If President Obama's memorandum
is to have the impact that is apparently desired, then the Attorney General
and Office of Management and Budget will have to squarely consider the
current impact of trade secrecy doctrine on public transparency. If state
and local governments have similar concerns, they (perhaps even more
than the federal government) will also need to examine the impact of trade
secrecy on their conceptions of open government.
Trade secrecy, by its very name, invokes two core interests: secrecy
and commerce. It is a singularly commercial doctrine designed to protect


* Assistant Professor of Law, Elon University School of Law and Affiliate
Scholar, Center for Internet and Society, Stanford Law School. The author thanks
Steven Bimbo and Dan Nicotera for research assistance and Elizabeth Townsend
Gard, David ...