A Handbook of Contemporary Research
Edited by Rochelle C. Dreyfuss and Katherine J. Strandburg
Chapter 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 memorandum went on to state that FOIA ‘should be administered with a clear presumption: in the face of doubt, openness prevails’. As part of the directive, 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 Olson, the participants at the Workshop on Trade Secrecy at New York University...
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