OCTOBER 11, 2010 - Law professor David Levine. (Photo by Kim Walker)A few days ago, the hydraulic fracturing (“fracking”) industry was able to successfully lobby (via Halliburton) to weaken North Carolina’s proposed fracking information access rules.  The result could be that trade secrets – that information that is commercially valuable because it is not publicly known– will be difficult to access not only for the public, but even for the North Carolina Mining and Energy Commission, charged with writing and enforcing the regulations for fracking.  And at least to one MEC commissioner, that’s apparently just fine.  According to a NC Mining and Energy Commission (MEC) member (who was formerly with Halliburton): “The secrecy thing is to me a joke. The secret, such as it is, is only of value to the competitor.”   

The notion that this information is only valuable to a competitor is substantively false.  The MEC – itself not a competitor – needs to know this information so as to assure that any environmental, health and safety (“EHS”) concerns are addressed, before those concerns manifest themselves in fracking wells.  Moreover, the public at large – itself not a competitor – has an interest in assuring that EHS concerns are being addressed, and it (or experts within it) needs accurate and complete information to conduct such an assessment.

The belief that trade secrets are only of interest to competitors is one of the great myths in intellectual property, and information management, today.  But of course, as has been the experience in much of policymaking these days, the merits don’t matter much when the levers of decision- and policy-making are controlled by one side of the issue.  One of those levers – and in my view, the most critical — is control of information flow.  If the proposed NC rules are implemented as written, the public will have to bank not primarily on data and information, but primarily on the fracking industry’s regular admonitions that fracking is safe.  I hope that they’re right, but that’s a very thin and bad reed upon which to rest public policy decisions like whether to drill and use chemicals in our planet.

Fortunately, this issue is not dead in NC: a public comment period on NC’s proposed rules will open later this year.

The above example buries the lead, as it gets to the heart of a much more fundamental problem.  Beyond fracking, the more important issue is the broad control of critical information by corporations.  Fracking’s trade secrets (again, for now) is just another sad example of this phenomenon, and the forces arrayed against balanced access-to-information rules are formidable.  I will continue to work to achieve balance in access-to-information rules and respect for more than just commercial interests when it comes to access to commercial information that directly impacts the public’s interests.

All of us should care that policymakers and the public have the information and data that they need in order to make sound decisions; for regulators especially, that access should be unfettered.  Without that, we’re all left hoping for the best, and expecting the worst.  We can and should do better.

[Disclosure: I am a member of the MEC’s Protection of Trade Secrets and Proprietary Information Study Group.  The opinions expressed here are solely my own.]