A/HRC/30/40
safety information on hazardous substances is confidential. There is widespread recognition
that health and safety information should not be confidential, and States have legally
binding obligations to this end.28
43.
The interpretation of what constitutes health and safety information varies. The
Stockholm Convention on Persistent Organic Pollutants provides implicit and nonexhaustive guidance as to what constitutes health and safety information, by virtue of what
is necessary to implement the Convention. Health and safety information necessary to
implement the Convention includes: chemical identity, physical properties, information
about the ability of the substance to travel across borders in wind and water, and evidence
of adverse effects to human health29 such as cancer and other non-communicable diseases.
In addition, the Convention compels the disclosure of information on the use of substances
eligible for listing under the Convention, otherwise the use of such substances may be
prohibited.
44.
Secondly, emissions of hazardous substances into the environment and the unsound
disposal of waste is public health information that should only in very rare circumstances
be confidential. For example, Spain does not allow for emissions reported under its
Pollutant Release and Transfer Register to be claimed as confidential.30 This information is
necessary to assess the potential for human exposure to hazardous substances and wastes,
inextricable from protecting human rights.
45.
Recurring challenges to realizing the right to information in the context of hazardous
substances are exceptions for commercial secrets. The refusal to disclose information
because it would adversely affect the value of intellectual property or the confidentiality of
commercial businesses or industrial information is not legitimate if it may hamper public
health or the overall public interest.31 According to one Government’s self-assessment, the
“current process for handling confidential business information requests is weighted toward
the protection of industry information rather than public access”,32 contrary to the intent of
the law. It is not legitimate to protect a competitive advantage of businesses that create risks
to public health and other public interests. Under the World Trade Organization’s
Agreement on Trade-Related Aspects of Intellectual Property Rights the disclosure of
certain types of health and safety information is unobjectionable “except where necessary
to protect the public”.33
46.
The Economic Commission for Europe Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters
does allow for the protection of intellectual property and commercial information, but not if
the information sought concerns emissions into the environment. In interpreting the
supremacy of the public interest in information about emissions into the environment over
confidentiality claims under the Convention, a General Court of the European Union held
in 2013 that:
28
29
30
31
32
33
Stockholm Convention on Persistent Organic Pollutants, art. 9; and Minamata Convention on
Mercury, art. 17. See also the Dubai Declaration on International Chemicals Management.
Stockholm Convention, annex D, para. 1 (e) (i).
Spanish Ministry of Environment, “First Spanish Protocol on Pollutant Release and Transfer
Registers Implementation Report” (December 2013–January 2014), p. 19, available from www.prtres.es/Data/images/20131216_EN_1erINFORMEP_PRTR_ESPANA.pdf.
Agreement on Trade-Related Aspects of Intellectual Property Rights, arts. 7–8. Often used as an
umbrella term, confidential business information may include trade secrets, which in some legal
systems (mostly civil law) are not considered intellectual property.
United States Environmental Protection Agency, Evaluation report (see footnote 18 above).
Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 39 (3).
11
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