Harmonizing Freedom of Information and Trade Secrets in State Owned Enterprises: Why Procedures Matter

Résumé

This paper investigates the problem of harmonization between freedom of information and the economic interests of State-Owned Enterprises (SOEs), especially in light of the Brazilian legal framework. Since that topic has hardly been object of academic discussion so far, the paper is limited to an initial approach, based on preliminary findings of the research on ‘economic secrets in State-Owned Enterprises’.

The challenge lies in limiting secrecy to exceptional circumstances, thus preventing it from becoming the rule. In order to face that challenge, it is fundamental to draw on the experience acquired by handling secrets related to national security, which is the typical exception to freedom of information, alongside with the protection of private data.

First, the above mentioned problem will be extend, indicating in further detail why trade secrets in SOEs are a relevant challenge to freedom of information. The following section argues that the democratic supervision of SOEs can learn from the experience of national security secrecy, which is performed mainly through the development of accountability procedures which restrain the discretionary power of authorities. The final section highlights the absence of such procedural elements in the regulation of trade secrets in SOEs.