Potential Trade Secrets Troll in West Virgnia

A few weeks ago we introduced the idea of the trade secrets troll, loosely defined as a company or individual that invokes trade secret protection to avoid public disclosure of unfavorable information, while claiming that such protection is needed to protect the information from competitors. A recent news story suggests that every day may bring a new trade secrets troll, the latest in West Virginia.

The left-leaning political blog Wonkette summed up the story well with its headline, “Freedom Industries Would Love To Tell You About The Other Chemical They Spilled, But Sorry, ‘Trade Secret’”

Two weeks after a chemical used for coal cleaning spilled in West Virginia’s Elk River (which feeds the state’s public water supply), Freedom Industries announced that 300 gallons of a substance identified only as “PPH, stripped” had been included in the spill. While Freedom Industries alerted the State Department of Environmental Protection that the PPH had been included in the spill, Freedom Industries did not disclose the specific chemical identity of the substance, claiming that such information was ”proprietary.” Based on the available information, the Center for Disease Control was only able to say that the chemical was “probably less toxic" than the other chemical included in the spill, and that the West Virginia water treatment system was “likely able to remove” the chemical from the drinking water. A number of state and federal agencies are continuing to investigate the effects of the spill.

Freedom Industries is entitled to legitimate trade secret protection like any other company. But it seems prudent to recognize some tipping point, clearly surpassed in this case, where the public interest in disclosure begins to outweigh a company’s interest in maintaining a competitive advantage through secrecy. Does Freedom Industries have any legitimate competitive interest in preventing disclosure? Or is it using trade secret law to protect itself from the ire of those whose water it may have poisoned?