Section 5440 - Designation of Confidential InformationNo confidential information, or information that is the subject of a pending application, shall be disclosed except as provided by Section 5441, unless disclosure is ordered by a court of competent jurisdiction.
(a) Any person giving custody or ownership of information to the agency shall indicate any desire that it be designated confidential information and not publicly disclosed, but failure to so indicate at the time the information is submitted to the agency is not a waiver of the right to request confidentiality later. A request for confidential designation shall:(1) be on a sheet or sheets separate from but attached to the information;(2) specifically indicate those parts of the information which should be kept confidential;(3) state the length of time the information should be kept confidential, and provide justification for the length of time;(4) cite and discuss (i) the provisions of the Public Records Act (California Government Code 6250 et seq.) or other law that allows the agency to keep the information confidential, and (ii) the public interest in nondisclosure of the information. If it is believed that the record should not be disclosed because it contains trade secrets or its disclosure would otherwise cause loss of a competitive advantage, the request shall also state the specific nature of the advantage and how it would be lost, including the value of the information to the requesting party, and the ease or difficulty with which the information could be legitimately acquired or duplicated by others;(5) state whether and how the information is kept confidential by the requesting party and whether it has ever been disclosed to a person other than an employee of the requesting party, and if so under what circumstances;(6) contain the following certification executed by the person primarily responsible for preparing the request: "I certify under penalty of perjury that the information contained in this request for confidential designation is true, correct, and complete to the best of my knowledge, and that I am authorized to make this request and certification on behalf of [name of entity]"; and(7) specify whether the person submitting the request wishes the information returned or disclosed upon a denial of confidential designation; information returned to requesting party shall not be considered or reviewed as part of any application for grant funding to the agency.(b) If the information contains information which the requesting party has received from another party who has demanded or requested that the requesting party maintain the confidentiality of the information, the requesting party shall address the items in Section 5440(a) to the greatest extent possible and shall explain the request made by the original party and the reasons expressed by the original party.(c) An incomplete request shall be returned to the requesting party with a statement of its defects. The information for which confidentiality was requested shall not be disclosed for thirty (30) days after return of the request to the requesting party to allow a new request to be submitted.(d) If a requesting party's prior request for confidential designation of substantially similar information has been granted, a request for confidential designation shall be deemed granted if the request contains a certification that the information submitted is substantially similar and that all facts and circumstances relevant to the granting or approval of the request are unchanged.(e) The secretary shall determine if a request for confidential designation should be granted. A request shall be granted unless the requesting party has failed to make any reasonable claim that the Public Records Act or other provision of law authorizes the agency to keep the information confidential, and upon a finding by the agency that there is a public interest in nondisclosure of the information. The secretary shall be authorized, within thirty (30) days after receipt of a request, to require the requesting party to submit any additional information necessary to rule on the request. If the additional information is not returned to the agency within fourteen (14) days of agency mailing of the request, the secretary shall deny the request. The secretary's determination shall be in writing and shall be mailed no later than sixty (60) days after receipt of a request or thirty (30) days after receipt of additional information, whichever is later. There shall be no administrative appeal from the secretary's decision. The information sought to be designated confidential shall not be available for inspection or copying for a period of 30 days after the denial of a request, during which time the requesting party may appeal such denial to a court of competent jurisdiction.Cal. Code Regs. Tit. 10, § 5440
1. Repealed by operation of Government Code section 11346.1(g) and new section filed 8-20-89; operative 8-20-89 (Register 89, No. 31). For prior history, see Register 89, No. 2.
2. Change without regulatory effect amending subsections (a), (a)(4), (a)(7) and (e) filed 2-7-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 6). Note: Authority cited: Sections 6253(a) and 15379.9, Government Code. Reference: Sections 15333.5 and 15379.3, Government Code.
1. Repealed by operation of Government Code section 11346.1(g) and new section filed 8-20-89; operative 8-20-89 (Register 89, No. 31). For prior history, see Register 89, No. 2.
2. Change without regulatory effect amending subsections (a), (a)(4), (a)(7) and (e) filed 2-7-94 pursuant to title 1, section 100, California Code of Regulations (Register 94, No. 6).