Section 439.735 - Request by manufacturer or pharmacy benefit manager to keep certain information confidential as a trade secret; procedures for Department to follow upon receipt of public records request for disclosure1. In complying with NRS 439B.635, as amended by section 11 of Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3724, 439B.640, as amended by section 12 of Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3725, or 439B.645, as amended by section 13 of Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3726, or section 6 of Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3723, if a manufacturer, wholesaler or pharmacy benefit manager reasonably believes that public disclosure of information that it submits to the Department would constitute misappropriation of a trade secret for which a court may award relief pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended, the manufacturer, wholesaler or pharmacy benefit manager may submit to the Department a request to keep the information confidential.2. A request for confidentiality submitted pursuant to subsection 1 must be divided into the following parts, which must be severable from each other: (a) The first part of the request for confidentiality must describe, with particularity, the information sought to be protected from public disclosure. Upon a request for public records pursuant to NRS 239.010, the Department will not disclose the description set forth in the request for confidentiality or the information sought to be protected from public disclosure, unless the description and information are disclosed pursuant to subsections 5 and 6.(b) The second part of the request for confidentiality must include an explanation of the reasons why public disclosure of the information would constitute misappropriation of a trade secret for which a court may award relief pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended. Upon a request for public records pursuant to NRS 239.010, the Department will disclose the explanation set forth in the request for confidentiality.3. If the Department receives a request for public records pursuant to NRS 239.010 seeking disclosure of any information for which a manufacturer, wholesaler or pharmacy benefit manager has submitted a request for confidentiality pursuant to subsection 1, the Department will: (a) As soon as reasonably practicable after receiving the request for public records, provide the manufacturer, wholesaler or pharmacy benefit manager with:(1) Written notice of the request for public records and the procedures set forth in this section; and(2) A copy of the request for public records and the date on which the Department received the request.(b) Undertake an initial review to determine whether the Department reasonably believes that public disclosure of the information would constitute misappropriation of a trade secret for which a court may award relief pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended. In undertaking its initial review, the Department will consider, as persuasive authority, the interpretation and application given to the term "trade secrets" in Exemption 4 of the federal Freedom of Information Act, 5 U.S.C. § 552(b)(4), as amended.4. If, after undertaking its initial review pursuant to subsection 3, the Department reasonably believes that public disclosure of the information would constitute misappropriation of a trade secret for which a court may award relief pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended, the Department will: (a) Within the time prescribed by NRS 239.0107, provide the requester of the public records with written notice pursuant to paragraph (d) of subsection 1 of NRS 239.0107 that the Department must deny the request for public records on the basis that the information is confidential pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended.(b) As soon as reasonably practicable after providing the written notice to the requester pursuant to paragraph (a), provide the manufacturer, wholesaler or pharmacy benefit manager with: (1) Written notice that the Department denied the request for public records; and(2) A copy of the written notice that the Department provided to the requester pursuant to paragraph (a) and the date on which the Department sent the written notice to the requester.5. If, after undertaking its initial review pursuant to subsection 3, the Department reasonably believes that public disclosure of the information would not constitute misappropriation of a trade secret for which a court may award relief pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended, the Department will: (a) Within the time prescribed by NRS 239.0107, provide the requester of the public records with written notice pursuant to paragraph (c) of subsection 1 of NRS 239.0107 that the Department intends to disclose the information, except that: (1) The Department will not be able to disclose the information until 30 days have elapsed following the date on which such written notice was sent to the requester; and(2) If the manufacturer, wholesaler or pharmacy benefit manager timely commences an action within the 30-day period as provided in subsection 6, the Department will not be able to disclose the information, unless the disclosure is permitted by that subsection.(b) As soon as reasonably practicable after providing the written notice to the requester pursuant to paragraph (a), provide the manufacturer, wholesaler or pharmacy benefit manager with:(1) Written notice that the Department intends to disclose the information; and(2) A copy of the written notice that the Department provided to the requester pursuant to paragraph (a) and the date on which the Department sent the written notice to the requester.6. If, within the 30-day period following the date on which the Department sent the written notice to the requester of public records pursuant to subsection 5, the manufacturer, wholesaler or pharmacy benefit manager: (a) Does not commence an action in a court of competent jurisdiction to enjoin the Department from disclosing the information pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended, the Department will disclose the information.(b) Commences an action in a court of competent jurisdiction to enjoin the Department from disclosing the information pursuant to the federal Defend Trade Secrets Act of 2016, 18 U.S.C. § 1836, as amended, the Department will not disclose the information until final resolution of the action, including any appeals. After final resolution of the action, if the court: (1) Enjoins the Department from disclosing the information as a trade secret, the Department will not disclose the information so long as the information retains its status as a trade secret.(2) Does not enjoin the Department from disclosing the information as a trade secret, the Department will disclose the information as soon as reasonably practicable after final resolution of the action.Nev. Admin. Code § 439.735
Added to NAC by Dep't of Health & Human Services by R042-18, eff. 5-31-2018; A by R121-20A, eff. 6/13/2022NRS 439B.685, as amended by section 16 of Senate Bill No. 380, chapter 547, Statutes of Nevada 2021, at page 3728