Current through Register Vol. XLI, No. 40, October 4, 2024
Section 60-7-4 - Determination of Confidentiality4.1. In the course of making a determination of confidentiality, the Secretary will consider the following criteria in addition to the required justification under subdivision 3.3.b. 4.1.a. The claim of confidentiality has not expired by its terms, nor been waived or withdrawn;4.1.b. The claimant has satisfactorily shown that it has taken reasonable measures, and intends to continue taking such measures, to prevent disclosure of the information to others;4.1.c. The information claimed confidential is not, and has not been, reasonably obtainable without the claimant's consent by other persons (other than governmental bodies) by use of legitimate means; for example, the information is not contained in materials which are routinely available to the general public, including without limitation material in administrative or judicial proceedings/decisions, press releases, copies of speeches, pamphlets and educational materials;4.1.d. The extent to which the information has been disclosed to others and whether it was disclosed to other persons either by the claimant (except in a manner which protects the confidentiality of the information) or without the consent of the claimant (other than by subpoena or by discovery based on a showing of special need in a judicial proceeding, arbitration, or other proceeding in which the claimant was required to disclose the information to such other persons, as long as the information has not become available to persons not involved in the proceeding), and the precautions taken to prevent further disclosure;4.1.e. If the Secretary, United States Environmental Protection Agency or any other agency has previously made a confidentiality determination relevant to the pending confidentiality claim, copies of all such confidentiality determinations; and4.1.f. No law, regulation or order by a court or other tribunal of competent jurisdiction specifically requires disclosure of the information or provides that the information is not confidential information.4.2. Notice of Determination by the Secretary.4.2.a. If, after review of all the information submitted, the Secretary determines that the information is not confidential, the Secretary will notify the claimant by certified mail, return receipt requested. The notice will state the basis for the determination and that it constitutes final agency action concerning the confidentiality claim.4.2.b. If, after review of all the information submitted, the Secretary determines that the information is confidential, the Secretary will treat such information as confidential in accordance with the provisions set out in section 6. The Secretary will send written notice of the determination to the claimant. This notice will state the basis for the determination and that it constitutes final agency action. The Secretary will send the notice by certified mail, return receipt requested.4.2.c. If a determination has not been made prior to the time that a request for information is received from the public, the Secretary will, after allowing the claimant up to ten (10) days to claim the information confidential in accordance with this rule, proceed expeditiously to make a final determination in accordance with this rule. Before making such determination, the Secretary will provide notice to the claimant that a request for the confidential information has been received and provide the claimant a period of five (5) days to submit a written response to the Secretary.4.2.d. All requests to inspect or copy documents submitted under the Act must state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within ten (10) business days of the receipt of a request, the Secretary will: 4.2.d.1. Advise the person making the request in writing of the time and place where the person may inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty (20) days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the claimant; or4.2.d.2. Deny the request, stating in writing the reasons for denial.4.2.e. If the request addresses information claimed as confidential, the Secretary will provide notice of the action taken pursuant to subdivision 4.2.d to the claimant by certified mail, return receipt requested. Treatment of information pending confidentiality determination. The Secretary will treat asserted confidential information as confidential in accordance with the provisions of section 6 until the Secretary has made a final determination that the asserted information is not confidential.