Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) This section shall apply to all data in the custody of the Department:
(1) which is designated "trade secret," as defined in Public Resources Code section 40062,
(2) which is considered by the Department or identified by the person who submitted the data to be confidential or proprietary data,
(3) which is received from a federal, state or local agency with a confidential or proprietary data designation, or
(4) which is exempt from disclosure under Government Code section 6250 et seq., or under other applicable provisions of law.
(b) Confidential or proprietary information shall include, but is not limited to:
(1) personal or business-related financial data, customer client lists, supplier lists and other information of a proprietary or confidential business nature provided by persons in applications, reports, returns, certifications or other documents submitted to the Department which if released would result in harmful effects on the person's competitive position;
(2) tax information prohibited from disclosure, pursuant to the Revenue and Taxation Code.
(c) Upon receipt of a request from a member of the public that the Department disclose data claimed to be trade secret, confidential or proprietary information, or if the Department, upon its own initiative, seeks to disclose such data, the Department shall inform the individual designated pursuant to section 17045 in writing that disclosure of the data is sought, and that a determination is being made as to whether any or all of the information has been properly identified as trade secret, confidential or proprietary information.
(1) If the Department determines that the information is not trade secret, confidential or proprietary information, the Department shall notify the person who furnished the information by certified mail. The person who furnished the information shall have 30 days after receipt of this notice to provide the Department with a complete justification and statement of the grounds on which the trade secret, confidential or proprietary information claim is being made. The justification and statement shall be submitted to the Department by certified mail. The deadline for filing the justification may be extended by the Department upon a showing of good cause made prior to the deadline specified for its receipt.
(A) The justification and statement submitted in support of a claim of trade secret, confidential or proprietary information shall include, but is not limited to, the following:
(1) a specific description of the data claimed to be entitled to treatment as trade secret, confidential or proprietary information;
(2) a statement as to whether it is asserted that the data is a trade secret, is confidential or proprietary information, that disclosure of the data would result in harmful effects on the person's competitive position, and if so, the nature and extent of such anticipated harmful effects;
(3) any statutory or regulatory provisions under which the claim of trade secret, confidentiality or proprietary is asserted;
(4) the period of time for which trade secret, confidential or proprietary treatment is requested;
(5) the extent to which the data has been disclosed to others and whether its trade secret, confidential or proprietary status has been maintained or its release restricted;
(6) trade secret, confidentiality or proprietary determinations, if any, made by other public agencies as to all or part of the data and a copy of any such determination, if available.
(B) Documentation, as specified in (A), in support of a claim of trade secret, confidentiality or proprietary may be submitted to the Department prior to the time disclosure is sought.
(2) The Department shall determine whether the information is protected as trade secret, confidential or proprietary information within 15 days after receipt of the justification and statement or, if no justification and statement is filed, within 45 days of the notice required by paragraph (1). The Department shall notify the person who furnished the information and any party who has requested the information pursuant to a public records request of the determination, by certified mail.
(3) If the Department determines that the information is not protected as trade secret, confidential or proprietary information, the notice required by paragraph (2) shall also specify a date, not sooner than 15 days after the date of mailing of the notice, when the information shall be made available to the public.
(d) Except as provided in subdivision (c), the Department may release information submitted and designated as trade secret, confidential or proprietary information to the following under the following conditions:
(1) Other governmental agencies, and the Legislature, may receive information that has been compiled or aggregated from confidential information, but does not reveal the specific sources of the information, when the information has been requested in connection with a local enforcement agency's or the Department's responsibilities under this division or for use in making reports.
(2) to the state or any state agency in judicial review for enforcement proceedings involving the person furnishing the information.
(e) Should judicial review be sought of a determination issued in accordance with section (c), the person requesting the data and/or the person making the claim of trade secret, confidential or proprietary information status in relation to the data, may be made a party or parties to the litigation to justify the determination.
1. New section filed 6-16-94 as an emergency; operative 6-16-94 (Register 94, No. 24). A Certificate of Compliance must be transmitted to OAL by 10-14-94 or emergency language will be repealed by operation of law on the following day. For prior history, see Register 89, No. 1.
2. Certificate of Compliance as to 6-16-94 order transmitted with amendment of section and NOTE to OAL 10-13-94 and filed 11-28-94 (Register 94, No. 48).
3. Change without regulatory effect amending section filed 10-29-2018 pursuant to section 100, title 1, California Code of Regulations (Register 2018, No. 44).
Note: Authority cited: Section 6253, Government Code; Sections 40502, 42297 and 42325, Public Resources Code. Reference: Section 6250 et seq., Government Code; Sections 40062, 42323 and 42783, Public Resources Code; and Sections 17052.14, 19542, 23612.5 and 45982, Revenue and Taxation Code.
