Current through Register Vol. 28, No. 3, September 1, 2024
6.1 A person may request that certain records or portions of records submitted to DNREC be held confidential. Certain information may be determined confidential if its disclosure could potentially cause substantial competitive harm to the person or business from whom the information was obtained. The following section sets forth procedures and criteria by which DNREC will determine confidentiality of records or portions of records.
6.2 Procedure - In order for DNREC to make a determination that information submitted is of a confidential nature, and therefore to be afforded confidential status, a request must be made in writing to the Secretary at the time the record is submitted. The request shall provide substantiation for the allegation that the information should be treated as confidential. The request shall contain the following information:
6.2.1 The measures taken to guard against undesired disclosure of the information to others;
6.2.2 The extent to which the information has been disclosed to others, and the precautions taken in connection therewith;
6.2.3 Whether disclosure of the information would be likely to result in substantial harmful effects on their competitive position, and if so, what those harmful effects would be, why the effects should be viewed as substantial, and an explanation of how the disclosure would cause such harmful effects; and
6.2.4 Verification that significant effort or money has been expended in developing the information.
6.3 The following information shall be submitted:
6.3.1 Two public versions of the entire package of information that is submitted for determination, with alleged confidential information redacted (this version will be made available for public review). The public versions shall correspond page for page with the confidential versions, with the confidential portions having been redacted;
6.3.2 Two confidential versions of the entire package of information that is submitted for determination, that includes the alleged confidential information (this version will be used internally for technical review); and
6.3.3 Certification through a separate, notarized affidavit that the information is either trade secret or commercial/financial information that is of a confidential nature. The affidavit will be signed by the Responsible Official.
6.4 The burden lies with the party asserting the claim of confidentiality. A unilateral assertion that a record is confidential is insufficient evidence to support the Secretary in making a determination of confidentiality pursuant to this privilege.
6.5 After a final determination of confidentiality has been issued by the Secretary, any further submissions containing the same confidential information shall be deemed to be confidential based on the prior determination if DNREC determines that:
6.5.1 The Responsible Official notified DNREC in writing contemporaneously with the later submission that the later submission contains information previously determined to be confidential; and
6.5.2 The later submission identifies with particularity the prior confidentiality determination; and
6.5.3 The notice to DNREC met the requirements of Section 6.3 above relating to submission of multiple and redacted copies, and included the required affidavit of the Responsible Official; and
6.5.4 The later representations of confidentiality are sufficient to meet the requirements for a confidentiality determination.
6.6 Criteria
6.6.1 The Secretary may determine that the information submitted is entitled to confidential treatment if all of the following criteria are met:
6.6.2 Reasonable measures to protect the confidentiality of the information and an intention to continue to take such measures have been satisfactorily shown;
6.6.3 The information is not, and has not been, reasonably obtainable by other persons (other than governmental bodies) by use of legitimate means (other than court enforced order) without prior consent;
6.6.4 No statute specifically requires disclosure of the information;
6.6.5 A satisfactory showing has been made that disclosure of the information is likely to cause substantial harm to their competitive position; and
6.6.6 Verification that significant effort or money has been expended in developing the information.
6.7 Final Determination - The Secretary will make a final determination as to whether the information shall be considered public or confidential based upon a review of the information submitted pursuant to this Section. The person making the confidentiality request will be notified in writing of the Secretary's determination.
6.7.1 If the Secretary determines that disclosure of the information would violate 29 Del.C. §
10002(l)(2), the information will be deemed confidential until such time as the basis for a determination of confidentiality changes. It is the responsibility of the person who requested that the information be given confidential status to notify DNREC in writing of such changes.
6.7.2 If the Secretary finds that the information is not entitled to confidential treatment, the information will be considered public.
6.8 Defense of Secretary's Determination
6.8.1 Verification of Information - There will be instances in which the Secretary may be unable to verify the accuracy of the information submitted for determinations of confidentiality. The Secretary relies heavily upon the information furnished by the affected party in order to make a reasonable determination of confidentiality.
6.8.2 Information Determined Confidential - If the Secretary makes a confidentiality determination that certain information is entitled to confidential treatment, and DNREC is sued by a requestor for disclosure of that information, DNREC will:
6.8.2.1 Notify each affected party of the suit;
6.8.2.2 Call upon each affected party to furnish assistance where necessary in preparation of DNREC's defense; and
6.8.2.3 Defend the final confidentiality determination, but expect the affected party to cooperate to the fullest extent possible in the defense.
