Code of Massachusetts Regulations
310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION
Title 310 CMR 3.00 - Access To And Confidentiality Of Department Records And Files
Section 3.34 - Procedures for Determination of Trade Secret

(1) Any resident of the commonwealth may submit to the commissioner a written petition for the disclosure of any information which is claimed as a trade secret pursuant to M.G.L. c. 21I and 310 CMR 3.30. The petition shall specify the information sought to be disclosed. The Department shall notify the trade secret claimant of the petition.

(2) If the commissioner has reason to believe that the information claimed as a trade secret may not be a trade secret, the commissioner may, in the absence of a petition pursuant to 310 CMR 3.34(1), initiate a determination to be carried out in accordance with 310 CMR 3.34. The Department shall notify the trade secret claimant that the commissioner has initiated a determination as to whether the information claimed as a trade secret is a trade secret.

(3) Within 60 days after the date of receipt of a petition under 310 CMR 3.34(1), or upon the initiative of the commissioner pursuant to 310 CMR 3.34(2), the commissioner shall review the information submitted by the trade secret claimant pursuant to 310 CMR 3.33(3) and determine whether the explanation presents assertions which, if true, are sufficient to support a finding that the information claimed as a trade secret is a trade secret.

(4) If the commissioner determines, pursuant to 310 CMR 3.34(3), that the explanation presents assertions which, if true, are sufficient to support a finding that the information claimed as a trade secret is a trade secret, the commissioner shall, by certified mail, notify the trade secret claimant that he has 30 days from the date of such notification to supplement the explanation with detailed information to support a finding that the information claimed as a trade secret is a trade secret.

(5) If the commissioner determines, after receipt of any supplemental supporting detailed information submitted pursuant to 310 CMR 3.34(4), that the information claimed as a trade secret is a trade secret, the commissioner shall, by certified mail, so notify the trade secret claimant and the petitioner, if any. The petitioner, if any, may, within 30 days of the date of such notification, seek judicial review of the determination in accordance with M.G.L. c. 30A, § 14. The commissioner shall after final adjudication immediately return to the trade secret claimant all supplemental supporting detailed information submitted concerning the validity of the trade secret claim.

(6) All supplemental supporting detailed information submitted pursuant to 310 CMR 3.34(4) shall be kept in the secure storage area established and maintained in accordance with 310 CMR 3.00 while the claim is pending. The petitioner, if any, shall not be permitted to have access, except as approved by the court. Inentering any order approving access by the petitioner, the court shall consider the need for the entry of an appropriate protective order restricting the use or further disclosure of the confidential information.

(7) If the commissioner determines, after receipt of any supplemental supporting detailed information submitted pursuant to 310 CMR 3.34(4), that the information claimed as a trade secret is not a trade secret, the commissioner shall, by certified mail, so notify the trade secret claimant. The trade secret claimant may, within 30 days of the date of such notification request an adjudicatory hearing on the commissioner's determination in accordance with M.G.L. c. 30A and 310 CMR 1.00. A timely request for an adjudicatory hearing pursuant to 310 CMR 3.34(7) shall act as an automatic stay of the commissioner's determination pending completion of the adjudicatory hearing. A trade secret claimant aggrieved by the department's final decision upon said adjudicatory hearing may, within 30 days of the date of the final decision, seek judicial review pursuant to M.G.L. c. 30A, § 14. During judicial proceedings, if any, the information claimed as a trade secret shall remain confidential. Any court in considering a motion for a temporary restraining order or preliminary injunction to enjoin release of such information shall presume that release would cause irreparable harm to the trade secret claimant.

(8) If the commissioner determines, pursuant to 310 CMR 3.34(3), that the explanation presents insufficient assertions to support a finding that the information concealed is a trade secret, the commissioner shall, by certified mail, notify the trade secret claimant that he shall have 30 days from the date of such notification in which to request an adjudicatory hearing, or, upon a showing of good cause to amend the original explanation by providing supplemental assertions to support the trade secret claim. As used in 310 CMR 3.34(8), "good cause to amend" shall not include a claim that the explanation contains information which constitutes a trade secret pursuant to 310 CMR 3.00 thruogh 310 CMR 3.39.

(9) If the commissioner does not reverse or modify his determination under 310 CMR 3.34(3) after an adjudicatory hearing or an examination of any supplemental assertions allowed under 310 CMR 3.34(8), the commissioner shall, by certified mail, so notify the trade secret claimant and the trade secret claimant shall have 30 days from the date of the decision or date of notification in which to file for judicial review of the determination in accordance with M.G.L. c. 30A, § 14. A trade secret claimant aggrieved by the commissioner's final decision may within 30 days of the date of the decision seek judicial review pursuant to M.G.L. c. 30A, § 14. The information claimed as a trade secret, and any supplemental supporting information submitted pursuant to 310 CMR 3.34(3), shall remain confidential during judicial proceedings, if any. Any court in considering a motion for a temporary restraining order or preliminary injunction to enjoin release of such information shall presume that release would cause irreparable harm to the trade secret claimant.

(10) If the commissioner reverses or modifies his determination under 310 CMR 3.34(3) after an appeal or an examination of any supplemental assertions under 310 CMR 3.34(8), the procedures set forth in 310 CMR 3.34(5) through (7).