Current through Register 1531, September 27, 2024
(1)
Records Available to the Public. Every Record
pertaining to a Person governed by 360 CMR 10.000 which is made or received by
the Authority, shall be considered a Public Record and shall be available for
disclosure to the general public pursuant to a request under 360 CMR 10.011
except the following:
(a) all Records
specifically excluded from the definition of a "public record" pursuant to
M.G.L. c. 4, § 7(26).
(b) all
Trade Secrets the disclosure of which would not be in compliance with the
Massachusetts Clean Waters Act, M.G.L. c. 21, § 27(7), or any other
provision of Massachusetts law governing the confidentiality of records
submitted to a governmental entity;
(c) all Records specifically or by necessary
implication exempted from disclosure by law.
(2)
Processing Requests for
Disclosure of Public Records.
(a) The Authority shall permit any person,
under the supervision of Authority personnel, to inspect any Public Record
regarding a Person governed by 360 CMR 10.000 which is in the custody of the
Authority and not exempted by 360 CMR 10.01 l(l)(a) through (c) and, upon
request, shall supply one copy of such a Record upon payment of a reasonable
fee to the Authority. The Authority may require each Person for whom a search
of Public Records is made to pay the actual expense of the search.
(b) Every request to inspect a Public Record
regarding a Person governed by 360 CMR 10.000 shall be made in writing to the
Authority.
(3)
Request for Confidentiality. Whenever any Person
governed by 360 CMR 10.000 requests in writing that a particular Record be
deemed to contain a Trade Secret or otherwise be deemed confidential and exempt
from disclosure, the Record shall be treated as confidential and shall not be
deemed a Public Record until the Authority has approved or denied the request.
Any claim of confidentiality must be made at the time the Record is submitted
and each page of the Record shall be clearly marked "CONFIDENTIAL". If no such
claim is made, the Authority may make the information available to the public
without further notice. In addition, in no event shall the constituents of
Wastewater discharges or other effluent data be considered confidential
information.
(4)
Postponing Denial of Confidentiality Pending Appeal.
Whenever the Authority denies a request to deem a Record confidential and not a
Public Record, the denial shall take effect only ten days after the date
thereof so that the denial can be appealed to the appropriate administrative or
judicial forum. During this ten-day period, the Record in question shall be
treated as confidential and not deemed a Public Record. The Authority may grant
a written extension of the ten-day period upon request for good cause
shown.
(5)
Protecting
the Confidentiality of a Trade Secret. Any Record the Authority
determines to be a Trade Secret shall not be deemed a Public Record and shall
be exempt from disclosure to the general public.
(6)
Disclosure of Trade
Secrets. Notwithstanding 360 CMR 10.011(5), a Trade Secret may be
disclosed by the Authority to the extent necessary to comply with the Federal
Water Pollution Control Act,
33 U.S.C. §
1251, et seq., as amended,
or the Massachusetts Clean Waters Act, M.G.L. c. 21, or to the extent necessary
for an administrative, civil, or criminal enforcement action.
(7)
Trade Secrets Subject to
Confidentiality. A Trade Secret may be treated as confidential and
not as a Public Record only if:
(a) such
treatment was requested in writing in accordance with 360 CMR
10.011(9);
(b) the information
meets the criteria of a Trade Secret under 360 CMR 10.011(8); and
(c) there is an exemption applicable to such
information within 360 CMR 10.011(1) that allows for confidential treatment of
the information as an exception to its presumed treatment as a Public
Record.
(8)
Requests for Protecting the Confidentiality of Trade
Secrets. No record shall be deemed a Trade Secret, unless the
Person requests the Authority in writing to take such action. The request shall
be made and substantiated as follows.
(a) Each
Record containing information which is the subject of a confidentiality request
shall be clearly marked "CONFIDENTIAL".
(b) The confidentiality request shall be
supported by the following information, which shall be treated as a Public
Record and which shall be provided no later than 15 days after the request:
1. The time period for which confidential
treatment is desired;
2. The reason
the Record was provided to the Authority, and the submittal date;
3. The extent to which the Person making the
request has disclosed the contents of that Record to other persons;
4. A list of all federal, state and local
agencies to which the same Record or contents thereof has been submitted, which
of those agencies has been requested to keep that Record confidential, the
status of the request, and a copy of the response by the agency to the
request;
5. How making the Record a
Public Record would harm the Person requesting confidentiality and why such
harm should be deemed substantial; and
6. If the Record was submitted voluntarily
and not in compliance with a regulation or order, whether and, if so, why,
making the Record a Public Record would tend to lessen the availability to the
Authority of similar records in the future.
(9)
Criteria for Determining a
Trade Secret. The Authority shall apply the following criteria to
determine whether a Record is a Trade Secret:
(a) The extent to which the Trade Secret is
known by persons other than the Person submitting the Record;
(b) The extent to which the Trade Secret is
known by employees of the Person submitting the record, and others involved in
the Person's business;
(c) The
extent to which measures are taken by the Person submitting the record to guard
the secrecy of the Trade Secret;
(d) The value of the Trade Secret to the
Person submitting the record and to the Person's competitors; and
(e) The ease or difficulty with which the
information could be properly acquired or duplicated by others.
(10)
Action on
Confidentiality Requests. The Authority shall act on
confidentiality requests as follows:
(a) The
Authority shall determine whether the Record would be voluntarily submitted
under 360 CMR 10.011 (7)(b) and whether the Record, if made public, would
divulge a Trade Secret. The Authority shall give written notice of its
determination to the Person requesting confidential treatment upon request by
said Person for notification.
(b)
If the Authority determines that a Record would, if made public, divulge a
trade secret, the Record in question shall be deemed confidential and shall not
be deemed a Public Record for such length of time, and subject to such terms,
conditions and limitations as the Authority may determine.
(11) Nothing in 360 CMR 10.011 shall be
construed to authorize the Authority to withhold information from EPA (or from
DEP, should it be approved by EPA to oversee the Authority's industrial
pretreatment program in lieu of EPA). Nothing in 360 CMR
10.011 shall be construed to deny the public's access to records as provided in
40 CFR
403.14.
