(1) APPLICABILITY. This section establishes a
procedure which shall apply to requests made to the department to treat as
confidential, information in possession of the department or being requested by
the department.
(2) RESPONSIBILITY
FOR ESTABLISHING CONFIDENTIALITY. The burden of establishing the need for
confidential treatment of any information shall be on the person requesting
such treatment of the information.
(3) APPLICATION FOR CONFIDENTIAL STATUS. Any
person seeking confidential treatment of information shall file with the
department a written application for confidential status containing in
affidavit form:
(a) The name and address of
the applicant;
(b) The position of
the individual filing the application;
(c) The specific type of information for
which confidential status is sought;
(d) The facts and supporting legal authority
believed to constitute a basis for obtaining confidential treatment of the
information.
(4)
ADDITIONAL INFORMATION. Within 30 days of the receipt of an application, the
department shall mail to the applicant a written set of questions if necessary
for a determination under this section. If an extension has not been granted
and if the applicant fails to answer all the questions in affidavit form within
30 days, the department shall deny the application. The responses to the
questions shall be treated as confidential if a request for such treatment from
the applicant accompanies the responses, and if the applicant demonstrates that
the responses are entitled to confidential treatment under this
section.
(5) DECISION.
(a) Within 60 days of receipt of a complete
application or within 60 days of receipt by the department of the information
requested in questions asked pursuant to sub. (4), the department shall issue a
written decision on the request for confidentiality. The decision shall include
all of the following:
1. A finding which
identifies the type of information sought to be assigned confidential
status.
2. A determination of
whether the department has the authority to compel submittal of the
information.
3. If the authority
exists, a determination of whether the department is authorized by law to
assign confidential status to the type of information at issue.
4. The decision to deny or to grant the
request in whole or in part.
(b) A decision to assign confidential status
shall be made pursuant to one of the following:
1. Section
285.70,
Stats.
2. Section
289.09,
Stats.
3. Section
291.15,
Stats.
4. Section
293.47,
Stats.
5. Section
283.55,
Stats.
6. Upon a finding consistent
with the ruling in State ex rel. Youmans v. Owens, 28 Wis.2d
672, that confidential treatment of the information is in the public
interest.
7. Other specific
statutory or common law right to confidential treatment of
information.
(c) A
decision made pursuant to
Youmans shall also include answers
to the following questions:
1. How many
people have knowledge of the supposedly "secret" information? Will disclosure
increase that number to a significant degree?
2. Does the contested information have any
value to the possessor? To a competitor? Is that value substantial?
3. What damage, if any, would the possessor
of the secret suffer from its disclosure? What advantages would its competitors
reap from disclosure?
4. What
benefits are likely to flow from disclosure? To whom? Are they significant? In
this connection, what is the public "need" for disclosure? Can it be satisfied
in any other way?
(d)
The definition of "trade secret" in s.
134.90(1),
Stats., is adopted to apply to determinations made pursuant to s.
283.55,
Stats.
(e) A decision to approve
the request in whole or in part shall be published by the department as a class
1 notice in the official state newspaper, and such other notice as the
department deems appropriate shall be provided. The applicant or any interested
member of the public may obtain an adjudicatory hearing on the decision to
grant the request in whole or in part by petitioning the department for such a
hearing within 10 days of publication of the notice. If the decision is to deny
the request, the applicant shall be notified in writing of the decision by the
department, and shall have 15 days from the date of mailing of the decision to
petition the department for an adjudicatory hearing on the decision. A decision
to grant confidential status may state a term for which confidential status is
granted. Upon expiration of the stated term, the confidential status shall
terminate, unless it is renewed upon proper application.
(6) HEARING ON THE DECISION.
(a) If the department grants a request under
s.
227.42,
Stats., for a contested case hearing on the decision to grant or deny
confidential status, the department and any interested party may appear and
present evidence or testimony supporting its position. A class 1 notice of the
hearing shall be published by the department in the official state newspaper,
and other notice as the department deems appropriate shall be
provided.
(b) The hearing shall be
before an administrative law judge and testimony shall be under oath and
subject to cross-examination. The burden of establishing the confidential
status shall be with the applicant who sought confidential status for the
information which is the subject of the hearing.
(c) The administrative law judge shall
exercise discretion to determine which individuals may have access to
information alleged to be confidential and shall exercise the authority
provided by law to impose protective measures and conditions for inspection
necessary to safeguard confidentiality of the information during and after the
hearing.
(7) DECISION
FOLLOWING HEARING. If a hearing is held, the decision of the administrative law
judge shall be the final decision of the department. The decision of the
administrative law judge shall be in writing, shall include findings of fact
and conclusions of law, and shall be provided to all parties to the
hearing.
(8) INTERIM CONFIDENTIAL
STATUS. Information for which confidential status has been requested shall be
kept confidential by the department while it makes its decision under this
section. Information for which confidential status has been denied may not be
open to public scrutiny until 40 days after issuance of the denial. If the
denial is appealed, the information may not be open to public scrutiny until 40
days after completion of all appeals. Additional information supplied by the
applicant to support the request for confidentiality shall be treated as
confidential if the applicant so requests and the applicant demonstrates that
the additional information is entitled to confidential treatment under this
section.
