Third Party Information and Trade Secrets

Third Party Information and Trade Secrets. A. Confidential or exemption claims. When any person files or submits documents with MDEQ which the filer contends are exempt from disclosure under the Public Records Act, the filer shall provide a written statement at the time of filing which shall describe the documents filed and which shall fully explain why the documents are designated as exempt from disclosure and must specifically cite any statute or other legal authority in support of such designation. Such written statement shall itself be a public record subject to disclosure. B. Clear Designation. Any document filed with MDEQ which contains trade secrets or confidential commercial or financial information subject to the protection of any applicable law or court decision shall be clearly designated as such by the filer on its face and accompanying cover letter at the time of filing and shall be placed in an envelope other than white. Each page of each document shall be marked confidential1. C. Confidential Information Claim Request. Pursuant to Miss. Code Ann. §§ 17-17-27 and 49-17-39, citizens and regulated entities providing information to MDEQ can request that the information be held confidential and not be made available for public inspection; trade secret information or confidential business information that does not concern environmental protection may be treated as confidential. This protection can be claimed properly, however, only for information that does not concern environmental protection. 1 Merely stamping a document "confidential" is not sufficient to allow the Commission to treat the document as confidential. In order to satisfy these statutes, a request for confidentiality must be made in the following manner: 1. The request must be made, in writing, at the same time the information is submitted to MDEQ; 2. The request must describe the information that the requestor would have treated as confidential and must explain the reason(s) why the information qualifies for confidential treatment; and 3. The request must allow disclosure of the confidential information "to authorized department employees and/or the United States Environmental Protection Agency (EPA).” D. Prior to Filing. Any person filing documents with MDEQ shall, prior to filing, redact from the documents any social security numbers, account numbers or dates of birth not required to be listed. MDEQ shall determine on a case-by-case basis whether similar information may be redacted by the filer to prevent identity theft. In no event will MDEQ bear any responsibility for a filer’s failure to redact such information which leads to or may lead to identity theft or other crime or loss. E. Commission approval or denial of Confidential Claim. In order for the claim of confidentiality to become effective against public review, the claim must be "determined by the Commission to be valid." This determination would be made (or denied) after an evidentiary hearing before the Commission held pursuant to Miss. Code Ann. § 49-17-35. 1. Initial Acceptance of Confidential Claim. The Commission has adopted the following policy in order to minimize the number of Commission hearings on confidentiality claims that need be pursued. When a citizen or regulated entity submits information under a claim of confidentiality, the claim will be honored initially by MDEQ if the claim regards information that arguably could be considered as not "concerning environmental protection" and if the claim meets the three requirements set forth above in Rule 2.7.C. If a claim of confidentiality is judged to meet these three requirements, and the document is judged arguably to include information not concerning environmental protection, then that information will be treated as confidential until and unless a member of the public requests to review the information. At the time the information is placed in an MDEQ confidential file, a notice will be placed in the entity's public record file indicating that additional information to which a claim of confidentiality attaches is included in a confidential MDEQ file. a. Notification of public record request. If and when a member of the public requests access to the information held by MDEQ under a claim of confidentiality, the supplier of the information will be notified of the request and will be given the option either to request a hearing before the Commission concerning the claim of confidentiality; work out a mutually agreeable arrangement with the requestor related to the information to be reviewed; or to allow all of the requested information to be reviewed. b. Commission Hearing. If a hearing is requested, the information will be treated as confidential by MDEQ until the Commission makes a determination on the issue and during the time in which an appeal of that Commission determination could be taken (if the Commission determination is adverse to the person or entity claiming confidentiality). 2. Initial Denial of Confidential Claim. If an initial claim of confidentiality is judged by MDEQ as not meeting the requirements set forth above, and/or as containing information concerning environmental protection, then the person supplying the information will be notified promptly of MDEQ's conclusion and will be notified of his or her right to pursue the claim of confidentiality before the Commission at the next available Commission meeting. The claimant will be given ten days from notification of deficiency by MDEQ in which either to correct any deficiency in the confidentiality claim (such as the lack of required permission for EPA review) or to request in writing a hearing before the Commission on the confidentiality claim. After that ten-day period, the information will be treated as public information by MDEQ if no adequate correction of the claim or written request for a hearing has been made. Again, if a timely written request for a hearing is received, MDEQ will treat the information in question as confidential until the Commission makes a final determination and the period for perfecting an appeal regarding that decision has run. a. Opportunity to Appeal. If the Commission denies the claim of confidentiality, the claimant may perfect an appeal of that decision to a court of appropriate jurisdiction (by filing a notice of appeal with MDEQ, as required by Miss. Code Ann. § 49-17-41). b. Treatment of Information if appealed. MDEQ automatically will continue to treat the information at issue as confidential for thirty (30) days after the filing by MDEQ of the record on appeal with the appropriate court. Within those thirty (30) days, the claimant must apply to the court in which the appeal is lodged for any further protection of the information pending appeal (through an appeal with supersedeas, temporary restraining order, preliminary injunction, or similar relief). MDEQ will treat the information as public information after that thirty- day period unless a court of appropriate jurisdiction instructs MDEQ to hold the information as confidential or unless all parties to the matter agree otherwise.