Section 33.1-15-01-16 - Confidentiality of records1.Public inspection. Any record, report, or information obtained or submitted pursuant to this article will be available to the public for inspection and copying during normal working hours unless the department certifies that the information is confidential. Anyone requesting department assistance in collecting, copying, certifying, or mailing public information must tender, in advance, the reasonable cost of those services.2.Information submitted as trade secrets. The department may certify records, reports, or information, or particular part thereof, other than emission data, as confidential upon a showing that the information would, if made public, divulge methods or processes entitled to protection as trade secrets. Any person submitting trade secret information must present the information to the department in a sealed envelope marked "CONFIDENTIAL". Each page of any document claimed confidential must be clearly marked with the word "CONFIDENTIAL". The submission must contain two parts: a. The material claimed to contain trade secret information; andb. A request for confidential treatment including:(1) All information for which no claim is being made;(2) An affidavit stating how and why the information fulfills the conditions of confidentiality under this subsection; and(3) An index to and summary of the information submitted which is suitable for release to the public.3.Accepted trade secret claims. All information which meets the test of subsection 2 must be marked by the department as "ACCEPTED" and protected as confidential information.4.Rejected trade secret claims. If the department determines that information submitted pursuant to subsection 2 does not meet the criteria of that subsection for confidential treatment, the department shall promptly notify the person submitting the information of that determination. The department shall in that event give that person at least twenty days in which to: a. Accept the determination of the department;b. Request that the information be returned to the person;c. Further justify the contention that the information deserves protection as a trade secret; ord. Further limit the scope of information for which a claim of confidentiality is made. If the person who submitted the information fails within the time period allowed by the department to demonstrate satisfactorily to the department that the information in the form presented qualifies for confidential treatment, the department shall promptly notify that person of that determination. If the person submitting the information did not request that it be returned, the department shall mark the information "REJECTED" and treat it as public information. The department's action on a reconsideration constitutes final agency action for purposes of judicial review. Appeal of this action must be to an appropriate district court.
5.Appeal of nondisclosure claims. Any person who identifies and tenders the reasonable cost of collecting, copying, certifying, and mailing particular information held by the department under subsection 2 may file with the department a petition for reconsideration stating how and why the public's interest would be better served by the release of the requested information than by its retention as confidential by the department. The department shall then reconsider the confidential status of the information. The department action on a petition for reconsideration constitutes final agency action for purposes of judicial review. Appeal of the department's action must be to an appropriate district court.6.Retention of confidential information. All information which is accepted by the department as confidential must be stored in locked filing cabinets. Only those personnel of the department specifically designated by the department shall have access to the information contained therein. The department may not designate any person to have access to confidential information unless that person requires such access in order to carry out that person's responsibilities and duties. No person may disclose any confidential information except in accordance with the provisions of this section. No copies may be made except as strictly necessary for internal department use or as specified in subsection 8.7.Maintenance of log. Persons designated by the department to maintain confidential files as herein provided shall maintain a log showing the persons who have had access to the confidential files and the date of such access.8.Transmittals of confidential information. As necessary, confidential information acquired by the department under the provisions of the act, or this article, may be transmitted to such federal, state, or local agencies, when necessary for purposes of administration of any federal, state, or local air pollution control laws, which make an adequate showing of need to the department, provided that such transmittal is made under a continuing assurance of confidentiality.9.Relationship to issuance of permits. The department may not process any application for a permit to construct or operate pursuant to chapter 33.1-15-14 or 33.1-15-15 until final agency action on confidential trade secret claims has been completed.N.D. Admin Code 33.1-15-01-16
Adopted by Administrative Rules Supplement 370, October 2018, effective 1/1/2019.General Authority: NDCC 23.1-06-04, 23.1-06-09; S.L. 2017, ch. 199, § 1
Law Implemented: NDCC 23.1-06-04, 23.1-06-12; S.L. 2017, ch. 199, § 21