2005 Idaho Code - 9-342A — ACCESS TO AIR QUALITY AND HAZARDOUS WASTE RECORDS -- PROTECTION OF TRADE SECRETS

                                   TITLE  9
                                   EVIDENCE
                                  CHAPTER 3
                               PUBLIC WRITINGS
    9-342A.  ACCESS TO AIR QUALITY AND HAZARDOUS WASTE RECORDS -- PROTECTION
OF TRADE SECRETS. (1) To the extent required by the federal clean air act and
the resource conservation and recovery act for state primacy over any
delegated or authorized programs, even if the record is otherwise exempt from
disclosure under chapter 3, title 9, Idaho Code, any person may inspect and
copy:
    (a)  Air pollution emission data;
    (b)  The content of any title V operating permit;
    (c)  The name and address of any applicant or permittee for a hazardous
    waste treatment, storage, or disposal facility permit pursuant to chapter
    44, title 39, Idaho Code; and
    (d)  Any other record required to be provided to or obtained by the
    department of environmental quality pursuant to the federal clean air act
    and the resource conservation and recovery act, and the implementing state
    statutes, federal regulations and state rules, unless the record is a
    trade secret.
    (2)  For purposes of this section, a record, or a portion of the record,
is a "trade secret" if the information contained in the record is a trade
secret within the meaning of the Idaho trade secrets act, sections 48-801, et
seq., Idaho Code, including commercial or financial information which, if
disclosed, could cause substantial competitive harm to the person from whom
the record was obtained.
    (3)  Any record, or portion of a record, provided to or obtained by the
department of environmental quality  and identified by the person providing
the record as a trade secret shall not be disclosed to the public and shall be
kept confidential according to the procedures established in this section.
    (4)  Nothing in this section shall be construed as limiting the disclosure
of a trade secret by the department of environmental quality:
    (a)  To any officer, employee, or authorized representative of the state
    or the United States, under a continuing claim of confidentiality, as
    necessary to carry out the provisions of state or federal law, or when
    relevant to any proceeding thereunder;
    (b)  As determined necessary by the director of the department of
    environmental quality (under a continuing confidentiality claim) to
    protect the public health and safety from imminent and substantial
    endangerment;
    (c)  As required by state or federal law, including section 9-343(3),
    Idaho Code, under a continuing claim of confidentiality and subsection
    (1), of this section; or
    (d)  With the consent of the person from whom the record is obtained.
    (5)  It shall be the responsibility of any person providing a record to
the department of environmental quality to give notice of the existence of a
trade secret on each page or other portion of information at the time of
submittal and such person shall have the burden of demonstrating that the
information is a trade secret.
    (6)  Notwithstanding the time frames set forth in section 9-339(1), Idaho
Code, when a request is made to the department of environmental quality
pursuant to the provisions of this chapter for the disclosure of information
for which a trade secret claim has been made, and the information has not been
demonstrated to be a trade secret to the satisfaction of the director of the
department of environmental quality, within three (3) working days of receipt
of the request for the disclosure of the information the department of
environmental quality shall provide a written request for substantiation to
the person making the confidentiality claim. A response shall be submitted to
the department of environmental quality by the person claiming the trade
secret protection within ten (10) working days after receipt of the request
for substantiation or the information subject to the claim shall be disclosed
without further notice. Upon receipt of a timely response to the request for
substantiation, the director of the department of environmental quality shall
determine whether the information is a trade secret subject to protection.
    (a)  If it is determined that the information, or any portion of the
    information, is a trade secret, within three (3) working days after
    receipt of the response, the director of the department of environmental
    quality shall notify the person requesting the information that the
    request is denied pursuant to sections 9-339(3) and (4), Idaho Code.
    (b)  If it is determined that the information, or any portion of the
    information, is not a trade secret and is, therefore, subject to
    disclosure, within three (3) working days after receipt of the response,
    the director of the department of environmental quality shall inform the
    person making the confidentiality claim of the determination. The decision
    shall be a final agency action directly appealable, de novo, to the
    district court of the county where the records or some part thereof are
    located. An appeal contesting the decision of the director of the
    department of environmental quality to release information claimed to be a
    trade secret shall be filed within ten (10) working days from the date of
    receipt of the written notice of decision. The information claimed to be a
    trade secret shall not be disclosed until the period for appeal has
    expired with no appeal being taken, or a court order has been issued
    finding that the information is not a trade secret and all appeals of that
    order have been exhausted.
    (7)  In any appeal taken pursuant to this section, the court may award
reasonable costs and attorney's fees to the prevailing party if it finds the
claim of confidentiality or the decision of the director of the department of
environmental quality to provide records was frivolously pursued.
    (8)  The department of environmental quality shall adopt rules which
include:
    (a)  Appropriate measures to safeguard and protect against improper
    disclosure of trade secrets, including procedures to train all employees
    on the proper handling of trade secrets; and
    (b)  Any other provisions necessary to carry out this section.
    (9)  As it relates to the department of environmental quality, or to
agents, contractors, or other representatives of the department, the immunity
created in section 9-346, Idaho Code, shall apply only when disclosure of a
trade secret is made consistent with this section.