Cal. Code Regs. Tit. 17, § 91022 - Disclosure of Confidential Data

(a) This section shall apply to all data in the custody of the state board

(1) designated "trade secret" prior to the adoption of this subchapter,

(2) considered by the state board or identified by the person who submitted the data as confidential pursuant to this subchapter, or

(3) received from a federal, state or local agency, including an air pollution control district, with a confidential designation, subject to the following exceptions:

(A) Except for the time limits specifically provided in subsection (b), only subsections (c) and (d) of this section shall apply to information submitted pursuant to Health and Safety Code Section 39660(e).

(B) Appropriate portions of an application for approval, accreditation, or certification of a motor vehicle emission control device or system shall be kept confidential until such time as the approval, accreditation, or certification is granted, at which time the application (except for trade secret data) shall become a public record, except that estimates of sales volume of new model vehicles contained in an application shall be kept confidential for the model year, and then shall become public records. If an application is denied, it shall continue to be confidential but shall be subject to the provisions of this section.

(C) If disclosure of data obtained after August 9, 1984 from a state or local agency subject to the provisions of the Public Records Act is sought, the state board shall request that the agency which provided the data determine whether it is confidential. The state board shall request that it be notified of the agency's determination within ten days. The state board shall not release the data if the agency determines that it is confidential and so notifies the state board; provided, however, that the data may be released with the consent of the person who submitted it to the agency from which it was obtained by the state board.

(b) Upon receipt of a request from a member of the public that the state board disclose data claimed to be confidential or if the state board itself seeks to disclose such data, the state board shall inform the individual designated pursuant to Section 91011 by telephone and by mail that disclosure of the data is sought. The person claiming confidentiality shall file with the state board documentation in support of the claim of confidentiality. The documentation must be received within five (5) days from the date of the telephone contact or of receipt of the mailed notice, whichever first occurs. In the case of information submitted pursuant to Health and Safety Code Section 39660(e), the documentation must be received within 30 days of the date notice was mailed pursuant to that section. The deadlines for filing the documentation may be extended by the state board upon a showing of good cause made within the deadline specified for receipt of the documentation.

(c) The documentation submitted in support of the claim of confidentiality shall include the following information:

(1) the statutory provision(s) under which the claim of confidentiality is asserted;

(2) a specific description of the data claimed to be entitled to confidential treatment;

(3) the period of time for which confidential treatment is requested;

(4) the extent to which the data has been disclosed to others and whether its confidentiality has been maintained or its release restricted;

(5) confidentiality determinations, if any, made by other public agencies as to all or part of the data and a copy of any such determinations, if available; and

(6) whether it is asserted that the data is used to fabricate, produce, or compound an article of trade or to provide a service and that the disclosure of the data would result in harmful effects on the person's competitive position, and, if so, the nature and extent of such anticipated harmful effects.

(d) Documentation, as specified in subsection (c), in support of a claim of confidentiality may be submitted to the state board prior to the time disclosure is sought.

(e) The state board shall, within ten (10) days of the date it sought to disclose the data or received the request for disclosure, or within 20 days of that date if the state board determines that there are unusual circumstances as defined in Government Code Section 6253, review the request, if any, and supporting documentation, if received within the time limits specified in subsection (b) above, including any extension granted, and determine whether the data is entitled to confidential treatment pursuant to Government Code Section 6254, 6255 or 6254.7 or other applicable provisions of law and shall either:

(1) decline to disclose the data and, if a request was received, provide to the person making the request and to the person claiming the data is confidential a justification for the determination pursuant to Government Code Section 6255; or

(2) provide written notice to the person claiming the data is confidential and, if a request was received, to the person requesting the data that it has determined that the data is subject to disclosure, that it proposes to disclose the data, and that the data shall be released 21 days after receipt of the notice by the person claiming confidentiality, unless the state board is restrained from so doing by a court of competent jurisdiction. The state board shall release the data in accordance with the terms of the notice unless so restrained.

(f) Should judicial review be sought of a determination issued in accordance with subsection (e), either the person requesting data or the person claiming confidentiality, as appropriate, may be made a party to the litigation to justify the determination.

Notes

Cal. Code Regs. Tit. 17, § 91022

1. Amendment of subsections (a) and (b) filed 9-28-73; effective thirtieth day thereafter (Register 73, No. 39).
2. Amendment and new NOTE filed 3-18-77; effective thirtieth day thereafter (Register 77, No. 12).
3. Amendment filed 10-5-82; effective thirtieth day thereafter (Register 82, No. 41).
4. Editorial correction of subsection (a) filed 5-7-84; effective thirtieth day thereafter (Register 84, No. 19).
5. Amendment filed 7-10-84; effective thirtieth day thereafter (Register 84, No. 28).
6. Change without regulatory effect subsection (e) and NOTE filed 6-26-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 26).

Note: Authority cited: Section 39601, Health and Safety Code. Reference: Sections 6253, 6254, 6254.7, 6255, 6258 and 6259, Government Code.

1. Amendment of subsections (a) and (b) filed 9-28-73; effective thirtieth day thereafter (Register 73, No. 39).
2. Amendment and new NOTE filed 3-18-77; effective thirtieth day thereafter (Register 77, No. 12).
3. Amendment filed 10-5-82; effective thirtieth day thereafter (Register 82, No. 41).
4. Editorial correction of subsection (a) filed 5-7-84; effective thirtieth day thereafter (Register 84, No. 19).
5. Amendment filed 7-10-84; effective thirtieth day thereafter (Register 84, No. 28).
6. Change without regulatory effect subsection (e) and Note filed 6-26-2013 pursuant to section 100, title 1, California Code of Regulations (Register 2013, No. 26).