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
confidential4.
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. 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.
4 Merely stamping a document
"confidential" is not sufficient to allow the Commission to treat the document
as confidential.
Notes
Miss. Code Ann. §§
25-61-1,
et seq., 25-61-9, 49-17-1, et seq., 49-17-35, 49-17-39, 49-17-41, 49-17-17(i),
49-2-1, et seq., and 17-17-1, e seq.,
17-17-27.
Adopted
11/22/2015
