001 Whenever the agency requests that a regulated entity furnish records or information which may be entitled to confidential treatment as trade secrets under Neb. Rev. Stat. §81-1527 or §84-712.05, the regulated entity may raise a claim of confidentiality for trade secrets at the time of submission of the record or information to the agency.
001.01 If no claim of confidentiality for trade secrets accompanies the record or information when it is received by the agency, the claim is waived and the material may be made available to the public by the agency without further notice to the submitting entity, unless the claimant establishes a just reason for the claim subsequent to submission of the record or information under 002.
001.02 The claimant should certify the record or information by placing on or attaching at the time of submission a cover sheet with appropriate notice, reasons for asserting the claim, and language, such as trade secret, proprietary, or confidential.
001.03 The appropriate notice and reasons for asserting the claim should include:
001.03A Certification that the record or information is entitled to confidentiality as a trade secret and that such claim has not expired by its terms, been waived, or withdrawn;
001.03B Description of reasonable measures the claimant has taken to protect the confidentiality of the information or record, and that it intends to continue to take such measures;
001.03C Assurance that the information or record is not, and has not been, reasonably obtainable without the claimant’s consent by other persons (other than governmental bodies) by use of legitimate means; and
001.03D Reasons why or how disclosure of the information or record is likely to result in substantial harmful effects to the business’s competitive position and what those harmful effects would be, why they should be viewed as substantial, and an explanation of the causal relationship between disclosure and such harmful effects.
001.04 Allegedly confidential portions of otherwise non-confidential records and information are to be clearly identified by the claimant and may be submitted separately to facilitate identification and handling by the agency. The agency may require the claimant to submit a separate copy of the record and information with the confidential portions omitted to facilitate requests for access by the public.
001.05 If the regulated entity desires confidential treatment only until a certain date or the occurrence of a certain event, the notice is to so state.
002 If a confidentiality claim for trade secrets covering the record or information is received after the submission of the record or information itself is received, the agency will make such efforts as are administratively practicable to associate the late claim with copies of the previously-submitted information in the agency files, although the agency cannot assure that such efforts will be effective given the possibility of prior disclosure to the public.
003 For each claim the director or his or her designee will determine whether sufficient information has been provided to support the claim that the record or information relates to processes or methods are entitled to protection as trade secrets.
003.01 In making such determination, the director will consider whether:
003.01A The claimant has asserted a business confidentiality claim which has not expired by its terms, nor been waived nor withdrawn;
003.01B The claimant has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information or record, and that it intends to continue to take such measures;
003.01C The information or record is not, and has not been, reasonably obtainable without the business' consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial or quasi-judicial proceeding);
003.01D No statute specifically requires disclosure of the information or record; and
003.01E The claimant has satisfactorily shown that disclosure of the information or record is likely to cause substantial harm to the business's competitive position.
004 Whenever the director or his or her designee preliminarily determines that records or information required to be submitted to the agency are not entitled to confidential treatment as trade secrets, a written explanation of the reasons for such determination will be furnished to the claimant, who will be afforded an opportunity to comment before a final decision is made.
004.01 Notice of such determination will be sent by certified mail to the claimant specifying a reasonable time allowed for comments.
004.02 Failure to furnish timely comments will be considered a waiver of the claim.
005 Notice of the final decision denying a claim for confidential treatment of records or information as trade secrets will be provided to the claimant in writing by certified mail. The agency will make the record or information available to the public on the tenth day after the date of the claimant’s receipt of the written notice of denial of its claim.
006 The director may not withhold records as confidential if they have been disclosed in an open court, open administrative proceeding, open meeting or disclosed by the department in its duties.
Enabling Legislation: Neb. Rev. Stat. §§81-1527; §84-712.05.