H. B. 3155
(By Delegates Amores, Craig, Varner, Armstead,
Brown and Kominar)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section ten, article five, chapter
twenty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to records, reports,
data or information and the procedural and substantive
requirements associated with the confidentiality of trade
secrets.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter twenty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted to read as follows:
§22-5-10. Records, reports, data or information; confidentiality;
proceedings upon request to inspect or copy.
(a) All air quality data, emission data, permits, compliance schedules, orders of the director, board orders and any other
information required by a federal implementation program (all for
convenience hereinafter referred to in this section as "records,
reports, data or information") obtained under this article shall be
available to the public, except that upon a showing satisfactory to
the director, by any person, that records, reports, data or
information or any particular part thereof, to which the director
has access under this article if made public, would divulge methods
or processes entitled to protection as trade secrets of such the
person, the director shall consider such these records, reports,
data or information or such a particular portion thereof
confidential: Provided, That such the confidentiality does not
apply to the types and amounts of air pollutants discharged and
that such these records, reports, data or information may be
disclosed to other officers, employees or authorized
representatives of the state or of the federal environmental
protection agency concerned with enforcing this article, the
federal Clean Air Act, as amended, or the federal Resource
Conservation and Recovery Act, as amended, when relevant to any
official proceedings thereunder: Provided, however, That such the
officers, employees or authorized representatives of the state or federal environmental protection agency protect such these records,
reports, data or information to the same degree required of the
director by this section. Records, reports, data or information
which constitute trade secrets and which are used to calculate the
types and amounts of air pollutants discharged shall be considered
confidential and may not be available to the public, unless the
person requesting these records, reports, data or information
demonstrates through clear and convincing evidence that the types
and amounts of air pollutants actually discharged cannot be known
without disclosure of these confidential records, reports, data or
information. Upon receipt of a document request and justification
for records, reports, data or information which constitute trade
secrets and prior to making a final determination to grant or deny
the request, the director shall notify the person claiming that any
record, report, data or information is entitled to protection as
trade secrets, and allow the person an opportunity to respond to
the request in writing. The director shall promulgate legislative
rules regarding the protection of records, reports, data or
information, or trade secrets, as required by this section.
(b) All requests to inspect or copy documents must state with
reasonable specificity the documents or type of documents sought to be inspected or copied. Within five business days of the receipt
of such a request, the director or his or her designate shall by
order: (a) (1) Advise the person making such the request of the
time and place at which the person may inspect and copy the
documents, which may not be sooner than thirty days following the
date of the determination to disclose, unless an earlier disclosure
date is agreed to by the person claiming the confidentiality; or
(b) (2) deny the request, stating in writing the reasons for such
the denial. A copy of either action shall also be provided to the
person claiming that any information sought to be inspected or
copied, would, if made public, divulge methods or processes
entitled to protection as trade secrets.
(c) For purposes of judicial appeal, a written denial by the
director shall be deemed an exhaustion of administrative remedies.
Any person whose request for information is denied, in whole or in
part, may appeal from such denial by filing with the director a
notice of appeal. Such notice shall be filed within thirty days
from the date the request for information was denied, and shall be
signed by the person whose request was denied or the persons
attorney. The appeal shall be taken to the circuit court of
Kanawha County, where it shall be heard without a jury. Any person adversely affected by a determination, by order or otherwise,
regarding information confidentiality under this article may appeal
the determination to the air quality board pursuant to the
provisions of article one, chapter twenty-two-b of this code. The
filing of a timely notice of appeal shall stay any determination,
by order or otherwise, to disclose confidential information pending
a final decision on the appeal. The scope of review is limited to
the question of whether the records, reports, data or other
information, or any particular part thereof (other than emission
data,) sought to be inspected or copied, are entitled to be treated
as confidential under subsection (a) of this section. The air
quality board shall afford evidentiary protection in appeals as is
necessary to protect the confidentiality of the information at
issue, including the use of in camera proceedings and the sealing
of records where appropriate. would, if made public, divulge
methods or processes entitled to protection as trade secrets. The
said court shall make findings of fact and conclusions of law based
upon the evidence and testimony. The director, the person whose
request was denied, or any other person whose interest has been
substantially affected by the final order of the circuit court may
appeal to the supreme court of appeals in the manner prescribed by law.
(d) In lieu of the provision of chapter twenty-nine-b of this
code, the provision of this section shall apply to determinations
of confidentiality.
NOTE: The purpose of this bill is to maintain the security
and confidentiality of business processes.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.