Code of Massachusetts Regulations › 310 CMR - DEPARTMENT OF ENVIRONMENTAL PROTECTION › Title 310 CMR 3.00 - Access To And Confidentiality Of Department Records And Files › Section 3.34 - Procedures for Determination of Trade Secret

Current through Register 1525, July 5, 2024
(1)
			 Any resident of the commonwealth may submit to the commissioner a written
			 petition for the disclosure of any information which is claimed as a trade
			 secret pursuant to M.G.L. c. 21I and 310 CMR 3.30. The petition shall specify
			 the information sought to be disclosed. The Department shall notify the trade
			 secret claimant of the petition.
(2) If the commissioner has reason to believe
			 that the information claimed as a trade secret may not be a trade secret, the
			 commissioner may, in the absence of a petition pursuant to 310 CMR 3.34(1),
			 initiate a determination to be carried out in accordance with 310 CMR 3.34. The
			 Department shall notify the trade secret claimant that the commissioner has
			 initiated a determination as to whether the information claimed as a trade
			 secret is a trade secret.
(3)
			 Within 60 days after the date of receipt of a petition under 310 CMR 3.34(1),
			 or upon the initiative of the commissioner pursuant to 310 CMR 3.34(2), the
			 commissioner shall review the information submitted by the trade secret
			 claimant pursuant to
			 310 CMR
			 3.33(3)  and determine
			 whether the explanation presents assertions which, if true, are sufficient to
			 support a finding that the information claimed as a trade secret is a trade
			 secret.
(4) If the commissioner
			 determines, pursuant to 310 CMR 3.34(3), that the explanation presents
			 assertions which, if true, are sufficient to support a finding that the
			 information claimed as a trade secret is a trade secret, the commissioner
			 shall, by certified mail, notify the trade secret claimant that he has 30 days
			 from the date of such notification to supplement the explanation with detailed
			 information to support a finding that the information claimed as a trade secret
			 is a trade secret.
(5) If the
			 commissioner determines, after receipt of any supplemental supporting detailed
			 information submitted pursuant to 310 CMR 3.34(4), that the information claimed
			 as a trade secret is a trade secret, the commissioner shall, by certified mail,
			 so notify the trade secret claimant and the petitioner, if any. The petitioner,
			 if any, may, within 30 days of the date of such notification, seek judicial
			 review of the determination in accordance with M.G.L. c. 30A, § 14. The
			 commissioner shall after final adjudication immediately return to the trade
			 secret claimant all supplemental supporting detailed information submitted
			 concerning the validity of the trade secret claim.
(6) All supplemental supporting detailed
			 information submitted pursuant to 310 CMR 3.34(4) shall be kept in the secure
			 storage area established and maintained in accordance with
			 310 CMR 3.00 while the claim
			 is pending. The petitioner, if any, shall not be permitted to have access,
			 except as approved by the court. Inentering any order approving access by the
			 petitioner, the court shall consider the need for the entry of an appropriate
			 protective order restricting the use or further disclosure of the confidential
			 information.
(7) If the
			 commissioner determines, after receipt of any supplemental supporting detailed
			 information submitted pursuant to 310 CMR 3.34(4), that the information claimed
			 as a trade secret is not a trade secret, the commissioner shall, by certified
			 mail, so notify the trade secret claimant. The trade secret claimant may,
			 within 30 days of the date of such notification request an adjudicatory hearing
			 on the commissioner's determination in accordance with M.G.L. c. 30A and
			 310 CMR
			 1.00. A timely request for an adjudicatory hearing
			 pursuant to 310 CMR 3.34(7) shall act as an automatic stay of the
			 commissioner's determination pending completion of the adjudicatory hearing. A
			 trade secret claimant aggrieved by the department's final decision upon said
			 adjudicatory hearing may, within 30 days of the date of the final decision,
			 seek judicial review pursuant to M.G.L. c. 30A, § 14. During judicial
			 proceedings, if any, the information claimed as a trade secret shall remain
			 confidential. Any court in considering a motion for a temporary restraining
			 order or preliminary injunction to enjoin release of such information shall
			 presume that release would cause irreparable harm to the trade secret
			 claimant.
(8) If the commissioner
			 determines, pursuant to 310 CMR 3.34(3), that the explanation presents
			 insufficient assertions to support a finding that the information concealed is
			 a trade secret, the commissioner shall, by certified mail, notify the trade
			 secret claimant that he shall have 30 days from the date of such notification
			 in which to request an adjudicatory hearing, or, upon a showing of good cause
			 to amend the original explanation by providing supplemental assertions to
			 support the trade secret claim. As used in 310 CMR 3.34(8), "good cause to
			 amend" shall not include a claim that the explanation contains information
			 which constitutes a trade secret pursuant to
			 310 CMR 3.00 thruogh 310 CMR
			 3.39.
(9) If the commissioner does
			 not reverse or modify his determination under 310 CMR 3.34(3) after an
			 adjudicatory hearing or an examination of any supplemental assertions allowed
			 under 310 CMR 3.34(8), the commissioner shall, by certified mail, so notify the
			 trade secret claimant and the trade secret claimant shall have 30 days from the
			 date of the decision or date of notification in which to file for judicial
			 review of the determination in accordance with M.G.L. c. 30A, § 14. A
			 trade secret claimant aggrieved by the commissioner's final decision may within
			 30 days of the date of the decision seek judicial review pursuant to M.G.L. c.
			 30A, § 14. The information claimed as a trade secret, and any supplemental
			 supporting information submitted pursuant to 310 CMR 3.34(3), shall remain
			 confidential during judicial proceedings, if any. Any court in considering a
			 motion for a temporary restraining order or preliminary injunction to enjoin
			 release of such information shall presume that release would cause irreparable
			 harm to the trade secret claimant.
(10) If the commissioner reverses or modifies
			 his determination under 310 CMR 3.34(3) after an appeal or an examination of
			 any supplemental assertions under 310 CMR 3.34(8), the procedures set forth in
			 310 CMR 3.34(5) through (7).