Iowa Administrative Code › Agency 561 - Natural Resources Department › Chapter 2 - Public Records and Fair Information Practices › Rule 561-2.5 - Requests for Treatment of a Record as a Confidential Record and Its Withholding From Examination

Current through Register Vol. 47, No. 3, July 24, 2024
The custodian may treat a record as a confidential record and
				withhold it from examination only to the extent that the custodian is
				authorized by Iowa Code section
				22.7, another
				applicable provision of law, or a court order, to refuse to disclose that
				record to members of the public.
(1)
Persons who may request.
Any person who would be aggrieved or
			 adversely affected by disclosure of a record and who asserts that Iowa Code
			 section
			 22.7, another
			 applicable provision of law, or a court order, authorizes the custodian to
			 treat the record as a confidential record, may request the custodian to treat
			 that record as a confidential record and to withhold it from public
			 inspection.
(2)
Request.
A request that a record be treated as a confidential
			 record and be withheld from public inspection shall be in writing and shall be
			 filed with the custodian. The request must set forth the legal and factual
			 basis justifying such confidential record treatment for that record, and the
			 name, address, and telephone number of the person authorized to respond to any
			 inquiry or action of the custodian concerning the request. A person requesting
			 treatment of a record as a confidential record may also be required to sign a
			 certified statement or affidavit enumerating the specific reasons justifying
			 the treatment of that record as a confidential record and to provide any proof
			 necessary to establish relevant facts. Requests for treatment of a record as
			 such a confidential record for a limited time period shall also specify the
			 precise period of time for which that treatment is requested.
A person filing such a request shall, if possible, accompany
				the request with a copy of the record in question from which those portions for
				which such confidential record treatment has been requested have been deleted.
				If the original record is being submitted to the agency by the person
				requesting such confidential treatment at the time the request is filed, the
				person shall indicate conspicuously on the original record that all or portions
				of it are confidential.
(3)
Failure to request.
Failure of a person to request
			 confidential record treatment for a record does not preclude the custodian from
			 treating it as a confidential record. However, if a person who has submitted
			 business information to the agency does not request that it be withheld from
			 public inspection under Iowa Code section
			 22.7(3)
			  or
			 22.7(6),
			 the custodian of records containing that information may proceed as if that
			 person has no objection to its disclosure to members of the public.
(4)
Timing of decision.
A
			 decision by the custodian with respect to the disclosure of a record to members
			 of the public may be made when a request for its treatment as a confidential
			 record that is not available for public inspection is filed, or when the
			 custodian receives a request for access to the record by a member of the
			 public.
(5)
Request granted
			 or deferred.
If a request for such confidential record treatment is
			 granted, or if action on such a request is deferred, a copy of the record from
			 which the matter in question has been deleted and a copy of the decision to
			 grant the request or to defer action upon the request will be made available
			 for public inspection in lieu of the original record. If the custodian
			 subsequently receives a request for access to the original record, the
			 custodian will make reasonable and timely efforts to notify any person who has
			 filed a request for its treatment as a confidential record that is not
			 available for public inspection of the pendency of that subsequent
			 request.
(6)
Request denied
			 and opportunity to seek injunction.
If a request that a record be
			 treated as a confidential record and be withheld from public inspection is
			 denied, the custodian shall notify the requester in writing of that
			 determination and the reasons therefor On application by the requester, the
			 custodian may engage in a good faith, reasonable delay in allowing examination
			 of the record so that the requester may seek injunctive relief under the
			 provisions of Iowa Code section
			 22.8
			 or other applicable provision of law. However, such a record need not be
			 withheld from public inspection for any period of time if the custodian
			 determines that the requester had no reasonable grounds to justify the
			 treatment of that record as a confidential record. The custodian shall notify
			 the requester in writing of the time period allowed to seek injunctive relief
			 or the reason for the determination that no reasonable grounds exist to justify
			 the treatment of that record as a confidential record. The custodian may extend
			 the period of good faith, reasonable delay in allowing examination of the
			 record so that the requester may seek injunctive relief only if no request for
			 examination of that record has been received, or if a court directs the
			 custodian to treat it as a confidential record, or to the extent permitted by
			 another applicable provision of law, or with the consent of the person
			 requesting access.
(7)
Processing of business confidentiality claims.
a. Applicability/availability. Businesses
			 which provide information to the department in applications, reports or
			 otherwise in recorded form, or from or about which information is obtained and
			 recorded by the department, may request that information not be disclosed to
			 others for reasons of business confidentiality. Until such time as a request
			 for confidentiality is received by the department, all information not within
			 subrule 2.4(6) will be available to the public pursuant to subrule 2.3(3). If a
			 claim is received after the information itself is received, the department will
			 make such efforts as are administratively practicable to associate the claim
			 with all copies of the previously received information. However, the department
			 cannot ensure that such efforts will be effective, in light of the possibility
			 of prior disclosure or dissemination of the information beyond the department's
			 reasonable control.
b. Form. A
			 business which submits information to the department may assert a business
			 confidentiality claim in the manner prescribed in the application or
			 instruction, if any, otherwise by placing on or attaching to the information,
			 at the time it is submitted, a cover sheet, stamped or typed legend, or other
			 suitable form of notice employing language such as "trade secret,"
			 "proprietary," or "company confidential." When only a portion of the
			 information is claimed to be confidential, only that portion shall be deleted
			 from the application, report or other recorded submission, with appropriate
			 reference to a separate claim for business confidentiality, which separate
			 claim shall be submitted as specified above. If a request not to disclose
			 information is filed with the department, the party shall file together with
			 the document a second copy of the document from which has been deleted the
			 information for which such party wishes to claim confidential treatment. The
			 business shall conspicuously indicate on the face of the original document that
			 it is confidential information and shall file a claim for confidential status
			 in accordance with the provisions of 2.5(7) "c."
A business which has reason to believe that the department has
				received information which the business asserts to be confidential may request
				that such information, described with reasonable specificity, be maintained as
				confidential, in the same manner as specified above.
c. Contents of claim. All claims for
			 confidentiality must be substantiated with the following information:
(1) A statement of all measures the business
			 has taken to protect the confidentiality of the information, and a statement of
			 intent to continue to take such measures;
(2) Practices and policies of other
			 businesses, if known, regarding confidentiality of similar
			 information;
(3) A statement that
			 the information is not, and has not been, reasonably attainable without the
			 consent of the business by other persons other than government bodies by use of
			 legitimate means;
(4) A statement
			 demonstrating that disclosure of the information is likely to cause substantial
			 harm to the business's competitive position;
(5) A reference to any other determinations
			 of confidential status of the information or similar information.
d. Initial action by department.
			 All claims will be reviewed within ten days of receipt for completeness and
			 applicability of subrule 2.4(6). If the claim does not include the
			 substantiation required by 2.5(7)
"c, "
or if the claim relates
			 to information within 2.4(6), the business making the claim will be so notified
			 by certified mail. If the substantiation or comment regarding the
			 inapplicability of 2.4(6) is not received by the department within ten days of
			 the date on the return receipt, the department will place the information in
			 the public file. Otherwise, all information claimed to be confidential will be
			 treated as such by the department until further notice. A timely response from
			 the notice under this paragraph will be ruled on by the department within ten
			 days, based on the applicability of 2.4(6) or compliance with 2.5(7) "c" as
			 appropriate.
e. Initiation of
			 official determination. All claims not rejected under 2.5(7) "d" shall receive
			 an official determination when a request for disclosure covering such
			 information is received by the department or when the department deems it
			 advisable to make a determination because a request for disclosure is likely to
			 be received or because of administrative burdens in maintaining the information
			 confidential. The procedures and criteria below shall be followed.
f. Substantive criteria for use in
			 confidentiality determinations. Determinations shall hold that business
			 information is entitled to confidential treatment for the benefit of a
			 particular person if:
(1) The business has
			 taken and intends to continue to take reasonable measures to protect the
			 confidentiality of the information;
(2) The information is not readily obtainable
			 by others by legitimate means;
(3)
			 The claim is not unreasonable in view of the nature of the information, the
			 interests, and normal practices of the business, and the practices of other
			 businesses;
(4) No statute or rule
			 specifically requires disclosure of the information; and
(5) There is a substantial likelihood that
			 disclosure of the information would cause substantial harm to the competitive
			 position of the business.
Prior determinations by the courts, the department or other
				agencies on the information or similar information shall be given due
				consideration and effect.
g. Preliminary determination-opportunity for
			 comment. The department shall transmit its preliminary determination regarding
			 a claim for business confidentiality to the claimant by certified mail,
			 notifying the claimant of the opportunity to provide comments within ten days
			 subject to reasonable extension upon written request, and that failure to
			 comment will be construed to indicate agreement with the preliminary
			 determination. If the determination is in response to a request for disclosure,
			 the person requesting the disclosure shall be sent a similar notice in the same
			 manner within ten days of the request.
h. Final determination. A final decision
			 shall be issued within ten days after the close of the comment period to the
			 preliminary determination. If any substantial comments are received, the final
			 decision shall be made by the director or designee. If no substantial comments
			 are received, the claimant and the person requesting disclosure, if any, shall
			 be notified that the preliminary determination is the final decision.
i. All procedures within this rule
			 shall not be considered contested case proceedings as provided in Iowa Code
			 chapter 17A.