§ 8-13. Confidential information.

(a)

Application. This section shall apply to all business information requested by an owner or operator to be designated confidential by the air quality section. This section shall not apply to emission data included in the information that shall not be entitled to confidential treatment, as provided by RSMo 643.050.4.

(b)

General. Any information submitted pursuant to this section that contains, or from which could be derived, confidential business information, shall be kept confidential by the employees of the air quality section if a timely request for confidentiality is made by the person submitting the information.

(c)

Definitions.

(1)

Definitions for key words used in this section may be found in section 8-2 of this code.

(2)

Additional definitions specific to this section are as follows:

a.

Confidential business information. Secret processes, secret methods of manufacture or production, trade secrets and other information possessed by a business that, under existing legal concepts, the business has a right to preserve as confidential, and to limit its use by not disclosing it to others in order that the business may obtain or retain business advantages it derives from its rights in the information; and

b.

Emission data:

1.

The identity, amount, frequency, concentration or other characteristics (related to air quality) of any air contaminant which:

i.

Has been emitted from an emission unit;

ii.

Results from any emission by the emissions unit;

iii.

Under an applicable standard or limitation, the emissions unit was authorized to emit; or

iv.

Is a combination of any of the parts (c)(2)b.1.i., ii. and iii. of this section;

2.

The name, address (or description of the location) and the nature of the emissions unit necessary to identify the emission units including, a description of the device, equipment or operation constituting the emissions unit; and

3.

The results of any emission testing or monitoring required to be reported under chapter 8 of the Code of Ordinances of the City of Kansas City, Missouri or other rules at the Missouri Air Conservation Commission.

(d)

Procedures.

(1)

An owner or operator who wishes to claim confidentiality for any information submitted pursuant to this section shall submit a claim of confidentiality within ten days following the time the information is submitted. Failure to submit a claim of confidentiality within the required time shall result in a waiver of any claim to confidentiality.

(2)

The claim of confidentiality shall be accompanied by a justification that the information is entitled to confidential treatment.

(3)

Upon receipt of a timely claim of confidentiality, the director shall evaluate the claim and inform the owner or operator that the claim has been granted or that a preliminary decision has been made to deny the claim in whole or in part. Until that time in which the claim is reviewed it shall be held in confidence.

(4)

The owner or operator shall have 15 days from the receipt of the preliminary decision to deny the claim in which to submit further justification or comments to the director. The director shall inform the owner or operator of their final decision on whether the claim will be denied in whole or in part within ten days.

(5)

The owner or operator may appeal to the air quality appeals board from the director's final decision to deny a claim of confidentiality in whole or part by filing a notice of appeal as provided in section 8-3. Upon the timely filing of a notice of appeal, the confidentiality of the information shall be preserved until the entry of a final order by the air quality appeals board.

(6)

If the air quality appeals board's final decision is to deny the claim of confidentiality in whole or in part, the director shall treat the information as subject to public disclosure unless the owner or operator files a timely action for judicial review. If a timely action for judicial review is filed, the confidentiality of the information shall be preserved until adjudication of the matter upon judicial review pursuant to RSMo 536.110.

(7)

A claim of confidentiality under this section shall be granted if:

a.

The owner or operator has asserted a business confidentiality claim that has not expired by its terms, been waived or withdrawn;

b.

The owner or operator has satisfactorily shown that it has taken reasonable measurers to protect the confidentiality of the information and that it intends to continue to take those measures;

c.

The information is not, and has not been, reasonably obtained without the owner's or operator's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special needs in a judicial or quasi-judicial proceeding);

d.

No statute specifically requires public disclosure of the information;

e.

The information is not emission data; and

f.

The owner or operator has satisfactorily shown that public disclosure of the information:

1.

Is likely to cause substantial harm to the business' competitive position; or

2.

Was voluntarily submitted and its disclosure would be likely to impair the director's ability to obtain necessary information in the future. Information is voluntarily submitted if the director has no statutory, regulatory or contractual authority to obtain some benefit or avoid some disadvantage under the Kansas City, Missouri Air Quality Control Code, the state's version includes (for example, information required to obtain a permit or other approval is submitted to obtain a benefit from the air quality appeals board).

(e)

Conditions for any disclosure.

(1)

Public request. Upon receipt of a request from a member of the public for release of any information submitted under a claim of confidentiality, and for which the claim has not been finally denied, the director shall inform both the person making the request and the owner or operator that the request for the information is denied or that a tentative decision has been made to release the information. A preliminary decision to release the information shall be treated in the same manner as a preliminary decision to deny a claim of confidentiality under subsections (d)(3)-(7) of this section.

(2)

Confidential and public information. If the information submitted under a claim of confidentiality contains both information which is entitled to confidential treatment and emission data or other information not entitled to confidential treatment, the director may take reasonable steps to segregate that information entitled to confidential treatment from that subject to public disclosure. These steps may include, without limitation, photocopying for the public file only portions of the submitted information or applying techniques that would result in confidential information being blacked out in the photocopying process. If information entitled to confidentiality cannot reasonably be separated from emission data, all the information must be treated as subject to public disclosure.

(3)

Public release. The director and their designees shall not release to the public, or place in the public file, any information for which a timely claim of confidentiality has been made until the procedures under subsection (d)(3)-(7) and (e)(1) of this section have been observed.

(4)

Disclosure to other governmental agencies. Information submitted under a claim of confidentiality, and where the claim has not been finally denied, may be disclosed to other governmental agencies if:

a.

The owner or operator is given prior notice 15 days in which to obtain an order from a court of competent jurisdiction restraining or enjoining the disclosure to the other agency, and if no such order is obtained, or obtained and later dissolved because of item c. being added; or

b.

The other agency has ordinances or regulations respecting the treatment of confidential business information that is equivalent to this section, the director provides notice to the owner or operator that the information is being disclosed to the other agency, and the director informs the other agency that the information is subject to or because of item c. being added.

c.

Such information is otherwise required by law or regulation.

(5)

Disclosure to administrator. Information submitted under a claim of confidentiality, and where the claim has not been finally denied, may be disclosed to the administrator provided the administrator agrees, pursuant to 40 CFR 2.215, that the information will be kept confidential.

(6)

Subpoenas for confidential information. The director shall respond to subpoenas and discovery requests for information submitted under a claim of confidentiality, if the claim has not been finally denied, in a manner that is designed to preserve the claim of confidentiality until a confidentiality determination is made by a court or other tribunal of competent jurisdiction.

(Code of Gen. Ords. 1967, § 18.95; Ord. No. 36539, 4-3-69; Ord. No. 41255, 6-9-72; Ord. No. 56726, 8-2-84; Ord. No. 960782, § A, 8-8-96)