§ 44-1374 — Confidentiality of petroleum industry information; disclosure; supply emergency; definitions

A. A governmental entity shall classify as confidential and not publicly disclose any documents or other information that is received from any petroleum industry related private or public source if the person or entity that provides the information agrees to provide the information only on the express condition that the information remain confidential.

B. If a governmental entity receives a request to publicly disclose information that is confidential information or for any other reason proposes to publicly disclose confidential information, the governmental entity shall provide to the person or entity that submitted the confidential information notice in writing of the request or proposal to disclose. The notice shall identify the confidential information that would be disclosed and indicate the form in which the confidential information would be provided. On receipt of the notice, the person or entity that submitted the confidential information has fifteen working days in which to respond to the notice and to either withdraw the request for confidentiality or justify to the governmental entity the claim of confidentiality on each specific item of confidential information covered by the notice.

C. The governmental entity shall consider the response in determining whether to publicly disclose any confidential information for which a justification has been submitted. Unless the governmental entity determines that there is no trade secret or other legitimate justification for the confidentiality being claimed by the respondent, the governmental entity shall not disclose any confidential information for which a justification has been timely submitted. If the governmental entity determines that there is no trade secret or other legitimate justification for all or a portion of the confidentiality claim, the governmental entity shall issue a written decision that sets forth the reasons for making that determination. The governmental entity shall deliver a copy of the decision to the person or entity submitting the confidential information and the person requesting public disclosure of the confidential information.

D. Notwithstanding a determination that there is no legitimate justification for a claim of confidentiality, and to allow the person or entity that submitted the confidential information to seek direct judicial intervention to prevent its release, the governmental entity shall not publicly disclose confidential information submitted to the governmental entity pursuant to this section for at least fifteen working days after the date on which the governmental entity has issued and disclosed the written determination pursuant to this section.

E. If any legal or administrative action is filed with any court or other agency seeking to force disclosure of any confidential information, the governmental entity, within five working days of being served with the action, shall notify in writing the person or entity that submitted the confidential information of the action to allow the person or entity that submitted the confidential information to intervene in the action.

F. Confidential information shall not be classified or maintained as confidential if the governmental entity determines that the confidential information has already been made public by the submitting person or entity and advises, in writing, the person or entity that submitted the confidential information of this determination. Notwithstanding a determination that the confidential information has already been made public by the submitting person or entity, the governmental entity shall not publicly disclose the confidential information for at least five working days after the governmental entity has advised the submitting person or entity to allow the person or entity that submitted the confidential information to seek direct judicial intervention to prevent its release.

G. This section protects petroleum industry related confidential information submitted to a governmental entity but does not impose any requirement that information of any type from any source be submitted to any governmental entity.

H. If there is a statewide or regional shortage or threatened shortage of a product or service that is essential to the health, safety and welfare of the people of this state due to an abnormal market disruption resulting from any natural disaster, weather condition, act of nature, strike, civil disorder, war, national or local emergency or other extraordinary adverse circumstance, the governor may proclaim that a supply emergency exists. If a supply emergency is declared pursuant to this subsection and a majority of the persons or entities that are the subject of the supply emergency has provided information to the governmental entity, the governmental entity may only disclose the unattributable aggregated total of all sources of confidential information.

I. For the purposes of this section:

1. "Confidential information" means all of the following:

(a) The information is not and has not been reasonably obtainable by legitimate means by other persons without the consent of the person providing the information, other than by governmental entities and other than in discovery based on a showing of a special need in a judicial or quasi-judicial proceeding.

(b) A statute does not specifically require disclosure of the information to the public.

(c) The person has satisfactorily shown that disclosing the information is likely to cause substantial harm to the competitive position of the person providing the information.

2. "Governmental entity" means an agency, board, department or commission of this state, the state legislature and all agencies or committees of the state legislature but does not include the courts of this state.

3. "Publicly disclose" means to reveal the contents of information that has been classified as confidential to any third person or entity that is not bound by this section.