Confidentiality and the Air Emission Inventory

The Department views most information as an open record and available for public review unless it has granted confidential status. In order for DNR to grant confidential status the information must constitute a trade secret.

The DNR's confidentiality procedure consists of the facility's confidentiality request, the department's granting of interim confidentiality, the department's use of interrogatories for determining confidentiality, and the confidentiality determination. The confidentiality status continues once granted. DNR has confidentiality contacts for air issues in each region.

Open Records and Confidentiality

Generally, unless confidential status is granted, any person has a right to inspect any record in the Department's files, according to the state open records law (ss. 19.31-19.39 Wis. Stats.). In order to obtain confidential status for certain information, the applicant must prove that the information is entitled to protection as a trade secret, as defined in s. 134.90(1)(c), Wis. Stats. It should be noted, however, that emission data and air pollution control permits cannot be given confidential status, pursuant to sec. 285.70(2), Wis. Stats. The burden of proof for showing that specific information constitutes a trade secret is upon the applicant (s. NR 2.19(2), Wis. Adm. Code). Click on the following links to review Wisconsin statutes and administrative code applicable to confidentiality:

Procedure for Submitting a Confidentiality Request

Requests for confidentiality should be sent to the regional or central office air management staff member handling the facility. If no such contact exists, requests should be sent to the Bureau of Air Management for proper distribution. Confidentiality requests must be made in affidavit form pursuant to s. NR 2.19(3), Wis. Adm. Code. The sworn statement on an affidavit is required to ensure the truthfulness of the information provided. The signed and notarized affidavit must include:

The name and address of the applicant.
The position of the individual filing the application.
The specific type of information for which confidential status is sought. For this requirement, an applicant should list and briefly describe the information that it wants to keep confidential. For example: "flow rates of process P2," "chemical composition of the coatings used in process P3," "monthly hours of operation for process P4." The descriptions should be in sufficient detail so that the Department can ascertain exactly what information the applicant desires to be confidential.
The facts and supporting legal authority believed to constitute a basis for obtaining confidential treatment of the information. For this requirement, the applicant should explain how or why the information constitutes a "trade secret".

In addition to the affidavit, two sets of documents relating to the confidential information should be included with the submittal: one set for the public file, in which the specific information for which confidential status is requested has been blocked out; and the second set containing the complete information for the Department's confidential file. This information will assist the Department in properly identifying the information for which confidential treatment has been requested. Moreover, dual documents are specifically required if the request for confidentiality is in conjunction with an application for an operation permit under s. NR 407.05(6), Wis. Adm. Code.

If the request is not in the proper format or is incomplete, the Department will contact the applicant and ask that the request be re-submitted or that the applicant provide the missing materials which would make the confidentiality request complete. In the meantime, the information for which confidentiality has been requested will be given interim confidential status.

Trade Secret Definition

Once it receives a complete confidentiality request, the Department will begin processing the request. In order to grant confidential status, the information must constitute a "trade secret". Two requirements must be met to satisfy a finding that the information is a trade secret under s. 134.90(1)(c), Wis. Stats.

A company must derive independent economic value, actual or potential, from the fact that the information is not generally known or readily ascertainable by proper means. To satisfy this requirement, the affidavit should contain sufficient details to support the contention: for example, why or how the information gives the company a competitive advantage over its competitors, how long it took the company to develop the information, the actual or potential economic value of the information to the company, whether the company is the sole possessor of the information, whether the general public has knowledge of the information, and any other potentially relevant factors.
A company must make reasonable efforts to maintain the secrecy of the information for which it is requesting confidential status. To assist the Department in ascertaining whether this requirement is satisfied, details should be provided in the affidavit relating to the extent of access to the information. Important information to supply are the number and type of employees given access to the information, whether persons outside the company have knowledge of the information, awareness of employees and others as to the confidential nature of the information, previous disclosure of the information to another governmental agency and requests to or approval by them of confidential treatment, any other persons or groups the company has disclosed the information to and why, past marking of the information as "confidential," other general attempts to maintain secrecy and anything else that is potentially relevant.

Use of Interrogatories

If the Department has a complete confidentiality request but additional information is required for the Department to make its determination, it may send interrogatories (formal questions or inquiries) to the applicant. Section NR 2.19(4), Wis. Adm. Code, specifies that such interrogatories will be sent to the requester within 21 days of receipt of a completed application, and that answers to these interrogatories must be received by the Department within 30 days. If an extension to answer has been granted by the Department, then an applicant may take longer to answer the interrogatories. If there is no extension and the interrogatories are not answered within 30 days, confidential status will be denied. The Department may also deny confidential status for failure to provide the information requested in the interrogatories.

Interim Confidentiality

Air management staff are able to grant "interim confidentiality" to some information supplied by a company on a case-by-case basis. Implied with granting of interim confidentiality, is that the company supply information requesting full confidential status within a reasonable amount of time, usually within 30 days after the company receives Interim Confidentiality.

Confidential Determination

Following the review of a complete confidentiality request, the Department will issue a written preliminary determination, either granting or denying confidentiality. Pursuant to s. NR 2.19, Wis. Adm. Code, the Department is required to issue the preliminary decision 30 days after the receipt of a completed application (or within 30 days of receipt of responses to interrogatories). If the Department's preliminary decision is to grant confidentiality (in whole or in part), a copy of this decision will be forwarded to the applicant. The Department will also publish the preliminary decision to grant confidential status as a class 1 notice in the official state newspaper. An interested party (including the applicant) may request an adjudicatory hearing within 10 days of publication, challenging the preliminary decision to grant confidential status. If a hearing is not requested, the preliminary decision will become the final decision of the Department. The Department will notify the applicant of the final decision.

If the Department's decision is to deny confidentiality, the preliminary decision will be provided to the applicant, but it will not be published. Under this scenario, an applicant may request an adjudicatory hearing within 15 days of the date of mailing of the decision to deny confidentiality.

Hearings regarding the granting or the denial of confidentiality will be treated as contested case hearings. In either situation, the burden of establishing confidential status is on the applicant. If the final decision is to deny confidentiality, the information previously given interim confidential status will be made available to the public no earlier than 40 days after issuance of the final decision under s. NR 2.19(8), Wis. Adm. Code.

Continuing Confidentiality Requests

If a source has already received confidential status for a certain type of information, it can retain that confidential status when later submitting the same kind of information. To maintain confidentiality, the applicant should refer the Department to the original confidentiality determination and provide two copies of the new document, one complete and one with the confidential information blocked out. The Department will automatically keep the information confidential. However, if the type of information in the new document for which confidentiality is requested deviates in any way from the original, a new request and affidavit for confidentiality must be submitted.

Questions or Concerns

Should there be questions or concerns regarding confidentiality, the applicant may contact the air management staff person with responsibility for the source or the air program attorney, Mike Scott at (608) 266-7527, who is in charge of the air program's confidentiality program.

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Last Revised: Thursday January 08 2009