Section 2.19. Confidential status.

 

(1)   Applicability. This section establishes a procedure which shall apply to requests made to the department to treat as confidential, information in possession of the department or being requested by the department.

(2)   Responsibility for establishing confidentiality. The burden of establishing the need for confidential treatment of any information shall be on the person requesting such treatment of the information.

(3)   Application for confidential status. Any person seeking confidential treatment of information shall file with the department a written application for confidential status containing in affidavit form:

(a) The name and address of the applicant;

(b) The position of the individual filing the application;

(c) The specific type of information for which confidential status is sought;

(d) The facts and supporting legal authority believed to constitute a basis for obtaining confidential treatment of the information.

(4)   Additional information. Within 30 days of the receipt of an application, the department shall mail to the applicant a written set of questions if necessary for a determination under this section. If an extension has not been granted and if the applicant fails to answer all the questions in affidavit form within 30 days, the department shall deny the application. The responses to the questions shall be treated as confidential if a request for such treatment from the applicant accompanies the responses, and if the applicant demonstrates that the responses are entitled to confidential treatment under this section.

(5)   Decision.

(a) Within 60 days of receipt of a complete application or within 60 days of receipt by the department of the information requested in questions asked pursuant to sub. (4) , the department shall issue a written decision on the request for confidentiality. The decision shall include all of the following:

1. A finding which identifies the type of information sought to be assigned confidential status.

2. A determination of whether the department has the authority to compel submittal of the information.

3. If the authority exists, a determination of whether the department is authorized by law to assign confidential status to the type of information at issue.

4. The decision to deny or to grant the request in whole or in part.

(b) A decision to assign confidential status shall be made pursuant to one of the following:

1. Section 285.70 , Stats.

2. Section 289.09 , Stats.

3. Section 291.15 , Stats.

4. Section 293.47 , Stats.

5. Section 283.55 , Stats.

6. Upon a finding consistent with the ruling in State ex rel. Youmans v. Owens , 28 Wis.2d 672 , that confidential treatment of the information is in the public interest.

7. Other specific statutory or common law right to confidential treatment of information.

(c) A decision made pursuant to Youmans shall also include answers to the following questions:

1. How many people have knowledge of the supposedly "secret" information? Will disclosure increase that number to a significant degree?

2. Does the contested information have any value to the possessor? To a competitor? Is that value substantial?

3. What damage, if any, would the possessor of the secret suffer from its disclosure? What advantages would its competitors reap from disclosure?

4. What benefits are likely to flow from disclosure? To whom? Are they significant? In this connection, what is the public "need" for disclosure? Can it be satisfied in any other way?

(d) The definition of "trade secret" in s. 134.90 (1) , Stats., is adopted to apply to determinations made pursuant to s. 283.55 , Stats.

(e) A decision to approve the request in whole or in part shall be published by the department as a class 1 notice in the official state newspaper, and such other notice as the department deems appropriate shall be provided. The applicant or any interested member of the public may obtain an adjudicatory hearing on the decision to grant the request in whole or in part by petitioning the department for such a hearing within 10 days of publication of the notice. If the decision is to deny the request, the applicant shall be notified in writing of the decision by the department, and shall have 15 days from the date of mailing of the decision to petition the department for an adjudicatory hearing on the decision. A decision to grant confidential status may state a term for which confidential status is granted. Upon expiration of the stated term, the confidential status shall terminate, unless it is renewed upon proper application.

(6)   Hearing on the decision.

(a) If the department grants a request under s. 227.42 , Stats., for a contested case hearing on the decision to grant or deny confidential status, the department and any interested party may appear and present evidence or testimony supporting its position. A class 1 notice of the hearing shall be published by the department in the official state newspaper, and other notice as the department deems appropriate shall be provided.

(b) The hearing shall be before an administrative law judge and testimony shall be under oath and subject to cross-examination. The burden of establishing the confidential status shall be with the applicant who sought confidential status for the information which is the subject of the hearing.

(c) The administrative law judge shall exercise discretion to determine which individuals may have access to information alleged to be confidential and shall exercise the authority provided by law to impose protective measures and conditions for inspection necessary to safeguard confidentiality of the information during and after the hearing.

(7)   Decision following hearing. If a hearing is held, the decision of the administrative law judge shall be the final decision of the department. The decision of the administrative law judge shall be in writing, shall include findings of fact and conclusions of law, and shall be provided to all parties to the hearing.

(8)   Interim confidential status. Information for which confidential status has been requested shall be kept confidential by the department while it makes its decision under this section. Information for which confidential status has been denied may not be open to public scrutiny until 40 days after issuance of the denial. If the denial is appealed, the information may not be open to public scrutiny until 40 days after completion of all appeals. Additional information supplied by the applicant to support the request for confidentiality shall be treated as confidential if the applicant so requests and the applicant demonstrates that the additional information is entitled to confidential treatment under this section.

History: Emerg. cr. eff. 1-1-75; Cr. Register, May, 1975, No. 233 , eff. 6-1-75; r, and recr. Register, July, 1978, No. 271 , eff. 8-1-78; am. (5) (b) and (e), Register, March, 1984, No. 339 , eff. 4-1-84; corrections in (5) (b), (c) and (d) made under s. 13.93 (2m) (b) 7., Stats., Register, October, 1999, No. 526 ; CR 02-046 : am. (4), (5) (a), (b), (c) (intro.), (d) and (e), and (6) to (8), r. (9) Register, September 2004 No. 585 , eff. 10-1-04.