(a) Any employer may withhold the specific chemical name of a chemical substance otherwise required to be identified by this chapter, if:
(1) The Material Safety Data Sheet indicates that the specific chemical identity is being withheld as a trade secret;
(2) Information contained in the Material Safety Data Sheet concerning the properties and effects of the hazardous chemicals is disclosed;
(3) The claim that the information withheld is a trade secret can be supported;
(4) The specific chemical identity is made available in accordance with the applicable provisions of subsections (f) and (i) hereof; and
(5) The chemical is not a known carcinogen.
(b) Where the employer refuses, upon written request, to disclose the specific chemical identity pursuant to subsection (a) hereof and excluding those requests made pursuant to subsections (f) and (i) hereof, the denial shall:
(1) Be provided to the requesting party within thirty days;
(2) Be in writing;
(3) State the specific reasons why the request is being denied; and
(4) Explain in detail how alternative information may satisfy the specified medical occupational health need without revealing the specific identity.
(c) Where a request for the specific chemical identity for any hazardous and/or toxic chemical has been denied pursuant to subsection (b) hereof, the employer shall provide to the Fire Department within thirty days of the request:
(1) A copy of the written request;
(2) A copy of the written denial pursuant to subsection (b) hereof;
(3) Evidence to support the claim that the specific chemical identity is a trade secret.
(d) Within sixty days of receipt of the denial pursuant to subsection (c) hereof, the Fire Department, with the advice of the Law Director, shall consider the evidence to determine if the employer has supported the claim that the specific chemical identity is a trade secret pursuant to subsection (a) hereof.
(e) If the Fire Department determines that the specific chemical identity requested under subsection (a) hereof is not to be regarded as a bona fide trade secret, the employer shall be subject to citation under Section 777.99 if the employer does not comply within ten days of receipt of the decision of the Fire Department.
(f) No employer shall refuse to disclose to Fire Department personnel or medical personnel, where the employer knows that an emergency or accident has occurred that requires response or treatment by Fire Department personnel or medical personnel, the specific chemical identity of any hazardous chemicals to which such personnel are likely to be exposed or the identity of which such personnel deem necessary in order to render treatment to the person exposed, without regard to trade secrecy claims and regardless of the existence of a written statement of need or confidentiality agreement. The employer may require a written request and confidentiality agreement in accordance with the provisions of subsection (n) hereof as soon as circumstances permit.
(g) No person shall knowingly claim an accident or emergency exists where such is not the case for purposes of subsection (f) hereof.
(h) Where a request for the specific chemical identity of any hazardous chemical made pursuant to subsection (f) hereof is denied, the employer shall be subject to immediate citation pursuant to Section 777.99.
(i) No employer shall, upon written request, refuse to disclose the specific chemical identity otherwise permitted to be withheld under subsection (a) hereof to any employee whom the employer knows to be an employee regularly exposed to such substance. The employer may require a confidentiality agreement in accordance with subsection (n) hereof.
(j) Where the employer refuses to disclose the specific chemical identity of any hazardous chemical to a requesting employee pursuant to subsection (i) hereof, the denial shall:
(1) Be provided to the requesting employee within thirty days;
(2) Be in writing;
(3) State the specific reasons why the request is being denied.
(k) Where a request for the specific chemical identity of any hazardous chemical has been denied pursuant to subsection (j) hereof, the employer shall provide to the Fire Department within thirty days of receipt of the request:
(1) A copy of the written request pursuant to subsection (i) hereof;
(2) A copy of the written denial pursuant to subsection (j) hereof; and
(3) A copy of the confidentiality agreement, if any, executed or to be executed by the requesting employee pursuant to subsections (i) and (n) hereof. The employer may delete the specific chemical name from such copy.
(l) Within sixty days of receipt of the notice of denial pursuant to subsection (k) hereof, the Fire Department with the advice of the Law Director, shall consider the evidence to determine if:
(1) The requesting employee has made a written request to the employer for the specific chemical identity;
(2) The requesting employee is an employee regularly exposed to such substance;
(3) The requesting employee has executed a confidentiality agreement pursuant to subsections (i) and (n) hereof.
(m) If, after consideration of the evidence pursuant to subsections (k) and (1) hereof, the Fire Department determines that the specific chemical identity shall be disclosed, the employer shall be subject to citation under Section 777.99, if the employer does not comply within ten days of receipt of the decision of the Fire Department.
(n) The confidentiality agreement provided for in subsections (f) and (i) hereof and which may be required by the employer from other requesting parties:
(1) May restrict use of the information to health and treatment purposes consistent with the preservation of the trade secret information;
(2) May provide appropriate legal remedies in the event of a breach of the agreement but not stipulation of a reasonable pre-estimate of likely damages; and
(3) May not include requirements for the posting of a penalty bond.
(o) Nothing in this section shall be construed as requiring the disclosure under any circumstances the process or percentage of mixture information which is trade secret.
(p) Nothing in this section is meant to preclude the parties from pursuing both contractual and other legal remedies to the extent permitted by law.
(q) No officer, employee, agent or contractor of any City department, board or commission shall knowingly and intentionally disclose to anyone in any manner, unless authorized by the employer claiming the data to be trade secret information, or by a court of law, any trade secret information, except as is required to administer or enforce the provisions of this chapter and perform official duties. Any person who violates this provision shall be subject to disciplinary action, to include suspension or removal from office or employment, in addition to any other applicable proceedings and penalties for violation of trade secret provisions provided for under existing law.
(Ord. 11-85. Passed 1-14-85; Ord. 152-86. Passed 7-14-86.)
(Ord. 11-85. Passed 1-14-85; Ord. 152-86. Passed 7-14-86.)