(a) Any employer may withhold the specific chemical name or other specific chemical identification of a hazardous chemical, if:
(1) The claim that the information withheld is a trade secret can be supported in writing;
(2) Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed;
(3) The label and material safety data sheet indicates that the specific chemical identity is being withheld as a trade secret; and
(4) The specific identity is made available to the Fire Chief and health professionals, in accordance with the applicable provisions of paragraphs (b) and (c) of this section.
(b) The employer shall immediately disclose to the Fire Chief or a treating physician/nurse, upon request, the specific chemical identity of the requested trade secret, without regard to trade secrecy claims and regardless of the existence of a written statement of need or a confidentiality agreement, if:
(1) The Fire Chief determines that an accident has occurred which requires knowledge of specific chemical identities; or
(2) A treating physician or nurse determines that medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first aid treatment; or
The employer may require a written request and confidentiality agreement in the form of the standard Confidentiality Agreement contained in Section 393.21 or in accordance with the provisions of division (d) of this section as soon as circumstances permit.
(c) In situations where the employer has made a trade secret claim, the employer shall, upon written request from the Fire Chief or a health professional (i.e., physician, nurse, industrial hygienist, toxicologist, or epidemiologist) providing medical or other occupational health services to exposed employee(s), disclose the specific chemical name of any chemical substance if:
(1) The request is in writing;
(2) The request describes with reasonable detail one (1) or more of the following occupational health needs for the information:
A. To assess or study the hazards or effects of the chemicals to which employees will or have been exposed;
B. To conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;
C. To medically pre-screen employees or provide medical treatment to exposed employees;
D. To assess appropriate personal protective equipment, engineering controls or other protective measures for exposed employees.
(3) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and
(4) The requesting party and the employer agree in a written confidentiality agreement that the requesting party will not use the trade secret information for any purpose other than the health need(s) asserted and agree not to release the information under any circumstances.
(d) The confidentiality agreement provided by divisions (b) and (c) of this section:
(1) May restrict use of 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.
(e) Nothing in this section is meant to preclude the parties from pursuing noncontractual remedies to the extent permitted by law.
(f) If the employer denies a written request for disclosure of a specific chemical identity in non- emergency or non-accident situations, the denial must:
(1) Be provided to the requesting party and the Fire Chief within ten (10) working days of the request;
(2) Be in writing;
(3) Include evidence to support the claim that the specific chemical identity is a trade secret;
(4) State the specific reason why the request is being denied; and
(5) Explain in detail how alternative information may satisfy the specific medical need without revealing the specific chemical identity.
(g) The requesting party whose request for information is denied under division (f) of this section, may refer the written request and denial to the Hazardous Chemicals Committee for consideration. Both the requesting party and the employer shall be permitted an opportunity to submit evidence supporting their respective positions to the Hazardous Chemicals Committee.
(h) The Hazardous Chemicals Committee shall consider the evidence to determine if:
(1) The employer has supported the claim that the specific chemical identity is a trade secret;
(2) The requesting party has supported the claim that there is medical or occupational health need for the information; and
(3) The requesting party has demonstrated adequate means to protect its confidentiality.
(i) If the Hazardous Chemicals Committee determines that the specific chemical identity requested under division (c) of this section is not a bona fide trade secret, or that the specific chemical identity requested under division (c) of this section is a trade secret but the requesting party has a legitimate need for the information, has executed a written confidentiality agreement, and has shown adequate means to protect the confidentiality of the information, the employer shall provide said chemical identity to the requestingparty within thirty (30) days of the Committee's decision. If the employer appeals the Committee's determination pursuant to subsection (j) of this section, it shall have a right to a stay, as provided in division (e)(3) of Section 3103.20 of these Codified Ordinances.
However, if the Hazardous Chemicals Committee determines that there is no medical or occupational health need for the information or that the execution of a confidentiality agreement would not provide a sufficient protection against the potential harm from the unauthorized disclosure of a trade secret specific chemical identity, the Hazardous Chemicals Committee may deny the request or may delay its final decision until appropriate modifications of the confidentiality agreement are made.
(j) The Hazardous Chemicals Committees' decision under division (i) may be appealed within thirty (30) days by either party to the Board of Building Standards and Building Appeals established pursuant to Charter Section 76-6. The Board’s decision is a final order from which either party may appeal under RC Chapter 2506.
(k) No officer, employee, agent or contractor of any City department, board or commission shall knowingly and intentionally disclose to anyone in any manner, any trade secret information, except as is required to administer or enforce the provisions of this chapter and perform official duties or unless authorized by the employer claiming that the data is trade secret information or a court of law. Any person who knowingly violates this provision shall be subject to discipline for malfeasance in office under the City’s Civil Service rules, and shall be subject to other applicable provisions and penalties under existing law for violations of trade secret protections. This section shall not be construed to eliminate, abridge or detract from any remedies, either at law or in equity, which an employer or other individual may have arising out of any breach of a confidentiality agreement or other legal protection of trade secrets.
(Ord. No. 1233-15. Passed 11-9-15, eff. 11-11-15)