(a) Any employer may withhold a specific chemical name 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 subsections (f) and (i) hereof.
(5) The chemical is not a designated carcinogen on the list identified in Section 632.05(a)(4) and (5).
(b) Where the employer refuses, upon written request, to disclose the specific chemical identity pursuant to subsection (a) hereof, excluding those requests made pursuant to subsections (f) and (i) hereof, the denial must:
(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 chemical has been denied pursuant to subsection (b) hereof, the employer must provide to the Director of Public Safety 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; and
(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 Director of Public Safety or his or her designate, with the advice of the Director of Law or his or her designate, 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 Director of Public Safety or his or her designate determines that the specific chemical identity requested under subsection (a) hereof is not to be regarded as a bona fide trade secret, the employer will be subject to the penalty provided in this section if the employer does not comply within ten days of receipt of the decision of the Director.
(f) No employer shall refuse to disclose to Fire Division personnel or medical personnel, where the employer knows that an emergency or accident has occurred that requires response or treatment by Fire Division personnel, County Health 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 chemicals such personnel deem necessary to know in order to render treatment to the person exposed, without regard to trade secrecy claims and without regard to the existence of a written statement of need or confidentiality agreement. The employer may require a written request and confidentiality agreement in accordance with subsection (n) hereof as soon as circumstances permit.
(g) No person shall knowingly claim that 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 subsection (r) hereof.
(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 must:
(1) Be provided to the requesting employee within thirty days;
(2) Be in writing; and
(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 must provide to the Director, 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 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 Director of Public Safety or his or her designate, with the advice of the Director of Law or his or her designate, 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 subsection (l) hereof, the Director of Public Safety or his or her designate determines that the specific chemical identity shall be disclosed, the employer will be subject to citation under subsection (r) hereof if the employer does not comply within ten days of receipt of the decision of the Director.
(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 shall not stipulate 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, of the process or percentage of mixture information which is a trade secret.
(p) Nothing in this section is meant to preclude the parties from pursuing noncontractual 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 any person 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 this chapter and to perform official duties. Any person who violates this provision shall be suspended and/or removed from office or employment in the manner provided in the City Charter, in addition to any other applicable proceedings and penalties provided for under existing law for violation of trade secrets, and in addition to the penalty provided in subsection (r) hereof.
(r) Whoever violates or fails to comply with any of the provisions of this section is guilty of a misdemeanor of the fourth degree. Punishment shall be as provided in Section 698.02.
(Ord. 85-50. Passed 9-16-85.)