Chapter 17.23 — TRADE SECRETS

All information submitted to the city pursuant to this title is a public record and shall be available to the public unless otherwise provided by other provisions of law, and except for information for which a claim of trade secret has been made in accordance with this chapter.

(Ord. 4002 § 1 (part), 1990)

Any person providing information required by this title shall, at the time of submission, identify all information which the person believes is a trade secret.

(Ord. 4002 § 1 (part), 1990)

"Trade secrets" as used in this chapter shall have the meanings given to it by Section 6254.7 of the California Government Code and Section 1060 of the California Evidence Code and includes, but is not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented, which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service having commercial value, and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

(Ord. 4002 § 1 (part), 1990)

(a) For any hazardous material for which a claim has been made under this chapter, in addition to providing the lockboxes for information required under Section 17.20.020, a responsible person shall provide information to the city under one of the following alternatives:

(1) Alternative One. In lieu of submitting the exact chemical name of said trade secret material, such person may submit a description of the hazardous material, including but not limited to, the chemical and physical properties, hazard class, reactivity characteristics, fire and explosion characteristics of the trade secret material, at a level of specificity satisfactory to city, and on a form provided by city. The description must include health hazard information including remedies and counter-measures appropriate for emergency response and in case of human exposure to the trade secret material. Such description must be adequate to enable city to assess the suitability of the proposed containment and the proposed monitoring plan. The description must be certified in writing as accurate by a chemist or chemical engineer; or

(2) Alternative Two. Instead of submitting the name of the trade secret to city, the trade secret information, together with all submittals pursuant to this title, may be submitted to an independent chemical engineer or equivalent licensed professional, subject to approval by city, who shall certify, in writing, the suitability of the containment design, the monitoring methods and plans, and the separation of materials, and the accuracy of the facility storage map with regard to the information relevant to the trade secret. All such submittals remain subject to city's review and approval under this title; or

(3) Alternative Three. The trade secret information sought to be protected, may be submitted to city on a separate form or forms, clearly and conspicuously marked or labeled as containing trade secret information, and said form or forms must be submitted only to a city official designated by city to receive trade secret information. If this method of protecting the trade secret information is chosen by the responsible person, such party shall also submit a waiver, relieving city of any and all liability resulting from disclosure of the trade secret in violation of this section.

(b) The city official shall endeavor to protect from disclosure any and all trade secrets which come into the city's possession pursuant to subsection (a)(3) of this section. If an action is instituted under California Public Records Act for the release of such trade secrets, the person claiming the trade secret shall be deemed a real party in interest in any such action. Notice of a lawsuit to compel disclosure shall be given by city to such person promptly upon receipt of such notice by city. The person claiming the trade secret shall have the option to defend city for any and all attorney's fees, costs and expenses imposed on or otherwise incurred by city in any proceeding related to this section, as well as for any judgment imposed pursuant to California Government Code Section 6259.

(c) Any information reported to the city official under subsection (a)(3) of this section, which is exempt from disclosure pursuant to this chapter, shall not be disclosed to anyone other than as required by law, except the following:

(l) An officer or employee of the county or city, the state, or the United States, in connection with the official duties of that officer or employee under any law for the protection of health, or to contractors with the county or city and their employees if, in the opinion of the city, disclosure is necessary and required for the satisfactory performance of a contract, for performance of work, or to protect the health and safety of the employees of the contractor.

(2) Any physician where the physician certifies in writing to the city that the information is necessary to the medical treatment of the physician's patient.

(d) Any person who by virtue of employment, contractual relationship or official position has obtained possession of or has had access to information the disclosure of which is prohibited by this chapter, and who knowing that disclosure of the information is prohibited, intentionally or recklessly discloses the information in any manner to any person not entitled to receive it, or uses the information for his or her own use or advantage, shall be guilty of a misdemeanor.

(e) Information certified by appropriate officials of the United States, as necessarily kept secret for national defense purposes, shall be accorded the full protections against disclosure as specified by such official or in accordance with the laws of the United States.

(f) The city council shall, by resolution, adopt a procedure designed to prevent knowing or negligent disclosure of trade secret information in the possession of or accessible to city, its agents and employees, by virtue of this chapter. Such procedure shall identify which officials shall have access to the information, and the means by which access will be controlled and monitored. Trade secret information shall be maintained in secured facilities which are designed to prevent inadvertent or unauthorized access or disclosure.

(g) The confidential treatment, pursuant to this chapter, of the identity of such trade secret disclosed to the city does not apply where there has been any unauthorized discharge related to such trade secret material which is reportable in compliance with Section 17.24.010 or where such disclosure arises out of any official emergency response relating to any storage facility involving such trade secret information by public safety personnel of city.

(Ord. 4002 § 1 (part), 1990)