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Disclosure of Information Regulations

made under Section 82 of the
Occupational Health and Safety Act
S.N.S. 1996, c. 7
O.I.C. 86-973 (August 5, 1986), N.S. Reg. 220/86
as amended up to and including O.I.C. 89-530 (May 9, 1989), N.S. Reg. 65/89

1 In the Act and these regulations,

(a) "Court" means the Trial Division of the Supreme Court of Nova Scotia;

(b) "health professional" means a qualified physician, industrial hygienist, toxicologist, epidemiologist or nurse;
Clause 1(b) erratum: O.I.C. 89-530, N.S. Reg. 65/89.

(c) "nurse" means a registered nurse within the meaning of the Registered Nurses Association Act, R.S.N.S. 1989, c. 391; and

(d) "trade secret" means any secret, commercially valuable plan, appliance, formula, process, pattern, device or information which is generally recognized as confidential by an employer, supplier or manufacturer, as the case may be, including but not limited to the name and other identification of a chemical, substance or agent which is secret.
Section 1 replaced: O.I.C. 88-444, N.S. Reg. 96/88.

2 Except as provided in these regulations, an employer, supplier or manufacturer shall not be required to disclose a trade secret or any information which may disclose a trade secret to any person or in any manner, including but not limited to by way of label, a material safety data sheet or on a list of substances used or stored by an employer, supplier or manufacturer.

3 As required pursuant to subsection 2 of Section 61 of the Occupational Health and Safety Act, where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first-aid treatment, an employer, supplier or manufacturer, upon request, shall immediately disclose the specific chemical identity of a trade secret chemical to the treating physician or nurse, regardless of the existence of a written statement of need or a confidentiality agreement, but the employer, supplier or manufacturer may require a written statement of need and confidentiality agreement, in accordance with the provisions of Sections 4 and 5, as soon as circumstances permit.

4 Subject to Section 8, in non-emergency situations an employer, supplier or manufacturer shall, upon request by a health professional, disclose a specific chemical identity, otherwise permitted to be withheld under Section 2, to the health professional for the purpose of providing medical or other occupational health services to an exposed employee, if

(a) the request is in writing and specifically identifies on whose behalf the request is made;

(b) the request describes with reasonable detail one or more of the following occupational health needs for the information:

(i) to assess the hazards of the chemicals to which the employee will be exposed,

(ii) to assess sampling of the workplace atmosphere to determine exposure levels to which the employee is exposed,

(iii) to conduct pre-assignment or periodic medical surveillance of the exposed employee,

(iv) to provide medical treatment to the exposed employee,

(v) to assess appropriate personal protective equipment for the exposed employee,

(vi) to assess engineering controls or other protective measures for the exposed employee, and

(vii) to conduct studies to determine the health effects of exposure;

(c) the request explains in detail why the disclosure of the specific chemical identity is essential and why, in lieu thereof, the disclosure of the following information to the health professional would not satisfy the purposes described in paragraph [clause] (b) of this Section:

(i) the properties and effects of the chemical,

(ii) measures for controlling the employee's exposure to the chemical,

(iii) methods of monitoring and analyzing the employee's exposure to the chemical, and

(iv) methods of diagnosing and treating harmful exposures to the chemical;

(d) the request includes a description of the specific procedures to be used to maintain the confidentiality of the disclosed information; and

(e) the health professional and employee agree in a written confidentiality agreement in favour of the employer, supplier or manufacturer, as the case may be, that the health professional and employee will not use the trade secret information for any purpose other than the health need asserted and agree not to release the information under any circumstances other than as provided in Section 6, except as authorized by the terms of the agreement or by the employer, supplier or manufacturer in whose favour the agreement is made.

5 The confidentiality agreements authorized by Sections 3 and 4

(a) may restrict the use of the information to the health purposes indicated in the written request; and

(b) may provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages,

but may not include requirements for the posting of a penalty bond, unless ordered by the Director, the Minister or the Court.

6 If the health professional receiving the information decides that there is a compelling need to disclose it to the Director, the health professional shall inform the employer, supplier or manufacturer who provided the information prior to, or at the same time as, such disclosure.

7 Where the health professional receiving the information discloses same to the Director pursuant to Section 6, the Director may make any examination, investigation or inquiry as he considers necessary to ascertain whether the provisions of the Act and the regulations are being complied with.

8 If the employer, supplier or manufacturer denies a written request for disclosure of a specific chemical identity, the denial must

(a) be provided to the health professional within thirty days of the request;

(b) be in writing;

(c) support the claim that the specific chemical identity is a trade secret;

(d) state the specific reasons why the request is being denied; and

(e) explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity.

9 The health professional whose request for information under Section 4 is denied may refer the request and the written denial of the request to the Director for consideration.

10 Where the denial of a request has been referred to the Director, the Director shall forthwith inform the employer, supplier or manufacturer who denied the request of the referral of the denial to the Director and shall give the health professional and the employer, supplier or manufacturer who denied the request a reasonable opportunity to make representations.

11 The Director shall receive representations in such manner so as to ensure confidentiality as he considers appropriate, including submissions in private, ex parte and without revealing to each party representations submitted by the opposing party and may issue such protective orders as he considers appropriate, but the request for information, the denial of the request, the referral of the denial to the Director and any other information and representations submitted to the Director shall not be open to or made available to the public or any other person.

12 After reviewing the request by the health professional, the reply by the employer, supplier or manufacturer who denied the request and representations, if any, the Director may,

(a) if the Director determines

(i) that the specific chemical identity requested is not a bona fide trade secret, or

(ii) that it is a trade secret but the requesting health professional has a legitimate and compelling medical or occupational health need for the information which cannot be satisfied by alternative information, has executed an adequate written confidentiality agreement and has shown adequate means to protect the confidentiality of the information,

order the employer, supplier or manufacturer who denied the request to disclose the specific chemical identity requested to the health professional;

(b) order the employer, supplier or manufacturer who denied the request to disclose to the health professional alternative information referred to in the employer's, supplier's or manufacturer's denial which is known to the employer, supplier or manufacturer, or such part of the alternative information known to the employer, supplier or manufacturer as the Director considers necessary, without revealing the specific identity; or

(c) deny the request by the health professional.

13 Where the execution of a confidentiality agreement may not provide sufficient protection against the potential harm from the unauthorized disclosure of a trade secret, the Director may issue such order imposing such additional limitations or conditions upon the disclosure of the requested information, including the posting of a penalty bond and imposing such additional conditions on the procedures to be used to maintain the confidentiality of the information as he considers appropriate, before the employer, supplier or manufacturer is required to disclose information.

14 The employer, supplier or manufacturer who denied the request or the health professional who made the request may, within fifteen days after the Director's decision is served on him or it, file an appeal to the Minister.

15 The party appealing the Director's decision shall serve a copy of his appeal on the opposing party and the Director, and the provisions of Sections 10, 11, 12 and 13 shall apply mutatis mutandis to the appeal to the Minister.

16 (a) The employer, supplier, or manufacturer, as the case may be, or the health professional who wishes to dispute the direction of the Minister may apply within fifteen days after the decision of the Minister is served to the Court for determination of the issue. The Court shall receive representations in such manner so as to ensure confidentiality as the Court considers appropriate including submissions in private, ex parte and without revealing to each party representations submitted by the opposing party and may issue such protective orders as the Court may deem appropriate. The request for information, the denial of the request, the referral of the denial to the Director or Minister and any other information and representations previously submitted shall not be open to or made available to the public or any other person.

(b) The application, all material filed and the record of the proceedings and any written information in the possession of the Court shall be kept in a sealed packet and shall not be open to inspection except upon leave of the Court.

(c) Upon the expiry of the appeal period from the Director or Minister or Court or at such time as any appeal is concluded, a sealed packet containing all written documentation pursuant to the application or any appeal shall be returned to the employer, supplier or manufacturer.

(d) The Court, on hearing the request by the health professional and the reply by the employer, supplier or manufacturer who denied the request and the representations made to the Court may,

(i) if the Court determines

(A) that the specific chemical identity requested is not a bona fide trade secret; or

(B) that it is a trade secret but the requesting health professional has a legitimate and compelling medical or occupational health need for the information which cannot be satisfied by alternative information and the health professional has executed an adequate written confidentiality agreement and has shown adequate means to protect the confidentiality of the information,

order the employer, supplier or manufacturer who denied the request to disclose the specific chemical identity requested to the health professional, or

(ii) order the employer, supplier or manufacturer who denied the request to disclose to the health professional alternative information referred to in the employer's, supplier's or manufacturer's denial which is known to the employer, supplier or manufacturer or such part of the alternative information known to the employer, supplier or manufacturer as the Court considers necessary without revealing the specific identity, or

(iii) deny the request by the health professional.

(e) Where the execution of a confidentiality agreement may not provide sufficient protection against the potential harm from the unauthorized disclosure of a trade secret, the Court may issue such order imposing such additional limitations or conditions upon the disclosure of the requested information, including the posting of a penalty bond and imposing such additional conditions on the procedures to be used to maintain the confidentiality of the information as the Court considers appropriate, before the employer, supplier or manufacturer is required to disclose information.

(f) The provisions as to confidentiality noted herein in these regulations shall apply to any subsequent appeals or procedures which may follow an order of the Court.

(g) The Director or Minister, notwithstanding any provision of this Act or any regulation of this or any other Act, shall not be compelled or required to give evidence before any Court, body or person having authority to receive evidence or to disclose information of any kind obtained for the purposes of this regulation or to submit any return relating to their duties under this regulation.

(h) The determination of the Court shall be de novo and not by way of appeal.

17 If an employer permits access to an employee medical record, employee exposure record or any other record, the employer may delete from the record any information which discloses a trade secret, including but not limited to the name and other identification of a chemical, substance or agent which is a trade secret, before permitting such access.

18 If an employer deletes information from an employee medical record or employee exposure record in accordance with Section 17,

(a) the employer shall notify the employee that information has been deleted;

(b) whenever deletion of the trade secret information substantially impairs evaluation of the place where or time when exposure to a toxic substance or harmful physical agent occurred, the employer shall provide alternative information which is sufficient to enable the employee to identify where and when exposure occurred; and

(c) if requested in writing by the employee, the employer shall present the employee with a written report containing

(i) a summary of known applicable exposure levels for the substance or agent which are prescribed under the Act or the regulations,

(ii) the exposure levels known to the employer for the individual employee, and

(iii) a summary of symptoms of occupational overexposure known to the employer.

19 Nothing in the Act or any regulation, including this regulation, shall be construed as requiring the disclosure to any person or in any manner under any circumstances of any process or percentage of mixture information which is a trade secret.

20 Where these regulations require service, such service shall be deemed to be made

(a) at the time the document is actually received; or

(b) where the document is mailed by certified mail, from the time of the first attempt by the Post Office to deliver the document to the addressee.

21 These regulations become effective on September 1, 1986.