Annex: A possible approach for the protection of confidential information
1. Introduction
In achieving an appropriate balance in making "special provision to protect confidential information whose disclosure to a competitor would be liable to cause harm to an employer's business so long as the safety or health of workers are not compromised thereby", as specified in Article 1, paragraph 2 (b), of the Chemicals Convention, 1990 (No. 170), and depending on national law and practice, the competent authority may take into account the guidance in this annex.
2. General requirements
All safety and health information should be provided on the label or chemical safety data sheet. However, in those circumstances where the name or concentration of an ingredient of a chemical mixture is confidential information, the competent authority should establish special provision for its protection, so long as the safety and health of the worker is not compromised and provided that the supplier or employer:
(a) can support the claim that information is confidential information in accordance with national law and practice;
(b) discloses all other required information concerning the hazardous chemical on the label and chemical safety data sheet;
(c) indicates on the chemical safety data sheet that the specific chemical identity or composition is being withheld as confidential information;
(d) makes available the specific chemical identity or composition to safety and health professionals, workers and workers' representatives in accordance with the provisions of this Annex.
3. Emergency disclosure
Where a treating physician or nurse determines that a medical emergency exists due to exposure to a hazardous chemical, the supplier or employer should immediately disclose the confidential information necessary for treatment to the treating physician or nurse, who should maintain the confidentiality of the information.
4. Non-emergency disclosure
4.1. In non-emergency situations, a supplier or employer should upon request, disclose confidential information to a safety or health professional (e.g physician, industrial hygienist, safety engineer, toxicologist, epidemiologist, occupational health nurse) providing medical or other occupational safety and health services to exposed workers and to workers or workers' representatives, on condition that:
(a) the request is in writing;
(b) the request describes with reasonable detail one or more of the following occupational safety and health needs for the information:
asures for exposed workers; to conduct studies to determine the health effects of exposure;
- to assess the hazards of the chemicals to which workers will be exposed;
- to conduct or assess sampling of the workplace atmosphere to determine worker exposure levels;
- to conduct pre-assignment medical examinations of workers who will be assigned to tasks involving exposure, or periodic medical examinations of exposed workers;
- to provide medical treatment to exposed workers;
- to select or assess appropriate personal protective equipment for exposed workers;
- to design or assess engineering controls or other protective me
(c) the request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information;
(d) the persons to whom the confidential information is disclosed agree in a written confidentiality agreement not to use the confidential information for any purpose other than the safety and health need(s) asserted and agree not to disclose the information except as authorised by the terms of the agreement.
4.2. If the requester has complied with paragraphs 4.1 (a) to (d), the confidential information should be disclosed. However, the supplier or employer may, in lieu of disclosure, suggest that the following information will satisfy the purposes described in paragraph 4.1 (b):
(a) additional properties and effects of the chemical;
(b) additional measures for controlling workers' exposure to the chemical;
(c) methods of monitoring and analysing workers' exposure to the chemical;
(d) alternative methods for diagnosis and treatment of the harmful effects of exposure to the chemical.
5. Resolution of denials
5.1. The competent authority should establish rules and procedures addressing a denial of a written request for confidential information, which should determine whether:
(a) the supplier or employer has supported the claim that the specific chemical identity or composition is confidential information;
(b) the safety and health professional, worker or workers' representative has supported the claim that there is a medical or occupational safety and health need for the information as specified in paragraph 4. l (b) (i) to (vii); and
(c) the safety and health professional, worker or workers' representative has demonstrated adequate means to protect the confidentiality.
5.2. The competent authority should issue an order consistent with these determinations which denies access to the information, grants access to the information or grants access to the information with additional protective provisions.
6. Review of determinations and orders
6.1. Determinations and orders so issued by the competent authority may be appealed against by either party in accordance with established procedures.
6.2. Determinations and orders so issued by the competent authority should not become final pending completion of the appeal, unless contrary to national law and practice.
6.3. Where there is failure to comply with a final order, the competent authority should initiate legal action in accordance with national law and practice.
7. Disclosure to the competent authority
A supplier or employer should, upon request, disclose to the competent authority any confidential information. The competent authority should maintain the confidentiality of such information in accordance with national law and practice.
8. Disclosure of process information
Nothing in this annex should be construed as requiring the disclosure of process information which is confidential unless the physical conditions of the process create or increase a chemical risk which compromises the safety and health of workers.
|Table of contents| |Previous|