44-04-18.4. Confidentiality of trade secret, proprietary, commercial, financial, and
research information.
1. Trade secret, proprietary, commercial, and financial information is confidential if it is of
a privileged nature and it has not been previously publicly disclosed.
2. Under this section, unless the context otherwise requires:
a. "Commercial information" means information pertaining to buying or selling of
goods and services that has not been previously publicly disclosed and that if the
information were to be disclosed would impair the public entity's future ability to
obtain necessary information or would cause substantial competitive injury to the
person from which the information was obtained.
b. "Financial information" means information pertaining to monetary resources of a
person that has not been previously publicly disclosed and that if the information
were to be disclosed would impair the public entity's future ability to obtain
necessary information or would cause substantial competitive injury to the person
from which the information was obtained.
c. "Proprietary information" includes:
(1) Information shared between a sponsor of research or a potential sponsor of
research and a public entity conducting or negotiating an agreement for the
research.
(2) Information received from a private business that has entered or is
negotiating an agreement with a public entity to conduct research or
manufacture or create a product for potential commercialization.
(3) A discovery or innovation generated by the research information, technical
information, financial information, or marketing information acquired under
activities described under paragraph 1 or 2.
(4) A document specifically and directly related to the licensing or
commercialization resulting from activities described under paragraph 1, 2,
or 6.
(5) Technical, financial, or marketing records that are received by a public entity,
which are owned or controlled by the submitting person, are intended to be
and are treated by the submitting person as private, and the disclosure of
which would cause harm to the submitting person's business.
(6) A discovery or innovation produced by the public entity that an employee or
the entity intends to commercialize.
(7) A computer software program and components of a computer software
program that are subject to a copyright or a patent and any formula, pattern,
compilation, program, device, method, technique, or process supplied to a
public entity that is the subject of efforts by the supplying person to maintain
its secrecy and that may derive independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons that might obtain
economic value from its disclosure or use.
(8) A discovery or innovation that is subject to a patent or a copyright, and any
formula, pattern, compilation, program, device, combination of devices,
method, technique, technical know-how or process that is for use, or is
used, in the operation of a business and is supplied to or prepared by a
public entity that is the subject of efforts by the supplying or preparing
person to maintain its secrecy and provides the preparing person an
advantage or an opportunity to obtain an advantage over those who do not
know or use it or that may derive independent economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, a person that might obtain economic
value from its disclosure or use.
d. "Trade secret" means information, including a formula, pattern, compilation,
program, device, method, technique, technical know-how, or process, that:
(1) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons that can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to
maintain the secrecy of the information.
3. This section does not limit or otherwise affect a record pertaining to any rule of the
department of health and human services or department of environmental quality or to
any record pertaining to the application for a permit or license necessary to do
business or to expand business operations within this state, except as otherwise
provided by law.
4. This section does not limit the release or use of records obtained in an investigation by
the attorney general or other law enforcement official.
5. Unless made confidential under subsection 1, the following economic development
records and information are exempt:
a. Records and information pertaining to a prospective location of a business or
industry, including the identity, nature, and location of the business or industry,
when no previous public disclosure has been made by the business or industry of
the interest or intent of the business or industry to locate in, relocate within,
expand within this state, or partner with a public entity to conduct research or to
license a discovery or innovation. This exemption does not include records
pertaining to the application for permits or licenses necessary to do business or to
expand business operations within this state, except as otherwise provided by
law.
b. Trade secrets and proprietary, commercial, or financial information received from
a person that is interested in applying for or receiving financing, technical
assistance, or other forms of business assistance.
6. Unless made confidential under subsection 1 or made exempt under subsection 5:
a. Bids received by a public entity in response to an invitation for bids by the public
entity are exempt until all of the bids have been received and opened by the
public entity.
b. Proposals received by a public entity in response to a request for proposals are
exempt records until a notice of intent to award is issued.
7. Unless made confidential under subsection 1, records received or distributed by the
state department of emergency services under chapter 37-17.1 and the state local
intelligence center from the federal government and any public or private agency or
entity for emergency or disaster prevention, protection, mitigation, response, and
recovery, or for cyber or physical threat are exempt. Records in the possession or
under the control of a public entity which relate to cybersecurity information or critical
infrastructure, the disclosure of which may expose or create vulnerability of critical
infrastructure systems; or the safeguarding of telecommunications, electric, water,
sanitary sewage, storm water drainage, energy, fuel supply, hazardous liquid, natural
gas, coal, or other critical infrastructure system, are exempt.
a. Upon receipt of a request for records under this subsection which originated in a
federal agency or entity and are in the possession of the state department of
emergency services, state local intelligence center, or other public entity, the
requester must be referred to the federal agency or entity from which the records
originated to submit an application under the applicable federal laws or rules.
b. For purposes of this section, "cybersecurity" means processes or capabilities that
protect and defend systems, communications, and information from exploitation
and unauthorized use or modification.
c. For purposes of this section, "critical infrastructure" has the same meaning as in
subdivision a of subsection 2 of section 44-04-24.
8. Unless made confidential under subsection 1, university research records are exempt.
"University research records" means data and records, other than a financial or
administrative record, produced or collected by or for faculty or staff of an institution
under the control of the state board of higher education in the conduct of or as a result
of study or research on an educational, commercial, scientific, artistic, technical, or
scholarly issue, regardless of whether the study or research was sponsored by the
institution alone, or in conjunction with a governmental or private entity, provided the
information has not been publicly released, published, or patented.
9. Personally identifiable study information is confidential. "Personally identifiable study
information" means information about an individual participating in a human research
study or project at an institution under the control of the state board of higher
education which requires prospective institutional review board review or a
determination of exemption, if the information can be used to distinguish or trace the
individual's identity, or is linked or linkable to the individual. Examples of personally
identifiable study information include name, maiden name, mother's maiden name,
alias, personal identification number, social security number, passport number, driver's
license number, taxpayer identification number, financial account or credit card
number, address, electronic mail address, photographic images, fingerprints,
handwriting, and other biometric data. Information about participants in human
subjects research which does not constitute personally identifiable study information
but is part of a human subjects research study or project at an institution under the
control of the state board of higher education requiring prospective institutional review
board review or a determination of exemption is a university research record under
subsection 8.
10. Subsections 8 and 9 do not apply to a student record or other information disclosed by
an institution under the control of the state board of higher education to the statewide
longitudinal data system.
