PURPOSE: This rule complies with the USDOT requirements of 49 CFR part 26 on the confidentiality of financial and other confidential information submitted to MoDOT in and for the DBE Program.

1. (1) Personal Financial Information Provided for Disadvantaged Business Enterprise Program (DBE) Program Purposes. In compliance with 49 CFR section 26.67(a)(2)(ii), and notwithstanding any provision of state law, Missouri Department of Transportation (MoDOT) shall not release an individual’s personal net worth statement nor any related 7 CSR 10-8

documentation concerning or supporting it to any third party without the written consent of the individual who provided or is the subject of that information. Provided, however, that MoDOT shall transmit this information to USDOT for any certification appeal proceeding held under 49 CFR section 26.89 in which the disadvantaged status of that individual is in question.

1. (2) Confidential Business Information. In compliance with 49 CFR section 26.109(a)(2), MoDOT shall safeguard from disclosure to unauthorized persons any information that may reasonably be considered as confidential business information, consistent with federal and state law. If MoDOT believes that under state law, a third party which has submitted a written request for it is entitled to receive DBE Program information or documentation which the firm or its owners may deem to be confidential business information, MoDOT may notify the firm and its owners a sufficient amount of time in advance of the information release, of the third party’s request for information, including information on the identity and address of the third party, so that the firm or its owners may take any legal action they deem appropriate to protect and preserve the confidentiality of that DBE Program information or documentation against disclosure. MoDOT and the commission also reserve the right and discretionary authority to take legal or judicial action to prevent disclosure of confidential business or personal information acquired in or for the DBE Program, consistent with federal and state law, as MoDOT and the commission deem appropriate in the circumstances.
2. (3) Investigative Information. MoDOT’s External Civil Rights Unit regularly conducts investigations in anticipation of legal actions, causes of action or litigation, including but not limited to information on whether a firm should be DBE certified or recertified, whether a firm’s eligibility as a DBE should be removed, whether a bidder made a good faith effort in its bid, whether a DBE firm subcontractor has performed a commercially useful function, or properly performed all the work it was obligated to under a federallyassisted contract. These investigations, in turn, may be prepared for and provided confidentially to state or federal USDOT or other law enforcement agencies, for civil or criminal prosecution; or may be used by MoDOT and the commission to support a contract disallowance or breach of contract action. These investigative files in MoDOT’s possession are confidential and shall not be produced or disclosed while the investigation is in progress, consistent with federal and state law. If action is taken upon the record developed under this chapter, under 49 CFR part 26, or under other provisions of state or federal civil, criminal or administrative law, then the pertinent portions or all of that investigative record shall be disclosed to the necessary parties, if and to the extent required of MoDOT by applicable federal or state law.
3. (4) Other Confidential Information. As required by state and federal law, in producing any DBE Program documents or records, MoDOT shall not disclose to a third party any individual’s Social Security number or firm’s employer identification number. Further, unless a confidential complainant agrees in writing to the release of his or her identity, or the release of information or documentation which will actually or effectually identify that individual, MoDOT shall comply with the mandates of 49 CFR section 26.109(b) and maintain the confidentiality of the identity of every complainant in the DBE Program. If there is any other valid and lawful basis under state or applicable federal law available to preserve the confidentiality of DBE Program information, MoDOT may use and rely upon that legal basis to avoid disclosure of any information MoDOT perceives to be confidential.
4. (5) Compliance With Lawful Court Order. MoDOT will comply with a lawful order of any court having proper jurisdiction over the commission, MoDOT or their employees, regarding the release (or not) of any DBE Program documentation or information; subject to the inherent right of the commission to appeal, seek a writ or seek other judicial relief. In any such legal proceeding to compel disclosure of DBE Program information, MoDOT and the commission may notify and afford the entity which provided or is the subject of the information, and United States Department of Transportation (USDOT) or its appropriate operating administration, with the opportunity to participate in the action, and to remove it to federal court or take such other judicial action as each of them deems appropriate.

AUTHORITY: section 226.150, RSMo 1994*; Title 49 Code of Federal Regulations part 26; section 1101(b) of the Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, 112 Stat. 107, 113; and MoDOT’s approved DBE Program submittals to the U.S. Department of Transportation. Emergency rule filed May 10, 2000, effective May 20, 2000, expired Nov. 6, 2000. Original rule filed May 10, 2000, effective Nov. 30, 2000. *Original authority: 226.150, RSMo 1939, amended 1977.