N.Y. Comp. Codes R. & Regs. Tit. 6 § 616.7 - Records containing trade secrets, confidential commercial information, or critical infrastructure information

(a) Submission of records containing trade secrets, confidential commercial information, or critical infrastructure information.

(1) A person acting pursuant to law or regulation who submits any information to the department may, at the time of submission request that the department except such information from disclosure under paragraph (d) of subdivision (2) of section 87 of the Public Officers Law, and may at any time, request that the department except such information from disclosure under paragraph (a) (1-a) of subdivision 5 of section 89 of the Public Officers Law. These sections provide that an agency may deny access to records or portions thereof that are trade secrets confidential commercial information submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which if disclosed would cause substantial injury to the competitive position of the subject enterprise or critical infrastructure information. Where the request itself contains information which if disclosed would defeat the purpose for which the exception is sought, such information shall also be excepted from disclosure.

(2) The request for an exception shall be in writing and state the reasons why the information should be excepted from disclosure.

(3) The person submitting the information shall clearly identify those records or portions of records for which the exception is requested. This may be accomplished by separating and attaching to such records a cover sheet or other suitable form of notice, using such language as "trade secret" or "confidential commercial information" or "critical infrastructure information."

(4) In all cases the person must show the reasons why the information should be considered to be related to critical infrastructure or to be a trade secret or information submitted to the department by a commercial enterprise or derived from information obtained from a commercial enterprise, and which, if disclosed would likely cause substantial injury to the competitive position of the subject enterprise.

(5) The person submitting the information may request an exception from disclosure for a limited period of time. If so, the person shall indicate that period of time when submitting the information.

(b) Safeguarding against unauthorized access to records containing trade secrets, confidential commercial information or critical infrastructure information.

(1) Information submitted as provided in subdivision (a) of this section shall be excepted from disclosure and be maintained apart by the department from all other records until 15 days after the entitlement to such exception has been finally determined by the department or such further time as ordered by a court of competent jurisdiction.

(2) Each of the department's division and/or regional directors or their designee shall be responsible for the custody of such records.

(3) Each departmental employee who has custody of records containing trade secrets, confidential commercial information or critical infrastructure information shall take appropriate measures to safeguard such records and to protect against their unauthorized disclosure.

(4) Simple and effective devices to identify and maintain repositories for records containing trade secrets, confidential commercial information or critical infrastructure information, shall be used so that their security is maintained.

(c) Determination to grant or continue exception from disclosure.

(1) On the initiative of the department at any time, or upon the request of any person for a record excepted from disclosure as provided herein, the custodian of the responsive records shall:

(i) inform the person who requested the exception of the department's intention to determine whether such exception should be granted or continued;

(ii) permit the person who requested the exception, within 10 business days of receipt of notification from the department, to submit a written statement of the necessity for the granting or continuation of such exception; and

(iii) within seven business days of receipt of such written statement, or within seven business days of the expiration of the period prescribed for submission of such statement, issue a written determination granting, continuing or terminating such exception and stating the reasons therefor. Copies of such determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government.

(2) The following factors are among those the department may consider in making a determination to grant or continue an exception from disclosure under paragraph (d) of subdivision (2) of section 87 and paragraph (a)(1-a) of subdivision 5 of section 89 of the Public Officers Law:

(i)

(i)

(a) definition of a trade secret--a trade secret may consist of, but shall not necessarily be limited to, any formula, pattern, process, procedure, plan, compound, or device that is not published or divulged and which gives an advantage over competitors who do not know, use or have access to such data or information;

(b) definition of confidential commercial information--confidential commercial information may consist of customer lists, revenue, expense, or income information, or other compilations of information that is not published or divulged and which if disclosed would likely cause substantial injury to the competitive position of the subject enterprise;

(c) definition of critical infrastructure--critical infrastructure means systems, assets, places or things, whether physical or virtual, so vital to the State that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the State, its residents or its economy;

(ii) the extent to which the information is known outside of the business of the person submitting the information;

(iii) the extent to which it is known by the person's employees and others involved in his business;

(iv) the extent of measures taken by the person to guard the secrecy of the information;

(v) the value of the information to the person and to his competitors;

(vi) the amount of effort or money expended by the person in developing the information; and

(vii) the ease or difficulty with which the information could be properly acquired or duplicated by others.

(d) Appeal of action by the department.

(1) A denial of an exception from disclosure under subdivision (a) of this section may be appealed by the person who requested the exception, and a denial of access to the record may be appealed by the person requesting the record in accordance with this section.

(i) Within seven business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the department with the appeals officer designated in section 616.8 of this Part.

(ii) The appeal shall be determined within 10 business days of the receipt of the appeal. Written notice of the determination shall be served upon the person, if any, requesting the record, the person who requested the exception and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(2) A proceeding to review a determination adverse to a person requesting an exception from disclosure pursuant to this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in subparagraph (1)(ii) of this subdivision.

(e) The determination of any claims relating to trade secrets, confidential commercial information or critical infrastructure information that arise in a proceeding pursuant to Part 622 or 624 of this Title are reserved to the Office of Hearings and Mediation Services and the commissioner.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 6 § 616.7