New York Codes, Rules and Regulations
Title 14 - DEPARTMENT OF MENTAL HYGIENE
Chapter XIII - Office of Mental Health
Part 510 - Public Access To Records Of The Office Of Mental Health
Section 510.7 - Records containing trade secrets
Universal Citation: 14 NY Comp Codes Rules and Regs ยง 510.7
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Submission of records containing secrets.
(1) A person acting pursuant to law or
regulation who submits any information to the Office of Mental Health may, at
the time of submission, request that the office except such information from
disclosure under section 87 (2)(d) of the Public
Officers Law. This section provides that an agency may deny access of records
or portions thereof that are trade secrets or are 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. Where the request itself
contains information which if disclosed would defeat the purpose for which the
exception is sought, such information shall 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 "proprietary
information."
(4) 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.
(1)
Information submitted as provided in subdivision (a) of this section shall be
excepted from disclosure and be maintained apart by the office from all other
records until 15 days after the entitlement to such exception has been finally
determined by the office or such further time as ordered by a court of
competent jurisdiction.
(2) The
appropriate office deputy commissioners or facility directors, or their
designees, shall be responsible for the custody of such records.
(3) Each employee who has custody of records
containing trade secrets 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 shall be used so
that their security is maintained.
(c) Determination to grant or continue exception from disclosure.
(1) On the
initiative of the office at any time, or upon the request of any person for a
record excepted from disclosure as provided herein, the office shall:
(i) inform the person who requested the
exception of the office'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 office, 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
office may consider in making a determination to grant or continue an exception
from disclosure under section 87 (2)(d) of the Public
Officers Law:
(i) any provisions of the Mental
Hygiene Law or other law which authorize or restrict access to the
records;
(ii) whether or not the
records are trade secrets or are submitted to an agency by a commercial
enterprise or derived from information obtained from a commercial enterprise
which, if disclosed, would cause substantial injury to the competitive position
of the commercial enterprise;
(iii)
the written request for an exception from disclosure and the reasons stated
therein;
(iv) the written
statement, if any, of the necessity for the granting or continuation of the
exception from disclosure;
(v)
factors pertaining to determining whether or not a trade secret exists shall
include, but not be limited to:
(a) the extent
to which the information is known outside of the business of the person or
entity submitting the information;
(b) the extent to which it is known by the
person's or entity's employees and others involved in the business;
(c) the extent of measures taken by the
person or entity to guard the secrecy of the information;
(d) the value of the information to the
person or entity and to competitors;
(e) the amount of effort or money expended by
the person or entity in developing the information; and
(f) the ease or difficulty with which the
information can be properly acquired or duplicated by others;
(vi) factors pertaining to
determining whether disclosure would cause substantial injury to the
competitive position of the person or entity shall include but not be limited
to:
(a) the commercial value of the
information to competitors;
(b) the
damage which disclosure could cause to the submitting person or entity;
and
(c) whether and at what cost
the information can be obtained from other sources.
(d) Appeal of action by the Office of Mental
Health.
(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 office pursuant to section
510.10
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.
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