New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle BB - State Energy Office
Chapter I - General Regulations
Part 7801 - Public Access To Records
Section 7801.9 - Trade secrets

Universal Citation: 9 NY Comp Codes Rules and Regs ยง 7801.9

Current through Register Vol. 46, No. 12, March 20, 2024

(a) A trade secret may consist of, but shall not be limited to: proprietary data concerning past, present or planned future energy distribution, sales volumes, or prices; customer lists; proprietary energy conservation or renewable energy resource devices, processes or plans; and other information which is not published or divulged, disclosure of which would cause substantial injury to the competitive position of the submitter.

(b) A person requesting trade secret status for information submitted to the Energy Office on or after the effective date of this section (November 21, 1984) shall identify the information considered to be a trade secret and state the reasons why the information should be considered a trade secret. The request shall indicate:

(1) the specific information requested to be considered a trade secret, including, where applicable, page or form and line, chart or table designation;

(2) the confidential nature of the information, including a description of the nature and extent of the injury to the person's competitive position which would be incurred were the information to be disclosed;

(3) whether the information is treated as confidential by the supplier, including whether it has been made available to others;

(4) whether any patent, copyright or similar legal protection exists for the information;

(5) whether the public disclosure of such information is otherwise restricted by law, and the specific source and contents of such restrictions;

(6) the date upon which such information will no longer need to be kept confidential;

(7) whether the request itself contains information which, if disclosed, would defeat the purpose for which trade secret status is sought; and

(8) other factors considered relevant.

(c) Information submitted to the Energy Office under a request for or assurance of confidential or trade secret treatment prior to the effective date of this section shall be treated as though it were submitted pursuant to subdivision (b) of this section and such information shall not be disclosed by the Energy Office except as provided in subdivisions (d) and (e) of this section.

(d) Where information has been submitted to the Energy Office as provided in subdivisions (b) and (c) of this section, custody of such information shall be the responsibility of the commissioner of the Energy Office or his designee. Such information shall be excepted from disclosure and be maintained apart by the Energy Office from all other records in secure facilities until 15 days after the entitlement to such exception has been finally determined, or such further time as ordered by a court of competent jurisdiction. Access by Energy Office personnel to such information shall be limited, and physical safeguards against any unauthorized access to such information shall be maintained, in accordance with security procedures established by the commissioner of the Energy Office or his designee.

(e) On the initiative of the Energy Office at any time, or upon the written request of any person for access to information as to which trade secret status pursuant to subdivisions (b) and (c) of this section has been granted or is pending, the Energy Office shall:

(1) inform the person who requested or received trade secret status of the Energy Office's intention to determine whether such status should be granted or continued;

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

(3) 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 status and stating the reasons therefor; copies of such determination shall be served upon the person, if any, requesting the record, the person who requested or received such status, and the Committee on Open Government.

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

(1) Within seven business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the Energy Office with the deputy commissioner for operations of the Energy Office.

(2) 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 or received the exception, and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(g) A proceeding to review an adverse determination pursuant to subdivision (f) of this section 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 paragraph (f)(2) of this section.

(h) The person requesting an exception from disclosure pursuant to this section shall in all proceedings have the burden of proving entitlement to the exception.

(i) Where the Energy Office denies access to a record pursuant to Public Officers Law, section 87(2)(d), the Energy Office shall have the burden of proving that the record falls within the provisions of such exception.

(j) Nothing in this section shall be construed to deny any person access, pursuant to the Public Officers Law and sections 7801.1 through 7801.8 of this Part, to any record or part excepted from disclosure upon the express written consent of the person who requested or received the exception.

(k) Nothing in this section shall be construed to preclude the Energy Office, in its discretion, from providing information as to which trade secret status has been granted or is pending to any other governmental body which agrees to maintain the confidentiality of such information in accordance with such terms and conditions as shall be set forth in a written memorandum of understanding to be entered into between the Energy Office and that governmental body.

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