New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle BB - State Energy Office
Chapter III - State Energy Planning Proceeding
Subchapter A - General Provisions
Part 7842 - Public Access To Records
Section 7842.6 - Confidential information

Universal Citation: 9 NY Comp Codes Rules and Regs ยง 7842.6

Current through Register Vol. 46, No. 39, September 25, 2024

(a) Purpose and scope. This section establishes procedures for the determination of confidential status of information submitted to the board, and for the retention by the board of confidential records.

(b) Definition of confidential information. Confidential information 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; individual customer usage and billing data; proprietary energy conservation or renewable energy resource devices, processes or plans; critical infrastructure information; other trade secrets; and other information which is not published or divulged, disclosure of which would cause substantial injury to the competitive position of the submitter; or information required to be maintained as confidential pursuant to any law, regulation, order, tariff, or licensing condition.

(c) Records containing confidential information.

(1) Any person submitting information to the board pursuant to law, regulation or directive and requesting confidential status for such information shall clearly identify the information considered to be confidential and state the reasons why the information should be excepted or exempted from disclosure. A record containing confidential information shall be labeled, on each page as appropriate, using such words as "confidential," "trade secret," "proprietary information," "critical infrastructure information," or words of similar import. The request shall be in writing and indicate:
(i) the specific information requested to be considered confidential, including, where applicable, page or form and line, chart or table designation;

(ii) the confidential nature of the information, including a description of the nature and extent of the injury to the competitive position of the submitter (or to the person who supplied such information to the submitter) which would be incurred were the information to be disclosed;

(iii) whether the information is treated as confidential by the submitter, including whether it has been made available to others and, if so, under what conditions;

(iv) the worth or value of the information to the submitter (or to the person who supplied such information to the submitter) and to either such person's competitors if applicable or known;

(v) the amount of effort or money expended by the submitter (or to the person who supplied such information to the submitter) in developing the record;

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

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

(viii) the date upon which such information will no longer need to be kept confidential, if known;

(ix) whether the request itself contains information which, if disclosed, would defeat the purpose for which confidential status is sought;

(x) whether persons other than the submitter have any interest in maintaining the confidentiality of the information; and

(xi) other factors considered relevant to the submitter.

(2) Subject to the provisions of paragraph (6) of this subdivision, information submitted in accordance with paragraph (1) of this subdivision shall be submitted to the board's records access officer. Such information shall be maintained apart by the board from all other records until 15 days after the entitlement to confidential status has been finally determined, or such further time as ordered by a court of competent jurisdiction. Nothing in this section, however, shall bar the chair from disclosing the information in the form of a summary which aggregates information provided by at least three similarly situated submitters and which summary is adequate to protect the interests of the submitters in the information.

(3) On the initiative of the board at any time, or upon the written request of any person for access to information to which confidential status has been requested, the records access officer shall:
(i) inform the person who requested confidential status of the record access officer's intention to determine whether such status should be granted;

(ii) permit the submitter who requested such status, within 10 business days of receipt of notification from the records access officer, to submit a written statement of the necessity for the granting of such confidential status; and

(iii) within 10 business days of receipt of such written statement, or within 10 business days of the expiration of the period prescribed for submission of such statement, issue a written determination, including the records access officer's rationale for granting or denying such status. Copies of such determination shall be served upon the person requesting the record, if any, the major energy supplier or other person who requested or received confidential status, and the Committee on Open Government.

(4) A refusal to grant confidential status under paragraph (3) of this subdivision may be appealed by the person submitting the information, and a refusal to disclose the record may be appealed by the person requesting disclosure of the record in accordance with this subdivision.
(i) Within seven business days of receipt of written notice of such refusal, the person aggrieved may file a written appeal from the record access officer's determination with the chair.

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

(5) A proceeding to review an adverse determination pursuant to paragraph (4) of this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules by the person seeking an exception or exemption from disclosure. Such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in subparagraph (4)(ii) of this subdivision. Neither the board nor the chair shall disclose such information prior to the time a claim of confidentiality is finally resolved by a court of competent jurisdiction, and thereafter any disclosure shall be consistent with the order of such court.

(6) Nothing in this section shall require any person to disclose any information that would violate any law, regulation, order, or licensing condition.

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