9 CRR-NY 330-1.7NY-CRR
9 CRR-NY 330-1.7
9 CRR-NY 330-1.7
330-1.7 Submission of records containing trade secrets or critical infrastructure information.
(a)
(1) For purposes of this Part, trade secret means any record including, but not limited to: any proprietary data concerning past, present or planned future distribution, sales volumes, costs, or prices; customer or client lists; devices; processes or plans; formulas; patterns; procedures; studies; analyses, plans, and surveys; compounds; cost records; compilations of information and other confidential or proprietary information which is not generally published or divulged, the disclosure of which would cause substantial injury to the competitive position of the commercial enterprise, or if openly disclosed would permit an unfair advantage to competitors of the subject enterprise.
(2) For purposes of this Part, 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.
(b) A person may, at the time of submission of a record, request that the agency designate all or a portion of such record as a trade secret, and except such record from disclosure under paragraph (d) of subdivision 2 of section 87 of the Public Officers Law, and may at any time, request that the agency designate all or a portion of such record as critical infrastruction information, and except such record from disclosure under subdivision 2 of section 87 of the Public Officers Law. The record for which a trade secret designation is sought shall be labeled using such words as "trade secret," "confidential," "proprietary information" or words of similar import. Such request shall be in writing, identify the record for which a designation and exception from disclosure is being requested and state the reasons why the information should be excepted from disclosure. Requests for designation and exception from disclosure of trade secrets shall indicate, if appropriate:
(1) the specific record requested to be considered a trade secret, including, where applicable, page, form, line, chart or table designation;
(2) the confidential nature of the record, including a description of the nature and extent of the injury to the person's competitive position such as unfair economic or competitive damage which would be incurred were the record to be disclosed;
(3) whether the record is treated as confidential by the submitter, including whether it has been made available;
(4) whether any patent, copyright, or similar legal protection exists for the record;
(5) whether the public disclosure of such record is otherwise restricted by law, and the specific source and contents of such restrictions;
(6) the date upon which such record will no longer need to be kept confidential, if applicable;
(7) whether the request itself constitutes a record which, if disclosed, would defeat the purpose for which trade secret status is sought;
(8) whether the record is known outside of the business of the submitter; the extent to which the record is known by the employees and others involved in the business of the submitter;
(9) the value of the record to the submitter and to its competitors;
(10) the amount of effort or money expended by the submitter in developing the records; the ease or difficulty with which the record could be properly acquired or duplicated by others;
(11) any other factors considered relevant.
(c) When a record deemed a trade secret or critical infrastructure information has been submitted to the agency, it shall be excepted from disclosure and be maintained apart by the agency from all other records until 15 days after the entitlement to such exception has been finally determined by the agency or such further time as ordered by a court of competent jurisdiction. Each of the agency's administrative directors or their designees shall be responsible for the custody of such records and each agency employee who has custody of records containing designated trade secrets or critical infrastructure information shall take appropriate measures to safeguard such records and to protect against unauthorized disclosure. Records containing designated trade secrets or critical infrastructure information may only be copied, distributed and evaluated as required by authorized employees involved in the proper conduct of their State duties. Appropriate restrictive notices shall be attached to such records.
(d) On the initiative of the agency at any time, or upon the written request of any person for access to a record to which trade secret or critical infrastructure information status pursuant to subdivision (b) of this section has been granted or is pending, the agency shall:
(1) inform the person who submitted the request for exception of the agency's intention to determine whether such status should be granted or continued;
(2) permit the person who requested the exception, within 10 business days of receipt of notification from the agency, 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 who requested the exception, the person requesting a copy of the record and the Committee on Open Government.
(e) a denial of an exception from disclosure under subdivision (d) of this section and a denial of access to the record may be appealed by the person submitting the information or requesting the record as follows:
(1) Within seven business days of receipt of the written notice denying the request, the person may file a written appeal from the determination of the agency with the First Deputy Commissioner of General Services.
(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 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.
(f) A proceeding to review an adverse determination pursuant to subdivision (e) of this section may be commenced pursuant to article 78 of the Civil Practice Law and Rules. Such proceeding, whenever brought by a person seeking an exception from disclosure pursuant to this subdivision, must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in paragraph (e)(2) of this section.
(g) The person requesting an exception from disclosure pursuant to this subdivision shall in all proceedings have the burden of proving entitlement to the exception.
9 CRR-NY 330-1.7
Current through September 15, 2021
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