§ 453.1 Public records

(a) The public records of the Power Authority of the State of New York, which are required to be made available under article 6 of the New York Public Officers Law, shall be available for inspection and copying upon written request, reasonably describing the record or records sought, during the hours of 9 a.m. — 5 p.m. at the authority's office at 123 Main Street, 15th Floor, White Plains, NY 10006.

§ 453.2 Procedures

(a) A request for inspection or copying of a public record of the authority shall be made to the corporate secretary of the authority in writing, and shall contain sufficient information to identify the particular record sought, including, if possible, information regarding the date, file designation or other information describing the record sought. Any request shall be made either:

(1) in person [during regular business hours] between the hours of 9:00 a.m. and 5:00 p.m. Monday through Friday at the authority's office at 123 Main Street, [15th Floor,] White Plains, NY 10601; or

(2) by mailing such request, postage prepaid, to the corporate [S]secretary, Power Authority of the State of New York, at the foresaid address; or

(3) by faxing such request to the office of the corporate secretary of the authority; or

(4) by e-mailing such request to [email protected].

(b)(1) Upon receipt of a written request for a record reasonably described, the corporate secretary shall promptly determine whether [or not] the record requested is required to be made available under the provisions of article 6 of the New York Public Officers Law and will, within five business days of the receipt of such request, either:

(i) make such record available to the person requesting it by notifying such person where and when the record may be inspected and copied;

(ii) deny such request in writing; or

(iii) furnish a written acknowledgement of the receipt of such request and a statement of the approximate date when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with the procedure prescribed in section 89(5) of the New York Public Officers Law regarding trade secrets.

(2) If access to records is neither granted nor denied within [10] 20 business days after the date of acknowledgement of receipt of the request, the request may be construed as a denial of access that may be appealed.

(c) Trade secrets. (1) Records or portions of records constituting trade secrets shall be so designated by the authority and shall be filed or maintained in secure facilities of the authority to which access is limited. Records or portions of records constituting trade secrets shall be made available for inspection and study to the trustees, the president, the general counsel, the officers and department heads of the authority and their designees.

[(2)] (3) A person acting pursuant to law or regulation who, on or after January 1, 1982, submits any record to the authority may, at the time of submission, request that the authority, in accordance with the provisions of section 89(5) of the New York Public Officers Law, designate such record or any portion thereof as a trade secret and except such information from public disclosure under section 87(d)(2) of such law. Any such request shall identify in writing the record or part thereof alleged to be a trade secret and state reasons why such record or portion thereof should be excepted from public disclosure. Within 15 business days of receipt of a written request for an exception, the authority will either grant or deny such request in writing.

(d) (1) Records required to be made available for public inspection will be either provided to the requester electronically if practicable or, in the alternative, photocopied by the authority if practicable and the person requesting a copy will be charged a fee of $.25 per page for copies not exceed 9 x 14 inches, or the actual cost of reproducing such records if larger copies are required. If it is not practicable for the authority to photocopy any such record, it will be copied commercially and the person requesting the copy will be charged a fee equal to the cost of such commercial reproduction.

(2) Upon payment of [, or offer to pay,] the fee determined by the authority for copying a record required to be made available for public inspection, the authority will provide a copy of such record and the corporate secretary will certify to the correctness of such copy if so requested in writing, or, as the case may be, shall certify that the authority does not have possession of such record or that such record cannot be found after diligent search.

(3) Any fee charged by the authority pursuant to this Part shall be paid by the person making the request in cash or by money order or [certified] check [or bank cashier's check], in advance of the delivery of [copies] a copy of any record referred to in this Part.

(e) Any person who is denied access to a public record of the authority by the corporate secretary of the authority may, within 30 days of such denial, file an appeal from such denial with the authority's general counsel. Appeals pursuant to this subdivision shall be decided by the general counsel. If an appeal is denied, the reasons therefore shall be explained fully in writing to the person requesting the record within 10 business days of the date on which such appeal is received by the general counsel. The general counsel will forward to the Committee on Open Government a copy of such appeal and the determination thereon.

1. Statutory authority: Public Officers Law Section 87(1) and Public Authorities Law Section 1004 authorize the New York Power Authority (“Authority”) to adopt, amend and modify rules and regulations to implement Article 6 of the New York State Public Officers Law, commonly referred to as the Freedom of Information Law (“FOIL”). The Authority initially adopted such FOIL rules in 1978.

2. Legislative objectives: The Authority's proposed amendments to its 21 NYCRR Part 453 regulations incorporate certain changes made to FOIL since 1978 and clarify and update the Authority's existing rules where appropriate.

3. Needs and benefits: It is appropriate for the Authority to periodically amend its NYCRR regulations to reflect statutory changes and to clarify and update existing rules. Although the Authority's proposed amendments do not attempt to replicate FOIL regulations promulgated by the New York State Committee on Open Government (“COOG”) at 21 NYCRR Part 1401, it may nevertheless be noted that most of the amendments will enhance the consistency of the two. Other changes are typically procedural, non-substantive and/or minor in nature. Thus:

The amendment to subsection (a) of Section 453.1 conforms to the COOG regulations at Section 1401.3 of Title 21 NYCRR.

The amendments of subsections (a)–(d) of Section 453.2 that clarify the existing definition of “Secretary” as meaning the Authority's Corporate Secretary are non-substantive.

The amendment of paragraph (1) of subsection (a) of Section 453.2 clarifies the actual hours the Authority is regularly open for business in accordance with the COOG regulations at subsection (a) of Section 1401.4 of Title 21 NYCRR.

The additions of paragraphs (3) and (4) of subsection (a) of Section 453.2 capture and reflect statutory amendments to paragraph (b) of subsection (3) of Section 89 of the Public Officers Law and make the Authority more accessible to the public by accepting requests via e-mail or facsimile in addition to U.S. mail or hand delivery.

The amendment to subparagraph (i) of paragraph (1) of subsection (b) of Section 453.2 is non-substantive and conforms to COOG regulations at Section 1401.5 of Title 21 NYCRR.

The amendments to paragraph (2) of subsection (b) of Section 453.2 conform to the Public Officers Law and COOG regulations at subsection (3) of paragraph (c) of Section 1401.5 of Title 21 NYCRR.

The amendment to paragraph (1) of subsection (c) of Section 453.2 is non-substantive and adds the title of “general” counsel as the counsel granted access to trade secret information.

The amendment to paragraph (2) of subsection (c) of Section 453.2 notifies an entity requesting an exception for trade secret or competitively sensitive information submitted to the Authority of the right to and procedure for appeal.

The first amendment of paragraph (1) of subsection (d) of Section 453.2 conforms to COOG regulations at paragraph (b) of Section 1401.5 of Title 21 NYCRR to allow the Authority to provide records electronically to reduce the cost of reproduction to the public. The second amendment of paragraph (1) of subsection (d) of Section 453.2 allows the Authority's regulations regarding the cost of reproduction to consistently conform to statutory amendments of Article 6 of the Public Officers Law.

The amendment of paragraph (2) of subsection (d) of Section 453.2 clarifies that the requesting party must pay the statutory fee imposed by the Authority before the Authority releases such records. The second amendment of paragraph (2) of subsection (d) of Section 453.2 is non-substantive and is included for grammatical accuracy.

The first amendment of paragraph (3) of subsection (d) of Section 453.2 updates payment methods a requester shall use to submit payment of the statutory fee for security and tracking purposes. The second amendment of paragraph (3) of subsection (d) of Section 453.2 is non-substantive and reflects the fact that there may be one or many records produced in response to a request and that only one copy of such record(s) will be provided to the requester.

The addition of subsection (f) of Section 453.2 ensures that the public is guided by a uniform FOIL procedure when requesting documents from the Authority.

4. Costs: There will be no additional costs to the public or the State of New York for implementation of and continued compliance with the Authority's modifications to its FOIL rules. There are no anticipated additional expenses to the Authority or to the state and local governments for implementation and continuation of the Authority's modifications to its FOIL rules.

5. Local government mandates: The Authority's modifications to its 21 NYCRR 453 regulations do not impose any additional programs, service, duty or responsibility on any county, town, village, school district or other special district.

6. Paperwork: The Authority's modifications to its 21 NYCRR 453 regulations do not impose any additional need for any reporting requirements, including forms or other paperwork.

7. Duplication: The modifications to the Authority's 21 NYCRR 453 regulations do not duplicate, overlap or conflict with any relevant rules of the state or federal governments.

8. Alternatives: Before determining to amend its FOIL rules as indicated, the Authority also considered leaving the existing 1978 version of the rules unchanged (and relying on the statute and advisories on www.nypa.gov reflecting statutory changes to FOIL procedures) and also repealing these rules in toto. The first alternative was rejected because the advisories or the statute would be inconsistent and confusing to members of the public trying to make a FOIL request. The second alternative was rejected because the Authority believes that FOIL requires clarification as applied to individual entities depending on how individual records are maintained, business hours and organization of the public entities subject to FOIL.

9. Federal standards: The Authority's modifications to its 21 NYCRR 453 regulations do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: It is anticipated that regulated persons will be immediately able to achieve compliance with the Authority's modifications to its 21 NYCRR 453 regulations.

1. Effect of rule: It is anticipated that small businesses and local governments will be unaffected by the Authority's modifications to its 21 NYCRR Part 453 Regulations.

2. Compliance requirements: Small businesses and local governments will not have to undertake any additional reporting, recordkeeping, or other affirmative acts because of the Authority's modifications to its 21 NYCRR Part 453 Regulations.

3. Professional services: Small businesses and local governments will not require any additional professional services to comply with the Authority's modifications to its 21 NYCRR Part 453 Regulations.

4. Compliance costs: Regulated business, industry, or local government will not incur any additional initial capital costs or annual costs for continuing compliance because of the Authority's modifications to its 21 NYCRR Part 453 Regulations.

5. Economic and technological feasibility: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not affect the economic and technological feasibility of compliance by small businesses and local governments.

6. Minimizing adverse impact: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not have any additional adverse impact on small businesses or local governments.

7. Small business and local government participation: Under State Administrative Procedure Act Section 202-b(6), the Authority will ensure that small businesses and local governments have an opportunity to participate in the rule making process by publishing the Notice of Proposed Rule Making in the State Register and conducting a public hearing.

1. Types and estimated numbers of rural areas: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not affect the number of rural areas to which these regulations will apply. These modifications will not impose any additional requirements on rural areas.

2. Reporting, recordkeeping and other compliance requirements; and professional services: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not require any additional reporting, recordkeeping, professional services, or other compliance requirements in rural areas.

3. Costs: It is estimated that there will be no additional initial capital costs or annual costs for any public and private entities in rural areas because of the Authority's modifications to its 21 NYCRR Part 453 Regulations.

4. Minimizing adverse impact: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not cause any additional adverse impact to public and private sector interests in rural areas.

5. Rural area participation: The Authority will comply with State Administrative Procedure Act Section 202-bb(7) by publishing the Notice of Proposed Rule Making in the State Register and conducting a public hearing.

1. Nature of impact: The Authority's modifications to its 21 NYCRR Part 453 Regulations will have no impact on jobs and employment opportunities.

2. Categories and numbers affected: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not affect any categories of jobs or employment opportunities.

3. Regions of adverse impact: The Authority's modifications to its 21 NYCRR Part 453 Regulations will not have a disproportionate adverse impact on jobs or employment in any region of the state.

4. Minimizing adverse impact: This item is not applicable to the Authority's modifications to its 21 NYCRR Part 453 Regulations.

5. Self-employment opportunities: This item is not applicable.