(a) The public records of the Long Island Power Authority (the “Authority”, or “LIPA”) shall be available in accordance with this Part for inspection and copying upon written or oral request, reasonably describing the record or records sought, during the times provided in this Part at the Authority’s main office at 333 Earle Ovington Blvd., Suite 403, Uniondale, NY 11553.

Section 10050.2. Procedures regarding access to public records

(a) A request for inspection or copying of a public record of the Authority shall be made to the records access officer of the Authority orally or in writing and shall contain sufficient information to identify the record sought, including, if possible, information regarding the date, subject matter or other information describing the record sought. Any request shall be made either:

(1) electronically by using Open FOIL New York at https://www.lipower.org.

(2) in person, Monday through Friday, during regular business hours at the Authority’s main office at 333 Earle Ovington Blvd., Suite 403, Uniondale, NY 11553; or

(3) by mailing such request to the Records Access Officer, Long Island Power Authority, at the aforesaid address.

(b) LIPA’s General Counsel is designated the Records Access Officer. The Records Access Officer, or designee, shall coordinate within the Authority and with the service provider to the extent that responsive records are held by the service provider on behalf of the Authority, to provide timely responses to requests for public access to records. Designation of a records access officer shall not be construed to prohibit officials who have in the past been authorized to make records or information available, from continuing to do so.

Section 10050.4. Fees

(a) There shall be no fee charged for:

(1) inspection of records; or

(2) records that are readily available in digital format, capable of being transmitted via electronic mail, and are the requestor’s own electric service customer account records.

(b) Persons requesting records to be made available in paper format or for records not readily available in digital format, will be charged a fee of 25 cents per page for copies of such documents not exceeding 9″ x 14″, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c).

(c) In determining the actual cost of reproducing a record, the Authority may charge a fee consisting of:

i. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record;

ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;

iii. the actual cost to the Authority of engaging an outside professional service to prepare a copy of a record, but only when the Authority or its service provider’s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy.

(d) Fees shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of agency employee time is needed to prepare a copy of the record requested. A person requesting a record shall be informed of the estimated cost of preparing a copy of the record if more than two hours of an agency employee`s time is needed, or if an outside professional service would be retained to prepare a copy of the record. .

(e) Any fee charged by the Authority pursuant to this Part shall be paid by the person making the request in the manner prescribed by the Authority at the time such fee has been ascertained, and in advance of the delivery of copies of any record referred to in this Part.

Section 10050.5. Appeals

(a) Any person who is denied access to a public record of the Authority by the records access officer of the Authority may, within 30 days of such denial, file an appeal from such denial with the Authority’s appeals officer. Appeals pursuant to this subdivision shall be decided by the appeals officer. If an appeal is denied, the reasons therefor shall be explained fully in writing to the person requesting the record within seven business days of the date on which such appeal is received by the appeals officer. The appeals officer will forward to the Committee on Open Government of the Department of State a copy of such appeal and the appeals officer’s determination.

(b) The following person shall hear appeals from denials of access to records, under section 89(4)(a) of the Public Officers Law: the Chief Executive Officer, Long Island Power Authority, 333 Earle Ovington Boulevard, Uniondale, NY 11553.

LIPA received concerns regarding whether there had been a change in policy with respect to records held by LIPA’s service provider on behalf of LIPA being subject to FOIL. There has been no change in policy. LIPA acknowledges the current definition of a “Record” in FOIL applies to “any information kept, held, filed, produced or reproduced by, with or for an agency”, see, NY PUB OFF § 86(4). As such records held by LIPA’s service providers on behalf of LIPA are clearly subject to current FOIL regulations. To avoid any ambiguity, LIPA is now proposing to amend Section 10050.2(c) to provide that the “The Records Access Officer, or designee, shall coordinate within the Authority and with the Authority’s service providers to the extent that responsive records are held by the service providers on behalf of the Authority, to provide timely responses to requests for public access to records.”

The 2021 NOPR proposed to repeal Section 10050.3 relating to the definition of trade secrets principally in recognition that only the State Legislature and the courts of the State of New York have the authority to redefine or interpret the extent of the trade secret privilege. LIPA received concerns related to repealing the definition included in the 1994 regulations. As the repeal was intended as a “clean up” of a dated regulation rather than a substantive change, in response to the concerns expressed, LIPA has decided not to proceed with any amendments to Section 10050.3 under the current NOPR.

LIPA also received concerns that the amendments proposed in the 2021 NOPR could be read to require the public to make an appointment to make an in-person FOIL request. That was not LIPA’s intention and provisions relating to appointments have been removed from the current NOPR.

Lastly, LIPA received concerns regarding the 2021 NOPR being filed as a “consensus” rulemaking. The current NOPR is not being filed as a consensus rulemaking under SAPA.

1. Statutory authority: New York’s FOIL statute, Article 6 (Sections 84-90) of the Public Officers Law, requires that LIPA promulgate rules and regulations: in conformity with the provisions of this article, pertaining to the availability of records and procedures to be followed, including, but not limited to:

i. the times and places such records are available;

ii. the persons from whom such records may be obtained; and

iii. the fees for copies of records which shall not exceed twenty-five cents per photocopy not in excess of nine inches by fourteen inches, or the actual cost of reproducing any other record in accordance with the provisions of paragraph (c) of this subdivision, except when a different fee is otherwise prescribed by statute.

See, Public Officers Law, section 87(1)(b).

2. Legislative objectives: LIPA’s current regulations were promulgated in 1994, prior to its acquisition of the transmission and distribution system previously operated by the Long Island Lighting Company. This proposal seeks to revise those regulations to make technical corrections regarding the methods by which FOIL requests may be filed and to amend existing fees that may be collected for copying of records provided to the public by conforming with FOIL’s provisions. This proposal also seeks to address the concerns raised by various stakeholders relating to the proposed Notice of Proposed Rulemaking originally filed in September 2021.

3. Needs and benefits: LIPA’s current regulations were promulgated in 1994, prior to its acquisition of the transmission and distribution system previously operated by the Long Island Lighting Company. This proposal seeks to revise those regulations to make technical corrections regarding the methods by which FOIL requests may be filed and to amend existing fees that may be collected for copying of records provided to the public by conforming with FOIL’s provisions. This proposal also seeks to address the concerns raised by various stakeholders relating to the proposed Notice of Proposed Rulemaking originally filed in September 2021.

4. Costs: There is no financial impact associated with the proposed changes, to LIPA or its customers. As for changes in the collection of copying fees, Staff notes that the number of FOIL requests from commercial enterprises seeking LIPA records has increased significantly over recent years. While the fee for actual labor costs associated with copying records may impact such requestors, the proposed modification would merely comply with the language in FOIL that permits such fees, and thereby help to defray at least a portion of the administrative cost of FOIL compliance that is currently being borne entirely by LIPA customers.

5. Local government mandates: N/A

6. Paperwork: N/A

7. Duplication: LIPA is proposing this rule to maintain consistency with New York’s FOIL statute, Article 6 (Sections 84-90) of the Public Officers Law.

8. Alternatives: No alternatives were considered.

9. Federal standards: N/A

10. Compliance schedule: N/A

A regulatory flexibility analysis is not required pursuant to the State Administrative Procedure Act because the proposed rule does not rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments. The proposed rule will update LIPA’s regulations for filing requests for records under New York State’s Freedom of Information Law (“FOIL”) and to conform with FOIL’s statutory provisions regarding the collection of fees for copying and producing records. There is no financial impact associated with the proposed changes, to LIPA or its customers. As for changes in the collection of copying fees, Staff notes that the number of FOIL requests from commercial enterprises seeking LIPA records has increased significantly over recent years. While the fee for actual labor costs associated with copying records may impact such requestors, the proposed modification would merely comply with the language in FOIL that permits such fees, and thereby help to defray at least a portion of the administrative cost of FOIL compliance that is currently being borne entirely by LIPA customers.

A rural area flexibility analysis is not required pursuant to the State Administrative Procedure Act because the proposed rule does not impose an adverse impact on rural areas. The proposed rule will update LIPA’s regulations for filing requests for records under New York State’s Freedom of Information Law (“FOIL”) and to conform with FOIL’s statutory provisions regarding the collection of fees for copying and producing records. The proposed rule makes FOIL requests more accessible overall by clearly indicating that requests can be made directly through LIPA’s website.

The proposed amendments and technical changes to LIPA’s existing Freedom of Information Law (“FOIL”) regulations governing access to Authority records and collection of fees are being made to conform to the requirements of FOIL. Fees are permitted by FOIL and serve to defray a portion of the cost of compliance otherwise borne by LIPA ratepayers. It is expected that the rule change will have no impact on jobs.