N.Y. Comp. Codes R. & Regs. tit. 21 § 501.6

Current through Register Vol. 46, No. 45, November 2, 2024

Section 501.6 - Trade secret designation

(a) For purposes of this Part, trade secret means any record including, but not limited to: any proprietary data concerning past, present or planned future energy distribution, sales volumes, costs, or prices; customer or client lists; devices; processes or plans; formulas; patterns; processess; procedures; studies, analyses, plans, and surveys; compounds; cost records; compilations of information; and other confidential or proprietary information which is not published or divulged, disclosure of which would cause substantial injury to the competitive position of the commercial enterprise. Trade secret shall also include information derived from information from a commercial enterprise which if disclosed would cause substantial injury to the competitive position of the commercial enterprise.

(b) The authority may deny access to a trade secret. A record containing a trade secret shall be labeled using such words as "trade secret", "confidential", "proprietary information", or words of similar import.

(c) A person may, at the time of submission of a record, request that the authority designate all or a portion of such record as a trade secret, and except such record from disclosure under paragraph (d) of subdivision two of section 87 of the Public Officers Law. Such request shall identify the record constituting a trade secret and the reasons why disclosure of such record would cause substantial injury. The request 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 to others;

(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;

(9) the extent to which the record is known by the employees and others involved in the business of the submitter;

(10) the value of the record to the submitter and to its competitors;

(11) the amount of effort or money expended by the submitter in developing the record;

(12) the ease or difficulty with which the record could be properly acquired or duplicated by others; and

(13) any other factors considered relevant.

(d) When a record deemed a trade secret has been submitted to the authority, and such record is not being reviewed, analyzed, or used by a person to whom such record was intended for use, custody of such record shall be the responsibility of the director of contract management for records maintained at the Albany office and the program director of West Valley site management for records maintained at the West Valley office. Such record shall be excepted from disclosure and be maintained apart by the authority from all other records in secure file 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. A record granted trade secret status or which is being reviewed to determine if it constitutes a trade secret, whether in written or electronic form, or obtained through electronic transfer and stored in written form, on computer disks, or in other media, shall be placed in envelopes with flaps, enclosed in containers, or secured in another manner which will effectively maintain the integrity of the trade secret and which can be marked to clearly limit access to the contents. The container will indicate a trade secret control number and identify the source or owner of the record and the authority employee who received the record. Access and use of the record shall be limited to persons performing administrative or evaluative responsibilities. If a determination is made that the record does not constitute a trade secret, it will be removed from the secured location and made available to the person requesting access to such record.

(e) On the initiative of the authority at any time, or upon the written request of any person for access to a record to which trade secret status pursuant to subdivision (c) of this section has been granted or is pending, the authority shall:

(1) inform the person who submitted the request for exception of the authority'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 authority, 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.

(f) A denial of an exception from disclosure under subdivision (e) of this section and a denial of access to a record may be appealed by the person submitting the information or requesting the record within seven business days of receipt of the written notice denying the request by filing a written appeal from the determination with the president and chief executive officer of the authority. 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.

(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) When the authority denies access to a record pursuant to Public Officers Law section 87(2)(d), the authority 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 any other section 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 limit or abridge any otherwise available right of access at law or equity of any party to records.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 501.6