New York Codes, Rules and Regulations › Title 16 - DEPARTMENT OF PUBLIC SERVICE › Chapter I - RULES OF PROCEDURE › Subchapter A - GENERAL › Part 6 - Implementation Of Provisions Of The Public Officers Law › Subpart 6-1 - Public Access to Department Records › Section 6-1.3 - Records containing trade secrets, confidential commercial information or critical infrastructure information

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Definition of a trade secret. A trade
					 secret may consist of any formula, pattern, device or compilation of
					 information which is used in one's business, and which provides an opportunity
					 to obtain an advantage over competitors who do not know or use it.
(b) Manner of identifying trade secrets,
					 confidential commercial information or critical infrastructure information.
(1) Any person submitting records, pursuant
					 to law, regulation or directive, to the department and requesting trade secret
					 or confidential commercial status for information contained therein, and any
					 person or entity submitting, or otherwise making available, records to the
					 department and requesting critical infrastructure status for information
					 contained therein, shall submit the records to the department records access
					 officer in electronic form or by mail and shall clearly identify the records or
					 portions thereof considered to be confidential. This may be accomplished by
					 separating and placing on or attaching to such information at the time of
					 submission a cover sheet or other suitable form of notice, using such language
					 as "critical infrastructure information," "confidential commercial
					 information," "trade secret" or "proprietary". Where the request itself
					 contains information which, if disclosed, would defeat the purpose for which
					 the exception is sought, such information shall also be excepted from
					 disclosure.
(2) A person submitting
					 trade secret or confidential commercial information to the department shall
					 clearly state the reason(s) why the information should be excepted from
					 disclosure, as provided for in section 87 (2)(d)  of the Public
					 Officers Law. In all cases, the person must show the reasons why the
					 information, if disclosed, would be likely to cause substantial injury to the
					 competitive position of the subject commercial enterprise. Factors to be
					 considered include, but are not necessarily limited to:
(i) the extent to which the disclosure would
					 cause unfair economic or competitive damage;
(ii) the extent to which the information is
					 known by others and can involve similar activities;
(iii) the worth or value of the information
					 to the person and the person's competitors;
(iv) the degree of difficulty and cost of
					 developing the information;
(v) the
					 ease or difficulty associated with obtaining or duplicating the information by
					 others without the person's consent; and
(vi) other statute(s) or regulations
					 specifically excepting the information from disclosure.
(3) A person or entity submitting, or
					 otherwise making available, critical infrastructure information to the
					 department shall clearly state the reason(s) why the information should be
					 excepted from disclosure, as provided in section 87 (2)  of the Public Officers
					 Law.
(4) A person desiring
					 confidential status for a limited period of time shall indicate such time frame
					 at the time the information is submitted to the department.
(5) Failure to identify trade secret
					 information at the time of submission may make the information accessible to
					 others without notice to the person who submitted such information unless a
					 specific exemption from disclosure by other statutes or regulations pertains to
					 the information.