N.Y. Comp. Codes R. & Regs. tit. 5 § 1.7

Current through Register Vol. 46, No. 50, December 11, 2024

Section 1.7 - Protection of certain records

(a) In accordance with the provisions of section 89(2) of the Public Officers Law, the records access officer may delete from any record identifying details the disclosure of which would result in an unwarranted invasion of personal privacy prior to making such record available for inspection and/or copying. In the event of any such deletion, the records access officer shall provide written notice of that fact to the person given access to the record. If the record is such that the personal matters cannot be fully deleted without substantively affecting the record or the identifying details cannot be effectively deleted, the records access officer shall deny access to such record as provided in section 1.8 of this Part.

(b) Information that is submitted to the department in the course of rendering its economic development services, or is derived from such information, may be excepted from disclosure pursuant to section 87(2)(d) of the Public Officers Law on the grounds that the information contains trade secrets, proprietary information, or that the information if disclosed would cause substantial injury to the competitive position of the enterprise submitting such information. A commercial enterprise may submit a request to the records access officer seeking an exception as provided for herein. Such exception may extend to information contained in the request itself, if disclosure would defeat the purpose for which the exception is sought.

(c) The request for such an exception shall be in writing and state the reasons for the requested exception. It shall also specify the information or portions of the information for which the exception is requested.

(d) Information submitted as provided in subdivisions (b) and (c) of this section shall be reviewed by the records access officer and it shall be his duty to make determinations concerning the designation of individuals within the department who shall maintain custody of such records or who may inspect such records. Any such designation shall be in writing and shall be available for inspection.

(e) Information submitted as provided in subdivisions (b) and (c) of this section shall be excepted from disclosure and shall be maintained apart from other records in a locked file cabinet or other secure facility, until 15 days after the entitlement to such exception has been finally determined or such further time as may be ordered by a court of competent jurisdiction.

(f) On the initiative of the department at any time, or upon the request of any person for a record excepted from disclosure pursuant to subdivision (b) and following of this section, the department shall:

(1) give notice to the person who requested the exception of any request for disclosure and/or of the department's intention to determine whether such exception should be granted or continued;

(2) permit the person who asked for the exception within 10 business days of receipt of such notice from the department, to submit a written statement of the necessity for the granting or continuation of the exception from disclosure;

(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 the exception from disclosure and stating the reasons therefor; copies of such determination shall be served upon the person, if any, requesting the record, the person who asked for the exception and the Committee on Open Government.

(g) A denial of an exception from disclosure under subdivision (f) of this section may be appealed by the persons submitting the information and a denial of access to the record may be appealed by the person requesting the record as follows:

(1) Within seven business days of receipt of written notice denying the request for an exception or for disclosure, the person asking for the exception or the person requesting disclosure may appeal to the Deputy Commissioner and Counsel, Department of Economic Development, 30 South Pearl Street, Albany, NY 12245.

(2) The appeal must be in writing and set forth the name and address of the person asking for the exception or the person requesting disclosure; the date of asking for an exception or of the request for disclosure and to whom it was delivered; the specific record to which exception or disclosure was denied; the reasons given for such denial; and whether the denial was in writing or is considered to be a denial because of failure of the department to respond in a timely manner.

(3) 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, if any, requesting the record, the person who asked for the exception and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(h) A proceeding to review an adverse determination pursuant to subdivision (g) of this section may be commenced pursuant to article 78 of the Civil Practice Law and Rules; provided, however, that such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in paragraph (g)(3) of this section.

(i) Nothing in this section shall be construed to deny any person access, pursuant to the provisions of the Freedom of Information Law or this Part, to any record or part excepted from disclosure upon the written consent of the person who had requested the exception.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 1.7