9 NYCRR Part 7801 - Executive Department

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Source versions current through May 15, 2022 - Oct 31, 2022 across sections

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9 NYCRR 7801.1 - Purpose and scope

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The people's right to know the process of government decisionmaking and the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality.

(b)This Part provides information concerning the procedures by which public records of the State Energy Office may be obtained.

(c)State Energy Office personnel shall furnish to the public the information and records required by the Freedom of Information Law, as well as records otherwise available by law.

(d)Any conflicts among laws and regulations governing public access to records shall be construed in favor of the widest possible availability of public records.

9 NYCRR 7801.2 - Designation of records access officer

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)The Commissioner of the State Energy Office is responsible for assuring compliance with this Part. The commissioner designates the following person as the records access officer of the State Energy Office: Counsel, State Energy Office, Agency Building 2, Empire State Plaza, Albany, NY 12223.

(b)The records access officer shall coordinate 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.

9 NYCRR 7801.3 - Location

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

Records shall be available for public inspection and copying at the following address: State Energy Office, Agency Building 2, Empire State Plaza, Albany, NY 12223.

9 NYCRR 7801.4 - Hours for public inspection

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

Requests for public access to records shall be accepted and records shall be produced Monday through Friday, during regular business hours, 8:30 a.m.-4:45 p.m.

9 NYCRR 7801.5 - Subject matter list

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

The records access officer shall be responsible for assuring that State Energy Office personnel maintain a list by subject matter of all records in the possession of the State Energy Office, whether or not records are available pursuant to section 87(2) of the Public Officers Law. The list shall be sufficiently detailed to permit identification of the category of the record sought, and shall be updated not less than twice per year, with the most recent update appearing on the front page of the list.

9 NYCRR 7801.6 - Requests for public access to records

Source version current through May 15, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)A request for records shall be directed to the records access officer. The request may be made orally or in writing.

(b)A request shall describe the record or records sought with as much specificity as possible. Whenever possible, a person requesting records shall supply information regarding the titles and dates of the records, file designations or other information that may help to describe the records sought.

9 NYCRR 7801.7 - Response to requests for access to records

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Within five business days after the receipt of a request pursuant to this Part, the State Energy Office shall respond to the request by:

(1)permitting inspection of the records sought; or providing copies of the records sought, upon payment of fees calculated according to section 7801.10 of this Part, or upon an offer to pay such fees;

(2)denying access, in whole or in part, to the records sought, with an explanation in writing of the reasons therefor, and indicating that the denial may be appealed under section 7801.8 of this Part;

(3)asking for clarification of the request;

(4)furnishing a statement of the date when the request will be granted or denied which shall include, where appropriate, a statement that access to the record will be determined in accordance with the procedure prescribed in section 7801.9 of this Part and in the Public Officers Law, section 89(5), regarding trade secrets; or

(5)certifying that the State Energy Office is not the custodian of the records sought, or that the records cannot be found after diligent search.

(b)The State Energy Office shall grant access to records to the greatest extent consistent with the public interest. However, the State Energy Office may deny access to records or a portion thereof that:

(1)are specifically exempted from disclosure by State or Federal statute;

(2)if disclosed would constitute an unwarranted invasion of personal privacy under the provisions of subdivision two of section 89 of the Public Officers Law;

(3)if disclosed would impair present or imminent contract awards or collective bargaining negotiations;

(4)are trade secrets or are maintained for the regulation of commercial enterprise which if disclosed would cause substantial injury to the competitive position of the subject enterprise;

(5)are compiled for law enforcement purposes and which, if disclosed, would:

(i)interfere with law enforcement investigations or judicial proceedings;

(ii)deprive a person of a right to a fair trial or impartial adjudication;

(iii)identify a confidential source or disclose confidential information relating to a criminal investigation; or

(iv)reveal criminal investigative techniques or procedures, except routine techniques and procedures;

(6)if disclosed would endanger the life or safety of any person;

(7)are inter-agency or intra-agency materials which are not:

(i)statistical or factual tabulations of data;

(ii)instructions to staff that affect the public; or

(iii)final agency policy or determinations; or

(8)are examination questions or answers which are requested prior to the final administration of such questions.

(c)If the State Energy Office fails to respond to a request within five business days of receipt of a request, or if the State Energy Office fails to grant or deny access within 10 business days after the date of acknowledgment of receipt of a request, such failure may be construed as a denial of access which may be appealed under section 7801.8 of this Part.

(d)No records may be removed by the requesting party from the immediate office where the records are located without the permission of the supervising officer responsible for the original preparation or custody of the records.

(e)On request, the records access officer shall certify that a copy of a record provided is a true copy.

9 NYCRR 7801.8 - Appeals from denials of access to records

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)Except as provided in subdivision (f) of this section, any person denied access to records may appeal within 30 days from the date of a denial.

(b)The following person shall hear appeals from denials of access to records, under section 89(4)(a) of the Public Officers Law: Deputy Commissioner, State Energy Office, Agency Building 2, Empire State Plaza, Albany, NY 12223.

(c)Whenever the State Energy Office receives an appeal pursuant to this section, it shall transmit a copy of the appeal to the Committee on Public Access to Records at the following address: Committee on Public Access to Records, Department of State, 162 Washington Avenue, Albany, NY 12231.

(d)The deputy commissioner shall inform the appellant and the Committee on Public Access to Records of his determination, in writing, within seven business days of receipt of a written appeal, identifying:

(1)the date and location of requests for access to records;

(2)the records that were denied; and

(3)the name and return address of the appellant.

(e)A determination by the deputy commissioner upholding a denial of access to records shall be subject to court review as provided for in article 78 of the Civil Practice Law and Rules.

(f)Administrative appeals from, and judicial review of, State Energy Office denials of access to records under section 7801.7(b)(4) of this Part, and State Energy Office determinations to permit access to records despite requests that those records be accorded trade secrets status as provided in section 7801.9 of this Part, shall be governed by section 7801.9 rather than this section.

9 NYCRR 7801.9 - Trade secrets

Source version current through Oct 31, 2022

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Oct 31, 2022

(a)A trade secret may consist of, but shall not be limited to: proprietary data concerning past, present or planned future energy distribution, sales volumes, or prices; customer lists; proprietary energy conservation or renewable energy resource devices, processes or plans; and other information which is not published or divulged, disclosure of which would cause substantial injury to the competitive position of the submitter.

(b)A person requesting trade secret status for information submitted to the Energy Office on or after the effective date of this section (November 21, 1984) shall identify the information considered to be a trade secret and state the reasons why the information should be considered a trade secret. The request shall indicate:

(1)the specific information requested to be considered a trade secret, including, where applicable, page or form and line, chart or table designation;

(2)the confidential nature of the information, including a description of the nature and extent of the injury to the person's competitive position which would be incurred were the information to be disclosed;

(3)whether the information is treated as confidential by the supplier, including whether it has been made available to others;

(4)whether any patent, copyright or similar legal protection exists for the information;

(5)whether the public disclosure of such information is otherwise restricted by law, and the specific source and contents of such restrictions;

(6)the date upon which such information will no longer need to be kept confidential;

(7)whether the request itself contains information which, if disclosed, would defeat the purpose for which trade secret status is sought; and

(8)other factors considered relevant.

(c)Information submitted to the Energy Office under a request for or assurance of confidential or trade secret treatment prior to the effective date of this section shall be treated as though it were submitted pursuant to subdivision (b) of this section and such information shall not be disclosed by the Energy Office except as provided in subdivisions (d) and (e) of this section.

(d)Where information has been submitted to the Energy Office as provided in subdivisions (b) and (c) of this section, custody of such information shall be the responsibility of the commissioner of the Energy Office or his designee. Such information shall be excepted from disclosure and be maintained apart by the Energy Office from all other records in secure 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. Access by Energy Office personnel to such information shall be limited, and physical safeguards against any unauthorized access to such information shall be maintained, in accordance with security procedures established by the commissioner of the Energy Office or his designee.

(e)On the initiative of the Energy Office at any time, or upon the written request of any person for access to information as to which trade secret status pursuant to subdivisions (b) and (c) of this section has been granted or is pending, the Energy Office shall:

(1)inform the person who requested or received trade secret status of the Energy Office's intention to determine whether such status should be granted or continued;

(2)permit the person who requested or received such status, within 10 business days of receipt of notification from the Energy Office, 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, if any, requesting the record, the person who requested or received such status, and the Committee on Open Government.

(f)A denial of an exception from disclosure under subdivision (e) of this section may be appealed by the person submitting the information, and a denial of access to the record may be appealed by the person requesting the record in accordance with this subdivision.

(1)Within seven business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the Energy Office with the deputy commissioner for operations of the Energy Office.

(2)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 requested or received 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)Where the Energy Office denies access to a record pursuant to Public Officers Law, section 87(2)(d), the Energy Office 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 sections 7801.1 through 7801.8 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 preclude the Energy Office, in its discretion, from providing information as to which trade secret status has been granted or is pending to any other governmental body which agrees to maintain the confidentiality of such information in accordance with such terms and conditions as shall be set forth in a written memorandum of understanding to be entered into between the Energy Office and that governmental body.

9 NYCRR 7801.10 - Fees

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

(a)There shall be no fee charged for:

(1)inspection of records;

(2)search for records; or

(3)any certification issued pursuant to this Part.

(b)There shall be fees charged as follows:

(1)a fee of 25 cents per page for each copy not exceeding 9 × 14 inches in size for reproductions made on copying machines; and

(2)a fee equal to the actual cost of materials and machine time for reproductions which cannot be made on a copying machine. The actual cost shall be the average unit cost for reproducing a record, excluding fixed costs such as operator salaries.

9 NYCRR 7801.11 - Severability

Source version current through May 15, 2022

Later State Register activity may affect this section.

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: May 15, 2022

If any provision of this Part or the application thereof to any person or circumstance is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of this Part or the application thereof to other persons and circumstances.

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