9 NYCRR Part 7842 - Executive Department

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

Sections in this Part carry different compiled dates; each section shows its own.

9 NYCRR 7842.1 - 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 decision making and the documents and statistics leading to determinations is basic to our society. Accordingly, the board's policy with respect to requests for its records is that disclosure is the rule and withholding is the exception. All records not exempt from disclosure will be made available.

(b)The board shall furnish to the public the information and records required by the Freedom of Information Law (article 6 of the Public Officers Law), as well as records otherwise available by law.

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

9 NYCRR 7842.2 - 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 chair is responsible for ensuring compliance with these regulations, and has designated the records access officer on the State Energy Plan website.

(b)The records access officer is responsible for ensuring appropriate responses to requests for access to records from the board.

(c)The records access officer shall ensure that the board and its staff:

(1)maintains an up-to-date subject matter list of records in the board's possession;

(2)assists persons seeking records to identify the records sought, if necessary, and when appropriate, indicates the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records;

(3)contacts persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that the board may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested;

(4)upon locating the records, considers the request in accordance with with sections 7842.5 and 7842.6 of this Part, then takes one of the following actions:

(i)makes records available for inspection; or

(ii)denies access to the records in whole or in part and explains in writing the reasons for denial;

(5)upon request for copies of records:

(i)makes a copy available upon payment or offer to pay established fees, if any, in accordance with section 7842.9 of this Part; or

(ii)permits the requester to copy those records;

(6)upon request, certifies that a record is a true copy; and

(7)upon failure to locate records, certifies that:

(i)the records are not in the possession of the board; or

(ii)the records of which the board is a custodian cannot be found after diligent search.

9 NYCRR 7842.3 - Location of 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

Records shall be available for public inspection and copying at a location designated by the board and posted on the State Energy Plan website.

9 NYCRR 7842.4 - Hours for public inspection

Source version current through Oct 31, 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: Oct 31, 2022

Requests for public access to records shall be accepted and records produced during all hours regularly open for business. These hours are 8:30 a.m. – 5:00 p.m. or at alternate hours at the board's discretion.

9 NYCRR 7842.5 - Requests for public 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)A request for records must be in writing. Any written request for records shall be deemed to be a request for records pursuant to the Freedom of Information Law, whether or not the Freedom of Information Law is mentioned in the request. A request for records may be sent to the State Energy Planning Board records access officer.

(b)A request for access to records must reasonably describe the records requested. Where possible, specific information regarding dates, title, file designations, and other information which may help identify the records, should be supplied by the requester. Where the information supplied by the requester is not sufficient to permit identification and location of the records by board staff without an unreasonable amount of effort, the requester will be contacted and asked to supply the necessary information. Every reasonable effort shall be made by board staff to assist in the identification and location of requested records.

(c)The board shall respond to a written request which reasonably describes the records sought within five business days of receipt of the request. When appropriate, the response shall include a statement that access to the records sought will be determined in accordance with section 7842.6 of this Part, "Confidential information."

(d)If the board does not provide or deny access to the record sought within five business days of receipt of a request, the records access officer shall furnish a written acknowledgment of receipt of the request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when the request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with section 7842.6 of this Part. If the board determines to grant a request in whole or in part, and if circumstances prevent disclosure to the person requesting the records within 20 business days from the date of the acknowledgment of the receipt of the request, the records access officer shall state, in writing, both the reason for the inability to grant the request within 20 business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. Reasons for an inability to grant a request within 20 days may include, but are not limited to, the following:

(1)when it is necessary to search for and collect the requested records from board members or other entities that are separate from the board; or

(2)the request requires the search for, collection or examination of a voluminous amount of records The response may set forth a request on the part of the board to confer with the requester to review the request to determine which records will satisfy the objectives and needs of the requester. The board's failure to conform to these provisions shall constitute a denial of access to records subject to administrative appeal pursuant to section 7842.8 of this Part.

(e)The time limitations on a response to requests for records shall begin to run as of the time a request for records is received by the records access officer and a date-stamp notation placed directly on the request.

(f)If the board has reasonable means available, the board will accept and respond to requests for records by electronic mail unless another form of response is requested or required.

9 NYCRR 7842.6 - Confidential information

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)Purpose and scope.

This section establishes procedures for the determination of confidential status of information submitted to the board, and for the retention by the board of confidential records.

(b)Definition of confidential information.

Confidential information 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; individual customer usage and billing data; proprietary energy conservation or renewable energy resource devices, processes or plans; critical infrastructure information; other trade secrets; and other information which is not published or divulged, disclosure of which would cause substantial injury to the competitive position of the submitter; or information required to be maintained as confidential pursuant to any law, regulation, order, tariff, or licensing condition.

(c)Records containing confidential information.

(1)Any person submitting information to the board pursuant to law, regulation or directive and requesting confidential status for such information shall clearly identify the information considered to be confidential and state the reasons why the information should be excepted or exempted from disclosure. A record containing confidential information shall be labeled, on each page as appropriate, using such words as "confidential," "trade secret," "proprietary information," "critical infrastructure information," or words of similar import. The request shall be in writing and indicate:

(i)the specific information requested to be considered confidential, including, where applicable, page or form and line, chart or table designation;

(ii)the confidential nature of the information, including a description of the nature and extent of the injury to the competitive position of the submitter (or to the person who supplied such information to the submitter) which would be incurred were the information to be disclosed;

(iii)whether the information is treated as confidential by the submitter, including whether it has been made available to others and, if so, under what conditions;

(iv)the worth or value of the information to the submitter (or to the person who supplied such information to the submitter) and to either such person's competitors if applicable or known;

(v)the amount of effort or money expended by the submitter (or to the person who supplied such information to the submitter) in developing the record;

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

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

(viii)the date upon which such information will no longer need to be kept confidential, if known;

(ix)whether the request itself contains information which, if disclosed, would defeat the purpose for which confidential status is sought;

(x)whether persons other than the submitter have any interest in maintaining the confidentiality of the information; and

(xi)other factors considered relevant to the submitter.

(2)Subject to the provisions of paragraph (6) of this subdivision, information submitted in accordance with paragraph (1) of this subdivision shall be submitted to the board's records access officer. Such information shall be maintained apart by the board from all other records until 15 days after the entitlement to confidential status has been finally determined, or such further time as ordered by a court of competent jurisdiction. Nothing in this section, however, shall bar the chair from disclosing the information in the form of a summary which aggregates information provided by at least three similarly situated submitters and which summary is adequate to protect the interests of the submitters in the information.

(3)On the initiative of the board at any time, or upon the written request of any person for access to information to which confidential status has been requested, the records access officer shall:

(i)inform the person who requested confidential status of the record access officer's intention to determine whether such status should be granted;

(ii)permit the submitter who requested such status, within 10 business days of receipt of notification from the records access officer, to submit a written statement of the necessity for the granting of such confidential status; and

(iii)within 10 business days of receipt of such written statement, or within 10 business days of the expiration of the period prescribed for submission of such statement, issue a written determination, including the records access officer's rationale for granting or denying such status. Copies of such determination shall be served upon the person requesting the record, if any, the major energy supplier or other person who requested or received confidential status, and the Committee on Open Government.

(4)A refusal to grant confidential status under paragraph (3) of this subdivision may be appealed by the person submitting the information, and a refusal to disclose the record may be appealed by the person requesting disclosure of the record in accordance with this subdivision.

(i)Within seven business days of receipt of written notice of such refusal, the person aggrieved may file a written appeal from the record access officer's determination with the chair.

(ii)The appeal shall be determined by the chair within 10 business days of the receipt of the appeal. Written notice of the determination shall be served upon the person requesting the record, if any, the person who requested or received confidential status, and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(5)A proceeding to review an adverse determination pursuant to paragraph (4) of this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules by the person seeking an exception or exemption from disclosure. Such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in subparagraph (4)(ii) of this subdivision. Neither the board nor the chair shall disclose such information prior to the time a claim of confidentiality is finally resolved by a court of competent jurisdiction, and thereafter any disclosure shall be consistent with the order of such court.

(6)Nothing in this section shall require any person to disclose any information that would violate any law, regulation, order, or licensing condition.

9 NYCRR 7842.7 - Subject matter list

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 records access officer shall maintain a reasonably detailed current list by subject matter of all records in the board's possession, whether or not records are available pursuant to subdivision two of section 87 of the Public Officers Law.

(b)The subject matter list shall be sufficiently detailed to permit identification of the category of the record sought.

(c)The subject matter list shall be updated annually, and shall be posted on the State Energy Plan website. The most recent update shall appear on the first page of the subject matter list.

9 NYCRR 7842.8 - Denial of access to records; appeals

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)Denial of access to records shall be in writing, stating the reason therefore and advising the requester of the right to appeal to the individual designated to determine appeals.

(b)If requested records are not provided in a timely manner, as required in section 7842.5 of this Part, such failure shall also be deemed a denial of access.

(c)The chair shall determine appeals regarding denial of access to records under the Freedom of Information Law.

(d)Any person denied access to records may appeal within 30 days of a denial.

(e)The time for deciding an appeal by the chair shall commence upon receipt of a written appeal identifying:

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

(2)a description, to the extent possible, of the records that were denied; and

(3)whether the denial of access was in writing or due to failure to provide records as required by section 7842.5 of this Part;

(4)the name and return address of the person denied access.

(f)The chair shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to the Committee on Open Government at the Department of State (DOS).

(g)The chair shall inform the appellant and the Committee on Open Government of the chair's determination in writing within 10 business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth in subdivision (f) of this section. A failure to determine an appeal within 10 business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.

9 NYCRR 7842.9 - 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 pursuant to this Part.

(b)Copies of records shall be provided upon the payment of or offer to pay a fee of 25 cents a page for copies not exceeding 9 by 14 inches, or the actual cost of reproducing such records if larger copies are required. If records are copied electronically to computer disk or to other media, copies will be provided upon the payment of or the offer to pay the cost of the computer disk or other such media, and any other actual costs incurred by the board. If it is not practical for the board to photocopy or electronically copy any such record, it will be copied commercially if the person requesting the copy pays or offers to pay the fee equal to the cost of such commercial reproduction.

(c)Preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of board staff 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 board staff time is needed, or if an outside professional service would be retained to prepare a copy of the record.

9 NYCRR 7842.10 - Public notice

Source version current through Jun 30, 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: Jun 30, 2022

A notice containing the title, business address and business telephone number of the records access officer and appeals person, and the location where records can be seen or copied, and the business address of the Committee on Open Government shall be posted on the State Energy Plan website.

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