Protection of records containing trade secrets, confidential commercial information and critical infrastructure
Source version current through Mar 31, 2022
Source details
- NYCRR title agency
- Executive Department
- Section status
- Section source receipt
- Source version current through
- Mar 31, 2022
- Text saved
- Sep 13, 2026
- Publisher current-through date
- Mar 31, 2022
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- Sep 13, 2026
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- Matches the captured source text
- Related Register notice
- SGC-33-20-00006-A · Adopted rule
- Related notice published
- Dec 16, 2020
- Related notice effective date
- Dec 16, 2020
(a)The records access officer may deny access to records or portions of records that constitute trade secrets; that are maintained for the regulation of a commercial enterprise and, if disclosed, would cause substantial injury to the competitive position of the subject enterprise; or that constitute critical infrastructure information.
(1)For purposes of this section, trade secret means information of a commercial enterprise:
(i)that is not generally published or divulged;
(ii)that gives such commercial enterprise an opportunity to obtain an advantage over competitors who do not know or use it; and
(iii)the disclosure of which would:
(a)cause substantial injury to the competitive position of the commercial enterprise; or
(b)if openly disclosed, permit an unfair advantage to competitors of the subject enterprise, including any record including, without limitation: any proprietary data concerning past, present or planned future distribution, sales volumes, costs, or prices; customer or client lists; devices; processes or plans; formulas; patterns; procedures; studies; analyses, plans, and surveys; compounds; cost records; and compilations of information and other confidential or proprietary information.
(2)For purposes of this section, critical infrastructure means systems, assets, places or things, whether physical or virtual, so vital to the State that the disruption, incapacitation or destruction of such systems, assets, places or things could jeopardize the health, safety, welfare or security of the State, its residents or its economy.
(b)A person may, at the time of submission of a record to the commission, request that the commission designate all or a portion of such record as a trade secret and that the commission except such record from disclosure pursuant to Public Officers Law sections 87(2)(d) and 89(5)(a)(1). A person may, at any time, request that the commission designate all or a portion of such record as critical infrastructure information and that the commission except such record from disclosure pursuant to Public Officers Law section 87(2) and 89(5)(a)(1-a). The record for which a trade secret designation is sought shall be labeled using such words as "trade secret," "confidential," "proprietary information" or words of similar import. Such request shall be in writing, identify the record for which a designation and exception from disclosure is being requested, and state the reasons why the information should be excepted from disclosure. Requests for designation and exception from disclosure of trade secrets shall indicate, if appropriate:
(1)the specific record requested to be considered a trade secret, including, where applicable, the 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 commercial enterprise's competitive position, such as unfair economic or competitive damage, that would be caused if the record is disclosed;
(3)whether the record is treated as confidential by the commercial enterprise, including whether the record has been made available;
(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 that, 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 submitting commercial enterprise and the extent to which the record is known by its employees and others involved in the business of the commercial enterprise;
(9)the value of the record to the commercial enterprise and to its competitors;
(10)the amount of effort or money expended by the commercial enterprise in developing the records;
(11)the ease or difficulty with which the record could be properly acquired or duplicated by others; and
(12)any other factors considered relevant.
(c)When a record is submitted to the commission that a commercial enterprise deems to be a trade secret or to include critical infrastructure information, the record shall be excepted from disclosure. Each of the directors of the divisions of the commission, or their designees, shall be responsible for the custody of such records. Each commission employee who has custody of records containing designated trade secrets or critical infrastructure information shall take appropriate measures to safeguard such records and to protect against unauthorized disclosure. Records containing designated trade secrets or critical infrastructure information may be copied, distributed and evaluated only as required by authorized employees involved in the proper conduct of their State duties.
(d)On the initiative of the commission at any time, or upon the written request of any person for access to a record to which trade secret or critical infrastructure information status pursuant to subdivision (b) of this section has been granted or is pending, the commission shall follow the determination procedure set forth in Public Officers Law section 89(5).