Sec. 80.6. Protection of exempt material, trade secrets and critical infrastructure information

(a) The records access officer may deny access to records or portions thereof that are exempt from disclosure under the laws of the State of New York or the United States, or deny access to records or portions of records that constitute critical infrastructure information or 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.

(1) Any person who submits information to the department, which is not otherwise exempted from disclosure under the laws of the State of New York or the United States, may request that the department except such information from disclosure as critical infrastructure information or a trade secret pursuant to sections 86(5), 87(2) and 89(5) of the Public Officers Law. Where the request itself contains information which, if disclosed, would defeat the purpose for which the exception is sought, such information will also be excepted from disclosure.

(2) The request for an exception must be in writing, specify the information or portions thereof for which the exception is requested, and state the reasons why such information should be excepted from disclosure.

(3) Records or parts of records identified as critical infrastructure information or trade secrets at submission shall be charged to the custody of the head of the division, bureau or office with which they are filed. That individual shall be entitled to inspect these records, shall identify the persons under his or her supervision who may inspect and copy these records and shall specify the safeguards for preventing unauthorized access to these records. The secretary and other persons within the department specifically designated by the secretary shall be entitled to inspect these records. Also, the designated records access officer, assistant records access officer(s), records appeals officer and assistant records appeals officer(s) shall be entitled to inspect and copy these records.

(b) The records access officer shall, at any time, or upon receipt of a request for disclosure of critical infrastructure information or trade secrets, determine whether the request for exception will be granted, continued, terminated or denied. Before doing so, such officer shall:

(1) notify the person who requested the exception that a determination is to be made, and of such person's right to submit a written statement, within 10 business days of the notice, regarding the necessity for granting or continuing the exception from disclosure;

(2) permit the person who requested the exception, within 10 business days of receipt of notification from the department, 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 exception and stating the reasons therefor; copies of such determination shall be mailed to the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government.

(c) A denial of an exception from disclosure under subdivision (b) 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 the procedure outlined in section 80.7 of this Part.