Sec. 3.7. Trade secret/competitive harm exemption

(a) Pursuant to Public Officers Law section 89(5), any person or entity that submits records to the department may, at the time of submission, request that the department except those records from disclosure under Public Officers Law section 87(2)(d), (record submitter). Where the request for an exception itself contains information that, if disclosed, would defeat the purpose for which the exception is sought, such information also shall be excepted from disclosure. The request for an exception shall be in writing and state the reasons why the records, or portions thereof, should be excepted from disclosure. The records submitted to the department shall be excepted from disclosure and shall be maintained separate and apart from all other records until 15 days after the department has finally determined that the records are not entitled to the exception, or such further time as may be ordered by a court of competent jurisdiction.

(b) Upon the initiative of the department, or upon a request for a record that the department maintains separate and apart from all other records pursuant to Public Officers Law section 89(5), the department shall:

(1) inform the record submitter of the department's intention to determine whether an exception should be continued;

(2) afford the record submitter 10 business days after receipt of notification from the department to submit a written statement in support of the necessity for the continuation of such exception;

(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 to the record submitter a written determination continuing or terminating such exception and stating the reasons therefor. Copies of such determination also shall be served upon the FOIL requester and the Committee on Open Government.

(c) A denial of an exception from disclosure may be appealed by the record submitter, and a denial of access to a record may be appealed by the FOIL requester, in accordance with the following procedures:

(1) within seven business days of receipt of the department’s determination, the record submitter or FOIL requester may file a written appeal of the determination with the department’s appeals officer; and

(2) the appeal shall be determined by the appeals officer within 10 business days after its receipt. Written notice of the determination shall be served upon the FOIL requester, the record submitter, and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.

(d) A proceeding to review an adverse determination of appeal pursuant to subdivision (c) of this section may be commenced by the FOIL requester or record submitter pursuant to article 78 of the Civil Practice Law and Rules. Such proceeding, if commenced by the record submitter, must be commenced within 15 days of the service of the written notice containing the adverse determination of appeal in accordance with the provisions of Public Officers Law section 89(5)(d).

(e) The record submitter shall have the burden of proving entitlement to the exception from disclosure provided by Public Officers Law section 87(2)(d), except when the department on its own initiative denies access to a record pursuant to that exception. In such event, the department shall have the burden of proving that the record falls within the exception from disclosure provided in Public Officers Law section 87(2)(d).