PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
This is a consensus rule making to amend Part 10050 of Title 21 NYCRR.
Statutory authority:
Public Officers Law, sections 87 and 89
Subject:
Public Access to Records.
Purpose:
To conform the LIPA's regulations to non-discretionary statutory provisions in sections 87 and 89 of the Public Officers Law.
Text of proposed rule:
10050.1 Availability of public records.
(a) The public records of the Long Island Power Authority shall be available in accordance with this Part for inspection and copying upon written or oral request, reasonably describing the record or records sought, during the times provided in this Part at the authority's main office at [200 Garden City Plaza, Garden City]333 Earle Ovington Blvd., Suite 403, Uniondale, New York, 11553[0].
10050.2 Procedures regarding access to public records.
(a) A request for inspection or copying of a public record of the authority shall be made to the records access officer of the authority [orally or] in writing, and shall contain sufficient information to identify the particular record sought, including, if possible, information regarding the date, subject matter or other information describing the record sought. Any request shall be made either:
(1) in person, Monday through Friday, during regular business hours at the authority's main office at 333 Earle Ovington Blvd., Suite 403, Uniondale [200 Garden City Plaza], Garden City, N.Y., 11553[0]; or
(3) by electronic mail by sending the request to the authority at FOIL@lipower.org, or via the form provided at the Freedom of Information Law link on the authority's web site at www.lipower.org.
(b) The [deputy] general counsel is designated the records access officer. 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.
(d)(1) Upon receipt of a written request for a record reasonably described, the records access officer shall promptly determine whether or not the record requested is available for public inspection and copying under the provisions of article 6 of the New York Public Officers Law and will, within five (5) business days of the receipt of such request, either:
(i) deny such request in writing; or
(iii) [ask for a clarification of the request; or] furnish a written acknowledgment of the receipt of such request and a statement of the approximate date when such request will be granted or denied, including, where appropriate, a statement that access to the record will be determined in accordance with the procedure prescribed in section 89(5) of the New York Public Officers Law regarding trade secrets.
(2) [If access to records is neither granted nor denied within ten (10) business days after the date of acknowledgment of receipt of request, the request may be construed as a denial of. access that may be appealed.]When a request will be granted in whole or in part, if circumstances prevent disclosure to the person requesting the records within 20 business days after the date of the acknowledgment of the receipt of the request, a written explanation of the inability to grant the request within 20 business days shall be provided, together with a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part. If access to the records is neither granted nor denied within a reasonable time after the date of acknowledgment of receipt of a request, or if the agency fails to conform to the provisions of section 89(3) of the Public Officers Law, such failure may be construed as a denial of access that may be appealed.
(e) The authority shall grant access to records consistent with the public interest. However, the authority may deny access to records or any portion thereof if:
(8) [the record contains computer access codes.]disclosure, would jeopardize an agency's capacity to guarantee the security of its information technology assets, such assets encompassing both electronic information systems and infrastructures.
10050.3 Trade secrets, confidential commercial information or critical infrastructure information.
(b) Records or portions of records constituting trade secrets shall be so designated by the authority and shall be filed or maintained in secure facilities of the authority to which access is limited. Records or portions of records constituting trade secrets shall be held in the custody of the records access officer and shall be available for inspection and study by the authority's trustees[,] and [executive director, President of Shoreham Project, general counsel, executive director] officers, or their respective designees.
(c) A person acting pursuant to law or regulation who [, on or after January 1, 1982,] submits any record to the authority and who requests trade secret or confidential commercial status for information contained therein, and any person or entity who submits, or otherwise makes available, records to the authority and requests trade secret, confidential commercial status critical infrastructure status for information contained therein, may, at the time of submission, request that the authority, in accordance with the provisions of section 89(5) of the New York Public Officers Law, designate such record or any portion thereof as a trade secret or as containing confidential commercial or critical infrastructure information therein, and except such information from public disclosure under section 87(2)(d) of such law. Any such request shall identify in writing the record or part thereof alleged to be a trade secret or as containing confidential commercial or critical infrastructure information and state the reasons why, pursuant to subdivision (d) of this section, such record or portion thereof should be excepted from public disclosure. Within 15 business days of receipt of a written request for an exception, the authority will either grant or deny such request in writing.
A person requesting trade secret or confidential commercial status for information submitted to the authority shall identify the reasons why the information should be considered a trade secret or confidential commercial information.
(e) A person or entity submitting, or otherwise making available, critical infrastructure information to the authority shall in accordance with section 89(5)(1-a), identify in writing the reason(s) why such information should be excepted from disclosure. The authority will determine any request for exception from disclosure in accordance with section 89(5) of the Public Officers Law.
10050.4 Fees.
(b) Records required to be made available for public inspection will be photocopied by the authority if practicable and the person requesting a copy will be charged a fee of 25 cents per page for copies not exceeding 9" x 14", or the actual cost of reproducing [such records] any other record in accordance with the provisions of paragraph (c) of section 87(1)(c) of the Public Officers Law, except when a different fee is otherwise prescribed by statute[if larger copies are required]. If it is not practicable for the authority to photocopy any such record, it will be copied commercially and the person requesting the copy will be charged a fee equal to the cost of such commercial reproduction.
(e) In determining the actual cost of reproducing a record, the authority will include only:
i. an amount equal to the hourly salary attributed to the lowest paid authority employee who has the necessary skill required to prepare a copy of the requested record;
ii. the actual cost of the storage devices or media provided to the person making the request in complying with such request;
iii. the actual cost to the authority of engaging an outside professional service to prepare a copy of a record, but only when an authority `s information technology equipment is inadequate to prepare a copy, if such service is used to prepare the copy; and
iv. preparing a copy shall not include search time or administrative costs, and no fee shall be charged unless at least two hours of authority employee 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 an authority employee's time is needed, or if an outside professional service would be retained to prepare a copy of the record.
10050.5 Appeals.
(b) The following person shall hear appeals from denials of access to records, under Section 89(4)(a) of the Public Officers Law: [Executive Director]Vice President-Operations, Long Island Power Authority, [200 Garden City Plaza, Garden City] 333 Earle Ovington Blvd., Suite 403, Uniondale, New York 11553[0].
Text of proposed rule and any required statements and analyses may be obtained from:
Andrew McCabe, Long Island Power Authority, 333 Earle Ovington Blvd., Suite 403, Uniondale, New York 11553, (516) 222-7700, email: amccabe@lipower.org
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Consensus Rule Making Determination
Section 87 of Article 6 of the Public Officers Law (POL) provides that each agency shall promulgate rules and regulations in conformity with the Freedom of Information Law and applicable rules and regulations promulgated by the Committee on Open Government pertaining to the availability of records and procedures to be followed. In accordance therewith, Part 10050 of Title 21 of the New York Compilation of Codes, Rules and Regulations (NYCRR) was adopted to, among other things, prescribe the Authority's procedures upon receipt of a request for records. However, since modifications were last made to the Authority's rules and regulations, there have been additional revisions to the POL, including in 2003, section 89 (5)(1-a) of the POL which was amended to address handling of agency records containing critical infrastructure. The POL was later amended by Chapter 22 of the Laws of 2005, which amended subdivisions (3) and (4) of section 89 to revise the procedures agencies must follow in regard to written record requests, and again amended by Chapter 223 of the Laws of 2008, which included the addition of a new section 87(1)(c) in connection with fees for electronic information.
In light of the changes imposed by the revisions to the POL in 2003, 2005 and 2008, the proposed resolution amends Part 10050 of the NYCRR to provide that where the Department furnishes a written acknowledgement of the receipt of a request for records and a statement of the approximate date when such request will be granted or denied, such date shall be reasonable under the circumstances of the request. In addition, where a determination is made to grant a request in whole or in part, or where circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgement of the receipt of the request, the records access officer shall provide a written statement as to the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted.
To be consistent with these statutory amendments, the Authority has proposed this rule change as well as correct outdated information. The proposed rule also amend the authority's rules and regulations to clarify the process for the submission and treatment of confidential commercial information or critical infrastructure information in accordance with POL, section 87(2) and 89(5). In addition, the proposed rule provides for the submission of Freedom of Information Law requests to the Authority via email and clarifies, consistent with the Freedom of Information Law, that requests for access to records must be in writing pursuant to POL, section 89(3). As the amendment conforms current regulations to non-discretionary statutory provisions contained in the Freedom of Information Law, no person is likely to object to the adoption of the rule as written. The other changes are minor and technical in nature. Therefore, under Chapter 210 of the Laws of 1998, the proposed rule is advanced as a consensus rule pursuant to section 202(1)(b)(i) of the State Administrative Procedure Act.
Job Impact Statement
As the rule simply modifies Part 10050 of Title 21 of the New York Compilation of Codes, Rules and Regulations to revise the regulations governing public access to records maintained by the Long Island Power Authority, the rule will have no impact on jobs or employment possibilities as set forth in section 201-a(2)(a) of the State Administrative Procedure Act (SAPA). Therefore, a Job Impact Statement is not required by section 201-a of such Act.
