1. (1) A person acting pursuant to law or regulation who submits any information to the Office of Mental Health may, at the time of submission, request that the office except such information from disclosure under section 87(2)(d) of the Public Officers Law. This section provides that an agency may deny access of records or portions thereof that are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise and which, if disclosed, would cause substantial injury to the competitive position of the subject enterprise. Where the request itself contains information which if disclosed would defeat the purpose for which the exception is sought, such information shall be excepted from disclosure.
2. (2) The request for an exception shall be in writing and state the reasons why the information should be excepted from disclosure.
3. (3) The person submitting the information shall clearly identify those records or portions of records for which the exception is requested. This may be accomplished by separating and attaching to such records a cover sheet or other suitable form of notice, using such language as “trade secret” or “proprietary information.”

4. (4) The person submitting the information may request an exception from disclosure for a limited period of time. If so, the person shall indicate that period of time when submitting the information.

   (b) Safeguarding against unauthorized access to records containing trade secrets.

5. (1) Information submitted as provided in subdivision (a) of this section shall be excepted from disclosure and be maintained apart by the office from all other records until 15 days after the entitlement to such exception has been finally determined by the office or such further time as ordered by a court of competent jurisdiction.
6. (2) The appropriate office deputy commissioners or facility directors, or their designees, shall be responsible for the custody of such records.
7. (3) Each employee who has custody of records containing trade secrets shall take appropriate measures to safeguard such records and to protect against their unauthorized disclosure.

8. (4) Simple and effective devices to identify and maintain repositories for records containing trade secrets shall be used so that their security is maintained.

   (c) Determination to grant or continue exception from disclosure.

9. (1) On the initiative of the office at any time, or upon the request of any person for a record excepted from disclosure as provided herein, the office shall:

   1. (i) inform the person who requested the exception of the office's intention to determine whether such exception should be granted or continued;
   2. (ii) permit the person who requested the exception, within 10 business days of receipt of notification from the office, to submit a written statement of the necessity for the granting or continuation of such exception; and
   3. (iii) 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 served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government.

10. (2) The following factors are among those the office may consider in making a determination to grant or continue an exception from disclosure under section 87(2)(d) of the Public Officers Law:

    1. (i) any provisions of the Mental Hygiene Law or other law which authorize or restrict access to the records;
    2. (ii) whether or not the records are trade secrets or are submitted to an agency by a commercial enterprise or derived from information obtained from a commercial enterprise which, if disclosed, would cause substantial injury to the competitive position of the commercial enterprise;
    3. (iii) the written request for an exception from disclosure and the reasons stated therein;
    4. (iv) the written statement, if any, of the necessity for the granting or continuation of the exception from disclosure;

    5. (v) factors pertaining to determining whether or not a trade secret exists shall include, but not be limited to:

       1. (a) the extent to which the information is known outside of the business of the person or entity submitting the information;
       2. (b) the extent to which it is known by the person's or entity's employees and others involved in the business;
       3. (c) the extent of measures taken by the person or entity to guard the secrecy of the information;
       4. (d) the value of the information to the person or entity and to competitors;
       5. (e) the amount of effort or money expended by the person or entity in developing the information; and
       6. (f) the ease or difficulty with which the information can be properly acquired or duplicated by others;

    6. (vi) factors pertaining to determining whether disclosure would cause substantial injury to the competitive position of the person or entity shall include but not be limited to:

       1. (a) the commercial value of the information to competitors;
       2. (b) the damage which disclosure could cause to the submitting person or entity; and

       3. (c) whether and at what cost the information can be obtained from other sources.

          (d) Appeal of action by the Office of Mental Health.

11. (1) A denial of an exception from disclosure under subdivision (a) of this section may be appealed by the person who requested the exception, and a denial of access to the record may be appealed by the person requesting the record in accordance with this section.

    1. (i) Within seven business days of receipt of written notice denying the request, the person may file a written appeal from the determination of the office pursuant to section 510.10 of this Part.
    2. (ii) The appeal shall be determined within 10 business days of the receipt of the appeal. Written notice of the determination shall be served upon the person, if any, requesting the record, the person who requested the exception, and the Committee on Open Government. The notice shall contain a statement of the reasons for the determination.
12. (2) A proceeding to review a determination adverse to a person requesting an exception from disclosure pursuant to this subdivision may be commenced pursuant to article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within 15 days of the service of the written notice containing the adverse determination provided for in subparagraph (1)(ii) of this subdivision.

(a) Submission of records containing secrets.