1. (1) Any person submitting records, pursuant to law, regulation or directive, to the department and requesting trade secret or confidential commercial status for information contained therein, and any person or entity submitting, or otherwise making available, records to the department and requesting critical infrastructure status for information contained therein, shall submit the records to the department records access officer in electronic form or by mail and shall clearly identify the records or portions thereof considered to be confidential. This may be accomplished by separating and placing on or attaching to such information at the time of submission a cover sheet or other suitable form of notice, using such language as "critical infrastructure information," "confidential commercial information," “trade secret” or “proprietary”. Where the request itself contains information which, if disclosed, would defeat the purpose for which the exception is sought, such information shall also be excepted from disclosure.

2. (2) A person submitting trade secret or confidential commercial information to the department shall clearly state the reason(s) why the information should be excepted from disclosure, as provided for in section 87(2)(d) of the Public Officers Law. In all cases, the person must show the reasons why the information, if disclosed, would be likely to cause substantial injury to the competitive position of the subject commercial enterprise. Factors to be considered include, but are not necessarily limited to:

   1. (i) the extent to which the disclosure would cause unfair economic or competitive damage;
   2. (ii) the extent to which the information is known by others and can involve similar activities;
   3. (iii) the worth or value of the information to the person and the person's competitors;
   4. (iv) the degree of difficulty and cost of developing the information;
   5. (v) the ease or difficulty associated with obtaining or duplicating the information by others without the person's consent; and
   6. (vi) other statute(s) or regulations specifically excepting the information from disclosure.
3. (3) A person or entity submitting, or otherwise making available, critical infrastructure information to the department shall clearly state the reason(s) why the information should be excepted from disclosure, as provided in section 87(2) of the Public Officers Law.
4. (4) A person desiring confidential status for a limited period of time shall indicate such time frame at the time the information is submitted to the department.

5. (5) Failure to identify trade secret information at the time of submission may make the information accessible to others without notice to the person who submitted such information unless a specific exemption from disclosure by other statutes or regulations pertains to the information.

   (c) Responsibility for custody and maintenance of confidential records.

6. (1) The department records access officer shall ensure compliance and coordinate public requests for access to records as set forth in section 6-1.1 of this Subpart.
7. (2) The department records access officer shall be responsible for custody of such records.
8. (3) The manner of designating the persons responsible for maintaining confidential information while in the possession of office personnel shall be determined by each office director so as to adequately safeguard access to the information while at the same time providing the flexibility required for daily operations.
9. (4) All documents containing confidential information will be maintained apart by the department from all other records and will not be divulged to unauthorized persons so long as they remain classified as confidential.

10. (5) Information submitted pursuant to subdivision (b) of this section shall be excepted from disclosure and maintained apart by the agency from all other records until 15 days after entitlement to confidential status has been finally denied or such further time as ordered by a court of competent jurisdiction.

    (d) Safeguarding confidential records.

11. (1) Each office or employee having possession of the confidential information shall take appropriate measures to safeguard such information and to protect against its disclosure.

12. (2) The use of simple and effective devices to identify and manage a confidential record repository shall be established so that security is maintained.

    (e) Status of records prior to department determination.

13. (1) Until such time as the department makes a determination, confidential information submitted in accordance with subdivision (b) of this section shall be excepted from disclosure and be maintained apart and in a secure manner from other department records.
14. (2) Confidential status shall be granted to documents submitted in accordance with subdivision (b) of this section if a prima facie case for confidentiality is made and such status shall be continued until such time as the agency, on its own initiative, or at the request of any person for a record excepted from disclosure pursuant to section 89 of the Public Officers Law, finally determines the confidential status of the document.

15. (3) The initial determination with respect to the confidential status of a document shall be made by the department records access officer and the office director most immediately and directly involved with the content of the document on the basis of the information for which confidential status is sought and written material submitted with the information, as well as any written statement of the necessity for an exception from disclosure submitted pursuant to section 89(5)(b)(2) of the Public Officers Law.

    (f) Requests for access to department records granted confidential status or where determination pending.

16. (1) A request for access to department records granted confidential status, or where such a determination is pending, may be made by any person and shall be in writing. The department may at any time on its own initiative redetermine the classification of records granted confidential status.
17. (2) The department shall give written notice to the person who originally submitted the confidential records that the record has been requested and that a determination will be made regarding access. The original requester of confidential status shall have 10 business days from receipt of the written notice to submit a statement to justify an exception from public disclosure.

18. (3) Within seven business days of the receipt of a statement of justification from the person who originally submitted the record, or within seven business days of the expiration of the period prescribed for submission of the statement, the department records access officer shall serve a written ruling upon the person requesting access to the record, which either grants or denies access to the record. The ruling shall state the reasons for the determination. The ruling shall also be served upon the person who originally submitted the information, and the Committee on Open Government.

    (g) Appeal of negative determinations.

19. (1) A determination that the submitted material does not merit confidential status made under subdivision (e) or (f) of this section or the grant or denial of access to the records made under subdivision (f) of this section may be appealed in writing, in electronic form or by mail, within seven business days of receipt. The appeal is taken when it is received by the secretary who shall hear appeals from such negative determinations. The secretary may consult with the general counsel and the chief administrative law judge or their designees in reaching a determination. In addition, a copy of the appeal shall be served upon the opposing party and sent to the department records access officer.
20. (2) The secretary shall review the appeal and a written final determination shall be sent to the person requesting the record, if any, and the person who requested the exception within 10 business days after receipt of the appeal, which determination specifically states the reason or reasons for such final determination. A copy of the final determination shall also be sent to the Committee on Open Government, the department records access officer and posted on the commission's website.

(a) Definition of a trade secret.

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which provides an opportunity to obtain an advantage over competitors who do not know or use it.

(b) Manner of identifying trade secrets, confidential commercial information or critical infrastructure information.