N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 6-1.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 6-1.4 - Special rules applicable when a presiding officer is assigned

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

(1) Whenever a party seeks disclosure of information in an administrative proceeding, the party in possession of such information may request that it be granted confidential status. A party requesting confidential status shall submit the record containing such information to the presiding officer in electronic form or by mail and shall clearly identify the portions of the record considered to be confidential.

(2) The party submitting confidential information to the presiding officer shall also submit a comprehensive brief specifying in detail the reasons why such information should be accorded confidential status as provided for in section 6-1.3(b)(2) of this Subpart.

(3) Information submitted pursuant to 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.

(b) Initial determination of confidential status.

(1) After reviewing the information submitted under subdivision (a) of this section, the presiding officer shall make an initial determination of its relevance to issues in the proceeding. If such information is determined to be relevant, the presiding officer shall, within seven business days, issue a written determination granting or denying confidential status to the information or any portions thereof. The presiding officer may in any proceeding require that the information for which confidential status has been requested be submitted immediately under a protective order so that all parties may have access to the information without delay.

(2) After a determination that the information submitted is not relevant, the presiding officer shall return the information to the party who submitted it.

(3) In reaching a determination as to the status of the information, the presiding officer shall consider the information for which confidential status is sought, the material submitted by the party pursuant to paragraph (a)(3) of this section, and any other responsive documents, material or testimony deemed necessary or proper in keeping with the claims of confidentiality.

(c) Safeguarding confidential records in administrative hearings. The presiding officer shall take appropriate measures to preserve the confidentiality of trade secrets, confidential commercial information or critical infrastructure information. Measures to be considered include, but are not necessarily limited to:

(1) limiting access to the material;

(2) deleting sensitive material that is not relevant to issues in the hearing;

(3) aggregating or summarizing data in a manner that preserves the confidentiality of confidential information; and

(4) restricting attendance during portions of a hearing at which confidential proof is to be introduced.

(d) Appeal from a determination by the presiding officer.

(1) A determination that the submitted information does not merit confidential status under subdivision (a) of this section or a determination granting or denying access to the material, including determinations with respect to the measures that will be taken to preserve the confidentiality of the information, made under subdivisions (b) and (c) of this section, may be appealed in writing, in electronic form or by mail, within seven business days of receipt of such determination. The secretary 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.

(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.

N.Y. Comp. Codes R. & Regs. Tit. 16 §§ 6-1.4