Michael Barylski
NY State DEC
Cortland, NY

Dear Mike

Many months ago I asked "If a company asks for 'trade secrect, confidential status of data, is it always granted?"
My understanding of your response was that, yes... such status is alway granted. My questions now are:
   1- Why is it always granted?
   2- What is stoping the STATE (DEC) from just saying no to such request(s)?
   3- Under what authority, regulatory or statute, is such action taken and would such authority also allow the State (DEC) to also say no?

By saying yes, the burden is then placed on the citizen(s) to prove that the data does not warrant "confidential, trade secrect status".  Thus the public is always playing catch-up. In the Cargill case, the DEC goes ahead and issues the permit before such determination has been made.  We then have the potential for a disaster if it works out that important information was witheld from the public that could have benefited the public (and thus the State) in making a fully informed decision in a timely manner before a permit is issued.
Sincerely yours,

Bill Hecht
PO Box 86
Union Springs, NY
13160
315-889-7761

_______________________________________________

ANSWER:

New York State Department of Environmental Conservation

Division of Legal Affairs, Region 7

615 Erie Boulevard West, Syracuse, New York 13204-2400

Phone: (315) 426-7405 · FAX: (315) 426-7408

Website: wwwww.dec.state.ny.us

Erin M. Crotty Commissioner

April 12, 2004

Bill Hecht

PG Box 86

Union Springs, NY 13160

Dear Mr. Hecht:

I am responding to your April 6th inquiry to Michael Baryiski of our Cortland Office regarding the issue of "trade secrets" in the context of a request made under the New York State Freedom of Information Law (Article 6 of the Public Officers Law). As you may know, Public Officers Law §87 (2)(d) says that agencies "may deny access to 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." The rationale for State Agencies to use this "exemption" was explained quite well by the New York State Court of Appeals:

Commercial information is "confidential" for purposes of Freedom of Information Law (FOIL) if it would impair government's ability to obtain necessary information in future or cause substantial harm to competitive position of person from whom information was obtained.¹

In addition, NYSDEC's actions concerning records containing trade secrets are also governed by our rules and regulations found at 6 NYCRR 616.7. These regulations allow "...a person acting pursuant to law or regulation who submits any information to the department may... request that the department except such information from disclosure.... 6 NYCRR §616.7 (a)(1). The person must, under the regulations request "an exception... in writing and state the reasons why the information should be excepted from disclosure". 6 NYCRR §6 16.7 (a)(2). Also "the person submitting the information shall clearly identify those records or portions of records for which the exception is requested." 6 NYCRR §6 16.7 (a)(3) and "must show the reasons why the information should be considered to be a trade secret or to be information maintained for the regulation of commercial enterprise, which if disclosed would cause substantial injury to the competitive position of the person's commercial enterprise." 6 NYCRR

§6 16.7 (a)(4).

It is only after receiving the appropriate requests and considering several factors including those found in our rules and regulations at 6 NYCRR §616.7 (c)(2), that the Department would make a determination to grant an exception from disclosure under Public Officers Law §87 (2)(d).

I hope this explanation of our FOIL procedures has been helpful to you. If you wish to discuss the matter further, please feel free to contact me.

Sincerely,

Bruce S. Fein Regional Attorney

cc: Michael Barylski, Division of Environmental Permits

1. Encore College Bookstores, Inc. v. Auxiliary Service Corp. of State University of New York at Farmingdale, 1995, 87 N.Y.2d 410