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Public Notice

Summary of Proposed Rule – Access to Records

The proposed rule will amend, repeal, and replace sections of Part 616, as it currently appears in 6 NYCRR. These amendments will update information such as Department addresses and internet access. In addition, the amendments will clarify and conform section 616.7 to existing law. Section 616.7 governs access to records that are identified as containing trade secrets, confidential commercial information, or critical infrastructure information. In 2003, the Legislature amended Public Officers Law (POL) section 89 (5)(1-a) to address handling of agency records containing critical infrastructure. To be consistent with this statutory amendment, the Department has proposed this rule change.

Persons submitting records to the Department may identify records or portions of records as containing critical infrastructure information pursuant to POL section 89(5)(1- a). The statute sets forth procedures for handling these records so identified. POL sections 89(5)(1-a) – (3).

The proposed rule will bring the regulatory definition of trade secrets into conformity with POL section 87(d).

The amendments also make the Department’s Access to Records regulations current with Laws of New York 2005 with respect to agency obligations to respond to freedom of information law (FOIL) requests.

The amendments conform the regulations to section 94 of the Personal Privacy Protection Act of the POL with respect to duties of the Department’s privacy compliance officer and staff with respect to handling of personal information.

The proposed rule also clarifies, consistent with law, that requests for access to records must be in writing and that in situations in which the description of the records sought is so unclear that the Department cannot retrieve the information without resorting to extraordinary means that the Department staff shall so notify the requester pursuant to POL section 89(3).

The proposed rule amendment also makes gender neutral certain language concerning appeals.

The Department is authorized by Environmental Conservation Law section 3-0301(a), General Functions, Powers, Duties and Jurisdiction and POL sections 87 and 89, Freedom of Information Law and POL sections 92, 94, 95 and 96, the Personal Privacy Protection Law to make these regulatory amendments. These laws govern state agency responsibilities with respect to providing the public with access to agency records.

These amendments will ensure that the Department’s regulations governing access to records are in accord with New York State law. The benefits to these amendments are that they will eliminate confusion engendered by any current disparities between the law and the Department’s regulations and will clarify the obligations of the Department and its protocols with respect to FOIL requests.

The complete text of the express terms may be found at www.dec.state.ny.us/website/regs/part616.html. For more information: contact Helene G. Goldberger – (518) 402-9003 or e-mail: hggoldbe@gw.dec.state.ny.us


Public Notice

Revised Request Form, Guidelines to Restrict Dissemination of Confidential Information, and Agreement to Maintain Confidentiality

RESEARCHERS USING PESTICIDE REGISTRY OR PESTICIDE APPLICATION INFORMATION
REPORTERS OF PESTICIDE INFORMATION TO THE NYS DEPARTMENT OF ENVIRONMENTAL CONSERVATION

Public Health Law § 2411(1)(d) requires the Health Research Science Board (“Board”) to review requests by researchers engaged in human health related research projects for access to pesticide registry information maintained by the New York State Department of Environmental Conservation pursuant to Environmental Conservation Law (ECL) § 33-1203(1)(b) and pesticide application information maintained by private applicators of pesticides pursuant to ECL § 33-1205(2)(c). Pesticide registry and pesticide application information sought by researchers may include the names, addresses and other information that would identify commercial or private applicators of pesticides and/or persons who receive the services of a commercial applicator (“confidential pesticide registry and pesticide application information”). PHL § 2411(1)(d) provides that the Board “shall establish guidelines to restrict the dissemination by researchers of the name, address or other information that would otherwise identify a commercial applicator or private applicator or any person who receives the services of a commercial applicator.”

In accordance with this statutory mandate, in 1998, the Board developed three documents:

a form to be used by researchers seeking pesticide registry information from the Board or pesticide application information from pesticide applicators (“request form”), guidelines to restrict the dissemination of confidential pesticide registry and pesticide application information by researchers (“confidentiality guidelines”), and a confidentiality agreement between a researcher and the Board, which would require the researcher to maintain the confidentiality of any confidential pesticide registry or pesticide application information obtained by the researcher from the Board or a private applicator (“confidentiality agreement”).

The Board made revisions to the above-mentioned documents and made the draft documents available for public comment on June 2, 2004. The Board approved and finalized the draft revisions at its annual public meeting on December 7, 2004. Additional minor revisions were made to the forms on May 16, 2005. These revised forms are now available to researchers who wish to gain access to the confidential pesticide registry and pesticide application information.

Copies of the revised request form, confidentiality guidelines, and confidentiality agreement may be obtained by calling the NYS Department of Health toll-free at 1-800-458-1158, extension 2-7820.